State v. Breedlove

7 So. 2d 221 | La. | 1941

Lead Opinion

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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The accused was indicted for the murder of Harold Posey, tried and convicted as charged without capital punishment and sentenced to life imprisonment. He appealed and relies upon alleged errors said to be patent upon the face of the record and thirteen bills of exception reserved during the course of the trial for the annulment of the verdict and the sentence.

The first error said to appear upon the face of the record resulted from the trial judge permitting the State to amend the indictment by changing the first name of the deceased from "Harold" to "Andrew Harrison (Hal)," while a plea of insanity filed by the defendant was pending before the court. The defendant objected on the ground that the plea of insanity had the effect of staying further proceedings until the report of the Sanity Commission — which later found the defendant sane — was returned.

The pertinent part of Article 253 of the Code of Criminal Procedure provides:

"* * * The court may at any time before, during or after the trial amend the indictment in respect to any defect, imperfection or omission in form or substance or of any variance with the evidence. * * *"

The ruling of the trial judge was proper under the law.

It is said that it appears from the record that when the motion to quash the indictment was tried, the defendant was not present in court when certain testimony was taken in connection therewith and, therefore, this was a reversible error, because under the law the accused must be present during the entire course of the trial, and particularly when evidence is being adduced in the case.

The State admits that the accused was not present in court in person, and was represented there by counsel when the motion to quash was tried, but contends that under the law it was not necessary for the accused to be present at that time because issue was not joined.

Article 256 of the Code of Criminal Procedure reads as follows:

"Before arraignment there is no issue between the defendant and the State, but if the defendant voluntarily enters upon the trial without arraignment it shall be considered as if he had pleaded not guilty."

In State v. Layton, 180 La. 1029, 158 So. 375, 377, the Court said:

"The jurisprudence of this state is settled to the effect that one who is tried for a felony must be personally present in court at every important stage of the trial from the moment of his arraignment to his sentence."

The record shows that the defendant was personally present in court at every important stage of his trial from the moment of his arraignment to his sentence. Therefore, this bill is without merit. See, also, State v. Hayden, 71 La. 495, 131 So. 575.

Bill of exception No. 1 was reserved when the trial judge overruled the defendant's challenge for cause of the prospective juror, O.W. Hogan. The counsel for defendant then peremptorily challenged Mr. Hogan and he did not serve as a juror on the trial of the case. This prospective juror was an intelligent and highly regarded citizen. He stated that he had discussed the case with the two state eyewitnesses to the killing and had formed a deliberate opinion, and before changing it he would require evidence; and that he and the deceased were employees of the City of Ruston and were good friends. When the district judge and the district attorney questioned him, he stated that he would set aside the opinion that he had formed and consider the case solely and only upon the evidence adduced in the court. However, when he was questioned by the defense attorney, he was quite uncertain that he could be a fair and impartial juror in view of his friendship with the deceased and the deliberate opinion he had formed after hearing the statements of the two state eyewitnesses and that if he were the defendant, he would not wish to be tried by a jury, composed of jurors whose minds were in the same condition as his. While it is true the trial judge had the discretion of deciding whether or not the juror was competent (State v. Bouvy,124 La. 1054, 50 So. 849, State v. Hebert, 104 La. 227, 28 So. 898 and State v. Mayfield, 104 La. 173, 28 So. 997, 998), nevertheless it is our opinion that he erroneously refused to sustained the defendant's challenge for cause. State v. Joiner, 163 La. 609, 611, 112 So. 503, and State v. McCoy, 109 La. 682, 692, 33 So. 730.

The trial judge, in his per curiam, maintains, first, that the juror was competent, but, secondly, he rests his ruling on Article 353 of the Code of Criminal Procedure, which reads as follows:

"No defendant can complain of any ruling sustaining or refusing to sustain a challenge for cause, unless his peremptory challenges shall have been exhausted before the completion of the panel; moreover, the erroneous allowance of challenges for cause affords the defendant no ground of complaint, unless the effect of such ruling is the exercise by the prosecution of more peremptory challenges than it is entitled to by law, or unless the defendant by such ruling is forced to accept an obnoxious juror."

In the instant case, it must be borne in mind that Hogan, who was peremptorily challenged by the defendant, did not sit as a juror in the case, and that after the defendant exhausted his twelve peremptory challenges, he made no complaint and it does not appear from the record that he was thereafter forced to accept an obnoxious juror; on the contrary, however, the per curiam of the district judge shows that after the defendant exhausted his twelve peremptory challenges, he accepted every juror without any complaint or objection whatsoever and that all of the jurors, who sat on his case, were accepted voluntarily by him.

The state contends that under the above quoted article of the Code of Criminal Procedure, before the defendant can complain of the ruling of the trial judge in refusing to sustain his challenge for cause, it must appear from the record (1) that the trial judge erroneously failed to sustain the defendant's challenge for cause, (2) that the defendant exhausted all of his peremptory challenges before the completion of the jury panel, and (3) that the defendant, by such erroneous ruling of the trial judge in not sustaining his challenge for cause, was forced to accept an obnoxious juror.

Counsel for the defendant contends that under the jurisprudence, as well as under the correct interpretation of Article 353 of the Code of Criminal Procedure, in order to obtain relief the defendant only has to show that the trial judge erroneously failed to sustain his challenge for cause and that he thereafter exhausted all of his peremptory challenges before the completion of the jury panel.

Whether or not an accused convicted of a criminal offense is entitled to obtain an annulment of the verdict of the jury and the sentence of the court and a new trial by merely showing, first, that the trial judge erroneously overruled his challenge for cause against the prospective juror and thereby illegally compelled him to use one of his peremptory challenges in order to prevent the juror from sitting in his case, and, second, that he subsequently exhausted all of his peremptory challenges before the jury panel was completed, is a question that has caused conflict in our jurisprudence. Some of the authorities declare that it is only necessary for the defendant on appeal to show that the trial court's ruling was incorrect and that he subsequently exhausted his peremptory challenges. Other cases hold that, in addition to the foregoing circumstances, the defendant must also show that as a result thereof, he was compelled to accept an obnoxious juror. Examples of the former authorities are State v. McCoy, 109 La. 682, 689, 33 So. 730 and State v. Guillory, 146 La. 434, 439, 83 So. 754. Authorities holding the latter view are State v. Creech, 38 La.Ann. 480, State v. Tibbs, 48 La.Ann. 1278, 20 So. 735, and State v. Addison, 134 La. 642, 64 So. 497, State v. Messer,194 La. 238-253, 193 So. 633, and State v. Crawford, 195 La. 428-430,196 So. 921. It will be noted, in the foregoing cases, no reference is made to the conflicting authorities. For a discussion of the subject, see Marr's Criminal Jurisprudence (1923), Volume 1, page 700, Section 461.

Apparently the vacillating jurisprudence above referred to was the reason why the framers of our Code of Criminal Procedure inserted Article 353 therein to clarify the law.

In State v. Tibbs, supra, the Court, on page 1282 of 48 La.Ann., on page 736 of 20 So., said:

"* * * Assuming, however, as correct, that the court should have at once ordered Barrow to stand aside, and have not compelled Tibbs to peremptorily challenge him, we find no resulting injury, for it is not claimed that `in consequence of the judge's ruling defendants had been compelled to accept an obnoxious juror.' State v. Creech, 38 La.Ann. 480."

In the case of State v. Addison, 134 La. 642, 651, 64 So. 497, 500, the accused was indicted, convicted, and sentenced for accepting a bribe, and he appealed. Bills of exception Nos. 2 and 3 were reserved to the court's ruling in refusing to sustain the defendant's challenges for cause against Messrs. McAlpin and Millican, who were called to serve as jurors. As a result of the judge's ruling the defendant used two of his peremptory challenges in order to keep them off the jury and thereafter exhausted all of his peremptory challenges. After the court discussed the facts elicited from these two prospective jurors on their voir dire examination and pointed out that the trial judge under the law had discretion in deciding whether or not they were competent, it said:

"* * * It may be added that both McAlpin and Millican were challenged, peremptorily, by defendant, after his challenges, for cause, had been overruled, and they did not serve on the jury by which defendant was tried. We may further add that, whilst we learn from the brief of defendant's counsel, and from a casual statement made by him in giving certain testimony, that defendant eventually exhausted his peremptory challenges, we find no intimation anywhere that he needed any, after they were exhausted; hence there is no disclosure of injury resulting fromthe ruling in the two cases above considered, even if that rulingwere found to have been erroneous, and we are not prepared to saythat such error would call for the setting aside of theconviction. Marr's Cr. Jur. of La. p. 541, § 326; State v. Woods, 112 La. [617], 622, 623, 36 So. 626."

In the case of State v. Joiner, 163 La. 609, 616, 112 So. 503, this Court referred to and discussed the case of State v. Addison, supra, and pointed out that from what was stated, it appeared the justices were not entirely satisfied with the trial court's ruling on the defendant's challenge for cause, quoting the last part of the above excerpt from the opinion.

In the case of State v. Messer, 194 La. 238, 253, 193 So. 633, 638, the trial judge, in his per curiam, followed the same course adopted by the district judge in the instant case, by first stating that the challenge for cause by the defendant was properly overruled, and if not, that Article 353 of the Code of Criminal Procedure was applicable, because it appeared from the record that the defendant was not forced as a result of the ruling to accept an obnoxious juror. The two jurors objected to having been peremptorily challenged by the defendant and did not sit in his trial. In discussing the matter, this Court stated:

"Defendant admits in his bill of exceptions, reserved to the ruling of the court, that he had not exhausted any of his twelve peremptory challenges, at the time his challenge for cause of the two jurors was made and was overruled by the trial judge.

"Although defendant states in his bill that thereafter he exhausted all of his challenges, he does not pretend in his bill that he was forced to accept an obnoxious juror, as he is required to show under the decisions of this court. State v. Addison, 134 La. 642, at page 651, 64 So. 497; State v. Creech, 38 La.Ann. 480; State v. Woods, 112 La. 617, 622, 623, 36 So. 626."

Thereafter the Court concluded that the defendant's challenge for cause, as to these two jurors, was not well-founded and that the ruling of the trial judge was correct.

Article 557 of the Code of Criminal Procedure reads as follows:

"No judgment shall be set aside, or a new trial granted by an appellate court of this State, in any criminal case, on the grounds of misdirection of the jury or the improper admission or rejection of evidence, or as to error of any matter of pleading or procedure, unless in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right."

In the case of State v. Henry, 197 La. 999-1019, 3 So. 2d 104, 111, the accused had been twice tried and convicted of murder and sentenced to death. Bill of Exception No. 13 was based upon the refusal of the trial judge to sustain the defendant's challenge of a certain prospective juror for cause. In holding that the trial court had committed reversible error, we said:

"The fact that a man has formed an opinion as to the guilt or innocence of an accused does not necessarily disqualify him from serving as a juror. If he states on his voir dire examination that his opinion would readily yield to the testimony adduced, that he could and would lay aside that opinion, he is competent. But where, as in the instant case, the juror makes it plain that he has an opinion and that he is not sure that he can lay it aside, he is not competent.

"After the court overruled defendant's challenge for cause, the juror was then challenged peremptorily, and the record shows that defendant had not then exhausted her peremptory challenges. But the record shows affirmatively that she did exhaust her peremptory challenges before the jury was completed, and that she was compelled to accept objectionable jurors after her peremptory challenges were exhausted.

"The established rule is that: `Where, in a criminal prosecution, a challenge for cause is improperly overruled, and the defendant's peremptory challenges are exhausted before the jury is obtained, the accused is prejudiced, and the verdict will be set aside.' Syllabus, Paragraph 6, State v. McCoy, supra. See State v. Guillory, supra, Syllabus, Paragraph 5.

"We think the rulings complained of, as set forth in Bills No. 7, 8, 9, 11, 13, and 14, were erroneous and highly prejudicial, and constitute reversible error."

It will be noted that the Court expressly pointed out that the record affirmatively showed that the accused was compelled to accept objectionable jurors after her peremptory challenges were exhausted. The statement by this Court — that where the defendant's challenge for cause is improperly overruled and he has exhausted his peremptory challenges before the jury is impaneled, the accused is prejudiced and the verdict will be set aside — is predicated upon the cases of State v. McCoy and State v. Guillory, supra, which, as we have already pointed out, are in conflict with the other authorities which require that the accused show that he was compelled to accept an obnoxious juror. As the accused in the Henry case had been compelled to accept the obnoxious jurors who sat in the trial of her case, the holding of this Court was eminently correct.

In the case of State v. Crawford, 195 La. 428, 430,196 So. 921, 922, the defendant was charged, convicted and sentenced for cattle stealing. Bill of exception No. 2 was reserved by the defendant to the ruling of the trial judge, ordering seven additional jurors to be drawn in order to complete a jury of twelve, after it became apparent that the accused should be tried by a jury of twelve instead of a jury of five, which had already been impaneled and sworn and to whom the district attorney had read the indictment. The accused had already exhausted his six peremptory challenges in selecting the jury of five and had pointed out to the court that he would thereafter be compelled to select the remaining seven jurors with only six challenges. Defendant also argued that under Article 277 of the Code of Criminal Procedure, he was entitled to have a mistrial entered and a new trial commenced with all of his peremptory challenges restored to him and to have the five jurors already selected retendered to him on their voir dire examination for acceptance or rejection. The opinion states:

"On the other hand, counsel for the state argues that there is nothing in the record to show that the defendant was forced to accept an obnoxious juror or in what manner he was prejudiced by the ruling of the trial judge, and that, therefore, he is not entitled to have his conviction and sentence set aside and a new trial granted."

