Ward v. Louisiana Brief in Opposition to Writ of Certiorari

    No. 801

In %
Ipitpmtte CCmtrt of tin' lltutci) States

October Term, 1964

Edward W ard, Charles Cage, W illiam 
Chevalier, and Earl Davis,

Petitioners,
v.

State of Louisiana,
Respondent.

BRIEF IN OPPOSITION TO WRIT OF 
CERTIORARI TO THE SUPREME 

COURT OF LOUISIANA

JACK P. F. GREMILLION, 
Attorney General.

M. E. CULLIGAN,
Ass’t Attorney General.

JOHN HUNTER,
Special Ass’t Att’y General.

GEORGE T. ANDERSON, 
District Attorney.

RONALD C. MARTIN,
Ass’t District Attorney.

JOHN MAKAR,
Special Ass’t District Att’y.



1

TABLE OF CASES

PAGE
State v. Ashworth, (1906), 117 La. 212, 41 So2d

550; .......................................................................  10
State v. Durr, 39 La. Ann. 751, 2 So. 546;............  11
State v. Rogers (1961) 132 So2d 819, 241 La. 841; 12 
State v. Slack (1955) 227 La. 598, 80 So2d 89;.... 10
State v. Ware (1891) 43 La. Ann. 400; ................  12
State v. West (1931) 172 La. 344, 134 So. 243;.... 10
United States ex rel. Dukes v. Sain (1962) 297 F.

2d 799 ...................................................................  11

STATUTES
Constitution of Louisiana, Article 7, § 10............ 1, 12
LSA-R.S. 14:23 ......................................................  1, 12
LSA-R.S. 14:2 4 .................................................... -.......  2
LSA-R.S. 14:30 ......................................................  2, 12
LSA-R.S. 15:445 ........................................................... 2
LSA-R.S. 15:446 ........................................................... 3
LSA-R.S. 15:507 ..........................................................  3



No. 801

In tljp
^nprpntf (ttonrt of the Hnitfii States

October Term, 1964

Edward W ard, Charles Cage, W illiam 
Chevalier, and E arl Davis,

Petitioners,
v.

State of Louisiana,
Respondent.

BRIEF IN OPPOSITION TO WRIT OF 
CERTIORARI TO THE SUPREME 

COURT OF LOUISIANA

CONSTITUTIONAL PROVISIONS 
AND STATUTES INVOLVED

1. Louisiana Constitution of 1921, Article 7, § 10
§ 10. The Supreme Court has control of, and 

general supervisory jurisdiction over 
all inferior courts.

. . .  In criminal prosecutions, its appellate 
jurisdiction extends to question of law alone.

2. Louisiana Revised Statutes Annotated, R. S. 14:- 
23 (Volume 9, page 84)

§ 24. Parties to Crimes



2

The parties to crime are classified as:
(1) Principals; and
(2) Accessories after the fact

3. Louisiana Revised Statutes Annotated, R. S. 14:24 
(Volume 9, page 86 ):

§ 24. Principals

All persons concerned in the commission 
of a crime, whether present or absent, and 
whether they directly commit the act consti­
tuting the offense, said and abet in its com­
mission, or directly or indirectly counsel or 
procure another to commit the crime, are 
principals.

4. Louisiana Revised Statutes Annotated, R. S. 14:30 
(Volume 9, page 352) :

§ 30. Murder

Murder is the killing of a human being.

(1) When the offender has a specific in­
tent to kill or to inflict great bodily harm; or

(2) When the offender is engaged in the 
perpetration or attempted perpetration of ag­
gravated arson, aggravated burglary, aggra­
vated kidnapping, aggravated rape, armed 
robbery, or simple robbery, even though he has 
no intent to kill.

Whoever commits the crime of murder 
shall be punished by death.

5. Louisiana Revised Statutes Annotated, R. S. 15:- 
445 (Volume 11, page 453) :



3

§ 445. Inference of intent; evidence of acts 
similar to that charged

In order to show, intent, evidence is ad­
missible of similar acts, independent of the 
act charged as a crime in the indictment, for 
though intent is a question of fact, it need 
not be proven as a fact, it may be inferred 
from the circumstances of the transaction.

6. Louisiana Revised Statutes Annotated, R. S. 15:- 
446 (Volume 11, page 459):

§ 446. Evidence where knowledge or intent 
is material and where offense is one 
of a system

When knowledge or intent forms an es­
sential part of the inquiry, testimony may be 
offered of such acts, conduct or declarations 
of the accused as tend to establish such knowl­
edge or intent and where the offense is one 
of a system, evidence is admissible to prove 
the continuity of the offense, and the commis­
sion of similar offenses for the purpose of 
showing guilty knowledge and intent, but not 
to prove the offense charged.

