*1 So.2d Louisiana STATE of
Henry HILLS.
No. 45060.
Nov. 1960. April 24, Rehearing
On *4 exceptions
fоurteen dur- bills reserved ing the course trial. Ex- similarity,
Because of their Bills of ceptions discussed Nos. 1 and will be jointly.
Bill No. was taken to ruling judge, of the which sustained objection question to a collectively propounded prospective to six jurors following under circumstances: Gulotta, “Mr. counsel for the defend- ant:
“Q. Are any sympathy any integration segregation with organisations?” ours.) (Emphasis Objection by the State.
“Mr. Gulotta: submit, may please “We Your Honor, a proper it is for the Gulotta, George Compagno, Peter J. J. purpose determining the mental con- Orleans, defendant-appellant. New for jurors dition of these reference to Gremillion, Atty. Gen., P. F. M. E. Jack issue in this case.” Gen., Culligan, Atty. A. Asst. Richard Attorney Dowling, District “Mr. Dowling, Atty., Klein, Dist. Asst. Burton G. Parish : of Orleans Atty., Orleans, appellee. Dist. New
“They can ask whether or not HAMLIN, prejudiced particular are Justice. They simply individual. can’t take the defendant, Hills, Henry appeals from race, people or the whole whole his conviction of a violation of LSA-R.S. anything of that sort. organizations, (Aggravated 14:42 Rape) and sentence death, presenting “By Court: for our consideration capital rape 1. The defendant was a offense of of white fe^ colored male trial for male. *5 quali- Exceptions No. was reserved to any juror Bill of to “I bеlieve for judge held that ruling the of the trial fied, under voir state would to pro- collectively following question, any prejudice the not have dire that he did pounded by prospective jurors coun- sus- six The Court to against any individual. defendant, you objectionable and objection. think sel the was I for tains the State’s scope of enlarging effect the had the far going are too afield.” personal prejudice:2 for Exceptions Bill No. counsel In belong to any gentlemen "Do pro- prior to the the defendant state that religious segregation groups?” any previous pounding question, the above (Emphasis ours.) prospective jurors voir dire examination questions were same or similar asked the Exceptions In Bill counsel No. 2 by They al- objection State. ques- without the allege the defendant above the prospective previous lege that the propounded purpose two of as- tion was for the pro- jurors stated that were members certaining determining and whether Orleans, pro- spective jurors prejudiced Council of New a the Citizens biased and de- organization, arriving judg- and segregation passing verdict a and counsel, fendant, peremptorily through guilt .ment on the innocence of the ac- jurors. challenged two and excused cused.3 Exceptions prosecutrix No. and In Bill of counsel race white
2. was Honor, At “That female. time did inter- aver: His no the Court defendant objection, then, any ques- pose State, Judge, other an nor before did the Trial along through interpose questions Attorney, the same line the District tion or objection.” prospective jurors, said an asked could be objection “Further, Exception interposed the said in Bill of an line No. examination, by counsel, and stated that filed defense stated voir dire of the objectionable question agreed because that to save time it was and un- was by trying enlarge and derstood and the State the defense defense prejudice.” ruling scope personal that the Court Court’s Curiam, Exceptions Judge, in his Per Bills of Nos. 1 and would The Trial exception apply to dire “The Court takes the voir examination of states: prospective jurors Exception examined subse- No. as drawn de- other ruling by quent counsel, said wherein it is stated Court. fense Court, paragraph It mere- 2 that trial before Such statement is correct. questions along ly way saying question another other type ques- pro- could same or the same line be asked said the same objection interposed ruling asked, spective jurors, tion was the Court’s and be consistent would be of voir dire examinatiоn. would said line wishes state that such was same.” Court The not been asked many questions case, In Per to Bill of and that had Curiam Judge prejudice particular 1, the to the Trial states: objection jurors prospective State, made “The bias of the re- or spect through Attorney, primary District Mr. racial relations Dowling, defense, on voir defendant was of the colored fact that the opinion jurors impartial The trial was of the a denial fair and questions propounded prospective impartial jury, fair a denial jurors confusing, too were irrelevant and of Due equal protec- Process of Law general, any way meet not in tend to tion did under the Fifth Four- law competent juror. the test of a He was teenth Amendments Constitution of opinion the de- further that counsel for States, the United of the de- denial *6 scope of trying enlarge fendant were the rights fendant’s of Rights under or legal prejudice what could he considered of Louisiana. Constitution the State of legal bias. I, 10, Article Louisiana Constitu- Section tion 1921, LSA; of LSA-R.S. 15:354. in brief
Counsel for the defendant admit they challenge that for were not entitled to outset, It is to be noted at the as stated prospective jurors cause those would who the trial judge, not involv- that a case this of they that answered were members ing opening school, or closing or aof segregation groups organizations, that or or question in- integration school, of a aor they segregation sympathizers,4 were but acceptance of volving non-acceptance or they they might contend that in order that Supreme the United decision States Court challenges peremptory have used the twelve (Brown Topeka, v. Board of Education of by law their interest and ad- allowed best 294, 753, 1083) U.S. 75 S.Ct. L.Ed. ques- vantage dictated, and judgment as question of racial discrimination in propounded prospective jurors tions public capital education. It concerns the segre- they as to whether of were members rape aggravated alleged crime of to have gation groups organizations, or or whether upon a been committed man a colored they segregation sympathizers, were white woman. allowed, legally proper and should have been op- judge’s the trial denial of an The record discloses the trial portunity question prospective these so fully cognizant was :422(6), of LSA-R.S. 15 examination, any juror juror dire could ask held that because a tendered an particular juror whether or not for accused on murder was a mem- prejudiced particular Klan, was individual, this Ku Klux ber of which the go member, but that could not fur- a deceased also or organization ther take the whole race or the whole of the same church and people organization gen- and ask a Bible class which the deceased was a question, member, eral which could be answered and of which church he was an generally way officer, incompetent, so in no would it he when it prejudice against particular appeared that, notwithstanding a indicate the affilia- juror tions, individual.” had not become biased Dunn, prejudiced In case, the case of State v. in the or a Dismissed, fairly position impartial- 109 So. Error to decide it ly. U.S. 47 S.Ct. 71 L.Ed. we prosecuting accused notice is taken witness judicial