The Court then pointed out that cattle stealing was a felony, and necessarily punishable at hard labor and, therefore, triable by a jury of twelve and that a trial by a jury of five would be an absolute nullity. The Court also concluded that on the trial of the case on the charge of felony, jeopardy only began when the jury of twelve had been selected and sworn, and the indictment read to them. The Court then said:

"* * * It necessarily follows, therefore, that the trial judge was correct in ordering that seven additional jurors be selected to complete the legal panel of twelve to try the defendant in this case, and unless he (the defendant) can show that he was prejudiced by this ruling, he is not entitled to have his conviction and sentence set aside. Article 557 of the Code of Criminal Procedure; State v. Campbell, 134 La. 828, 64 So. 765; State v. Sweeney, 135 La. 566, 65 So. 743; State v. Barnhart,143 La. 596, 78 So. 975; State v. Pierfax, 158 La. 927, 105 So. 16; State v. O'Day, 188 La. 169, 175 So. 838; and State v. Thornhill,188 La. 762, 178 So. 343.

"The only complaint made by the defendant is that such procedure is illegal and highly prejudicial to his constitutional and statutory rights, but in his bill of exception he does not give us the basis for such conclusion, nor does his counsel in his argument (brief) show how the defendant was prejudiced.

"From our review of the record we find that while defendant's counsel did have read into the minutes of the court, prior to his acceptance of the twelfth juror, the fact that the defendant had already exhausted his twelve challenges, he did not state that the juror was obnoxious or unacceptable to him. Consequently, we fail to see in what manner the judge's ruling could have resulted in a miscarriage of justice or be prejudicial to defendant's constitutional or statutory rights."

Returning now to the provisions of Article 353 of the Code of Criminal Procedure, it is obvious that if the court gives the language of this article the interpretation contended for by counsel for the defendant, the last two lines of the Article, that is "* * * or unless the defendant by such ruling is forced to accept an obnoxious juror * * *" will be entirely eliminated and given no legal effect. The words "such ruling" certainly refer back to the language "* * * any ruling sustaining or refusing to sustain a challenge for cause * * *" appearing in the beginning of the Article. This is made clear because a successful but erroneously allowed challenge for cause by the State, under no circumstances, can compel the defendant to accept an obnoxious juror. There is no complaint here that any erroneous allowance of challenge for cause by the State resulted in the prosecution getting more peremptory challenges than it was entitled to by law. In short, the article means that even though the trial judge erroneously failed to sustain the defendant's challenge for cause of the prospective juror and thereby forced him to peremptorily challenge the juror and although the defendant thereafter exhausted all of his challenges before the jury panel was completed, the accused is not entitled to complain of the erroneous ruling of the trial judge, unless it appears on the face of the record or by a formal bill of exception that he was forced or compelled to accept an obnoxious juror who sat in the trial of his case.

This is not only the correct interpretation of the article of the Code of Criminal Procedure, but from the foregoing authorities cited in connection with this bill of exception, it appears that it is in keeping with the better view expressed in our jurisprudence prior to the adoption of the Code and consonant with the legislative policy expressed in Article 557 thereof.

It is obvious that the State's construction of Article 353 gives full legal efficacy to all of its provisions and particularly the last two lines above quoted.

The argument that the State's interpretation of the article gives it impractical effect because it places the accused and his attorney in the position of having to run the hazard, after all of his peremptory challenges have been exhausted, of offending a prospective juror by challenging him and probably making him hostile to the accused, or, at least, prejudiced and biased against him after the accused is powerless to remove him from the jury: The answer to this contention is several fold: First, that the provisions of Article 353 of the Code of Criminal Procedure require the accused to challenge the juror, so as to have in the record evidence that the defendant was compelled or forced to accept an obnoxious juror, thereby showing that he suffered prejudice to his substantial constitutional or statutory rights, as he is required to do by Article 557 of the Code of Criminal Procedure, before he can have the verdict of the jury and the sentence of the court set aside and a new trial ordered by the court on appeal. Second, it is not at all certain that a juror, who had been challenged by the defendant and who sits in the trial after the judge overruled the defendant's objection, will be biased or prejudiced against the accused or hostile to him, simply because the defendant's attorney has stated that the juror has demonstrated by his voir dire examination that he is not a fair and impartial or competent juror within contemplation of the law. Third, if the defendant and his attorney are of the opinion that the objection to the juror will create an unfavorable impression against him, they could simply request the court to retire the selected jurors and the prospective juror from the court room, and the judge's ruling, adverse to the defendant, could then be dictated into the record and a proper bill of exception reserved, without the jurors knowing anything about it. Thus, in that way, the fears of the defendant against prejudice by the juror would be obviated. Fourth, if the defendant is compelled to accept an obnoxious juror, he has a right to reserve a perfectly good bill of exception.

The defendant's counsel, in this case, made no objections to any of the jurors selected after he had exhausted all of the peremptory challenges and made no request of the court that he would like to have an objection to the prospective juror made outside of his presence and the selected jurors' presence. On the contrary, the record shows that he accepted the jurors without any protest or objection whatsoever. Consequently, he has completely failed to show wherein the defendant was prejudiced or that any of his substantial statutory and constitutional rights were impaired.

Bill of exception No. 2 grows out of the following situation, which arose during the course of the trial: The judge ordered the clerk to produce in open court the tales jury box from which the names of forty tales jurors were drawn to be summoned to appear instanta for service as jurors in the case. A list containing the names of the forty tales jurors was handed to the sheriff and he proceeded to summon them, and the court adjourned at 1:30 p.m. There is conflict between the attorney for the defendant, the district attorney and the trial judge as to what transpired thereafter. The defendant's attorney's version is that when the court reconvened at 1:30 p.m., not more than half of the forty tales jurors, who had been drawn, had been summoned and were present for jury service. The defendant objected to proceeding further with the trial until such time as all the jurors should be served with their summons, or until the returns of the sheriff were filed in the case to show whether service had been actually made on the jurors or whether or not service on the jurors was impossible. Counsel for the defendant states that the court overruled the request and ordered the defendant to proceed with the trial, whereupon he reserved a bill of exception.

The district judge and the district attorney state that when the defendant objected to further proceedings until the sheriff reported upon the services made or attempted to be made upon all forty of the tales jurors, the judge ordered a thirty minute recess for the purpose of giving the sheriff additional time to serve the summons and make his report to the court and that when the half hour recess was over, the sheriff made a report on every juror as to whether or not he had been summoned and which ones were available and those who were unavailable. The case then proceeded without the defendant having renewed his objection.

The trial judge, in his per curiam, states:

"The Sheriff reported that there were several of the tales jurors out of the parish and away from home, making it impossible for him to serve them without considerable delay, but all of them that he was able to service came to Court and were submitted to counsel for examination and acceptance or rejection, such as he desired."

The accused's claim of prejudicial error, under these circumstances, is not well-founded, because all of the tales jurors who could be served were served and were submitted in the course of the trial to the defendant for examination and acceptance or rejection, as he desired.

There is nothing in the record to contradict the per curiams of the district attorney and the district judge as to what transpired, and therefore, in the absence of an affirmative showing to the contrary, the facts as stated by the trial judge will be accepted by this Court as true.

Bill of exception No. 3 was taken by the defendant when the lower court entered an order, after the jury of twelve had been impaneled and sworn, directing the sheriff to select an alternate juror under the provisions of Act No. 6 of the Legislature of 1940. The bill is first directed at the form of the order, because the sheriff was directed to select the alternate juror. The judge, in his per curiam, states that the alternate juror was selected in strict compliance with the provisions of Act No. 6 of 1940, so that even if the order of the court is improperly worded, defendant had no right to complain because the alternate juror was drawn and qualified in accordance with the Act of the Legislature, authorizing the same to be done.

The second ground of the exception is that Act No. 6 of 1940 is unconstitutional, being in violation of Article 7, Section 41, of the Constitution of 1921, which guarantees the accused, in a capital case, the right to be tried by a jury of twelve, all of whom must concur to render a verdict, and that as the alternate juror was selected and sworn under the statute to serve in the case, the accused was tried by a jury of thirteen.

The relevant part of Act No. 6 of 1940 reads as follows:

"Section 1. Be it enacted by the Legislature of Louisiana, That whenever, in the opinion of a judge of a district court of the State of Louisiana about to try a defendant or defendants against whom has been filed any indictment or bill of information, the trial is likely to be a protracted one, the court may cause an entry to that effect to be made in the minutes of the court, and thereupon, immediately after the jury is impaneled and sworn, the court may direct the selection of one or two additional jurors, in its discretion, to be known as alternate jurors. Such jurors must be drawn from the same source, and in the same manner, and have the same qualifications as the jurors already sworn, and be subject to the same examination and challenges; Provided, that each defendant shall be entitled to one peremptory challenge to each of the said alternate jurors, and the prosecution shall be entitled to one challenge to each of said jurors for each defendant. Such alternate jurors shall be seated near, with equal power and facilities for seeing and hearing the proceedings in the case, and shall take the same oath as the jurors already selected and must attend at all times upon the trial of the cause in company with the other jurors. They shall obey the orders of and be bound by the admonition of the court upon each adjournment of the court; and if the regular jurors are ordered to be kept in custody during the trial of the cause, such alternate jurors shall also be kept in confinement with the other jurors, and except, as hereinafter provided, shall be discharged upon the final submission of the case to the jury. If, before the final submission of the case, a juror die, or become ill, so as to be unable to perform his duty, the court may order him to be discharged and draw the name of an alternate juror, who shall then take his place in the jury box, and be subject to the same rules and regulations as though he had been selected as one of the original jurors."

The pertinent part of Section 41 of Article 7 of the Constitution reads as follows:

"The Legislature shall provide for the election and drawing ofcompetent and intelligent jurors for the trial of civil andcriminal cases; * * * Cases, in which the punishment may be at hard labor, shall be tried by a jury of five, all of whom must concur to render a verdict; cases, in which the punishment is necessarily at hard labor, by a jury of twelve, nine of whom must concur to render a verdict; cases in which the punishment may becapital, by a jury of twelve, all of whom must concur to render averdict." (Italics ours.)

In the instant case, the alternate juror sat near the jury during the trial of the case and was with the other jurors in the custody of the sheriff at night, but after the evidence was concluded and it was apparent his services would not be needed as a juror, he was excused and, therefore, only the twelve regularly selected and sworn jurors deliberated upon the accused's case and rendered their verdict.

The wording of Act No. 6 of 1940 and the Act of Congress, adopted June 29, 1932, found in Title 28 U.S. Code Annotated, Section 417a, is almost verbatim. While the constitutionality of the Louisiana statute has never been heretofore determined by this Court, very similar acts of other state legislatures have had their constitutionality determined by the courts of last resort in those states.

In American Jurisprudence, Volume 31, page 630, it is stated:

"* * * Likewise involving no infringement of the right to trial by twelve jurors, and constitutional, is a statute which provides that whenever, in the opinion of a trial court, the trial is likely to be a protracted one, the court may, immediately after the jury is impaneled and sworn, direct the calling of one or two additional jurors, to be known as `alternate jurors,' who shall have the same qualifications as the regular jurors, be subject to the same examination and challenges, who, after having taken the same oath as the other jurors, shall be seated near, with equal power and qualities for seeing and hearing the proceedings in the case, who shall attend at all times on the trial in company with the other jurors, and who may be called into the jury box to substitute for any juror dying or being discharged because of illness."

See, also, People v. Howard, 211 Cal. 322, 295 P. 333, 71 A.L.R. 1385; People v. Mitchell, 266 N.Y. 15, 193 N.E. 445, 96 A.L.R. 791, and State v. McClain, 194 La. 605, 194 So. 563.

It is our opinion that Act No. 6 of 1940 is constitutional, and as the alternate juror did not deliberate with the twelve regular jurors who rendered the verdict in the case, it can not be said that the defendant was tried by a jury of thirteen.

Bill of exception No. 4 was reserved by the accused to the ruling of the trial judge in refusing to sustain the motion to quash the indictment. This motion was founded upon the allegations that R.W. Henry, after being appointed a jury commissioner for the Parish of Lincoln, Louisiana, had been elected and qualified as a counselman for the Town of Dubach, Louisiana, and was serving in that office on the date that he acted as a jury commissioner in drawing the venire from which the grand jury, which indicted the accused, was selected and, therefore, being incompetent to hold the office as jury commissioner as required by Article 175 of the Code of Criminal Procedure, his acts as a jury commissioner were illegal. In short, Henry vacated his office as jury commissioner by qualifying for the office as a member of the town council. Article 175 of the Code of Criminal Procedure, relied upon by the defendant, provides that a person holding any public office shall be incompetent to occupy the office of jury commissioner. However, the jurisprudence of this State is well-established that the acts of an officer de facto, so far as they affect the public, should be recognized as valid. The case of State v. Phillips, 164 La. 597, 604, 114 So. 171, is in point and decisive of this issue. See, also, State v. White, 153 La. 300, 95 So. 776; State v. Smith, 153 La. 577, 96 So. 127; State v. Mitchell,153 La. 585, 96 So. 130; State v. Moreau et al., 153 La. 671, 96 So. 527; State v. White, 156 La. 770, 101 So. 136; and State v. Foster,164 La. 813, 114 So. 696.

The defendant's attorney has grouped together bills of exception Nos. 5, 6, 7 and 8, all relating to the admissibility of testimony offered in behalf of the State's case and objected to by defendant. Counsel concedes that even if the Court holds his objections were technically correct, the testimony admitted upon the alleged erroneous ruling, in any particular instance, would be insufficient to show such injury or damage to his client's case as to warrant the relief sought, but he takes the position that when the four alleged errors are considered jointly, it will appear that the substantial rights of his client were prejudiced.