7. Louisiana Revised Statutes Annotated, R. S. 15:- 
507 (Volume 12, page 80) :

§ 507. Specification of grounds for relief; 
trial; proof

Every motion for a new trial must specify 
the grounds upon which relief is sought, must 
be tried contradictorily with the district at­
torney, and the proof must correspond with 
the allegations of the motion.



4

RE-STATEMENT OF CASE

As set forth in the first two paragraphs of pe­
titioners’ application, on November 10, 1962 a post 
football game party was going on at the apartment of 
John Fisher situated on a corner of Lafayette and 
Second Streets, at 801 Second Street in the city of 
Natchitoches. A little after midnight, James Larry 
Weeks and Daniel J. Brupbacker left the party to go 
to the Circle Cafe for something to eat. This cafe 
was located on the corner of Lafayette and Washing­
ton or Front Street, one block east of the apartment.

Brupbacker was somewhat intoxicated and talk­
ing loudly, but as the two boys approached the men 
coming out of the colored entrance of the Circle Cafe 
about twenty-five or thirty yards away, Larry Weeks 
told Brupbacker to quiet down, and he did. (R. 155)

There were about eight people on the sidewalk, 
including two men, near the entrance of this cafe. ( R. 
156) Neither of these boys said anything to this 
group as they approached and passed them. However, 
Larry Weeks accidentally brushed one of the boys in 
passing. Nothing was said until the two boys had 
walked about five more yards past the group and 
one member of the group asked, “ What do you want?” 
or “ What are you doing?” (R. 157). One member of 
the group then reached a hand in his pocket as if he 
were going for “ something” . Weeks imitated this 
gesture as he and Brupbacker began to back toward 
the corner of Lafayette and Washington Streets in 
order to get around to the front entrance of the cafe as



5

Cage, Davis, Chevalier, Courtney and perhaps others 
began to advance and attempt to surround them. (R. 
106, 130) Counsel’s statement that “ a group of white 
men emerged (at this point) and came to the rescue 
of Weeks and Brupbacker” is not supported by the 
evidence. The two got around the corner, to the front 
entrance of the cafe, and opened the door when one 
member of the group, a boy by the name of W. C. 
Courtney who had gone to the Circle Cafe with Charles 
Cage, William Chevalier and Earl Davis, threw a 
rock or brick at Weeks and Brupbacker. It missed the 
two boys and struck the door of the Circle Cafe.

Petitioners’ counsel says that heated words were 
exchanged between Weeks and Brupbacker and some 
of the young negro boys, but the testimony of Weeks 
and Brupbacker was not contradicted by either Cage 
or Davis, who simply said that they got into an argu­
ment with the two boys.

Weeks picked up the rock or brick and hurled it 
at the pink and white Buick in which Chevalier, Cage 
and Davis were riding away, striking the windshield 
of the Buick.

Cage, Chevalier and Davis rode around the block 
and passed back in front of the Circle Cafe where a 
group had gathered. Apparently someone in the group 
hollered, telling them to stop, perhaps cursing. (R. 
742, 743)1 (R. 817)2

Cage, Chevalier and Davis then went looking for

mavis’ testimony.
2Cage’s testimony.



6

Cage’s uncle, Edward Ward, and found him at the 
Casa Grande or Casino Inn on Phillips Street. Cheva­
lier went inside and brought Edward Ward outside 
where they say “ we told Ward what happened” .3 Ed­
ward Ward said that he was told that they were 
standing on the sidewalk and some white boys came 
along and bumped into them and deliberately pushed 
them off the sidewalk. (R. 872) Neither Davis nor 
Cage told Ward that W. C. Courtney had first thrown 
a brick at the two boys at the Circle Cafe. (R. 759 
Davis) (R. 573 Cage) Ward further stated that 
Chevalier told him in response to his inquiry as to 
what he did when they pushed them off the sidewalk, 
“ that they didn’t do anything— that they didn’t want 
to get into any trouble and that a fellow picked up a 
brick and threw it through the windshield and broke 
the windshield.” (R. 872)

Ward’s, Davis’ and Cage’s testimony shows that 
Ward left the three boys standing together outside in 
front of the Casa Grande and that he went back in 
the cafe and there returned with George Wright to 
the latter’s Volkswagon automobile parked in front 
of the Casa Grande where Wright gave Ward the 
murder weapon. (Ward R. 873, 874) (Cage R. 805)

It was only after he had gotten the gun that 
Ward walked by his Buick and surveyed the damage 
to the windshield. (R. 874) At this time he had the 
gun in his right hand, which he says was at his side. 
(R. 874) Ward made no attempt to hide the gun after

nWilliam Chevalier’s statement and Earl Davis’ and Charles Cage’s 
statements and testimony.