which recites prejudice State. create bias in their prevailing in this would a or racial conditions any dire of minds. There were no indicative answers voir the examination on Prior to jury jurors to have prospective that this fact would cause of the members personal prejudice any particular bias or panel, following statement: he made the because that fact against the defendant I Jury, think I “Gentlemen respect following alone. needed qualifications read the should rape particular offense of asked case. juror in this petit serve as jurors: the bene- reading I only am box, jurors but fit in the you gentlemen “Do any of panel well. those on rest of prej- particular personal have a juror grand In as a order to serve rape aggravated udice for the crime of petit this juror of the Courts of in and of itself?” State, this citizen of must be that the LSA-R.S. forth 15:357 sets years age, State not than less purpose jurors is to of the examination of fide Parish of Or- bona resident juror in qualifications ascertain year preceding one leans service of the case in particular panel, write able to read and tendered, shall be limit and the examination *7 English under inter- language, not purpose. ed to that or charged any offense, diction or * * * any felony, any time convicted ‘qualification’ has “The term providing distinction there shall be no juror’s reference to the state of the race, previous color or account of on experience to in serv- mind and not his make this of servitude. I condition juries, ex- ing or the lack of such you you to so gentlemen mention perience. purpose The of the examina- you that unless meet itnderstand will juror is to determine whether the tion qualifications would not be these indifferent between stands state a juror. qualified to serve as Unless prisoner. He considered indiffer- meet signifies doеs not these someone favor ent when he neither biased in the Court will assume qualifications, accused; prejudiced against nor you meet them.” do expressed he has formed or when opinion guilt as to or innocence prior to further discloses record The accused; and, finally, exceptions, when he instant bills of taking of the scruples no conscientious propounded jury entertains were questions prevent him carry- which would from race panel as the variance to whether 362 .361 juror may challenged A R.S. 15:354. be effect, object of into ing the law impartial, because impartial jurors he is the cause of select being law to being bias immaterial. 15:351 state LSA-R.S. try the issue between the to ” * * * v. State accused. (1). 162, Swain, 20, 163. 180 156 So. La. questions, At the supra, time were
disallowed on
voir
examination
dire
is well
Our law
settled
prospective
used
jurors,
had
the defense
by
right
-defendant has no
peremptory
Despite
challenges.
two
right
particular jury
jurors, but has the
fact, counsel
for the defendant contend
n
impar
competent
only
by
a trial
they
had
secured affirmative answers
413,
McLean,
jury.
211 La.
State v.
tial
questions
their
which would not have been
187;
Ramoin,
La
State v.
So.2d
challenge
cause, supra,
a basis for a
.850,
presiding judge
“In criminal cite the cases (cid:127) States, nature and shall be informed of the of Smith v. United cused Brown (cid:127) him; (decided opinion), and United States in one of the accusation cause Cir., 262 F.2d in which right tried shall have the United when Appeals num- Court held jurors peremptorily, States (cid:127)challenge counsel appellants Arti- permitted should challenges ber law.” fixed prospective ask I, jurors cle Louisiana Constitution Section prosecu- voir dire examination 1921. In of criminal on the whether the trials necessarily Ku members of the Klux punishable with death or Klan tions *8 n with Council; Raymer labor, State, imprisonment Citizen’s each de- White hard 241 P. challenge per- entitled 32 Okl.Cr. which the fendant shall be (cid:127) Appeals jurors, Court held emptorily prosecu- and the Criminal that twelve permit LSA- of the trial court to for each defеndant. refusal coun- tion twelve jurors Court fails to see as “The how question for sel defendants prospective a Klan was mental condition of Ku Klux membership in the particular Tighe, juror concerning this error; and, reversible defendant, Supreme particular case, where P. 327, 71 Mont. proper particular complainant and this it was or held Montana Court of victim, each ask how answer to the for defendant counsel question voir way give on his could sworn called and juror, when some notice as to a member mental con- dire, he was whether juror. Order dition the prospective Pythias, or Knights of of Sons Fellows, of the Order Odd or question “The up, looms what these think do not We Hermann. ‘sympathy’ does word mean? questions apposite because cases are Many appellate times an Court or examination propounded voir dire trial sympathy Court has for a particular- jurors therein prospective particular litigant defendant, or not organizations specific ized as to yet, must, se, per because in the matter. instant generalized law, rule individual, that in and of sympathy so itself agree We does not indicate should gen- supra, were questions, too propounded person indicate would want per correctly in his curiam stated eral. He to rendеr decision for a particu- Exceptions which reason- Bill merely lar individual because he Bill No. 2: ing covers also sympathy for said individual. “ * * * question is “The general, is so they belonged as