We shall discuss the bills separately, taking up bill No. 5 first.

The State used four witnesses to prove its case — two eye witnesses, the coroner, and B.J. Taylor. In order to prove intent and motive the district attorney asked Taylor if the witness had any conversation with the accused four or five months before November 24, 1940, the date of the homicide, and what the accused had said. Defendant objected on the ground that the evidence was immaterial and irrelevant. The court overruled the objection and the witness stated in substance that defendant had told him about five months before the killing, he was going to kill Hal Posey, the deceased, if he did not stop interfering with him. Defendant can not control the State in its order of proof and the State's two eye witnesses' testimony tended to show that the accused, a young man 22 years of age, shot the deceased, a city police officer, when he and his fellow patrolman answered a call at a house, where the defendant and another young man were causing a disturbance, and that the accused opened fire upon the deceased when the officer inquired what was the matter. The evidence was admissible to show intent and motive.

Bill of exception No. 6 was reserved by the defendant when the district attorney asked the coroner of Lincoln Parish if the accused had made a statement to the official at the Ruston-Lincoln Sanatorium on November 24, 1940. Upon the witness stating that the defendant was suffering quite a bit from pain and mental confusion, the defendant's attorney interrupted the witness and objected to the witness giving the statement made by the defendant on the ground that he was not himself, or was mentally confused at the time. The court overruled the objection on the ground that objection went to the weight of the evidence and not to its admissibility. The witness then stated that the accused was in pain from a pistol shot wound in the arm and was in a confused mental state due to the fact that he had been drinking intoxicating liquor and was suffering, and that the defendant kept muttering that he had fixed him good (meaning he had fixed the deceased), and that he had poured them into him (meaning that he had poured the bullets into the deceased); and that the defendant was conscious of the fact that he had killed a man. There is nothing to indicate the accused was not conscious and fully aware of what he was saying. We find no error in the court's ruling.

Bill of exception No. 7 was reserved by the defendant when the court overruled the defendant's objection that the district attorney's question was leading. It appears that Ed Neal, a fellow officer of the deceased, had testified before the coroner's jury and the Lunacy Commission several months before the trial and the transcript of his testimony was voluminous.

The defendant's attorney had just finished a lengthy cross-examination of the witness and the district attorney, on re-examination, referred him to pages 1, 2 and 3 of the transcript, where the witness had previously made the statement: "I could tell from the fire in his gun that it kind of went down. I didn't have my gun out at that time." The district attorney asked the witness to see if he could find that in the transcript. Defendant's counsel objected, saying that the question was leading and suggestive. The district attorney replied that he was merely trying to save time by directing the witness' attention to the page in the lengthy transcript, where his previous statement could be found. The witness answered that he found the place of his testimony in the transcript. The transcript had been used by the defense attorney in cross-examining the witness and the State's attorney was entitled to also direct the witness' attention to a part of his previous testimony and where it could be found in the transcript. The question might be considered leading, but certainly the witness' reply did not do the defendant any harm or injury.

Bill of exception No. 8 was reserved by defendant to a question propounded by the district attorney to the eye witness, Ed Neal, to show that he had been informed that the defense attorney would put him through a rigorous cross-examination predicated upon his lengthy testimony previously given before the coroner's jury and the Lunacy Commission and that the witness had secured a copy of the transcript for the purpose of refreshing his memory. In the cross-examination of this witness, prior to this question, his credibility had been attacked by the defense. The defendant objected to the question on the ground that it was immaterial and irrelevant and assumed a statement of facts not proven and was an attempt on the part of the State to prejudice the jury against him. The trial court instructed the jury to disregard the statements, which passed between the State and defense attorneys, on the ground that what they said was not evidence or testimony and should not be considered by the jury. Whereupon, the district attorney withdrew the question before it was answered. The instruction by the judge to the jury was proper, and the question having been withdrawn by the State, it is clear that the defendant suffered no prejudice as a result of this incident.

Bill of exception No. 9 was reserved to the trial judge's ruling in sustaining the district attorney's objection that the defendant's counsel, in his argument before the jury, was going out of the record. It appears that counsel for the accused was arguing the case before the jury and stated: "I went to Mr. Neal, had known him for a long time, and asked him to give me a statement. He grinned and smiled and said — grinned and smiled as though he knew something I didn't." Mr. Neal was a state eye witness and a fellow police officer of the deceased.

There was no evidence before the court to this effect and defendant's attorney had not testified as to this occurrence. Upon the trial court's sustaining the district attorney's objection that counsel should confine himself to the record, defendant's attorney turned to the judge and said: "Does your Honor say it is traveling out of the record?" The judge replied: "Absolutely." Thereupon, the bill of exception was reserved on the ground that the trial judge was forbidden by Section 991 of the Revised Statutes from expressing any opinion or commenting upon the facts or evidence in any manner.

In the case of State v. McCollum et al., 135 La. 432, 65 So. 600, this Court held, under very similar circumstances, that the court's ruling did not amount to expressing an opinion or commenting upon the facts or the evidence of the case. The ruling in State v. McCollum, supra, was approved by the Court in State v. Iverson, 136 La. 982, 68 So. 98.

This Court, in the case of State v. Simon, 131 La. 520, 59 So. 975, declared that the trial judge had a right to sustain the State's objection to the defendant's attorney traveling out of the record in his argument to the jury, and that this was not a comment upon the facts or the evidence of the case by the judge.

The defendant's attorney has grouped bills of exception Nos. 10, 11, 12 and 13, reserved to the court's ruling in refusing to give four special charges requested. The trial judge declined to give the requested special charges on the ground that his general charge had fully covered the law, which was also contained in the requested special charges. Defendant's attorney states, in his brief, that the general, as well as the special charges requested, are in the record and the court can, by comparison, determine whether or not the general charge was ample. He does not point out in what respects the general charge was insufficient. We have read the general and special charges, and it is our opinion that the judge's general charge to the jury adequately covered the same legal instruction sought to be placed before the jury by the defendant's requested special charges.

For the reasons assigned, it is ordered, adjudged and decreed that the verdict of the jury and the sentence of the district court are affirmed.

PONDER, J., dissents.

ODOM, J., dissents from the ruling on Bill of Exception No. 1, except in so far as it is held that O.W. Hogan was not qualified to sit as a juror in the case, and that the trial judge should have sustained defendant's challenge of him for cause.

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Dissenting Opinion

The defendant was tried for murder, found guilty without capital punishment, and sentenced to life imprisonment. In his appeal he complains that by an erroneous ruling of the judge he was deprived of one of the twelve peremptory challenges which he was entitled to by law. In the selection of the jury he challenged for cause a prospective juror named Hogan, because, on his voir dire examination, Hogan disclosed that he had such a fixed opinion of the guilt of the defendant that he could not give him a fair or impartial trial. The judge, erroneously, overruled the challenge of the juror for cause; and the defendant was obliged to challenge him peremptorily. The minutes of the court show — and it is not disputed — that the State and the defendant each challenged peremptorily twelve prospective jurors during the impaneling of the jury. On the clerk's list it appears that the defendant challenged peremptorily nine jurors before and two more after he challenged Hogan.

The members of this court all agree that Hogan was disqualified for service as a juror and that the judge therefore committed an error in overruling the defendant's challenge for cause, and in thus compelling him to use a peremptory challenge on Hogan in order to prevent his serving on the jury. It is so admitted in the majority opinion in this case. But the four justices who subscribe to the majority opinion maintain that the defendant has no right to complain of the erroneous ruling — overruling his challenge for cause — because the defendant's bill of exception fails to show that he was compelled eventually, in consequence of the erroneous ruling, to accept an obnoxious juror. The three other members of the court — including the writer of this dissenting opinion — maintain that, inasmuch as the erroneous ruling compelled the defendant to use one of his peremptory challenges on a disqualified juror, the effect was to deprive the defendant of one of the twelve peremptory challenges which he was entitled to by law, and that the ruling was therefore "a substantial violation of a constitutional or statutory right".

There is in the Bill of Rights in the Constitution of Louisiana, in Section 10 of Article I, this guaranty: "In all criminal prosecutions, the accused * * * when tried by jury shall have the right to challenge jurors peremptorily, the number of challenges to be fixed by law". That guaranty was not included in the Bill of Rights in the Constitution of 1868 or in any previous Constitution of Louisiana. It appeared first in Article 8 in the Bill of Rights in the Constitution of 1879, and was retained in Article 10 in the Bill of Rights in the Constitution of 1898 and in the Constitution of 1913.

The number of peremptory challenges "fixed by law" was fixed in Section 997 of the Revised Statutes of 1870, and is now fixed in Article 354 of the Code of Criminal Procedure, thus: Each side is entitled to twelve peremptory challenges in a prosecution for a crime for which the penalty is death or necessarily imprisonment at hard labor; and each side is entitled to six peremptory challenges in all other criminal cases tried by a jury.

Therefore, if the defendant in a prosecution for murder — as in this case — is deprived of one of his twelve peremptory challenges, by being compelled by an erroneous ruling of the judge to use a peremptory challenge in order to get rid of a disqualified or incompetent juror, and if the defendant's peremptory challenges are exhausted in the impaneling of the jury, the erroneous ruling "constitutes a substantial violation of a constitutional or statutory right" — in the words of Article 557 of the Code of Criminal Procedure. It is declared in that article that one of the causes for which alone an appellate court should set aside a verdict and grant a new trial is that the error complained of "constitutes a substantial violation of a constitutional or statutory right."

In that respect the law was always the same and was not changed at all by the adoption of the Code of Criminal Procedure. In State v. Fourchy, 51 La.Ann. 228, loc. cit. 245, 25 So. 109, loc. cit. 116, it was declared:

"The right to 12 peremptory challenges so conferred [by Sec. 997 of Rev.Stat.] is an absolute one. The deprivation of the exercise of that right carries with it per se, as it does in every other case where the exercise of an absolute statute right has been refused or made unavailable, the nullity of the proceeding in which the refusal has taken place. It is not a question of injury at all, further than the injury itself of denying the right. The denial of the right is itself the injury. If further and subsequent injury were deemed to be necessary to enter as a factor in the case, such injury would, juris et de jure, be presumed. The proposition here announced is, we think, so elementary as to need no special citation of authority to support it." [The court, however, did cite several decisions.]

In the case of State v. McCoy, 109 La. 682, 33 So. 730, 731, the rule is stated in the 6th paragraph of the syllabus, thus:

"Where, in a criminal prosecution, a challenge for cause is improperly overruled, and the defendant's peremptory challenges are exhausted before the jury is obtained, the accused is prejudiced, and the verdict will be set aside, even though it be not shown that any juror objectionable to him was allowed to serve."

State v. McCoy was cited with approval in State v. Guillory,146 La. 434, 83 So. 754, and the rule was restated in the 5th paragraph of the syllabus, thus:

"Overruling of defendant's challenge for cause of proposed juror who had shown himself to be incompetent on his voir dire examination held reversible error, though defendant challenged the proposed juror peremptorily, where defendant was required to use all his peremptory challenges, since to deprive the defendant unlawfully of one of his peremptory challenges allowed by law is as wrong as it would be to compel defendant to accept an incompetent juror when all peremptory challenges are gone."

That rule stated in State v. McCoy and restated in State v. Guillory was declared to be "the established rule", less than six months ago, in the most recent decision on the subject, State v. Henry, 197 La. 999, 3 So. 2d 104, 111, thus:

"The established rule is that: `Where, in a criminal prosecution, a challenge for cause is improperly overruled, and the defendant's peremptory challenges are exhausted before the jury is obtained, the accused is prejudiced, and the verdict will be set aside.' Syllabus, Paragraph 6, State v. McCoy, supra. See State v. Guillory, supra, Syllabus, Paragraph 5."

The decision in State v. Henry was rendered long after the Code of Criminal Procedure was adopted; it was an unanimous decision; and the writer of the opinion in that case is one of the three dissenting justices in the present case.

It is conceded by the Attorney General and the District Attorney in their brief that before the adoption of the Code of Criminal Procedure all that was necessary to preserve the right of a defendant to complain of an erroneous ruling, overruling his challenge of a prospective juror for a cause which is found by this court to be a valid and sufficient cause, was that the defendant should have exhausted his peremptory challenges in the impaneling of the jury; and that it was not necessary that he should show that he was compelled by the erroneous ruling to accept an obnoxious or objectionable juror, or that he should show that he suffered any further injury than that he was deprived of his constitutional right to have twelve peremptory challenges. The Attorney General and the District Attorney say in their brief that they have examined every case bearing on this question, decided by this court before the adoption of the Code of Criminal Procedure. And in support of their conclusion as to what was the law on the subject before the adoption of the Code they cite State v. Fourchy, State v. McCoy, State v. Guillory, and Marr's Criminal Jurisprudence, 2d Ed., Vol. 1, p. 700, Sec. 461. These are the authorities mentioned in the majority opinion. The Attorney General and the District Attorney then state in their brief:

"This was the law, even though in many cases there were loose expressions by the Supreme Court in various decisions to the effect that the defendant should, in such a case, show a third thing, namely: that he was forced to accept an obnoxious juror. See Marr's Criminal Jurisprudence, 2d Ed., Vol. 1, p. 700, Sec. 461; State v. Tibbs, 48 [La.] Ann. 1278 [20 So. 735]; State v. Taylor, 45 [La.] Ann. [1303], 1305 [14 So. 26]; State v. Green, 43 Ann. 402 [9 So. 42]; State v. Ford, 42 [La.] Ann. [255], 256 [7 So. 696]; State v. Addison, 134 La. 642 [64 So. 497]."