7

he got it from George Wright’s car and walked across 
the street to the Buick and then to his station wagon 
which was parked in front of the Buick (R. 767), 
and although he says that the three boys were already 
in his station wagon, Earl Davis said that they were 
standing by the Buick when Ward walked up and said, 
“ come get in the car and go with him.” (R. 770) Cage 
says, “ well, we stood out by the car until he came 
back, and he told us to get in the car.” (R. 806)

Earl Davis testified that they stayed close to­
gether from the time they go to the Casa Grande 
until the time they left with Edward Ward with the 
exception of the time when Chevalier went inside the 
club to get Ward which was just long enough to go 
inside and come right back out. (R. 772)

Ward then told the three boys to take him down­
town to where the rock throwing incident took place. 
(R. 796, 797) Chief of Police, Boyd Durr, testified 
that by the shortest route the distance from the Circle 
Cafe to the Casa Grande Club was about one (1) mile.

The defendants approached 801 Second Street 
from the south on Second Street very slowly. (R. 301, 
329) While they denied slowing down until they ac­
tually turned off Second Street onto Lafayette, the 
testimony of Gary Harkins (R. 301, 306), who, in­
cidentally had drunk no alcoholic beverages that eve­
ning, and Charles Gowland (R. 328) contradicts this 
denial. Ward then drove his vehicle onto Lafayette 
and stopped, said something to the group of boys 
standing in front of the apartment, fired two shots at



8

one of these boys and hurriedly drove away to a club 
east of Natchitoches where he separated from Cage, 
Chevalier and Davis, advising them, if asked, to deny 
any knowledge of the shooting— (R. 847, 849)

ARGUMENT
I.

As a reason for granting the writ, the petitioners 
cite the then pending case of Robert Swain v. Alabama 
which was decided March 8, 1965 after the petitioners’ 
brief was filed.

The issues in the Swain case relative to the State’s 
peremptory challenges were not similar to the issue 
of the instant case. In that case there was some evi­
dence that negroes had been peremptorily challenged 
or struck by the prosecution from the petit jury. In 
the present case, there is no evidence at all that any 
negroes were peremptorily challenged by the prosecu­
tion. In fact, there is no proof at all on this point in 
the record, and this will be discussed under the head­
ing of the next point.

II.
The petitioners contend that the public prose­

cutor’s racial use of peremptory challenges to exclude 
negroes from jury service violated their right to due 
process and equal protection under the laws.

On April the 18th, 1963, the petitioners in this 
case filed a motion for a new trial (R. 963) alleging,

“ on the further ground that your defendants are
members of the colored race, and that even though



9

members of their race were on the regular venire, 
on the venire of tales jurors and among the by­
standers summonsed by the sheriff as prospective 
jurors after both the general venire and the 
venire of tales jurors had been depleted, all of 
those members of your defendants’ race who were 
interrogated as prospective jurors, who did not 
disqualify themselves, (Emphasis supplied) were 
peremptorily challenged by the district attorney 
and consequently no member of their race was on 
the jury that convicted them.”
A hearing was had on the petitioners’ motion for 

a new trial on April 24, 1963 at which time evidence 
was taken in support of the motion on other grounds, 
but the petitioners did not attempt to offer any evi­
dence at all to show any discretion on the part of the 
prosecution in the use of its peremptory challenges. 
In fact, it is the distinct recollection of the district 
attorney that the majority of the negroes all excused 
themselves principally, because they did not believe 
in capital punishment, and to a lesser extent, because 
of a close relationship or acquaintanceship with one or 
more of defendants which would tend to prejudice 
them. Additionally, while it is not asserted as a fact, 
it is the impression of the district attorney that the 
petitioners’ counsel exercised peremptory challenges 
himself in excusing several members of the colored 
race.

Petitioners assert that because the district at­
torney apparently did not contest the factual asser­
tion by them, the trial judge assumed the truth of 
the allegation in ruling that the state is excusing



10

negroes from service on the jury was exercising and 
utilizing peremptory challenges which it had a right 
to do.' Let it be noticed that the district attorney 
had no opportunity to make any kind of denial except 
by brief to the Supreme Court of Louisiana, and then 
deemed it unnecessary in view of the fact that there 
was no evidence to support the allegation.