members whether the Court pro- how wonders they contrib- or whether officers spective jurors could answer such money physical efforts uted question, they whether would an- organization, but, any particular yes swer or no. It was a double sympathy rather, were in question.” jointed segregation organiza- with either a abused’, We not find do trial judge integration organization. anor tion discretion, prejudiced defendant, states defense Counsel impaired the constitutional statutory purpose of for the sole de- rights peremptory challenge rejec- termining the mental condition of prospective jurors. defendant, tion allowed the or committed'. *9 apartment approximately five es- and after complied with the He manifest error. minutes Hen- she related that (State v. calmed down and fairness sential demands of she just had sustaining raped by boy colored 910) in ry, 198 So. around the told him that her corner. She by the State objections advanced -the (jacket) attacker wearing was and permit- a coat supra. To have questions, .general hat and lips. thick supra, having have described him as quеstions, general ted the Mr. Fraisse prosecuting wit- determined said that have been answered would ness stated jurors recognize but would that she her would impartiality by walk, talk, by attacker his and issues of his simply confused n cause. face, and that she would remember her at- tacker the remainder her life. Mr. 2 are and Exceptions Nos. Bills of Fraisse stated police; that he summonedthe -without merit. apartment arrived at within fifteen was reserved to Exceptions No. 3 ofBill minutes of his call. holding that ruling Counsel for the urge defendant that the Fraisse, land- Owen testimony Mr. testimony Fraisse, of Mr. as to what was and first witness prosecuting of the
lord
said and told
the prosecuting witness to
alleged
spoke after the
she
-person to whom
alleged
after the
him
commission of the
whom
re-
person to
she
first
rape
and
prosecuting
offense
after the
witness
ges-
rape, constituted res
alleged
lated
down,
gestae.
calmed
is not res
They
had
made
the entire
was
Objection
tae.
testimony
hearsay
contend
made
Fraisse
-testimony Mr.
damaging testimony
the most
in the
the bill.
part of
record to
defendant
than
other
the tes-
timony
the prosecuting
witness herself.
testified
he lived
Fraisse
Mr.
Orleans, Louisiana,
Street, New
purposes
Baronne
The State sets forth that the
occupied
witness
prosecuting
testimony
that the
Mr. Frаisse’s
show
apartment, 1830 Baronne
adjoining
outcry
immediately
:an
made after the
shortly after mid-
rape
He said
and to
the testimony
Street.
corroborate
of the
29, 1958),
(March
prosecuting
physical
March
night of
witness as
her
ap-
door;
opened
banging at his
pearance and
heard a
condition.
'he
prosecuting
witness in
saw
door and
scarcely
describes
hysterical and
audible condi-
LSA-R.S. 15:447
Res
-an
n tion,
speaking
as events
bleeding,
“busted” and
and Gestae
themselves
her mouth
disarranged
dirty.
pressure
clothing
under the immediate
occur
her
rence, through
instructive,
impulsive
Mr. Fraisse’s
^prosecuting witness entered
par-
“Moreover,
person
whom com-
spontaneous
acts
words and
plaint
partici-
been made
the victim
ticipants,
not the words
may
rape
testify
particulars
as to the
What
pants
the events.
narrating
when
always
complaint
prosecu-
made
gestae
the res
any part
forms
immediately
trix
15:447);
the accused
(LSA-R.S.
in evidence
admissible
after,
with,
contemporaneously
circumstanc-
res gestae
but
constitute
crime,
proof
commission of the
not as
necessary inci-
must
es and declarations
but
the truth of
made
the statement
act,
con-
immediate
dents of the criminal
*10
”***
part
gestae.
as
of the res
with
it,
conjunction
in
form
comitants of
201,
Porеt,
State v. Labat and
226 La.
LSA-R.S.
transaction.
it one continuous
333,
75 So.2d
340.
Fisher,
see,
168 La.
15:448;
v.
State
Labat,
State
122 So.
v.
The record
Fraisse’s-.
reflects that Mr.
strued favor the- unduly Compagno, visited the witness construction should not J. times- prosecution, technical, Fraisse, several may resort Owen and the court prior Mr. at all trial. These visits the other rules of construction Hospital Baptist in- scope, give appropriate Fraisse’s home at the each its to- prior purpose patient where the was a cluding relating rules witness the com- controlling intent subsequent trial and the date of and the statute sylla- consideration From mission of the offense under Legislature.” 954, 23 re- Davis, testimony with following La. v. herein. The bus of State place- spect took conversations So.2d cross- during visits was elicited these testimony Consideration : examination no us that properly presented convinces prosecut- “Q. You testified de prejudice committed she after witness, prosecutrix, ing Fraisse’s Mr. admission of fendant later, five minutes calmed about down prior testimony prosecutrix. to that of wearing a you her assailant was told defendant “the might We also remark Yes. hat? A. its order regulate cannot the state * * “Q. you Did she tell what kind of La. Goins, 232 proof, State hat? Childers, A. She me told a wide- 94 So.2d brimmed hat. So. 640. “Q. Now, you did make men- merit. Bill is without of that in tion this statement reserved Exceptions No. 4 was Bill just read?”6 to a made statement Argument between counsel. Fraisse, witness, Owen while the State’s by counsel cross-examination was under “Q. And, you again didn’t tell me -Baptist Hospital, in the that she told the defendant. negro witness, Fraisse, wearing Owen me that told 6. While Hospital, identify Baptist cap patient the follow- and that she could him if she again. ing taken him him She did not tell from me that statement saw identity Attorney’s ‘only clue to the the District Of- the cul- members voice, Fraisse, prit,’ was the sound of his of Owen taken “Statement fice: *12 any identify Baptist Hospital way. could him Southern in the other she Orleans, day fact, City on a matter of she told the 13th As me she оf New forget November, spoke prose- never what he looked [the 1958 —T could like.’ - immediately Signed, cuting Fraisse.” Owen witness] after she was negro by an unknown She attached male. you her wearing “Q. assailant was a ‘Bee- say You didn’t that? A. No. bop’ cap? I A. You were the said I cap No. didn’t mention about the ‘Bee-bop’ one that on the mentioned about the third occasion.
