State v. CraddockState v. Craddock
The defendant was charged by Bill of Information with the violation of
Defendant submits that a sheet bearing three responsive verdicts,1 (as well as twelve juror signatures and the handwritten verdict notation “guilty as charged“) indicates that four additional responsive verdicts2 were not charged to the jury and that this failure to charge the additional responsive verdicts is error discoverable under
Some illustrative examples of the record for error discoverable purposes are the caption, a statement of time and place of holding the court, the indictment or information with the endorsement, the arraignment, the plea, mention of the impaneling of the jury, verdict and judgment of the court, State v. Sanford, 248 La. 630, 181 So.2d 50 (1965); the bill of particulars filed in connection with a short form indictment or information, State v. Picou, 236 La. 421, 107 So.2d 691 (1959); in capital cases the minutes must reflect that the jury has been sequestered as required by
The verdict is normally placed, as required by statute, on the reverse of the list of responsive verdicts given the jury.
Absent an objection, the defendant may not on appeal complain of the judge‘s charge to the jury, even though the charge may happen to appear in the record. State v. Chaney, 273 So.2d 259 (La.1973); State v. Bueche, 243 La. 160, 142 So.2d 381 (1962); State v. Bickham, supra; State v. Stracner, 190 La. 457, 182 So. 571 (1938); State v. Daleo, supra; State v. Marqueze, 45 La.Ann. 41, 12 So. 128 (1893); and
State v. Daleo explained “it is not considered proper that the defendant should be permitted to sit idly by while the judge is making an erroneous charge to the jury, take his chances upon the verdict, and, if against him, then by assignment of error or motion in arrest take advantage of it.” 179 La. at 527, 154 So. at 441.
We hold that alleged error concerning the sufficiency of the list of responsive verdicts given the jury, like error in the judge‘s charge to the jury, is not reviewable under
We have reviewed the record for error discoverable by a mere inspection of the pleadings and proceedings and find none. Therefore it is ordered that defendant‘s conviction and sentence be affirmed.
BARHAM, J., dissents with reasons.
MARCUS, J., dissents.
BARHAM, Justice (dissenting).
I respectfully dissent. In my opinion, error concerning the sufficiency of the list
In the case before us, the responsive verdicts submitted to the jury listed three responsive verdicts to the charge of distribution of marijuana, i. e., (1) guilty as charged; (2) guilty of attempted distribution of a controlled dangerous substance, to-wit, marijuana; and (3) not guilty. In State v. Stewart, 292 So.2d 677 (La.1974), this Court held that there are seven responsive verdicts possible to a charge of distribution of a controlled dangerous substance, the other four being: (1) possession with intent to distribute; (2) attempted possession with intent to distribute; (3) possession; and (4) attempted possession. In Stewart, the defendant urged that there was error patent on the face of the record in that the verdict, guilty of possession of L.S.D., was not responsive to the crime charged, distribution of L.S.D. to one under eighteen years of age who was at least three years his junior. The Court held that possession of a controlled dangerous substance is a lesser offense included within the crime of distribution and “is properly a responsive verdict to such a charge.” 292 So.2d at 679.
In my opinion, this defendant was seriously prejudiced by the failure of the court to include the lesser included offenses of the crime charged in its list of responsive verdicts submitted to the jury. Moreover, I believe that this error was error discoverable from the pleadings and proceedings for the following reasons.
“After charging the jury, the judge shall give the jury a written list of the verdicts responsive to each offense charged, with each separately stated. The list shall be taken into the jury room for use by the jury during its deliberation.” (Emphasis here and elsewhere supplied).
“When a verdict has been agreed upon, the foreman shall write the verdict on the back of the list of responsive verdicts given to the jury and shall sign it. * * *”
Thus the verdict must be placed on the back of the list of responsive verdicts because that is what the Code of Criminal Procedure requires. The jury cannot reach a verdict that is not included in the list of responsive verdicts given to them, so it is not possible for them to find a defendant guilty of a lesser included offense, which of course would carry a lesser penalty, if the judge has failed to include that offense among the possible verdicts on the list which the jury takes with them. See
For these reasons, I firmly believe that the list of responsive verdicts is the very foundation of the verdict, and is an essential part thereof; and of course the verdict is the very basis of the sentence. It is well established that the verdict is part of the pleadings and proceedings reviewable by an appellate court under
In my opinion, the defendant‘s conviction and sentence should be reversed and remanded for further proceedings in accordance with the views I have set forth above. I must dissent from the majority‘s affirmance.