Petitioners say on page 16 of their application,
“ that although the Supreme Court of Louisiana 
found that petitioners had not offered proof that 
negroes were systematically excluded by use of 
the state’s peremptory challenges, the Court chose 
to disregard this conclusion, exercised its discre­
tion and decided petitioners constitutional claim 
as if the allegations with respect to use of per­
emptory challenges were true.”
Petitioners admit that the Supreme Court of 

Louisiana found that they had offered no proof of 
this use of peremptory challenges. The law of Lou­
isiana requires that the allegations offered in support 
of a new trial be proved.' Defendants must make some 
showing to support a motion for a new trial.0 If al­
legations of a motion for a new trial are not supported 
by proof, the motion is properly overruled.4 * * 7 The de­
cision of the Court was based upon the jurisprudence 
of the State of Louisiana, however, the Court did go 
on to discuss the right of peremptory challenges by

4Petition for Certiorari, page 9.
r’LSA-R. S. 15:507, supra
sState v. West, 1931, 172 La. 344, 134 So2d 243, State v. Ashworth, 

1906, 117 La. 212, 41 So. 550
’’State v. Slack, 1955, 227 La. 598, 80 So2d 89.



11

both the state and the defendant8 *, State v. Durr0, 
and Dukes v. Sain10.

It might be said in passing that it would be an 
unskillful prosecutor indeed who would waste peremp­
tory challenges on the color of a man’s skin while 
knowing at the same time that after their exhaustion, 
he might be forced to accept a juror of the most prej­
udiced sort.

It is submitted that by authority of the Swain 
and Dukes decisions, and cases cited therein, the con­
tention of the petitioners in this respect is without 
merit.

III.

THERE WAS EVIDENCE FROM WHICH 
THE JURY COULD FAIRLY INFER THAT CAGE, 
CHEVALIER AND DAVIS KNEW THAT ED­
WARD WARD INTENDED TO KILL OR INFLICT 
GREAT BODILY HARM UPON THE BOY RE­
SPONSIBLE FOR BREAKING W ARD’S WIND­
SHIELD AT THE TIME THEY LEFT THE CASA 
GRANDE WITH WARD AND THAT THEY EN­
TERTAINED THE SAME INTENT AND AC­
TIVELY ASSISTED WARD IN THE COMMIS­
SION OF THE CRIME OF WHICH THEY WERE 
CONVICTED.

8167 So2d at page 362.
”State v. Durr, 39 La. Ann. 751, 2 So. 546
10U. S. ex rel. Dukes v. Sain, 297 F.2d 799 (1962) Writs denied 

369 US 868, 82 S. Ct. 1035, 8 L. Ed. 2d 86, Rehearing denied 370 
U.S. 920, 82 S. Ct. 1558, 8 L Ed 2d 500.



12

In criminal matters, the appellate jurisdiction of 
the Louisiana Supreme Court extends to questions of 
law alone.11

While the Louisiana Jurisprudence recognizes 
that the absence of any evidence at all to support a 
conviction becomes a matter of law,12 it is only in cases 
where there is no evidence at all tending to prove that 
particular fact which is essential to a valid conviction, 
that the Court may set aside the conviction for want 
of proof of the guilt of the defendant.13

Louisiana has abolished the common law distinc­
tion between principals and accessories before the 
facts, and parties to crimes are classified as principals 
and accessories after the fact.14

LSA R. S. 14:24 provides:
“ all persons concerned in the commission of a 
crime, whether present or absent, and whether 
they directly commit the act constituting the of­
fense, aid and abet in its commission, or directly 
or indirectly counsel or procure another to com­
mit the crime, are principals.”

The Louisiana statute defining murder requires 
the presence of a specific intent to kill or to inflict 
great bodily harm.15

“ Section 10, Article 7, Louisiana Constitution of 1921 as amended, 
supra

12State v. Ware, 1891, 43 La. Ann. 400
lsState v. Rogers, 1961, 132 So2d 819, 214 La. 841, Cert, denied 

82 S. Ct 1589, 370 U. S. 963, 8 L. Ed. 2d 830, and cases cited in the 
original opinion.

14LSA-R. S. 14:23
)r“LSA-R. S. 14:30



13

As to what constitutes one a principal, American 
Jurisprudence states the general rule to be that he 
must be present, aiding by acts, words or gestures and 
consenting to the commission of the crime, either be­
fore or at the time of the commission of offense, with 
full knowledge of the intent of the persons who com­
mit the offense.10 Therefore, one who inflames the 
mind of others and induced them by violent means to 
do an illegal act is guilty of such act, although he takes 
no other part therein. If he contemplates the result, he 
is answerable, although it is produced in a manner 
different from that contemplated by him. If he gives 
directions vaguely and incautiously and the person 
receiving them acts according to what he might fore­
see would be the understanding, he is responsible.17

Mere knowledge that a crime is going to be com­
mitted, in the absence of a duty to prevent it, does 
not make one guilty of participation in it, but 
where one takes another to the scene of the crime 
with knowledge that it is going to be committed 
or assist the active culprit to get away can not 
claim innocence.18

The instrument or means by which a homicide 
has been accomplished is always to be taken into 
consideration in determining whether the act is 
criminal and in what degree it may be so. When, 
in a prosecution for homicide, it is shown that 
the accused used a deadly weapon in the commis­
sion of a homicide which is the subject of the * 17 *

“ Am. Jur. Criminal Law, Volume 14, Sec. 87, page 826
17Am. Jur. Criminal Law, Volume 14, Sec. 90, page 829
“ Corpus Juris Seeondum, Sec. 88<2), page 263.