cap. exactly I how you just can tell “Court: He didn’t say that. He ‘like up. that came said he walked She said he didn’t cap mention about cat,’ you a describe asked me to the third (Emphasis occasion.” ours.) cat,’ meant, how I ‘like a walking Counsel defendant state in brief I eighteen said these seventeen and were attempting to show on cross- you year olds, walk, way they examination of Owen Fraisse that accord- said, wear ‘them kind of fellows ing to a him, written statement made ‘yes.’ “bee-bop” caps.’ them And, I said supra, the prosecuting witness had said to That’s cap how the came in. Mr. Fraisse person that the who assaulted “Q. you did, day raped And the 13th her on the March night of November, 1958, sign this statement cap, wore a which was in conflict with that the wearing cap, witness, assailant the testimony prosecuting according spoke you way to the she her statement being positive effect to the morning оn the A. of March 1958? cap. her assailant wore hat not guess my I I signed They did. I it. That’s argue that the above statement of signature. judge trial was a denial the defend- time at [******] “Q. Now, your didn’t I visit residence? A. you Yes. a third on the ant’s 15:384, which recites: constitutional right facts and a violation of LSA-R.S. trial by jury belongs “It jury alone de- “Q. you After returned from weight credibility termine the Baptist Hospital? right. A. That’s evidence, but the judge shall have And, “Q. you didn’t I talk with right to instruct the on the again at that time? A. You did. upon law but not the facts the case. And, “Q. you recapitu- again didn’t mention shall not state or evidence, cap, repeat testimony late the wearing assailant was witness, according any opinion prosecuting give to what nor [the proved told on March as to what facts have been 1958? witness] No, I didn’t. refuted.” A. testify again per
“Q. You I curiam to mentioned In cap’? ‘bee-bop say judge explains A. I didn’t inter- that. vention as follows: *13 Fraisse, previous in Compagno had said answer time Mr. at the
“So that questions, had not or said. third visit with referring his toas he became confused again witness put differently, Mr. “To the matter cap, ‘bee-bop’ mentioned who par- Compagno assuming that a whether it or said witness whether given by ticular Frais- answer was Mr. im- it, particularly this was he said and Fraisse, he, se to the effect that Mr. be- case phase portant at this Compagno had that testified Mr. previously, the witness had cause ‘bee-bop’ brought subject a up occasions, at no that stated [time] two cap when he visited him the third time. a ‘bee- subject of up the bring did no, Mr. reply Mr. Fraisse’s specific explained the cap, bop’ he, Compagno confused, Mr. answer, second circumstances Fraisse, say Compagno did not Mr. to. referrred previously ‘bee-bop’ cap oc- mentioned the on the and, fact, quote casion of the third felt, R.S. visit and we Court “The no, Mr. Fraisse went further said 15:374: cap that he mention about the at didn’t cross-ex- upon direct nor “Neither all on the third occasion. propound permissible to is it amination proper “The feels that Court control as true that assumes which Court, discipline in the of his charged with jury alone are which Judge is vested with a sound discretion proven assumes finding, or which stop prolonged, unnecessary proven, or have not been which facts witness, of a examination irrelevant particular anszvers zvhich assumes be examination direct whether such giv- been that have not given cross, ” though objection even no or (Emphasis ours.) en.’ urged See R.S. 15:- be counsel. incident “The Court feels 369.” juncture particular this the trial 15:557 recites: LSA-R.S. by the intervention warranted aside, judgment “No shall set be or appаrent it was because Court any granted by appellate' new trial defendant, Mr. Com- counsel any state, this criminal court of completely con- becoming pagno, case, grounds witness, of misdirection Mr. as to what fused whether such examination be discipline direct or of his court “In 7. objection cross, though and even no judge discretion sound is vested urged unnecessary counsel.” LSA-R.S. stop prolonged, 15:369. witness, irrelevant examination ”* * * improper admission State v. Court. or Scott, evidence, error as to rejection So.2d procedure, pleading certiorari matter denied 361 U.S. 80 S. opinion court Ct. unless in the L.Ed. made, an after application is objection “In a trial overruling record, entire examination may carelessly repeat the state- complained appears that the error explain ment of a witness rul- miscarriage probably in a resulted ing, so doing commit reversible sub- justice, prejudicial *14 which error entitles defendant to accused, con- rights stantial of the case, however, a trial. new Each will aof violation stitutes a substantial passed upon have its to be under own statutory right.”
