97 So. 458 | La. | 1923
On a bill of indictment charging defendant with murder, he was convicted of manslaughter, and was sentenced to the penitentiary for not less than nine and not more than ten years. Feeling that he was injured by some of the rulings of the trial court, he has appealed to this court for relief.
During the course of the examination of the prospective jurors on their voir dire, several of them answered, in response to questions propounded by the state, that they had conscientious scruples against the infliction of the death .penalty. The state challenged these jurors for cause on the ground of their entertaining those scruples, and defendant requested permission to traverse the challenges thus made, but the court refused to permit the traverse.
“That defendant had never gone to Jesus and that he was in his sins for the past 17 years.”
The district attorney also made comments as to defendant’s orthodoxy and lack of religious belief. The defendant requested the judge to instruct the jury that the comment of the district attorney as to his religious belief had nothing to do with the case, but the judge refused to give the requested instruction.
The bill discloses that there rvas no evidence before the jury concerning defendant as a religious man, nor does the record disclose that defendant or his counsel provoked the remark. No reasons are assigned by our brother of the lower court for refusing to give the instruction. Under the circumstances, we feel constrained to hold that the bill has merit. The district attorney should not have gone outside of the evidence adduced on the trial to assert that defendant had no religious belief and was not orthodox, and to comment thereon, or to make the rest of the remark attributed to him. The remark and comments were such, in our vipw, as to create bias and prejudice in the minds of the jurors against defendant, and to deprive him of that fair and impartial trial which the law and the Constitution demands. The proper instruction from the court might and probably would have counteracted the effect of that part of the district attorney’s argument, but the judge refused to give it. Under the circumstances, the error.is fatal to the verdict. See State v. Bessa, 115 La. 259, 38 South. 985, and 16 C. J. p. 909, § 2258.
We have examined the bills in the record, not discussed in this opinion, but find no reversible error in them.
For the reasons assigned, it is ordered, adjudged, and decreed that the verdict of the jury and the sentence of court, appealed