14

prosecution, the law infers or presumes from the 
use of such weapon, in the absence of circum­
stances of explanation or mitigation, the existence 
of the mineral element— intent, malice, design, 
premediation, or whatever term may be used to 
express it— which is essential to culpable homi­
cide.19

“ Evidence which shows or tends to show prepara­
tions, on the part of the defendant in a prosecu­
tion for homicide, for the killing is relevant, 
material, and admissible, whether the fact of 
killing is denied or the accused relies on self- 
defense. Proof may be given that shortly before 
the commission of the homicidal act, the defend­
ant procured a weapon such as caused the mortal 
wound.” 20

“ All minor or evidentiary circumstances which 
tend to shed light on the intent of the alleged 
slayer are admissible in evidence in a prosecution 
for homicide, although they may have happened 
previous to the commission of the offense 
charged.” 21

We must look to the record then to see whether or 
not there was intent, knowledge, and aid or assistance 
rendered to the petitioner Ward by the petitioners, 
Chevalier, Cage and Davis (hereinafter referred to 
as defendants), in order to determine whether there 
was some evidence of these essential elements to sup­
port their convictions.

"A m . Jur. Homicide, Volume 26, Sec. 305, page 360
20Am. Jurisprudence Homicide, Volume 26, Sec. 322, page 372
21Am. Jur. Homicide, Volume 26, Sec. 324, page 375



15

CAGE, CHEVALIER AND DAVIS HAD A 
MOTIVE FOR THE MURDER.

While Louisiana law does not require the proof 
of motive as an element of the crime, its existence 
shows a previous relationship between the parties and 
has an evidentiary bearing upon the actor’s intent.2'

There had been an argument between the three 
defendants and Weeks and Brupbacker of such in­
tensity as to motivate W. C. Courtney to throw a 
brick or large rock at them with such great force as 
to smash the door to the Circle Cafe. Weeks had 
thrown the stone back at them with such force as to 
break the windshield of Ward’s Buick they were driv­
ing, and causing glass to cut Chevalier’s head.

After leaving the Circle Cafe, making the block 
and driving past it again in search of Courtney, a 
group of boys who had gathered in front of the cafe 
hollered at them, telling them to stop and cursing. 
(R. 742, 743)1 (R. 817)2

Here was evidence of a motive of revenge.

EVIDENCE THAT CAGE, CHEVALIER AND 
DAVIS DELIBERATELY INCITED WARD TO 
VENGEFUL WRATH— EVIDENCE OF THEIR 
INTENT

The story related to Ward by these three defend­
ants was that they were standing on the sidewalk 
and some white boys came along and bumped into

“ Am. Jur. Homicide, Volume 26, Sec. 321, page 371 
footnote 1 supra 
=Footnote 2 supra



16

them and deliberately pushed them off the sidewalk. 
(R. 872) When Ward asked them, what they, the 
defendants did, they, through Chevalier their spokes­
man, replied that “ they didn’t do anything. That they 
didn’t want to get in trouble and that a fellow picked 
up a brick and threw it through the windshield, break­
ing it.” (R. 872) No one told Ward that W. C. Court­
ney had thrown the rock at the white boys first. (R. 
759 Davis) (R. 573 Cage) All three defendants par­
ticipated in this lie. (R. 574-805 Cage) (R. 555 Cheva­
lier) (R. 566 Davis)

EVIDENCE OF W ARD’S FRAME OF MIND 
AS IT BEARS ON INTENT

The above version of the rock throwing incident 
was highly inflamatory and of such a nature as to 
provoke anyone to anger. Ward’s car windshield was 
smashed by the boys at the Circle Cafe. His nephew 
who lived with him and his friends who worked for 
him had been badly handled and pushed around. They 
had been “ ganged” , cursed, (perhaps invited to come 
back and fight?) at the Circle Cafe— Chevalier was 
bleeding from a cut on his head— W. C. Courtney was 
missing. Ward got mad. “ I’m mad from the word go” , 
he said. (R. 880) He also gave this as a reason for his 
not thinking when he got a gun before leaving the 
Casa Grande Club to go downtown. Cage says “he 
(Ward) got mad” . (R. 574)

ADDITIONAL EVIDENCE OF W ARD’S IN­
TENT TO KILL OR INFLICT GREAT BODILY 
HARM



17

After listening to the rock throwing version in 
front of the Casa Grande Club, Ward went back in 
and returned with George Wright where Wright gave 
him the murder weapon from his Volkswagon parked 
in front of the club. (R. 873, 874 W ard). Ward did not 
even look at the damage to his Buiek until he passed 
by it in the process of getting to his station wagon to 
go downtown. (R. 874)