I respectfully submit that it is not at all likely that the members of the commission who drafted Article 353 of the Code of Criminal Procedure — or the members of the Legislature who adopted it — intended thereby to adopt a doctrine which had no better foundation than some "loose expressions" of this court on the subject, instead of adhering to the doctrine which was well established by the decisions of this court, and which could not be renounced without violating a provision in the Bill of Rights.

Article 353 of the Code of Criminal Procedure — I respectfully submit — is misconstrued in the majority opinion in this case. The article is merely a restatement of the rules which were well established at the time when the Code was adopted — thus:

"353. No defendant can complain of any ruling sustaining or refusing to sustain a challenge for cause, unless his peremptory challenges shall have been exhausted before the completion of the panel; moreover, the erroneous allowance of challenges for cause affords the defendant no ground of complaint, unless the effect of such ruling is the exercise by the prosecution of more peremptory challenges than it is entitled to by law, or unless the defendant by such ruling is forced to accept an obnoxious juror." [The word "allowance" is italicized by me.]

The article is composed of two complete sentences, separated by a semicolon. The first sentence deals with erroneous rulings sustaining a challenge made by the State for cause, and also with erroneous rulings overruling a challenge made by the defendant for cause. The second sentence deals only with the erroneous allowance of challenges for cause by the State; this latter sentence does not refer to the erroneous overruling of challenges made by the defendant for cause. The erroneous sustaining or allowing of challenges for cause has reference, of course, only to challenges made by the State, because, in the very nature of things, the defendant could not have any possible objection to the sustaining of a challenge made by him for cause. Likewise, the erroneous overruling of challenges for cause has reference only to challenges made by the defendant, because, in the very nature of things, the defendant could not have any possible objection to the overruling of a challenge made by the State for cause. Therefore, where the lawgiver, in the first sentence in this article, declares that a defendant cannot complain of any ruling sustaining a challenge for cause unless the defendant's peremptory challenges shall have been exhausted before the completion of the panel, the challenges for cause, referred to, are challenges made by the State for a cause which is not a valid or sufficient cause. And, where the lawgiver, in the same sentence, declares that a defendant cannot complain of the overruling of a challenge for cause unless his peremptory challenges shall have been exhausted before the completion of the panel, the challenges for cause, referred to, are challenges made by the defendant for a cause which is in truth a valid and sufficient cause. The article, of course, deals only with erroneous rulings — sustaining a challenge by the State for a cause which is not a valid or sufficient cause, or refusing to sustain a challenge by the defendant for a cause which is a valid and sufficient cause.

The second or concluding sentence — after the semicolon — in this article of the Code, deals only with "the erroneous allowance of challenges for cause". It does not deal with the erroneous overruling of challenges for cause. Having declared in the first sentence that the defendant cannot complain of any ruling either sustaining or refusing to sustain a challenge for cause unless his peremptory challenges shall have been exhausted before the completion of the panel, the author of the article then, in the second sentence, declares "moreover" that the erroneous allowance of challenges for cause affords the defendant no ground of complaint unless the effect of such ruling is the exercise by the prosecution of more peremptory challenges than it is entitled to by law, or unless the defendant by such ruling is forced to accept an obnoxious juror. The phrase "by such ruling" means by the erroneous allowance of a challenge for cause. That is the only kind of erroneous ruling that is dealt with in that sentence. If the author of this article had intended to declare that a defendant shall not be allowed to complain of an erroneous ruling either sustaining or refusing to sustain a challenge for cause unless — in addition to his having exhausted his peremptory challenges in the impaneling of the jury — the effect of such ruling is to allow the prosecution more peremptory challenges than it is entitled to or unless the defendant by such ruling is forced to accept an obnoxious juror, there would have been no reason for declaring: "moreover, the erroneous allowance of challenges for cause affords the defendant no ground of complaint, unless the effect of such ruling * * *", et cetera. If that had been the intention, the phrase "moreover, the erroneous allowance of challenges for cause affords the defendant no ground for complaint" would have been omitted, and the word "and" would have taken the place of that phrase. The whole article then would have been written as it is construed in the majority opinion in this case — as it is broken down and reconstructed on the 7th page of the State's brief. There the proposed reconstruction is printed thus:

"No defendant can complain of any ruling * * * refusing to sustain a challenge for cause * * * unless the defendant by such ruling is compelled to accept an obnoxious juror."

That is exactly how the article is construed in the majority opinion, in its application to this case. The phrase "unless the defendant by such ruling is forced to accept an obnoxious juror" is not applicable to this case because the ruling complained of in this case was not an "erroneous allowance of a challenge for cause"; it was the overruling of a challenge by the defendant for a cause which the court now finds was a valid and sufficient cause.

In a supplemental brief for the State, it is suggested to "break this article down and see just what it means and says", and then the authors of the brief, after breaking down the article, attempt to make it applicable to this case by reconstructing it thus:

"No defendant can complain of any ruling sustaining or refusing to sustain a challenge for cause unless his peremptory challenges shall have been exhausted before the completion of the panel; moreover * * * or unless the defendant by such ruling is forced to accept an obnoxious juror."

There is no justification for deleting the clause "the erroneous allowance of challenges for cause affords the defendant no ground for complaint unless the effect of such ruling is the exercise by the prosecution of more peremptory challenges than it is entitled to by law". Unless the court deletes also the next word, "or", the phrase "or unless the defendant by such ruling is forced to accept an obnoxious juror" will be only an alternative requirement, or a substitute for the requirement that the defendant shall have exhausted his peremptory challenges, in order to preserve his right to complain of an erroneous ruling refusing to sustain his challenge for a cause which is adjudged by this court to be a valid and sufficient cause.

The following decisions are cited in the majority opinion to support the ruling that, even though a defendant has used all of his twelve peremptory challenges in the impaneling of the jury, he has no right to complain of an erroneous ruling, overruling a challenge of a juror for cause, unless by such ruling the defendant was forced to accept an obnoxious juror, viz.: State v. Creech, 38 La.Ann. 480; State v. Tibbs, 48 La.Ann. 1278, 20 So. 735; State v. Addison, 134 La. 642, 64 So. 497; State v. Joiner,163 La. 609, 616, 112 So. 503; State v. Messer, 194 La. 238, 253,193 So. 633; State v. Henry, 197 La. 999, loc. cit. 1019,3 So. 2d 104, loc. cit. 111; and State v. Crawford, 195 La. 428,196 So. 921.

I have read and studied carefully every decision cited in the majority opinion in this case, and I submit with great respect that none of these decisions gives support to this majority opinion on the question which we are considering now. The decisions cited are, for the most part, examples of what are rightly called in the State's brief "loose expressions by the Supreme Court". I shall proceed, therefore, to analyze every decision cited in the majority opinion on this subject.

In the first of the cases cited, State v. Creech, the ruling complained of was not that the judge erroneously overruled a challenge for cause, but that he erroneously sustained a challenge by the State for cause. In such a case, of course, it was always the law — and is so declared in the second sentence in Article 353 of the Code of Criminal Procedure — that "the erroneous allowance of challenges for cause affords the defendant no ground of complaint * * * unless the defendant by such ruling is forced to accept an obnoxious juror". For the defendant to complain of an erroneous ruling of that kind it is not enough that he shall have exhausted his twelve peremptory challenges. But we must remember that the erroneous ruling in the present case did not consist of an erroneous allowance of a challenge for cause. Besides, it is stated in the report of the decision in State v. Creech that the defendant did not exhaust his peremptory challenges "during the whole trial". The ruling in that case is stated accurately and completely in the syllabus, thus:

"The ruling of a trial judge in rejecting a juror under a challenge for cause by the State, affords of itself no legal ground of complaint to the accused. The right of peremptory challenge is a right to reject but not to select." [Italics mine.]

In the next case cited in the majority opinion, State v. Tibbs, the court cited State v. Creech to support its ruling. In the Tibbs case the complaint was not that the judge erroneously overruled a challenge of a disqualified juror for cause. The prospective juror, A.G. Barrow, had been selected regularly by the jury commission and summoned on the regular venire for the week, and was in court when, in the impaneling of the jury, a slip of paper bearing the name A.G. Bernard was drawn from the box by the sheriff. It was found that the name A.G. Bernard was intended for A.G. Barrow, who had "answered to his name when the venire was called in court". The defendant's counsel objected to the examining of A.G. Barrow on his voir dire, and reserved a bill of exception to the overruling of the objection. The defendant afterwards peremptorily challenged Barrow, and finally exhausted his peremptory challenges in the impaneling of the jury. This court said that the defendant's bill of exception was "obscurely drawn"; that it was difficult to know from the bill the ground of complaint; that the court "inferred" that the writing of the name A.G. Bernard instead of A.G. Barrow on the venire list was a clerical error and that the variance in the name was held immaterial by the judge; but that this court could not deal with bills of exception by reaching objections by inference. It was in those circumstances that the court quoted from the Creech case that the defendant had not shown that he "had been compelled to accept an obnoxious juror". The quotation from the Tibbs case, in the majority opinion in the present case, therefore, is not appropriate. In the Tibbs case the quotation from the Creech case is an exemplification of those unnecessary and unfortunate expressions which are so aptly called "loose expressions", in the State's brief in this case.

In the next case cited, State v. Addison, this court held that the district judge was right in his ruling that the two prospective jurors, McAlpin and Millican, were qualified to serve as jurors in the case; and that the judge was right therefore in overruling the defendant's challenge of McAlpin and Millican for cause. The court observed also that the statement in the defendant's counsel's brief that his peremptory challenges were exhausted in the impaneling of the jury "should have been in the bill of exception" [134 La. 642, 64 So. 499]. The subsequent statement by the court, therefore, that the court did not find any intimation that the defendant needed any peremptory challenges after they were exhausted, was not a part of the decision, and is also one of those "loose expressions" referred to in the State's brief. In Marr's Criminal Jurisprudence, 2d Ed., Vol. 1, p. 701, Sec. 461, the comment on State v. Addison, in the footnote, is this:

"134 La. 642, 64 So. 497. In this case the bill [of exception] did not show that the [peremptory] challenges had been exhausted, and the jurors objected to did not sit in the case, and the judge's refusal to allow the challenges for cause was upheld."

At the end of the quotation from the Addison case, in the majority opinion in the present case, the case of State v. Woods,112 La. 617, 622, 623, 36 So. 626, 628, is cited. In that case, all that the court said on the subject which we are now considering was this:

"Bills Nos. 8, 9, 10, 11 and 12 set forth objections to certain jurors, which were overruled by the court, but it does not appear from the recitals of said bills or from the record that the objectionable jurors served on the jury which tried the case. Accused, therefore, shows no injury."

In the syllabus in State v. Woods the court announced the doctrine which I stand for in this dissenting opinion, thus:

"Bills of exception, where jurors are challenged for cause and the challenge [is] overruled, should show that such jurors were accepted and sworn, or were challenged peremptorily by accused, who exhausted his peremptory challenges before a full jury was obtained."

There is no intimation in that case that the defendant is required to show that he was compelled to accept an obnoxious juror, in order to obtain relief from an erroneous ruling like the one in this case.

In the next case cited in the majority opinion, State v. Joiner, 163 La. 609, 610, loc. cit. 616, 617, 112 So. 503, loc. cit. 505, 506, the court held that the juror, Robertson, whom the defendant challenged unsuccessfully for cause, was disqualified, and that the district judge therefore committed an error in overruling the challenge and allowing Robertson to serve on the jury. The case of State v. Addison was cited as a case in which this court had held that a prospective juror, Millican, whose relation to the case was somewhat similar to the relation of the juror, Robertson, to the Joiner case, was in truth a qualified juror. It was recognized, therefore, in the Joiner case, that this court had held that the prospective juror, Millican, in the Addison case, was a qualified juror. In reconciling the ruling that Millican was a qualified juror in the Addison case, with the ruling that Robertson was not a qualified juror in the Joiner case, the court said in the latter case:

"While the court held the juror [Millican] to be competent [in the Addison case], it evidently was not entirely satisfied with the correctness of its ruling, for it finally said, in its opinion, that, although the defendant eventually exhausted his peremptory challenges, it found no intimation anywhere that he needed any, after they were exhausted; `hence there is no disclosure of injury resulting from the ruling, * * * even if that ruling were found to have been erroneous, and we are not prepared to say that such error would call for the setting aside of the conviction'."

The analysis which is given in the Joiner case, of the ruling which was made in the Addison case, shows that neither of these cases gives any support to the majority opinion on the subject which we are considering now in the present case.

The next case cited in the majority opinion in this case is State v. Messer, 194 La. 238, loc. cit. 253, 193 So. 633, loc. cit. 638, where the defendant complained of the judge's having overruled two challenges for cause, and this court held that the rulings, overruling the challenges for cause, were correct, thus:

"The ruling of the trial judge refusing to sustain the challenge for cause by defendant of the two jurors in this case is clearly correct."

There was then no reason whatever for the court to go further and say that the defendant's bill of exception did not show "that he was forced to accept an obnoxious juror, as he is required to show under the decisions of this court." In support whereof the court cited State v. Addison, State v. Creech and State v. Woods; none of which cases was appropriate.

An astonishing feature of the opinion in State v. Messer is that the court quoted the reasons given in the per curiam of the district judge for overruling the defendant's challenge of the two jurors for cause; and one of the reasons given was that the defendant had twelve peremptory challenges and therefore, according to Article 353 of the Code of Criminal Procedure, could not complain of the overruling of the challenges for cause. That part of the quotation from the per curiam (loc. cit. 252 of 194 La., loc. cit. 637 of 193 So.) reads thus:

"`The Court refused to sustain the challenge for cause by the defendant, on the ground first, that the defendant had twelve (12) peremptory challenges left at the time of the challenge, and on the further ground that the jurors qualified themselves for jury service in that on their voir dire examination, they stated that they knew nothing about the facts or the evidence in the case. * * *

"`The Court further based its ruling on Article 353 of the Code of Criminal Procedure, which provides that the defendant cannot complain of any ruling sustaining or refusing to sustain a challenge for cause unless his peremptory challenges have been exhausted, or unless defendant, by such ruling, would be forced to accept an obnoxious juror. After the ruling of the Court, the defendant challenged the two jurors peremptorily.'"