constitutional or ” ** * special state facts. Nicolosi, 81 So.2d Ex Bill Our examination of 771, 774. ceptions per curi judge’s trial No. and the We judge’s do not that the trial state- find prejudice was am that no thereto discloses a ment was violation of defendant’s statu- by the against committed the defendant tory rights or constitutional which would as to what judge statement trial of the Excep- entitle him a new trial. Bill of to We have said. witness Fraisse had Owen is, therefore, tions No. without merit. exception an to also held that is there rule 15:384: set forth in LSA-R.S. Exceptions No. was re Bill judge ruling served to the of the trial hold excep- clearly “But there is defined a testimony ing of Lieutenant Robert rule, gov- think to which we tion this Lampard New De Orleans Police It well settled erns the case at bar. partment, the effect several sus to improper to is not for the Court it presented prosecutrix pects pertain may to make which statements morning of March identification on presence of the in the facts was admissible evidence. ‘ * * * ruling on the admissi- while
bility the defendant contend of evidence and Counsel for and effect * * * present was validity thereto because defendant not objections attempted prej- the time of the identification of provided are unfair not suspects, the evidence of such oc- other See udicial to accused.’ C.J.S. binding upon him could not be currences Law 992. Also Criminal § Am.Jur. against in evidence exception inadmissible and was This Trial Section 79. applied recognized and him. repeatedly been
,379 purpose Counsel for the defendant contend
The record discloses
to
was
testimony
brought
an-
offense
out
the above
Lampard’s
"Lieutenant
made
investigation
ci;ime.
was
swer had
instant
no relation to the
an
show that
trans-
immediately
They
it
argue
after
not
ex-
that the answer was
instant offense
men-
not
ception
general
name
that evidence
rule
pired. The defendant’s
crime,
he was
testimony, and
of the commission
another
wheth-
this
tioned
subsequent
thereby.
er
be committed
before
prejudiced
the offense for
is on
defendant
merit.
without
Exceptions
5 is
Bill
trial,
during
trial for
admissible
re
No. 6
specific
They
crime.
further state in brief:
hold
ruling
served to
“ * * *
permitting
Court in
The
Sergeant Pe
given
answer
ing that an
testify
Police
Officer to
subse-
the New Or
Porretto,
a member
ter J.
quent
prejudicial
clearly
offense was
Department and witness
Police
leans
accused,
jurors
and it allows
cross-examina
prosecution, while on
upon
testimony
hear
look
pro
responsive
tion,
having
accused as
committed
similar
him.
pounded to
definitely
crime which
should
attached
evidence
note
rejected
Court,
by the
which therefore
as follows:
bill reads
prejudicial
error
the inter-
time
there at the
I was not
“A.
est
accused.”
him on
arrest.
I arrested
original
*15
Sergeаnt
We do not find that
Porretto’s
time
at the
of a
Terpsichore Street
is cause for reversal
answer
or that the de-
person
ap-
óf another
complaint
prejudiced thereby.
fendant
LSA-
midnight on the
proximately twelve
:557, supra.
police
R.S.
officer
night
August
testifying
to
fact
he conducted the
especially
line-up was
set
“Q. This
line-up at
which
defendant was iden-
rape
alleged
up in connection
merely
He
tified.
stated that he
ar-
had
right.
A. That’s
1958?
of March
the defendant
in
rested
connection with
And, you knew
matter
“Q.
involving
people,
what
another
other
time,
you?
didn’t
A.
at that
that the defendant had committed
there for
another
him,
Noj
guilty
At the time I
had
arrested
offense or
been found
sir.
another
with another case which
Under
him
offense.
arrested
circumstances
I
of the
testimony,
people." (Empha-
some other
there was no violation
involved
of evidence.
ours.)
sis
rules
merit.
No. 6 is without
Exceptions
provides:
Bill
LSA-R.S. 15:382 further
were
Exceptions Nos.
and 8
right
“Counsel have the
to draw
the defendant.
by counsel for
waived
received,
from the evidence
or from
produce
failure to
evidence shown to
and 10
9Nos.
Bills
possession
be in the
opposite
trial court’s overrul
reserved
were
party, any conclusion which to them
Assistant
to the
objections
ing counsel’s
fit,
may
but
right
seem
counsel have no
de
description of the
Attorney’s
District
from
sup-
to draw
such evidence or
beast
primitive
“this
fendant
pression of evidence
con-
an incorrect
I
statement,
wish
“I
jungle,”
clusion
law.”
beast
primitive
than a
worse
could
him
call
during
made
were
which
jungle,”
interpreting
In
the above
ju-
articles our
jury.
before
argument
opening
risprudence has held:
argue
for the defendant
Counsel
“While it
is better
to omit such
prejudicial,- un-.
phrase and statement
opprobrious terms
referring to an
respect
fair,
With
improper.
accused, although there is evidence in
worse
call him
statement,
I could
“I wish
record,
here,
as there
tending to
coun-
the jungle,”
beast
primitivo
than
that the
establish
are of that
accused
sel
in brief:
state
men,
type
(the
attorney
district
re-
opinion,
humble
“That
our
marked:
‘So now we get the defense
inference
argument or
legitimate
negroes “hijacked”
that the
two
these
It was
facts of
case.
from the
nevertheless,
rats’)
we feel satisfied
(
prosecuting
appeal
manifest
attorney,
remark of the district
jury
prejudice of the
officer
accused,
classifying
op-
so
did not
personal
case
into
injecting
prejudice.
only
erate to their
It is
personal sentiments.”
feelings and
misconduct,
gross
án extreme case of
recites:
15:381
LSA-R.S.
nаture
jury,
such
as to
influence
may
argue
both
“Counsel
a verdict will
aside
rea-
set
case,
the evidence
the law
improper
son of
remarks made
but must confine themselves to matters
attorney,
the district
the court
received,
evidence
as to which
should then feel that the remarks con-
judicial cognizance
tributed
verdict
found. State
taken,
applicable
law
Butler,
&
48 La.Ann.
*16
Johnson
evidence;
and counsel shall refrain
Hamilton,
State v.