Ward told the other three defendants to come go 
show him downtown and show him the boys and where 
it happened and we would see about this. (Cage R. 
574)

Davis said Ward said, “ let’s go downtown to the 
place where the windshield got broken.” (R. 796, 797, 
568)

EVIDENCE THAT CAGE, CHEVALIER AND 
DAVIS KNEW OF W ARD’S INTENT TO COMMIT 
MURDER OR GREAT BODILY HARM UPON 
THEIR ANTAGOMISTS AT THE CIRCLE CAFE.

That Chevalier, Cage and Davis knew of Ward’s 
anger has already been shown. They also knew that 
Ward was armed.

Ward did not pretend that he made any effort 
to hide the gun as he walked across the street from 
Wright’s Volkswagon to his Buick, where the others 
were standing but he tried to make it appear that the 
others were already in his station wagon when he came 
across the street and got in it, hugging the gun close 
to him and slipping it under the seat to his right.

However, Cage said, “ we stood out by the car



18

until he (Ward) came back, and he told us to get in 
the car.”  (R. 806)

Davis said they were “ all standing up in front 
of the Buick right behind the station wagon.”  (R. 
767). Davis saw Ward at the Volkswagon and when 
he came over from the Volkswagon he told them to get 
in the car and go with him. (R. 769, 770)

Cage, Chevalier and Davis were not separated 
from the time they arrived at the Casa Grande until 
after the shooting with the exception of the time Cheva­
lier spent inside the club getting Ward, which was 
just long enough to go inside and come right back 
out. (R. 772 Davis)

Chevalier said in his statement, “ I think George 
gave him a pistol.”  (R. 555)

There was nothing to prevent the others from 
seeing Ward’s gun as he walked across the street, and 
they all got in his car. What was there to be seen could 
reasonably be inferred by the jury to have been seen.

An armed and angry man asked Cage, Chevalier 
and Davis to take him downtown where the rock 
throwing incident occurred and to show him the boys 
that did it. Ward’s intentions were unmistakeable.

EVIDENCE THAT CAGE, CHEVALIER AND 
DAVIS AIDED WARD IN CARRYING OUT HIS 
INTENTION.

Both Davis and Cage say that Ward told them 
to take him back downtown where the incident hap­
pened. (R. 574, 796, 797) The undisputed fact that



19

they did is evidence of their aid and assistance.
On the way downtown, the defendants passed the 

Sheriff’s office, State Police Substation, and came 
within one-half a block of the City Police Station but 
made no effort to seek official assistance. All of this 
rebuts Ward’s statement that he only wanted to see 
about getting his windshield paid for.

The circumstances surround the shooting itself 
goes far to reveal the intent and design of the defend­
ants.

In their testimony, the defendants seek to make 
it appear that they rolled up to the corner of Second 
and Lafayette Streets without hesitation and stopped. 
The purpose of this is to maintain the consistency of 
Ward’s defense that he was inflamed by someone’s 
invitation, “ you black bastard! Do you want to fight?” . 
However none of this is consistent with the facts.

Earl Davis says in his statement and in his testi­
mony that “ Ward asked us if that was some of the 
boys and we said yes, we think that is some of them” . 
(R. 749) In Cage’s testimony with reference to Ward 
asking if those were the boys (involved in the rock 
throwing incident), he said “ and we said we believe 
it was” . (R. 808) Davis admitted on cross examina­
tion that he got a good look at the boy who threw the 
rock through the windshield— that he was dressed in 
a white shirt, black trousers, coatless and hatless. (R. 
748)

Weeks described the murdered John Fisher’s dress 
and build



20

A. John had on a white dress shirt, dark tie and 
dark trousers similar to myself.

Q. Did he have on a coat?

A. No sir.

Q. Did he have on a hat?

A. No sir.

Q. Can you describe his general build?

A. Yes sir. He was— I guess he was, maybe, two 
or three inches shorter than I am— but maybe 
a little bit broader, but similar build. (R. 144)

It was the state’s theory that when the defendants 
first sighted the group of boys standing in front of 
the premises at 801 Second Street, Ward slowed the 
car down in order that his passengers might study 
them to see if any of these boys were those involved 
in the rock throwing incident and that they mistakenly 
identified John Fisher as the boy who threw the rock 
through Ward’s windshield, or Larry Weeks. This is 
borne out by the testimony.