Immediately following that paragraph are the two paragraphs which are quoted in the majority opinion in the present case, and which amount to nothing when considered in connection with the fact that the ruling refusing to sustain the defendant's challenge of the two jurors for cause was a correct ruling. I made that fact plain enough in my concurring opinion (194 La. 267, 268, and 193 So. 642), thus:

"Referring to bill of exception No. 2, it is sufficient to say that inasmuch as the challenge of the two prospective jurors for cause was not for a legal or sufficient cause the judge was right in overruling the challenge. But the fact that the defendant then had twelve peremptory challenges left, and the fact that he did not complain afterwards of having to accept an objectionable juror, had nothing whatever to do with the judge's reason or reasons for overruling the challenge of the two prospective jurors for cause."

The next case cited in the majority opinion in this case is State v. Henry, 197 La. 999, loc. cit. 1019, 3 So. 2d 104, loc. cit. 111, where it is said that the defendant "was compelled to accept objectionable jurors after her peremptory challenges were exhausted". That statement would destroy the effect of the decision in the Henry case as authority for my interpretation of Article 353 of the Code of Criminal Procedure, were it not for the fact that the quoted statement in the Henry case is followed immediately by the declaration that the "established rule" is the rule given in State v. McCoy and in State v. Guillory. If we had believed that this "established rule" was abolished by Article 353 of the Code of Criminal Procedure, we would have said so in the Henry case. It is certain, therefore, that the decision in the Henry case is not authority for the majority opinion in the present case.

The next and last case cited in the majority opinion on this subject is the case of State v. Crawford, 195 La. 428,196 So. 921. The issue in that case had no reference whatever to Article353 of the Code of Criminal Procedure, or to the jurisprudence on the subject which we are considering now. In fact, Article 353 of the Code of Criminal Procedure is not mentioned in the opinion in that case, nor is any one of the decisions that are cited in the present case. The error complained of in the Crawford case was not — as it is in the present case — that the judge overruled a challenge for cause which he should have sustained. The complaint was that, on account of an error of the district attorney, a jury of five members was impaneled in a case which was triable by a jury of twelve; and after the error was discovered the judge allowed the jury to be completed by the impaneling of seven more jurors. The defendant asked the judge to enter a mistrial, or to begin the impaneling of the jury anew, and to return to the defendant the six peremptory challenges which he had used in the impaneling of the jury of five. He contended that his liberty had been put in jeopardy; which of course was not the case, because a jury of five did not have jurisdiction to decide the case of cattle stealing. The important fact in that case was that the defendant was not compelled by the ruling of the judge to waste a peremptory challenge on a disqualified or incompetent juror. Besides, the error of impaneling a jury of only five members — which error was promptly corrected — was attributable as much to the defendant's attorney's fault as to the district attorney's error. The quotation from the opinion in the Crawford case, in the majority opinion in the present case, has nothing to do with the interpretation of Article 353 of the Code of Criminal Procedure.

It is said on the 5th page of the majority opinion in this case [7 So. 2d 224¹] that the judge says in his per curiam that after the defendant exhausted his twelve peremptory challenges he accepted every juror without any complaint or objection whatsoever. The judge, evidently, overlooked the fact which is recorded in the minutes of the court that the State and the defendant each challenged twelve jurors peremptorily in the impaneling of the jury. That fact is not disputed. The judge states in his per curiam that the bill of exception did not show that the defendant exhausted his peremptory challenges and that in consequence of the overruling of the defendant's challenge of the juror, Hogan, for cause the defendant was compelled to accept an obnoxious juror. The judge adds that the attorney for the defendant "willingly and without any objection or protest whatever accepted every juror who served as such in the case." That statement should be taken altogether, and in connection with the omission of the judge to observe that the defendant did exhaust his peremptory challenges in the impaneling of the jury. Thereafter, there was no reason why the attorney for the defendant should continue to object or protest, or to ask for a thirteenth peremptory challenge, or to challenge an obnoxious juror for cause if in fact there was no legal cause for which the defendant could challenge successfully an obnoxious juror. What the judge failed to observe in writing his per curiam on this bill of exception was that by his erroneous ruling on the defendant's challenge of the juror, Hogan, for cause, the judge deprived the defendant unjustly of one of the twelve peremptory challenges which he was entitled to by law — in violation of a provision in the Bill of Rights.

It is said on the 14th page of the majority opinion in this case [7 So. 2d 227²] that the phrase with which Article 353 of the Code of Criminal Procedure terminates — "or unless the defendant by such ruling is forced to accept an obnoxious juror" — will be eliminated and have no legal effect, if the court interprets the article as the attorney for the defendant interprets it. It is said on that page of the majority opinion that the words "such ruling", in the last line of the article, certainly refer back to the phrase in the beginning of the first sentence in the article, "any ruling sustaining or refusing to sustain a challenge for cause". It is said that all of this is made clear by the fact that the erroneous allowance of a challenge for cause by the State could not under any circumstances "compel the defendant to accept an obnoxious juror". In the majority opinion there is no attempt to show — and in fact it is utterly impossible to conceive — how the phrase in the second sentence in this article, "unless the effect of such ruling is the exercise by the prosecution of more peremptory challenges than it is entitled to by law", could "refer back" to the phrase in the beginning of the first sentence, "any ruling * * * refusing to sustain a challenge for cause". The truth is — according to the rules of grammatical construction — that neither of these phrases, "unless the effect of such ruling is the exercise by the prosecution of more peremptory challenges than it is entitled to by law, or unless the defendant by such ruling is forced to accept an obnoxious juror", is applicable to an erroneous overruling of a challenge by the defendant for cause. Erroneous rulings of that kind are dealt with in the first sentence but not in the second sentence of the article. The erroneous allowance of challenges by the State for cause is dealt with in both sentences; that is, the erroneous allowance of challenges for cause affords the defendant no ground of complaint unless his peremptory challenges shall have been exhausted before the completion of the jury panel, and, moreover, unless the effect of such ruling is the exercise by the prosecution of more peremptory challenges than it is entitled to by law, or unless the defendant by such ruling is forced to accept an obnoxious juror. The only condition that is required to preserve the right of the defendant to complain of the erroneous overruling of a challenge for cause is that his "peremptory challenges shall have been exhausted before the completion of the panel".

Now, let us see if the statement on the 14th page of the majority opinion [7 So. 2d 227³] — that under no circumstances can the erroneous allowance of a challenge of a prospective juror by the State for cause force the defendant to accept an obnoxious juror — is a correct statement. If, after the State and the defendant both have exhausted their peremptory challenges, the judge erroneously sustains a challenge by the State of the twelfth juror (who is in truth qualified and competent to serve on the jury, and who is not obnoxious to the defendant), and if the next juror who is called in place of the one whom the State has successfully challenged for cause is also qualified and competent to serve on the jury, and is accepted by the State, but is obnoxious to the defendant, the defendant will be forced then — by the erroneous ruling allowing the State's challenge of the other juror for cause — to accept the obnoxious juror. In that case the obnoxious juror would not have been drawn, and the jury panel would have been completed without him, if the judge had not committed the error of sustaining the State's challenge of the other juror for cause. The likelihood of a defendant's being compelled, by an erroneous allowance of a challenge by the State for cause, to accept an obnoxious juror, was recognized in the case of State v. Aarons, 43 La.Ann. 406, 9 So. 114, where the court said:

"The ruling of a trial judge in rejecting jurors for cause under challenge by the state affords no legal grounds for complaint on the part of the accused, unless, after the exhaustion of his peremptory challenges, an obnoxious juror has been selected to try him."

That decision was quoted with approval in State v. Harris,107 La. 196, 31 So. 646, where the court again recognized that the erroneous sustaining of a challenge of a prospective juror by the State for cause could have the effect of forcing the defendant to accept an obnoxious juror. The court said:

"Where a juror is challenged for cause by the state, and the challenge is sustained over the objection of the accused, the latter has no legal ground of complaint, where his bill of exceptions does not show he had exhausted, or did exhaust before the jury was made up, his peremptory challenges, and, in consequence, he had been compelled, later, by reason of the earlier action of the court in sustaining the objection of the state to the juror in question, to accept an obnoxious juror."

It is easy to see also how the erroneous allowance of a challenge by the State for cause can have the effect of allowing the prosecution to exercise more peremptory challenges than it is entitled to by law. This is important because these two requirements are in the same sentence, viz.: "unless the effect of such ruling is the exercise by the prosecution of more peremptory challenges than it is entitled to by law, or unless the defendant by such ruling is forced to accept an obnoxious juror". Both of these requirements refer only to the erroneous allowance of a challenge by the State for cause; neither of them refers to the erroneous overruling of a challenge by the defendant for cause. Here is the illustration which the law books furnish, to show how the erroneous allowance of a challenge by the State for cause can have the effect of allowing the prosecution to exercise more peremptory challenges than it is entitled to by law: If the judge erroneously sustains a challenge or more than one challenge by the State for cause, and if, when the impaneling of the jury is completed, the State has exhausted its peremptory challenges or has less peremptory challenges remaining than there were erroneous rulings sustaining challenges by the State for cause, the effect of the erroneous ruling or rulings is to allow the prosecution more peremptory challenges than it was entitled to by law. It was so recognized in State v. Jackson, 42 La.Ann. 1170, 1171, 8 So. 297, thus:

"If the [state's] challenge for cause had been overruled, the state might still have challenged him peremptorily; and nothing on the bill, or in the record, suggests that the state had exhausted, or ever did exhaust, her peremptory challenges."

It is said on the 15th page of the majority opinion [7 So. 2d 227⁴] that Article 353 of the Code of Criminal Procedure requires that, after the judge has erroneously overruled a challenge of a juror by the defendant for cause, and the defendant has exhausted his peremptory challenges, he must challenge another juror, "so as to have in the record evidence that the defendant was compelled or forced to accept an obnoxious juror". There is no such requirement in Article 353 of the Code of Criminal Procedure. When the judge, by erroneously overruling the defendant's challenge of a juror for cause, deprives him unjustly of one of the twelve peremptory challenges which the law allows him, the judge denies him a right which is guaranteed to him in the Bill of Rights. According to Article 557 of the Code of Criminal Procedure, one of the grounds for which an appellate court must set aside a conviction and grant a new trial is "that the error complained of * * * constitutes a substantial violation of a constitutional or statutory right". In such a case, therefore, there is no reason why the defendant should go through the futile ceremony of asking the judge to allow him to exercise another — or thirteenth — peremptory challenge. A peremptory challenge is the only kind of challenge that the defendant could use for the purpose of getting rid of an obnoxious juror, because, if the so-called obnoxious juror should be also a disqualified or incompetent juror, the defendant could challenge him successfully for cause. The word "obnoxious" means "objectionable", but it is not a synonym for "disqualified" or "incompetent". See Webster's New International Dictionary, verbo "obnoxious". In State v. Fourchy, 51 La.Ann. 228, loc.cit. 248, 25 So. 109, loc.cit. 117, it was said: "The jury sitting upon the trial may be `legal' jurors by the application of legal tests, and yet very obnoxious jurors for secret and undisclosed reasons". That decision is cited in 29 Words and Phrases, Permanent Edition, p. 67, thus:

"`Obnoxious,' as used with reference to a juror, does not refer necessarily to legal incompetency or unfitness, since a juror may be `legal' by the application of legal tests, and yet `obnoxious' to one or the other of the parties."

If, in the discussion of this subject on the 15th page of the majority opinion [7 So. 2d 227⁵], it is meant that the defendant must challenge the obnoxious juror for cause — in order for the defendant to have the right to complain of the erroneous overruling of his previous challenge of a juror for cause — the challenging of the obnoxious juror for cause would be of no avail if the cause is not a valid or sufficient cause; and, if the cause for which the defendant challenges the obnoxious juror is a valid and sufficient cause, the judge's overruling of the challenge of the obnoxious juror will, of itself, furnish the defendant a good bill of exception, without reference to the judge's original error of overruling the defendant's challenge of the disqualified juror for cause.

This case will be a sad example of the practical effect of the interpretation which the court is giving to Article 353 of the Code of Criminal Procedure. The defendant stands condemned to spend the remaining years of his life in the penitentiary, notwithstanding it is conceded that he would be entitled to a new trial if his attorney had only thought of challenging a qualified juror after the defendant's peremptory challenges were exhausted, even though it is conceded also that if the additional challenge had been made the judge would have been obliged to overrule it.

¹ 199 La. 975.

² 199 La. 984.

³ 199 La. 984.

⁴ 199 La. 986.

199 LA. — 33

⁵ 199 La. 984.

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Dissenting Opinion

In the application of the defendant for a rehearing and in the dissenting opinion adopting the theory of law contended for by the accused, it is stated that the majority opinion in this case has misconstrued the provisions of Articles 353 and 557 of the Code of Criminal Procedure.

It will be remembered that during the course of the trial of the defendant on the indictment for murder, the district judge erroneously overruled the defendant's challenge for cause of a prospective juror and the defendant elected to use one of his peremptory challenges against the juror who was eliminated from the trial of the case. Thereafter, the defendant exhausted the remainder of his peremptory challenges before the jury panel was completed but did not in any way, expressly or impliedly, indicate that he considered any of the jurors selected, after his peremptory challenges had been used, unacceptable, unsatisfactory or obnoxious to him. On the contrary, the record affirmatively shows that he was entirely satisfied with the jury as selected and was willing to have it pass upon the question of his guilt or innocence.