So.
124 La.
appeal
any
prejudice.”
from
132, 137,
1004,
49 So.
18 Ann.Cas.
203,
Attorney,
trict
be
have to
Davis,
La.
we would
981.”
v.
State
Tucker, 204
jury was
Cf.,
thoroughly
78,
convinced that
80.
State
So.
also,
remarks,
by
463,
influenced
such
La.
854.
So.2d
contributed to
remarks
required to
prosecuting offi'cer
“A
”*
* *
verdict
found.
his deductions
argument
base his
232,
Alexander,
215 La.
40 So.2d
ad-
upon the evidence
and conclusions
Poret,
See,
234.
State v. Labat
should,
the trial and
during
duced
“The Court
explanation.
fication, limitation or
determining
whether or
in
“ * * *
pro-
Except as otherwise
as
has been identified
defendant
every
herein,
give
vided
the judge must
offense
person
who committed
wholly
requested
such
charge that is
him,
such of-
charged
pertinent,
wholly
correct and
unless
committed, you
con-
must
fense was
charge
matter contained in such
case,
testimony
аll
sider
given,
already
been
such
or unless
prosecution
both
for
qualification,
require
limitation
charge
defendant, considering the
15:390;
explanation.”
LSA-R.S.
identification;
the circum-
means
Courreges, 201 La.
So.2d
State v.
identified,
under which he
stances
Poret,
453;
Labat and
State v.
the said
opportunity
identifying
State,
Michel
75 So.2d
brought to
defendant;
influence
give special jury following limited a reconsideration of Bills Ex- charge ag- for the “In offense of ceptions 2,1, 14 and 15.1 Nos. rape, although may gravated Bills Nos. 1 and were reserved to the on the uncorroborated testi- convict ruling Judge of the Trial mony prosecutrix, sustaining charge you I objection questions propounded State’s where there corroboration of no collectively six veniremen tendered testimony prosecuting wit- defense State on their voir dire surrounding ness by facts circum- stances, examination. Counsel for defendant asked should receive testi- prospective jurors having fact mony of said prosecuting witness —the scrutiny brought out that previously de- with care and caution fendant was colored man and the victim before consenting to a verdict of rape alleged a white Guilty.” (1) woman — sympathy “in with an integration reasoning applied same Bill organizations,” segregation (2) Exceptions applies No. 15 of Ex- to Bill them belonged any whether “re- ceptions is, therefore, No. and it with- ligious segregation grоups.” Follow- out merit. question, the ing the first District Attorney Bill prospective was re objected juror while served overruling court’s interrogated the might prejudice to his motion of counsel the defendant for a particular accused, individual new trial. This bill is It without merit. “could take the whole presents nothing people new for our considera the whole of an organiza- race or Smith, tion. State v. tion;” 99 So.2d counsel defendant stated that rulings exceptions 1. Seventeen bills of Trial were reserved to the Court. *21 396
395
put
juror not
right
questions
to
to a
the
determine the
purpose
to
(cid:127)the
was
sole
proper
show
there exists
jurors
only
that
to
prospective
of
mental condition
the
cause, but to
grounds
challenge for
defendant;
Judge
for a
Trial
the
the
concerning
to
him to
whether
ruling
facts
enable
decide
elicit
objection
(to
sustained the
challenge.
peremptory
he will
a
or not
make
and
Exception
reserved)
Bill
1 was
of
#
reason,
this
is allowed
For
a wide latitude
question
in
that
stated
the
Per Curiam
his
voir
examining jurors
in
their
counsel
irrelevant,
for
general
was too
dire,
scope
inquiry
gov-
of
is best
any
and
prejudice against
answer
indicate
to
part
a liberal discretion on the
of
by
erned
individual;
confusing
to
Court
any
so
if
is
the Court
there
likelihood
attempt
enlarge
jurors
to
and was an
prejudice
juror’s
in
that some
mind
legal
scope
be considered
of what could
subconsciously
which will even
affect
prejudice
de-
legal bias;
when the
decision,
may
this
It is
be uncovered.
attorney
question (2)
propounded
fendant’s
examination
the attitudes and inclina-
into
out,
above,
ruled the
Court
jurors
they
tions of
sworn to
before
are
stating
objectionable
because the
try
litigants
a case that
to
are enabled
scope
enlarge
defense was
to
trying-
persons, by
reject
peremptory
those
use of
personal
Per
prejudice.
Curiam
In
necessary,
challenges where
who are
Exception
2)
reserved to
(No.
approach
unlikely
deemed to
deci
be
expressed
ruling,
view was
objective
sion
ain
detached and
manner.2
legal point
involved as
same
1921,
(La.Const.
The Constitution itself
Bill and
Court asked that
first
1,
Art.
Sec. 10)
to the accused
guarantees
given in
reply
reasons
first Bill be
right
peremptorily challenge jurors,
being
applying
considered as
to and
made
challenges
“the number of
fixed
be
part
second.
law;”
number,
in the
It is a
view
voir
general
as to
penalty
crime for
which the
is death
dire
in a
examination
defendant
imprisonment
labor,
necessarily
at hard
prosecution is entitled to make
criminal
15:354).