Larry Weeks was sitting next to a window over­
looking the intersection of Lafayette and Second 
Streets when the lights from Ward’s car swept into 
the window and caused him to turn and look down, 
and as he did, he saw two flashes from the driver’s side 
of the vehicle. (R. 141) The vehicle appeared to be 
stopped partially onto Lafayette Street going toward 
Washington Street with the back part on Second 
Street. (R. 142) He ducked when the shots were fired 
and heard the car tires screech around the corner



21

going off fast down the hill toward Washington Street. 
(R. 143)

Daniel Brupbacker states that Donald Bates and 
Sidney O’Brien, who was escorting the former away 
from the house, were walking toward Texas Street, 
away from Lafayette and Second Streets, and that the 
witness walked up and said something to John Fisher 
and walked back to the steps of the apartment, and 
as he approached the steps he heard two shots. (R.
267) He states that Fisher was standing right in 
front of the steps on the sidewalk facing away from 
the corner of Lafayette and Second Streets when the 
witness turned and walked back toward the steps. (R.
268) When the shots were fired, he turned around 
and saw John Fisher fall on the ground and blood run 
out of his mouth. (R. 268) He says that as he turned 
and took a couple of steps back toward the house John 
Fisher was talking to O’Brien who was walking away 
from the front of the house in the opposite direction 
from the intersection from which the shots came. On 
cross examination, Brupbacker was asked,

“ Q. Did you hear Mr. Fisher say anything to any­
one other than some of the boys who were 
out there?

A. No sir.
Q. Did you hear Mr. Gowland say anything to 

anybody?

A. No sir.” (R. 291)

At the time of the shooting Gary Harkins was 
standing on the bottom steps of the apartment or on



22

the sidewalk right in front of the steps facing John 
Fisher and the street, Second Street in front of the 
apartment. (R. 300) Ward’s car was coming up Sec­
ond Street at this time. (R. 300)

Summarizing this witness’s testimony, he stated 
that he noticed the station wagon coming up the street 
and that its occupants put their lights on them. The 
witness thought it was someone who was about to park 
and come over to the house. He says that after look­
ing back at John, the car started coming back up the 
street again and that it then pulled in Lafayette Street 
at an angle, two shots were fired, the vehicle drove 
off and John Fisher was on the sidewalk. (R. 301). 
The witness says that at the moment the shots were 
fired John Fisher was talking to him, Danny Brup- 
backer and Charles Gowland with his back toward 
Lafayette and looking toward the witness to his right 
a little. (R. 302). His description of the approach of 
the automobile was that it slowed down almost stop­
ping to about two or three miles an hour, just barely 
creeping along, that two shots were fired and they 
were gone (R. 306). He says that it was stopped for 
only a couple of seconds (R. 317).

Summarizing Charles Gowland’s testimony, the 
witness stated that they were all standing outside the 
apartment and that there was no loud talk or disturb­
ance outside, just general conversation (R. 327). In 
a matter of minutes, he observed the white station 
wagon approach from the south on Second Street. He 
began to pay particular attention to it because the 
uncle and aunt of his girl friend whom he dated that



23

night had an identical station wagon, and he thought 
that perhaps it was she coming back to the apartment 
for some reason (R. 328). He went on to say that the 
car made a slow approach up Second Street, turned 
into Lafayette and stopped although he could not tell 
who was in the car, whether they were black or white. 
(R. 328). He stated that he heard something shouted 
from the car, although he was unable to understand 
what was said (R. 335), and then saw two flashes and 
the sound of a gun (R. 330) and John Fisher said, 
“ Fm hit.”  (R. 329). The witness stated that at first 
he thought it was a prank or firecrackers (R. 330).

This witness stated that he did not hear any one 
standing outside or any of his party at the premises 
say anything to the occupants of the station wagon. 
(R. 380)

With respect to the manner in which the car left 
the scene, Gary Harkins said it left as fast as it could. 
(R. 303)

The witness, Sidney O’Brien testified,

“ Well for a moment we stood out in front of 
the steps, well actually it was just a moment 
and Fisher wanted to know if I could handle 
Donald Wayne, and then, I said yes go on, go 
ahead and I would take him on to the dorm, so 
Donald Wayne and I had turned and were 
actually going north on Second Street, walk­
ing down the sidewalk to the car, and we had 
gotten along approximately to the end of the 
porch, and Donald Wayne decided he wanted 
to go back in, so I stopped him and was stand­



24

ing in front of him. And along about that 
time, well this— were these lights— car lights.”