The defendant contends that his viewpoint, incorporated in the dissenting opinion, is well taken, that is, that as the trial judge improperly overruled his challenge for cause against the prospective juror Hogan, the judge illegally compelled him to use one of his peremptory challenges to get rid of this juror; and that this error "constitutes a substantial violation of a constitutional or statutory right" of the accused, citing Article557 of the Code of Criminal Procedure. In short, that the error of law committed by the trial judge in overruling the defendant's challenge for cause and thereby indirectly depriving him of one of his peremptory challenges constitutes, per se, injury or prejudice to his substantial rights, without any other showing whatsoever, citing State v. Fourchy, 51 La.Ann. 228, 25 So. 109.

I submit that, from a grammatical as well as a logical approach, the majority opinion holding that the defendant must show that he has suffered injury or prejudice to his "substantial rights", or "a substantial violation of a constitutional or statutory right", in addition to the erroneous overruling of his challenge for cause and the subsequent exhaustion of his peremptory challenges, places upon Articles 353 and 557 of the Code of Criminal Procedure the proper construction as heretofore given these articles by this Court in other cases, and that this interpretation is not based upon mere "loose expressions" of this Court.

Article 353 of the Code of Criminal Procedure reads as follows:

"No defendant can complain of any ruling sustaining or refusing to sustain a challenge for cause, unless his peremptory challenges shall have been exhausted before the completion of the panel; moreover, the erroneous allowance of challenges for cause affords the defendant no ground of complaint, unless the effect of such ruling is the exercise by the prosecution of more peremptory challenges than it is entitled to by law, or unless the defendant by such ruling is forced to accept an obnoxious juror."

It is a well-recognized fact that punctuation is the art of pointing written composition so as to make clear the proper meaning, construction, and delivery thereof; and that a period is used to denote the end of a complete sentence and a semicolon is used to separate the clauses of a compound sentence. With reference to the grammatical construction of the above Article, it will be noted that after setting forth when the defendant can complain of any ruling sustaining or refusing to sustain a challenge for cause, a semicolon is used. If the Legislature intended that the wording of the Article preceding the semicolon were to be treated as a complete sentence and in no way affected or qualified by the language which follows it, the members thereof would have used a period instead of the semicolon at that point.

In 38 Words and Phrases, Permanent Edition, at page 584, we find that:

"According to well-established grammatical rules, a semicolon is a point only used to separate parts of a sentence more distinctly than a comma. * * *

"`Semicolon,' in statute, is used to separate consecutive phrases or clauses independent of each other grammatically but dependent alike on some word preceding or following."

It is stated in Corpus Juris, Vol. 57, at page 121, that a semicolon "* * * is used only to separate parts of a sentence more distinctly than a comma, as to co-ordinate clauses of unusual length * * * or to show that what follows is grammatically independent, though closely related in thought."

Furthermore, it will be observed that immediately following the semicolon the word "moreover" is used as a conjunction. Webster's New International Dictionary defines it as follows: "Moreover — Beyond what has been said; further, besides; in addition."

The use of the semicolon and the conjunction "moreover" by the Legislature show that the entire article consists of a compound sentence, the two parts of which are so closely connected that one is not logically independent of the other, even though the part preceding the semicolon and the part following it may be considered grammatically independent of each other. Therefore, it cannot be said that the article contains two separate and distinct sentences.

It will be observed that a comma is placed after the word "moreover" in the fifth line and after the word "law" in the second to the last line of the article. Between those two commas, the only matter dealt with is the erroneous allowance of challenge for cause by the State and, therefore, the words "such ruling" contained in the eighth line of the article refer to the "erroneous allowance of challenges for cause" immediately following the conjunction "moreover." The comma after the word "law," in the second to the last line of the article, shows that the clause "* * * or unless the defendant by such ruling is forced to accept an obnoxious juror" is not merely restrictive of the language which immediately precedes it but also refers to the first part of the article preceding the semicolon. Consequently, it is incorrect to state that the qualifying language just quoted only restricts that part of the article which follows the semicolon.

The foregoing correct grammatical construction is made clearer by an analysis of the logical application of the Article. It will be observed that the first part of the compound sentence preceding the semicolon merely makes the general declaration that before the defendant can complain of any ruling sustaining a challenge for cause by the State or refusing to sustain a challenge for cause by the defendant, he must show that his peremptory challenges have been exhausted before the completion of the jury panel. In this part of the compound sentence, the Legislature makes no attempt to set forth what the accused would be entitled to complain of if the two conditions in the first part of the compound sentence are shown to exist, that is, the erroneous ruling and the exhaustion of peremptory challenges. The grounds for legal complaint by the defendant are set forth only in the second part of the compound sentence and are that the ruling sustaining the State's challenge for cause must have the effect of giving the State more peremptory challenges than it was entitled to by law, or that the erroneous ruling sustaining the challenge for cause by the State, or that the erroneous refusal to sustain a challenge for cause by the defendant resulted in the accused being forced to accept an obnoxious juror. Nowhere in the second part of the compound sentence is it stated that the defendant must exhaust his peremptory challenges before he can complain. This condition is found only in the first part of the compound sentence. Therefore, the first part of the compound sentence is essential to a proper construction of the second part thereof and the second part of the compound sentence is necessary to a proper construction of the first part thereof.

Under the erroneous view that the article contains two separate and distinct sentences, let us see how inconsistent the Legislature is made to appear. For example, according to the defendant's viewpoint, incorporated in the dissenting opinion, the first part of the article is a separate and independent sentence from the second part and therefore all that the accused has to do to secure the annulment of the verdict and the sentence and the granting of a new trial is to show the trial judge erroneously disallowed his challenge for cause and that he subsequently exhausted his peremptory challenges before the jury was finally selected, prejudice to his substantial rights or "a substantial violation" of his constitutional or statutory rights being presumed. But under the so-called second separate sentence, in instances where the trial judge erroneously sustained a challenge for cause by the State and the defendant thereafter exhausted his peremptory challenges, prejudice, injury or harm is not presumed from those two circumstances alone, but the defendant must also show that, as a result of the erroneous ruling sustaining the State's challenge for cause, it obtained more peremptory challenges than it was entitled to by law, or that the defendant, as a result of the ruling, was forced to accept an obnoxious juror. Briefly, under the first alleged separate sentence of the article, it is stated that injury, harm and prejudice are presumed but under the second alleged sentence the defendant must show additionally either that the State received more peremptory challenges than it was entitled to by law, or that he was forced to accept an obnoxious juror as a result of the erroneous ruling of the trial judge in sustaining the State's challenge for cause. Thus the court in the first instance must presume prejudice, and in the second instance it must not do so.

Since the so-called second complete sentence is silent as to whether or not the accused would be required to also show that he had previously exhausted his peremptory challenges, why not also take for granted that he did so even though the record were silent on this point. It is just as logical to assume that the defendant exhausted his peremptory challenges when the record does not show that he did so, as it is to presume that he suffered any prejudice or injury by the erroneous ruling disallowing his challenge for cause when the record does not show that he was prejudiced in any way. While nothing is said in this alleged second sentence about the defendant exhausting his peremptory challenges, it is obvious that he could not successfully stand before the court and contend that as a result of the trial court's erroneous allowance of challenge for cause to the State, he was forced to accept an obnoxious juror, because, if he had a peremptory challenge left, he could not be compelled to accept an obnoxious juror, as he had the means of protecting himself by merely using the peremptory challenge against the obnoxious juror. The fact that nothing is said in the second alleged complete sentence with reference to the exhaustion of peremptory challenges by the defendant definitely shows that the alleged second complete sentence is dependent upon the first alleged complete one, in order to give the article, consisting of these two alleged complete sentences, meaning.

Under the interpretation which we have given the article in the majority opinion, the clause "* * * or unless the defendant by such ruling is forced to accept an obnoxious juror," contained in the two last lines of the article, is given full legal effect in connection with the first part of the compound sentence and is not eliminated therefrom and given no effect, as was done in the dissenting opinion, in the instant case, where the district judge improperly refused to sustain the defendant's challenge for cause.

The proper logical and grammatical construction given the article in the original opinion is made more apparent by the following explanation:

"353. No defendant can complain of any ruling sustaining [a challenge for cause by the State] or refusing to sustain a challenge for cause [by the defense], unless his peremptory challenges shall have been exhausted before the completion of the panel; moreover, the erroneous allowance of challenges for cause [by the State] affords the defendant no ground of complaint, unless the effect of such ruling [the erroneous allowance for challenge for cause by the State] is the exercise by the prosecution of more peremptory challenges than it is entitled to by law, or unless the defendant by such ruling [the erroneous sustaining of a challenge for cause by the State or the erroneous refusal to sustain a challenge for cause by the defense] is forced to accept an obnoxious juror." (Brackets ours.)

The foregoing conclusion makes the provisions of Article 353 and those of Article 557, Code of Criminal Procedure, congruous and harmonious. Article 557 reads, as follows:

"No judgment shall be set aside, or a new trial granted by any appellate court of this State, in any criminal case, on the grounds of misdirection of the jury or the improper admission or rejection of evidence, or as to error of any matter of pleadingor procedure, unless in the opinion of the court to which application is made, after an examination of the entire record,it appears that the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantialrights of the accused, or constitutes a substantial violation of a constitutional or statutory right." (Italics ours.)

As this is a criminal case and it is on appeal, the above article is certainly pertinent here.

Errors committed by the judge in misdirecting the jury or improperly admitting or rejecting evidence and errors made by his ruling in connection with any matter of pleading or procedure are without doubt legal errors and pertain to the statutory or constitutional rights of the accused. It is clear that under the above article the defendant cannot complain if the error committed by the trial judge is harmless and not prejudicial, because it is expressly stated therein that it must appear from the record that the error complained of "has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right."

The word "substantial" is defined by the lexicographers as follows:

Webster's New International Dictionary, Second Edition: "Substantial — adj. — 1. Consisting of, pertaining to, of the nature of, or being, substance; material. 2. Not seeming or imaginary; not illusive, real; true. 3. That is of moment; important; essential; material. 4. Having good substance; strong; stout; solid; firm." "Ant. — immaterial; unreal."

40 Words and Phrases, Permanent Edition, p. 492:

"`Substantial' is an adjective meaning something worth while as distinguished from something without value or merely nominal."

In Corpus Juris, Vol. 60, page 978, we find:

"Substantial error. Error which upon the trial works harm and from which one sustains substantial injury."

If the error complained of "constitutes a substantial violation of a constitutional or statutory right," necessarily it is a substantial error. A substantial error is clearly not a harmless, inconsequential or immaterial error that does not prejudice or harm the rights of an accused.

The clause "* * * or constitutes a substantial violation of a constitutional or statutory right" means that the error complained of has caused the defendant to lose substantial constitutional or statutory rights and this is just another way of saying that he has been prejudiced or injured. But this article expressly states that the relief is not to be granted unless "* * * it appears that the error complained of * * * is prejudicial to the substantial rights of the accused." (Italics ours.)

In the instant case, at the time that the prospective juror Hogan was challenged for cause and the defendant elected to use his tenth peremptory challenge to prevent him from serving as a juror, the defendant still had two more peremptory challenges. After the exhaustion of all of his twelve peremptory challenges, the defendant did not further protest or complain that any of the balance of the jurors selected to try the case were in any way obnoxious or unacceptable to him. It appears that he was entirely satisfied and willing to have the jury as selected determine his case. In short, no occasion arose for the defendant to use a peremptory challenge and, therefore, while the erroneous ruling on his challenge for cause indirectly deprived him of a peremptory challenge, this error on the part of the judge did not constitute "a substantial violation of a constitutional or statutory right."

To assume or presume injury or prejudice to the constitutional or statutory rights of the accused, or to say that the accused suffered the loss of a substantial constitutional or statutory right, contradicts the record which refutes the presumption that injury or prejudice or loss of substantial rights resulted because the defendant got jurors satisfactory and acceptable to him.

The result and practical effect of the defendant's contention as incorporated in the dissenting opinion leads to this anomalous conclusion:

In a murder case both the state and the accused had exhausted their peremptory challenges at the time the ninth juror had been placed in the box. Theretofore the accused was required, because of the erroneous ruling of the district judge in disallowing his challenge for cause, to use his first peremptory challenge. The tenth, eleventh, and twelfth prospective jurors were examined by both the state and the defendant on their voir dire and both sides announced that the jurors were satisfactory to them and they were willing for them to serve on the jury. The defendant made no complaint whatever that these three jurors were in any way unacceptable or obnoxious to him and, as a matter of fact and truth, they were entirely satisfactory and wholly acceptable to him in every way. Therefore, it was not necessary to use a peremptory challenge on any of these three prospective jurors and the defendant would not have used a peremptory challenge on any one of them, even if he did have left the one of which the judge's ruling, in effect, had deprived him.

To presume injury or to assume prejudice, under these circumstances, and thereby have the verdict of the jury and the sentence of the court annulled and set aside and a new trial granted to the defendant, is certainly granting unto him more than the law, and particularly Articles 353 and 557 of the Code of Criminal Procedure, provides that he is entitled to.