(R.S.
twelve
intelligent exer
right
rejection,
cise of the
pertinent
inquiries
use of
reasonable and
peremptory
twelve
may
those
prospective juror
challenges,
that he
exercise
is the
so
wisely
right
privilege,
per meat
can
substan
be
intelligently
tially
weakened
challenge
party
ques-
each
a restriction
emptory
—since
Jury,
139;
213,
997;
1209,
121,
48
Cr.
S.W.2d
73
Am. Juris.
Verbo
Sec.
2. 31
A.L.R.
seq.;
Higgs,
Juror,
Prejudice;
1210
State v.
Anno.
Racial or other
A.L.R.2d
et
54
People
Soy,
102;
A.L.R.
Car
120 A.2d
54
57 Cal.
143 Conn.
1199; Pendergrass
State,
280, p.
C.J.S.
§
121 Tex.
Verbo Juries
2d
might
phrased,
one,
re-
proper
tions—the answers to which
was a
fail
and we
juror’s
garded
at-
discern
as informative of
anything in its nature that would
importance
and therefore of vital
to warrant denial
privilege
eliciting
titude
Henry,
reply
In
his defense.
State v.
membership
segregation
910, 915,
quoted group
organization.
Court
So.
Information as to
approval
pages
from 35
with
affiliation
various
associations is often
C.J.
“ ‘*
**
parties have a
sought by
defense counsel
while such
right
question jurors on their
examina- membership
necessarily disqualify
does not
purpose
showing
tion
only
for the
for
juror,4
one
service
as a
counsel
cause,
also,
grounds
a challenge
but
right
good
jurors
ask
faith to
limits,
within reasonable
to elicit such facts
are
*22
organizations
members of
in order
intelligently
as will enable them
to exercise
may
intelligent
defendant
make a more
right
peremptory
their
challenge,
of
right
exercise
challenge jurors
of his
to
* * *
isit
error for the court to exclude
cause,
pro-
peremptorily without
and thus
questions
pertinent
which are
for either mote the
jury
selection of a
that is free
**
*
right
purpose.
peremptory
The
of
from
implied
Membership
even an
bias.5
a
challenge
right,
substantial
and its
organization
in an
advocating segregation
”
* *
permitted.’
freest exercise should be
of the
might
proper
as a
regarded
races
(Emphasis supplied.)
upon
notification
defendant
which the
could
wish to
peremptory challenge.6
base a
In
Upon the
by
facts revealed
numerous cases refusal to allow counsel
bills under
Per
discussion
Curiam
interrogate
so
jurors
purpose
to
thereto,
for inquiry
it is clear that the
proposed
case,
in
though
the instant
inartistically
of
laying
foundation for peremptory
comprehensive
always
annotation,
3. See
158 A.L.R.
been held essential
to the fair-
seq., “Membership
by jury.
conferring
1361 et
in
or-
secret
of trial
ness
In
this
organization
suppression
gives
right
der or
law
effect to the natural
subject
proper
impulse
jury,
crime as
of
of examina-
eliminate
to
from the
tion,
ground
only persons
challenge,
juror,”
of
who аre rendered incom-
supplementing
petent
disqualifying
challenge refused.8 reversible error.7 such ruling prejudicial Exception reserved (as stated fact case is cured part general charge Court’s time the above Curiam) that the Per subject of which covered had disallowed, defense questions were objec- flight, following counsel’s defense challenges, only peremptory two used flight in that there was no tion element twelve cause prior charge case and therefore Court’s excused peremptorily jurors were subject flight confusing on accepted, may have Counsel defense. prejudicial to the defendant.9 tendered, jurors the six veniremen among per charged indict-' challenged The defendant was he would otherwise rape, com- deprived aggravated allegedly ment emptorily, he therefore March, 1958; he was to mitted entitled which he was information to right August night of not arrested until the judiciously exercise enable him to later, another five months The defendant challenge. some peremptory complaint. may no August Prior jury, and impartial is entitled to an the as- identity him been established enable had inquiries as will such make witness; after prosecuting sailant while right; and secure that constitutional arrest, custody yet he was incompetent may juror, defendant’s one not be attempt which, police no to flee or may made known hold views escape charge justice. His defense accused, good reason would be deemed identity. was mistaken challenge. in the instant case peremptory *23 If de for of use a Court, in Per peremptory Trial the Curiam The blindly is to make fendant Bill, panel controlling in re- the is may from the asks “What challenges, he strike question or the of whether not solving wished men he would have very the whom having Hoelscher, Mo.App. fled, an of accused or 217 The fact v. 7. See State actually escaped 1098; State, having custody, from Okl. Menefee 30 273 S.W. merely 439; proved, in are facts case to the P. and the numerous Cr. forming paragraph into consideration the in taken a be citations other probabilities page connection with or 1364. in A.L.R. at guilt Mann, the the accused. 83 Mo. 8. See “Plight, escape attempt may or an 413. A.L.R. prompted by objected guilt, given charge sense but not fol- to was The 9. you necessarily you, “Plight: charges so. If find that the ac- The court lows: attempted escape, accused, fled, flight gentlemen, or or an cused the you escape, attempt escape, it escape, is consider did what or on flight, accused, part alone, motive of the or the was the tempt at- taken does escape.” escape, legal presumption guilt. raise not custody into that the accused was taken time? fact question of Is it fled? the accused complaint general in but be five another itMust years? three it be Must vicinity, after commis- several months this case “In concludes: years?” and involved, suggests sion ac- of the assault element, here because certainly an flight in is nothing not so far as concerned. and was scene flee from the did cused (mentioned The situation in the Per Cur- later. months five until some apprehended phase, fugitive from iam) charged one as a include it must felt Court The justice another state has never ac- evidence.” who supported it was because tually police been in unlike custody is com crime is fact that a identity in instant case that the of such person by a whose date a certain mitted on known, may fugitive therefore unknown, subsequently and that identity is have be said to fled scene of crime.10 custody and taken into