Q. “ Were you looking in the direction of these 
lights?”

A. “ No sir. I was looking north on Second Street.”
Q. “ All right.”
A. “ And as I noticed the glare of the lights down 

the street, I glanced around to my left and I 
saw this— well it was new— it was a Ford 
station wagon. And— it was the rear end of 
it I saw, maybe four to six feet the rear end 
of it, turn to go on Lafayette Street. And I 
just glanced by back around and about that 
time well, Donald Wayne— well I heard these 
two shots, just bang, bang. Actually at the 
moment I thought it was a car load of high 
school kids and saw a bunch of us out there 
and threw a couple of firecrackers out to scare 
us, and well about that time Donald Wayne 
says ‘My God, he’s shot’, and both of us turned 
around about that time and Fisher was laying 
on the sidewalk with blood all over his face.” 
(R. 344)

These were the only witnesses outside of the 
apartment who knew anything about the shooting 
with the exception of Donald Wayne Bates, who died 
prior to the trial as was stipulated in the record.

Photographs introduced into evidence show the 
body of John Fisher lying on the sidewalk in front 
of the steps of the apartment where the witnesses tes­
tified that it fell.

Dr. Charles Cook, the parish coroner, went to



25

the scene of the shooting and later performed an au­
topsy on the body of the victim. His testimony estab­
lished that a bullet had entered John Fisher’s body 
from the back near the shoulder blade on the right, 
traveling up and slightly to the left, severing the large 
aorta of the heart and stopping just under the skin 
near the left nipple. (R. 205, et seq.)

The testimony of Dr. Cook relative to the path of 
the bullet through the victim’s body corroborates the 
testimony of the witnesses as to which way the victim 
was facing at the moment he was shot. Gary Harkins 
was standing on the steps facing John Fisher and 
Second Street at the moment of the shooting and he 
says that when Fisher was shot, he was facing toward 
us, he was to our left and was facing back toward us. 
(R. 302)

The location of these witnesses was also indicated 
by them on a large plat of the area marked Exhibit 
“ G” which was displayed to the jury.

This testimony is diametrically opposed to the 
defendant’s contention that John Fisher walked up to 
the station wagon and uttered a vile challenge. Ward 
said he stopped on the corner with the intention of 
questioning the fellows on the corner but that before 
he had an opportunity to open his mouth and say any­
thing, someone rushed up to him and said,

“ you black son of a bitch, do you want to fight.” , 
to which he replied, “ yes, I’ll fight, god damm it or 
words to that effect” . (R. 878), and that he 
reached down and got the gun and fired twice out 
of the window.” (R. 878-879)



26

Unquestionably Ward fired at the person whom 
he said rushed up to the car and uttered the challenge.

“ I fired at someone who approached the car, Fm 
trying to clarify this, I don’t know which one of 
the guys from the other one, that who ever made 
the remark to me and attempted to approach the 
car, that is the individual I fired at.”  (R. 893)

The evidence leaves no room for doubt that Ed­
ward Ward shot and killed a boy who appeared very 
much like the boy who had thrown a brick through 
the windshield of his car, and he could have known who 
that boy looked like only by having him pointed out 
by his co-defendants as he approached the premises at 
801 Second Street and studied the group of boys out 
front.

This evidence supports the state’s theory that 
Ward’s statement to the effect that “ I’ll fight you all 
right” , was not made in response to anything that was 
said by any of the boys standing out in front of the 
apartment but simply that Ward was finishing up 
something that he thought they had started.

The record abounds with evidence of aid Cage, 
Chevalier and Davis rendered to Ward in perpetrating 
this crime. There is evidence that they aided him with 
knowledge of what he intended to do— kill or inflict 
great bodily harm, and there is evidence that they 
actively entertained a similar intent and desired the 
resulting consequences.

The petitioners complain that the trial court did 
not sufficiently instruct the jury of the LSA R. S.



27

14:24, relating to principals. This point is raised a bit 
late. No objection was made to the charge nor was any 
special instruction requested. However, it is submitted 
that the language of this article should not be so dif­
ficult to comprehend to the average man, and there 
was evidence offered to prove the principal relation­
ship.

CONCLUSION
It is respectfully submitted that the petition for 

certiorari should be denied.

Respectfully submitted,

JACK P. F. GREMILLION, 
Attorney General.

M. E. CULLIGAN,
Ass’t Attorney General.

JOHN HUNTER,
Special Ass’t Att’y General.

GEORGE T. ANDERSON, 
District Attorney.

RONALD C. MARTIN,
Ass’t District Attorney.

JOHN MAKAR,
Special Ass’t District Att’y.



28

C E R T I F I C A T E
I, Jack P. F. Gremillion, a member of the bar of 

the Supreme Court of the United States and Louisi­
ana Attorney General, of counsel herein, hereby certify 
that a copy of the above and foregoing brief was served 
on Messrs.

James M. Nabrit, III
10 Columbus Circle
New York, New York, 10019

and
Russell E. Gahagan 
P. 0. Box 70 
Natchitoches, Louisiana

counsel for the petitioners, by depositing same in the 
United States Mail with sufficient postage affixed.

Jack P. F. Gremillion

B-179, 4-65