*1 appealed, Accordingly, judgment reversed; exception of no cause plaintiff’s
action is maintained and suit at its cost.
dismissed
HAMITER, J., concurs. So.2d 617
STATE v. SMITH.
No. 39546. 20, 1950.
March
PONDER, Justice. indicted, defendant was tried and convicted for the crime of murder and ap- to be Pie sentenced electrocuted. has *2 pealed from the conviction and sentence. fifty-two our examination of the From appeal, bills of on this presented many without we find them are However, merit. some of them have grave us concern. exception
Bill of was taken to No. 6 attorney made statement district examined, juror after being while selected, viz: already three had been not entitled to defendant object- tenuating circumstances. Counsel it was made ed to the statement at the time discharge and a moved mistrial jurors. The court overruled ob- jection. exception
Bill of No. was taken to a propounded by question the district attor- prospective ney after six to- selected, “You would in- had been viz: not capital punishment, raped even if he flict daughter?” objected -Counsel your own the discharge mistrial moved jurors. This oven- Makar, Williams, Pat- B. Richard John ruled. Thomas, Jr., F. Murphy, G. C. rick Julian defendant-ap- Natchitoches, for Bailes, E. exception No. was Bill of taken to a pellant. question district attor- juror, General, prospective Attorney ney after Kemp, Jr., nine E.
Bolivar selected, General, to determine been Attorney had whether 'Culligan, Ass’t E.M. scruples against had conscientious Attorney, Natchi- District Hughes, L.H. “even in punishment, capital appellee. toches, for rape.” objected upon crime and should not be released discharge public. and the and moved for mistrial objection was over- jurors. This The twenty defendant years old and
ruled. single at the time the crime was committed. per curiam The It appears that the deceased awas married obtaining difficulty the State woman and years several older than the many so had dis- jurors because sufficient defendant. gather opening con- reason qualified themselves statement of the district attorney and the capital punish- against scruples scientious written confessions embodied in the record under more less these it was ment and the defendant and the deceased had the re- exasperating circumstances having past relations in the except- of the district marks and that they went a mile and a half below the defense. by counsel for ed to thickly town to a wooded section for such opinion at the it was his states that purpose. It was while were at this the remarks not and now time place that the accused killed the deceased prejudicial. by cutting her throat. According to the confessions, written remark district did attor-. *3 why her, know he killed the accused was not entitled he made ney that to the state- Deputy ments to Sheriff Black extenuating of benefit circumstances he was was paying attention prejudicial a cousin and to the defendant. to improper deceased had previously and objection should have been asked the brother The sustained of quit the make disregard to deceased to her instructed the running and the re aft- because, er him she alone was right going the has the mark because to get him in trouble. He stated not are ex there her to determine whether or husband had already shot, at, or shot and the effect to be some tenuating circumstances man about her and that he wanted her They might stop differ as to the to them. running him after because it which was or circumstances interfering kind character of with his her qualified attentions to cousin. It a defendant to a ap- does would entitle not pear there Henry, 999, produced 3 evidence State v. 197 La. verdict. was. even contention made that the 104. defendant raped the deceased. contends that the ques by questions propounded propounded the district Thfe tions to the prejudicial prospective jurors because to the were not per- defendant, qualification who was tried to determine being tinent the the aof impression murder, juror left because the serve trial for murder. Ar- of guilty ticle 357 Code of sex Criminal the Procsdure. 1048 1047 ques- deputies Moreover, hypothetical questions and other who available had been placed in ex- permitted the rule. under the He contends that are not tions pre- its permitting call abused discretion amination which on the facts. any supposed Black to remain in the judgment case court room because 275, 1042; v. C.J.S., p. principal State Juries, he was officer 50 who testified § 104; 999, confessions, State both the reaction 197 La. 3 So.2d of the de Thornhill, 762, jail, 343. See in So. fendant while and as v. 178 motive La. 154; 670, para. expressed crime, the defendant for Am.Juris., page also 31 730, Plummer, sanity So. statements La. and made regarding v. State 545. 