The defendant's reasoning defeats justice not only through mere harmless technical error but destroys it on an illusive theory which has no foundation in fact or truth. Of course, if the defendant, after the exhaustion of his peremptory challenges complained to the trial judge that while the prospective juror had shown himself to be qualified and competent, nevertheless, he was unacceptable or obnoxious to him and that if the judge had not deprived him of his peremptory challenge by his erroneous ruling in disallowing his challenge for cause, he would have challenged this prospective juror, and then, if that objection also had been overruled, and the juror permitted to sit in the defendant's case, a situation would have arisen showing injury and prejudice to the substantial constitutional and statutory rights of the accused. The complaint then would not be predicated on a mere theory nor a presumption of prejudice or injury, but upon a factual situation, as reflected by the record, showing injury and prejudice to the rights of the accused.

If the Court were to adopt the theory of the defendant upon which the dissenting opinion is founded, as a sound legal conclusion in connection with the construction of Articles 353 and 557 of the Code of Criminal Procedure, then, to be consistent, in every instance where some error had been committed in the trial of a case with reference to the defendant's constitutional or statutory rights, it would also be compelled to presume prejudice and injury to the accused's rights and thus annul the verdict of the jury and the sentence of the court, and grant the defendant a new trial. Such a conclusion necessarily destroys the law which requires a defendant in a criminal case to object to any proposed violation of his rights by the State during the trial of the case and to reserve a bill of exception to the ruling of the trial court, except in the instance where the error is patent upon the face of the record. Articles 510 and 557, Code of Criminal Procedure.

There was error in the ruling of the trial court in disallowing the defendant's challenge for cause. The bill of exception covers that point alone. Neither the bill of exception nor any other part of the proceedings indicate in the slightest that the substantial rights, constitutional or statutory, of the accused were prejudiced thereby, because the record affirmatively shows that after his peremptory challenges were exhausted, he voluntarily, without complaint or objection, accepted the remaining jurors of the panel. Therefore, it cannot be presumed or assumed that his rights to a fair and impartial trial under the Constitution and statutes of this State were in any way impaired or prejudiced by the ruling of the trial court.

After the defendant's peremptory challenges were exhausted, if he had any objection to any of the jurors selected, he simply had to complain (as any other accused would be required to do) that he had reached the point in the trial where the previous erroneous ruling of the judge in disallowing his challenge for cause and requiring him to use one of his peremptory challenges was about to cause prejudice to his rights by compelling him to accept an obnoxious juror. If the district judge, after having had the matter called to his attention, ruled adversely to the defendant, he could have reserved a bill of exception which would have presented the matter to this Court in such a way that we could grant relief.

It is said that, in the trial of a criminal case, after the accused has used all of his peremptory challenges and the district judge has committed error in sustaining the State's challenge for cause, the defendant might be compelled to take an unacceptable juror as distinguished from an incompetent or disqualified one, because he has no more peremptory challenges to use. If such a situation were to develop, the defendant would have to complain to the trial judge that, as a result of the erroneous ruling on his challenge for cause, he was deprived of his peremptory challenge and was now about to be compelled to accept a juror who, while not incompetent or disqualified, was unacceptable or obnoxious to him. If the objection or complaint were sustained, that would end the matter and if overruled, the accused could reserve a good bill of exception. Thus the record would show that the accused had suffered prejudice or injury to his legal rights and the appellate court could consider the matter and grant the proper relief.

If the trial judge makes a mistake in allowing the State's challenge for cause, "such ruling" cannot compel the defendant to accept an obnoxious juror, first, because that particular juror would be excused and would not sit in the trial of the case; second, since that juror has been erroneously excused by the court, it necessarily follows that another prospective juror must be examined on his voir dire. Then, assuming that the defendant had exhausted all of his peremptory challenges, he would have one of two choices: First, he could accept the juror because he was satisfied with him and willing to have him serve in the trial of the case and, in that event, the erroneous ruling of the trial judge would come to naught and in no way prejudice the defendant's right; and, second, if the defendant were not satisfied with the juror, not because he was incompetent or disqualified for legal cause, but because he considered him unacceptable or obnoxious, he had the unquestionable legal right to complain to the trial judge and to reserve a bill of exception to any adverse ruling, and could thus show reversible error entitling him to an annulment of the verdict and the sentence and a new trial. But it is clear that it would be the latter ruling of the district judge rejecting the defendant's complaint that would have been the ruling which compelled him to accept an obnoxious juror and not the former one, when the district judge improperly allowed the State's challenge for cause.

The defendant's contention, adopted by the dissenting opinion, would result in permitting an accused, where the district judge failed to sustain his challenge for cause, and he had subsequently exercised all of his peremptory challenges, before the jury panel was completed, to presume that such ruling was "* * * prejudicial to the substantial rights of the accused, or constituted a substantial violation of a constitutional or statutory right." This conclusion is basically and fundamentally unsound, because the Constitution and the laws of this State only guarantee and assure an accused a fair and impartial trial. The law does not guarantee him a perfect trial free of harmless error because, on appeal, either by bills of exception or errors patent upon the face of the record, the defendant is obliged to show the appellate court that he failed to receive a fair and impartial trial due to the fact that some harmful error was committed by the trial court which "* * * probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right." Articles 510 and 557 of the Code of Criminal Procedure.

I again state that the defendant in this case has utterly failed to show that the erroneous refusal to allow his challenge for cause has had any of these effects upon his case for the reason that the record affirmatively shows, and there is nothing therein, even impliedly, to the contrary that he accepted voluntarily, without complaint or objection, all of the jurors who served in the trial of his case and that none of the jurors that he complained of, or objected to, was permitted to serve in the trial.

To allow the defendant to do what he seeks to have done in this case would be allowing him, after reserving a bill of exception to the trial judge's erroneous disallowance of his challenge for cause, to simply exhaust his peremptory challenges, and even though all of the jurors who were thereafter voluntarily and without complaint or objection by him selected to serve on the jury, to be assured a second trial, in the event of his conviction, and thereby, for all practical purposes, he would be given two trials, when the record affirmatively shows that the erroneous disallowance of his challenge for cause did not compel him thereafter to accept an obnoxious juror. This result, based upon the interpretation and construction contended for by the defendant and adopted by the dissenting opinion, is inconsistent with the unquestioned sound jurisprudence that the accused is not entitled to complain of the improper overruling of his challenge for cause, unless the record shows that he has exhausted his peremptory challenges. The reason for this holding of the court is that injury and prejudice to the substantial rights or constitutional and statutory rights of the accused will not be presumed. Unless he affirmatively shows that his peremptory challenges have been exhausted, he cannot complain because it will be considered that he has peremptory challenges left and power to protect himself against being compelled to accept an obnoxious juror by peremptorily challenging him.

In the dissenting opinion, it is stated in several places that the erroneous ruling of the district judge in failing to sustain the defendant's challenge for cause deprived him of a constitutional right granted him by the Bill of Rights of the Constitution of Louisiana.

Section 10 of Article 1 of the Constitution provides that: "In all criminal prosecutions, the accused * * * when tried by jury shall have the right to challenge jurors peremptorily, the number of challenges to be fixed by law." Therefore, as far as the fixing of the number of peremptory challenges is concerned, the Legislature was given full power and discretion therein. It carried out this constitutional authorization by placing Article 354 in the Code of Criminal Procedure, which grants both the accused and the State, in a murder trial, twelve peremptory challenges. As this article fixed the number of challenges, the Legislature could constitutionally pass Articles 353 and 557, which provide for the kind of errors the defendant can complain of successfully. It is not even argued here that Articles 353 and 557 of the Code of Criminal Procedure are unconstitutional insofar as they may affect or be construed as governing errors made in the trial with reference to the defendant's peremptory challenges.

On page 17 of the dissenting opinion [7 So. 2d 239⁶], it is stated: "In the majority opinion there is no attempt to show — and in fact it is utterly impossible to conceive — how the phrase in the second sentence in this article, `unless the effect of such ruling is the exercise by the prosecution of more peremptory challenges than it is entitled to by law', could `refer back' to the phrase in the beginning of the first sentence, `any ruling * * * refusing to sustain a challenge for cause.'"

In the majority opinion, it is obvious that the words "such ruling" referred to were those contained in the second to last line of Article 353 of the Code of Criminal Procedure with reference to the defendant being compelled to accept an obnoxious juror and not to the words "such ruling" contained in the eighth line, which refers back to the phrase in the fifth line, that is, "erroneous allowance of challenges for cause." These two quoted parts of the alleged second separate sentence of Article 353 clearly refer to the ruling of the district court sustaining or allowing erroneously the State's challenge for cause which finally resulted in the exercise by the prosecution of more peremptory challenges than it was entitled to by law. We expressly stated that there was no issue in the case on that point. Consequently, it is clear in our original opinion that we were only referring to the words "such ruling" contained in the second to the last line of the article, dealing with the issue involved here of an accused being compelled to accept an obnoxious juror.

On page 21 of the dissenting opinion [7 So. 2d 241⁷], it is stated that this case is "a sad example" of the Court's interpretation of Article 353 of the Code of Criminal Procedure, as "the defendant stands condemned to spend the remaining years of his life in the penitentiary" because his attorney did not think of challenging qualified jurors after his peremptory challenges were exhausted, "even though it is conceded also that if the additional challenge had been made the judge would have been obliged to overrule it."

The majority opinion simply pointed out that the defendant had failed to complain in any way that the jurors selected after his peremptory challenges were exhausted were unacceptable or obnoxious to him, as distinguished from being disqualified or incompetent, and in the absence of some objection or complaint noted in the record, the court could not presume prejudice when the record affirmatively shows that he accepted the remaining jurors of the panel willingly. If, in fact and truth, he had any complaint whatsoever against these remaining jurors and had in any way indicated his desire to have anyone of them excused and the trial judge had an opportunity to determine whether or not the defendant's position was correct, he might have sustained the defendant's objection and then and there ended the matter because the defendant could not complain. On the other hand, if the trial judge had overruled his objection and the defendant reserved a bill of exception and the juror was permitted to serve on the jury, this would have been a perfect bill of exception, for it would have shown that the defendant's substantial rights were prejudiced or there was a "substantial violation of a constitutional or statutory right." The defendant in any criminal case is required to object at the time of the occurrence of the alleged error and reserve a bill of exception to obtain relief. But, even if he objects and does not reserve a bill of exception, he waives his right to complain. Article 510, Code of Criminal Procedure.

The defendant was not found guilty and sentenced to be incarcerated in the State Penitentiary for the remainder of his life due to the harmless technical error complained of, but because the evidence in the case proved to the satisfaction of the jury and beyond a reasonable doubt that the defendant had murdered the police officer, who was acting in the line of his duty. The trial judge was also convinced of his guilt because he refused to grant him a new trial. Article 509, Code of Criminal Procedure. The record shows that the accused had previously threatened the life of the deceased because he sought to make him obey and respect the law and that the defendant shot the deceased several times without any provocation whatsoever. Our discussion of the case under bills of exception 5 and 6 will sufficiently reflect this fact.

It would indeed be a "sad" commentary on the administration of justice, after the Grand Jury, the petit jury, the district attorney, and the district judge have performed their duty by giving the defendant a fair and impartial trial free of any prejudicial or harmful errors, for this Court to set aside and annul the verdict of the jury and the sentence of the court and grant a new trial purely and simply on a harmless error because of imaginary or assumed prejudice or injury, when the record affirmatively shows that none existed.

For the above reasons, I respectfully dissent from the granting of a rehearing in this case.

⁶ 199 La. 1021.

⁷ 199 La. 1027.

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Dissenting Opinion

It is important that the decree finally rendered in this case, reinstating the original opinion and decree, excepts from this reinstatement the interpretation which was given by four members of the court to Article 353 of the Code of Criminal Procedure. On that point, it is said that two of the four subscribers to the opinion originally rendered doubt now that their interpretation of Article 353 of the Code of Criminal Procedure was correct; and it is said that only two of the members of the court now adhere to that interpretation. It is said, however, that the four justices who subscribed to the original opinion are "still of the opinion that the provisions of Article 557 of the Code of Criminal Procedure were properly construed therein."

Article 557 is being construed now as if the word "or" were "and", in the declaration that no new trial shall be granted by an appellate court unless it appears that the error complained of probably resulted in a miscarriage of justice, was prejudicial to the defendant's substantial rights, or constitutes a substantial violation of a constitutional or statutory right. I have italicized the all-important word "or". It should not be read as if it were "and". A showing of any one of the three facts, namely, first, that the error complained of probably resulted in a miscarriage of justice, or, second, that the error was prejudicial to the defendant's substantial rights, or, third, that the error was a substantial violation of a constitutional or statutory right of the defendant, obliges the appellate court to grant a new trial. If the error constitutes a substantial violation of a constitutional or statutory right of the accused — such as his right to have twelve peremptory challenges to use as he sees fit — he is entitled to a new trial if he has had to use all of his peremptory challenges, without having to make any further showing either that the error resulted in a miscarriage of justice, or that it was prejudicial to the defendant's substantial rights. That is how Article 557 of the Code of Criminal Procedure reads. And Article 353 declares that, if the defendant has used all of his twelve peremptory challenges in the impaneling of the jury, and has been compelled, by the erroneous overruling of a challenge of a disqualified juror for cause, to use one of the peremptory challenges to prevent the disqualified juror from taking part in the trial, the defendant in fact has had the benefit of only eleven peremptory challenges, and has been deprived of the right — which is guaranteed to him by the Bill of Rights — to have twelve peremptory challenges to use as he sees fit. And that is exactly what this court decided, unanimously, in State v. Fourchy, 51 La.Ann. 228, 25 So. 109, in 1900; and in State v. McCoy, 109 La. 682, 33 So. 730, in 1903; and in State v. Guillory, 146 La. 434, 83 So. 754, in 1920; the doctrine of which decisions was cited and repeated with unanimous approval in State v. Henry, 197 La. 999, 3 So. 2d 104, only nine months ago.