individual In a criminal case it is error to previously committed charged applicable an instruction which is not basis, give itself and in crime, no affords identity charged and which is not denial of crime individual’s view of borne out the evidence.11 ob the crime The rule person who committed with the accused, only charge for a tains that it is where there is evidence he stands jury may that the flight statement be instructed Court’s flight. The covering properly flight to consider “did flee from the scene such as a cir accused that the prove guilt in apprehended tending until some five cumstance connec apparently based tion with the other circumstances evi later” months ; dence but that where defendánt is in fact there is no evidence assumption that the yet flight, it is committed the error to person who instruct thereon.12 crime— case, yet In the instant been submitted view of the question had absence attempt, effort, jury. showing any Since of evidence for determination part identity purpose flee, on the know the defendant to police did not ap instruction highly preju for all that they sought, Court’s person whom may sufficient in itself have dicial and to cause pears accused reversal, jury might since the during period; and well locality the whole * * * custody police, Curiam states: “This Court could 10.The Per presume legally flight suspects [he] understands never resorted to counsel escape flight only the scene.” or fled from an actual from where to be completely Trial, occurred, custody Am.Juris. Verbo 11. 53 Sec. disre- person charged garded aof 575. state, fugitive Verbo Criminal Law § from another who C.J.S. aas p. 780, rendition, yet 22(1), fights authorities cited be- Note interstate person had not been in actual therein. cause *24 404 403 clothing description cuting witness’ must have that the defendant concluded con- such not worn the assailant—but that would the Court justice fled from —else unwarranted; the is clusion is and law flight. The charged them charge special give refusal to stated settled, has been Court’s often well be corrected to not would have to be should Court, an instruction facts applicable theory the law and the upon to which made jury given be error, Poree, La. citing State v. support.13 was no affоrds no the evidence So. 83. reserved to Exception 15 was the judge give the the refusal of The sole defense the accused concerning charge special requested jury a in this case was that not the man he Per the identity defendant.14 charged; committed the crime who subject general that “the Curiam states he that there was a contends lack of suffi already given in been matter had cient and reliable identification himself further, Spe- the said charge, general reading as the assailant. A Court’s wholly nor not correct Charge was cial general charge shows the matter of re- wholly pertinent, moreover would identification was not covered re or even explana- qualification, limitation and quire to, yet exclusively ferred it was within the tion,” require- did meet the therefore province jury to determine whether concerning duty ments of R.S. 15:390 person the defendant in fact charges. The give requested of a the crime. The Court’s charged requested Trial further states that Court every phase “must cover charge charge misleading, give seeks to evidence, supported by whether case testimony impression that certain conclu- judge.” accepted as or not sively prose- true discrepancy showed cation; (On Rehearing), the circumstanсes v. Matthews under which 13. State 48; identified, opportunity 962, 966, Reed, La. 36 So. State identifying defendant; 28; Cox, said in- 206 La. So.2d State brought person 48; 279, 119 to bear on La. claim- v. Har fluence So. identify defendant; ris, see, also, ing 117 So. the de- apparel Rodosta, scription stated State v. So. probabilities witness, and the im- 124. charge defendant, probabilities it was was: “The Court That instructs judging determining weighing jury, after so if whether or you evidence, beyond are not satisfied the defendant has boon identified as person who doubt the defendant committed the all reasonable the charged offense correctly against him, per- identified as the such offense charged committed, committed offense must consider who all of son testimony indictment, your duty case, will t'-^e both that in this Guilty.” prosecution Not the defendant and that for the find defend- considering ant, means of identifi- *25 405 400 497, Robichaux, wholly at page require State v. La. correct would some 507, modification, page citing State charge So. think such a we should Irvine, Tucker, 789; v. be included charge, 38 La.Ann. main mis- since Atkins, identity taken So. State v. sole only de- effect, fense of the La. 67 So. To the same accused. Youngblood, see State reasons, For it is ordered foregoing So.2d 689. And from Marr’s Criminal the conviction and sentence Jurisprudence 2, pp. 1031 and of La. Vol. reversеd, lower court be set aside and “ ** * respectively, from When that this case remanded for a new trial the evidence a con- jury might reach in accordance herein with the views ex- accused, clusion of fact favorable to pressed. judge should charge his limit his issue, upon own conclusion such but should SUMMERS, JJ., HAMLIN and dissent. give special charge, requested, if on a theory accused;” favorable to and “It is HAMITER, J., adhering to the dissents — duty charge upon every phase of assigned original hearing. reasons on the evidence, the case made and where prove evidence is offered a certain state facts, Rehearing and it is claimed On are
proved, should, requested, charge applicable HAMLIN, what the law as (dissenting). to the facts Justice proved, to be claimed whether he believes from respectfully I must dissent the ma- importance or attaches to this evidence matter, opinion rehearing in jority not, belongs since it to the alone original I feel that the reason that for the weight determine the and credibility of author, opinion, of which I was cor- ” * * * evidence. presented disposes rectly of the issues Conceding, without considered therein. deciding, Bills of Judge right assigned Trial reasons conclusion adhere I requested charge opinion. original as drawn was