As no attempt has been made to point out any mistake in the analysis which I made of the jurisprudence on this subject, in my former dissenting opinion, I take it that it is conceded now that there is no real conflict in the jurisprudence, and that "the established rule", as stated in the Henry case, is that which was established by the decision in the Fourchy case, the McCoy case, and the Guillory case. Articles 353 and 557 of the Code of Criminal Procedure are only restatements of "the established rule".

The only basis now for the decision finally rendered in this case is that the defendant — after exhausting his peremptory challenges — did not complain that he was about to be compelled to accept an obnoxious juror on account of the error which the judge had made, in overruling the challenge of the disqualified juror for cause, and did not request the judge to exclude the obnoxious juror from serving on the jury. Such a request would have been merely a request for a thirteenth peremptory challenge. The judge would have been bound to refuse the request, because to grant it would have been an acknowledgment on the part of the judge that he was wrong in overruling the defendant's challenge of the disqualified juror for cause; which would have been an acknowledgment on the part of the judge that, if he refused the defendant's request to exclude the obnoxious juror, he would have to enter up a mistrial. But — worse yet — if the defendant in such a case had reserved bills of exception to several rulings of the judge, overruling challenges of jurors for cause, the defendant, after exhausting his peremptory challenges, would have had to make as many objections to as many obnoxious jurors as there were bills of exception to the overruling of challenges of jurors for cause. The granting of one request for the exclusion of an obnoxious juror would compensate for only one erroneous overruling of a challenge of a disqualified juror for cause. The defendant, therefore, would have to go on down the line, and make as many requests for the exclusion of obnoxious jurors as there were bills of exception reserved to the overruling of challenges of disqualified jurors for cause, unless the judge should see fit to put an end to the requests for the exclusion of obnoxious jurors, by refusing one of the requests, and thereby making good one of the bills of exception theretofore reserved to the overruling of a challenge of a disqualified juror for cause. I respectfully submit that that is the logical and inescapable deduction from the unreasonable interpretation which is given now to Article 557 of the Code of Criminal Procedure. And in Article 353 it is declared plainly that all that is necessary to make good a bill of exceptions reserved to the erroneous overruling of a challenge of a disqualified juror for cause is that the defendant shall have exhausted his peremptory challenges in the impaneling of the jury.

This idea of requiring a defendant, after exhausting his peremptory challenges, to request the judge to exclude from the jury a so-called obnoxious juror, in order to make good a bill of exceptions previously reserved to the erroneous overruling of a challenge of a disqualified juror for cause, might deserve some consideration in a jurisdiction where there is no constitutional guaranty that a defendant in a criminal prosecution shall have the number of peremptory challenges granted to him by the Legislature — and where there is no such statute as Article 353 or 557 of the Code of Criminal Procedure. But, even without reference to any such constitutional guaranty, or to any statute on the subject, this court and other courts of last resort have gone on record by holding, point blank, that there is no necessity for such useless formality. In the Fourchy case, 51 La.Ann. pages 247, 248, 25 So. page 117, Chief Justice Nicholls, for the court, said:

"Courts of justice have no right to refuse or to make unavailable rights or privileges conferred upon parties by the legislature. They can no more do this by erroneous action than by direct arbitrary action. The right of peremptory challenge was conferred for the express purpose of enabling parties accused of crime to reject from the jury persons whom they had reason to distrust for secret, undisclosed grounds, not sufficient to be made available as causes for legal challenge. Prisoners arenot called on to state why or wherefore they reject, nor are theycalled on to incur the ill will of jurors, when powerless tochallenge them peremptorily, by disclosing to the court that any particularjuror or jurors actually serving on the jury were `obnoxious' tothem. The jury sitting upon the trial may be `legal' jurors by the application of legal tests, and yet very obnoxious jurors for secret and undisclosed reasons. Accused are entitled to twelve peremptory challenges, to be freely exercised, without compulsion in any case from the court. The court cannot, by an erroneous ruling, force the exercise of a peremptory challenge, when the accused is entitled, on legal grounds, to a rejection of the particular juror objected to. If, in the formation of the jury, the prisoner has exhausted the twelve challenges, but one has been used substantially under legal duress, he is, in law, to be held as having really been given the privileges of only eleven peremptory challenges, and his statutory right has been invaded." [The italics are mine.]

In the case of Thurman v. State, 27 Neb. 628, 43 N.W. 404, 405, the Supreme Court of Nebraska discussed the identical subject, thus:

"By section 467 of the Criminal Code, every person arraigned for the crime with which plaintiff in error was charged shall be admitted to a peremptory challenge of eight jurors. A peremptory challenge is one which may be exercised by the accused upon his own volition, and for which he need not give any reason, and which is not subject to the control of the court. Plaintiff in error exhausted all his peremptory challenges upon the trial, one of which was to the juror hereinbefore mentioned. By being compelled to dispose of this juror, upon his peremptory challenge, he was in fact limited to seven. Our statute providesno method of challenging jurors peremptorily in excess of thenumber provided by the section above referred to. It would beunwise, perhaps, for a party placed upon trial, charged with acrime, to make objections to jurors which must necessarily befutile, and which could have no other effect than that of, insome degree at least, prejudicing the mind of the jurors againsthis cause. The law does not require the performance of anunnecessary or impractical act. * * *

"In Curry v. State, 4 Neb. [545], 549, Judge Lake, in writing the opinion of the court upon this question, in referring to a juror, says: `But he was retained against the challenge of the accused, who was compelled to resort to one of his peremptory challenges for his removal. In this there was error to the prejudice of the prisoner.' To the same effect is State v. Brown,15 Kan. 400. A moment's reflection must satisfy the mind thatthis is, and must be, the correct rule. Suppose eight jurors werecalled, each of whom, upon his voir dire examination, showedhimself incompetent, and subject to challenge for cause, but thatthe trial court, for reasons satisfactory to itself, shouldoverrule the challenge in each case, and the eight incompetentjurors be held, the accused would be compelled to resort to hisperemptory challenges in order to remove them. No provision ismade by law or the constitution for any other challenges orobjections to the jurors than those named. Jurors might then be called who, to the knowledge of the accused, were prejudiced against him, and even might deny prejudice or bias or the formation of opinion (as the writer has seen done) for the express purpose of being retained upon the jury, in order that a conviction might be secured. Could it be said that the constitutional provisions that an accused should have a fair and impartial trial had been complied with? Most certainly not. And it is for the purpose of guarding against this very contingency that the peremptory challenge is retained by our law. The ruling of the district court was therefore prejudicial, and for that reason the verdict must be set aside. The judgment of the district court is reversed, and the cause is remanded for further proceedings. The other judges concur."

In the case of State v. Frank Stentz, 30 Wash. 134, 70 P. 241, 242, 63 L.R.A. 807, the Supreme Court of Washington said:

"A refusal to sustain challenges for proper cause, necessitating peremptory challenges on the part of the accused, will be considered on appeal as prejudicial where the accused has been compelled subsequently to exhaust all his peremptory challenges before the final selection of the jury. * * *

"Inasmuch as the appellant was compelled to get rid of the juror Sperry by a peremptory challenge, the accused was deprived of one peremptory challenge to which he was by law entitled. For that reason, the judgment of the court is reversed, and the cause remanded for a new trial."

In the case of State v. Brown, 15 Kan. 400, the Supreme Court of Kansas, after ruling that the judge of the district court erred in overruling a challenge of a juror by the defendant for cause, held:

"And as the defendant exhausted all his peremptory challenges, we must hold that the error was material, although said juror was finally discharged by the court on one of the defendant's peremptory challenges. The judgment of the court below is reversed, and cause remanded for a new trial."

I quote now from the decision by the Supreme Court of California in People v. Weil, 40 Cal. 268, thus:

"Where a challenge for cause was erroneously disallowed by the Court, and the juror then peremptorily challenged, if the defendant exhausted the number of peremptory challenges to which he was entitled before the jury was completed, the practical result of the erroneous disallowance of defendant's challenge for cause was to contract the number of peremptory challenges to which he was entitled, and may have been seriously prejudicial to the defendant."

I do not find any expression in the opinion in State v. Mrs. Lucille McLeod, 199 La. 372, 6 So. 2d 146, or in State v. Vernon Augusta, 199 La. 896, 7 So. 2d 177, that has any relation to the point which we are discussing in this case, except in this remote way, that in each of these cases the court held that, under Article 557 of the Code of Criminal Procedure, a harmless error in a ruling of the trial judge was of no consequence. In neither of these cases was there any claim or any semblance of a violation of a constitutional or statutory right of the defendant.

The statement, per curiam, that the attorney for the defendant in this case willingly and without objection or protest accepted every juror who served on the trial, and that every juror who served "was wholly acceptible to the defendant", means nothing more than that the attorney for the defendant did not ask for a thirteenth peremptory challenge after he had exhausted his twelve peremptory challenges — one of which challenges had to be used to get rid of the disqualified juror. The record shows that, after the attorney for the defendant challenged the disqualified juror peremptorily, he challenged two more prospective jurors peremptorily, and thereby exhausted his twelve peremptory challenges. Apparently, therefore, the judge was mistaken when he made this statement per curiam on this bill of exceptions: "The bill does not show, nor does it even suggest, that at that stage of the proceedings, or even during the whole trial, that the defendant had exhausted his peremptory challenges, and that in consequence of the court's ruling he had been compelled to accept an obnoxious juror."

I respectfully submit that, with only two members of the court now adhering to the interpretation which was given to Article 353 of the Code of Criminal Procedure in the prevailing opinion rendered originally in this case, the defendant is entitled to a new trial.

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Addendum

On Rehearing. The jury found the defendant guilty of murder, without capital punishment, and the judge sentenced him to life imprisonment. He appealed and by a divided Court of four to three, we affirmed the judgment of the lower court. Upon the defendant's application, a rehearing was granted, limited to Bill of Exception No. 1.

The State filed a motion to dismiss the appeal on the ground that the defendant had acquiesced in the verdict, and the sentence by freely and voluntarily executing the judgment in going to the State Penitentiary to begin serving his term. This motion is supported by affidavits.

The defendant filed an opposition thereto and under oath declared that he was taken to the State Penitentiary as a result of a misunderstanding, being of the opinion that by going there, his right to apply for a rehearing would not be affected in any way.

Ordinarily, in a situation like this, it might be necessary to remand the case to the district court for the purpose of having testimony taken with reference to the issue, but conceding, without deciding the point, that the accused did not in legal contemplation voluntarily start to serve his sentence and thereby waive and abandon his appeal by acquiescing in the judgment of the lower court, a view most favorable to him, we shall proceed to consider the questions now before us on the rehearing.

Bill of Exception No. 1, which involves the correct interpretation of Articles 353 and 557 of the Code of Criminal Procedure, resulted from the trial court's erroneous ruling in refusing to sustain the defendant's challenge for cause. The record shows that subsequently the defendant had exhausted all twelve of his peremptory challenges. The defendant contends that under Article 353 of the Code of Criminal Procedure, it is only necessary for him to show, in order to obtain a new trial, that the trial judge committed error in overruling his challenge for cause, and that he subsequently exhausted all of his peremptory challenges before the completion of the jury panel, injury and prejudice being presumed. The State argues that under Article 353, it was necessary for the defendant to show, as a result of the trial court's erroneous ruling and the exhaustion of his peremptory challenges, he was compelled to accept an obnoxious juror, who sat in the trial of the case, before he can have the verdict and sentence annulled and be granted a new trial.

In our original opinion, four members of the Court concluded that the State's contention was correct and the other three adopted the defendant's views, as stated in the dissenting opinion. At this time, two of the four majority members (ROGERS and McCALEB) entertain doubt as to the correct interpretation of Article 353 of the Code of Criminal Procedure, while the other two adhere to the views expressed in the original opinion and the dissenting opinion from granting the rehearing. However, every one of these four justices is still of the opinion that the provisions of Article 557 of the Code of Criminal Procedure were properly construed therein. Briefly, after the defendant exhausted his peremptory challenges, it appears from the record that he voluntarily accepted the remaining jurors to complete the jury panel, without in any way indicating or showing in the record, in any form whatsoever, that he was dissatisfied with or unwilling to accept any one of these jurors. The trial judge, in his per curiam, stated that the defendant voluntarily accepted the jurors and got the kind of jury with which he was satisfied. The majority members of the Court, therefore, concluded that the defendant had failed to show that he was in any way prejudiced, harmed, or injured by the erroneous ruling of the trial court in refusing to sustain his challenge for cause. The juror who had been challenged for cause, having been peremptorily challenged by the defendant, did not take part in the case. In the absence of any showing whatsoever that any occasion arose in the trial of the case after the exhaustion of the peremptory challenges where the defendant needed a peremptory challenge or would have used it against any of the remaining jurors of the panel, it does not appear that he was prejudiced in any substantial right or that the ruling of the trial judge constituted a substantial violation of a constitutional or statutory right, as fully explained in the original opinion and in the dissenting opinion from granting a rehearing.

In the cases of State of Louisiana v. Mrs. Lucille McLeod,199 La. 372, 6 So. 2d 146, and State of Louisiana v. Vernon Augusta,199 La. 896, 7 So. 2d 177, recently decided by this Court, we concluded that where harmless errors had been committed in the trial of the case, the defendant was not entitled to a new trial, citing Article 557 of the Code of Criminal Procedure.

For the reasons assigned, it is ordered, adjudged and decreed that in all respects, except as to the interpretation of Article 353 of the Code of Criminal Procedure, our original opinion and decree are reinstated and made the final judgment of this Court.

ODOM and PONDER, JJ., dissenting.