162, accused, 3 So.2d and Scott, endeavored and v. 198La. on his own State gaps fill in the left volition the other State, wherein authority cited for the State. He cites Article whether to state permitted of Criminal Procedure Code and State in a capital punishment opposed or not he Carter, 19 So.2d 41. murder”, is in not cold blooded “case of his curiam states propounded question was point because expe- Black was oldest and most qualification ascertain deputy and useful in the rienced court room and the murder of a in the trial helping with the essential mechanics of purpose. to that was limited amination and order maintaining because primarily bills of are These jammed major por- curious crowds had effect that the statements levelled at the tion of court room. jurors already selected. The trial court is vested with dis agree with cannot may cretion as what excused officers propounded questions statements rule, only when dis prejudicial. His refusal to jurors were not arbitrarily unreasonably cretion ex his failure to objections sustain injury prejudicial ercised to de disregard the state- instruct impartial fair and obtaining fendant questions preju-
ment and trial that this court would be warranted trial. the defendant his dicial to setting aside a verdict. The essence of the exception 5 is No. levelled at the Carter case was whether or the accused Bill *4 deputies refusing place court provocation shot the in to without or ruling Black under the when judge rule self defense. refusal of trial Deputy Sheriff granted. had place these three of witnesses witnesses under the rule a severance in judge permitting that the trial has them remain concedes excusing deputies room, practical purposes, deprived., from the for all in discretion a right that the sheriff four the accused cross-examine had contends rule but any 'being rea- ar- cite could aware judge The trial did not not avoid them. alleged under the ticle and that place them its title. It further his refusal to is son for position attorneys for the took the that State used this article rule but in questioning so. In him the to do and that granted discretion witnesses n part, trial conduct on their case the where the present necessary issue, maintain order of a de- sex crime was not was a at Black Black appear, attempt had upon liberate the attor- part It does court. neys preju- in the outcome of appeal interest for the State personal to the at hands of injury sympathies jury. dices received case or circumstances, we Under the accused. states, The trial curiam judge abused his trial say cannot without on the truth al- commenting excusing this officer discretion legations, no was made nor rule. alleged bill reserved conduct and exception to the overruling of the the time they statements at were made for new trial motion has us some cannot serve as basis for .concern. Willson, new trial. State 69. alleged
It is in the motion new attorney that the district in his final If allegations were true and the ob- to the you course address stated: “Of j timely ections made this undoubtedly would imprison defendant to can sentence life have constituted reversible How- error. time the (at which district ment ever, under the holding the Willson case his shoulders shrugged gesture of dis alleged we cannot consider the conduct and you further) all know said what gust the alleged statements of the district attor- imprisonment in Louisiana means —it life ney because were not timely objected that he (pointing defendant) to the means to. ‘pen’ down to the go while and would alleged n beout It is in the motion for newa eight years or ten and be back rights of the accused leopard “If I let a loose on up here.” materially prejudiced affected -and Natchitoches, and kills it some streets spectators permitting court’s to gather leopard one, blame —the or who I?” against crowd around and defense in such alleged that this remark was taken It under such numbers and conditions as word from an article in an issue word actually hide from the wit Saturday Evening Post entitled in the witness stand making nesses Do about Can We Sex Crimes” “What necessary displayed stand in on the table of or which attorney in such identify a manner that the see the accused; der to district *5 1052 sight court them. He the of the accused or he of had overcrowded spectators these pas- aisles, and states that was made to the doors no the that extent the and that the conditions under trial was held occupied which the fully ways were sage be- it now. urge area and that it is too space a small late was only available jury box. the and table -counsel the tween Counsel for the defendant relies on the spectators of the that some alleged It is holding the case of State seats, and the boxes on standing were Henry So. 910. In the dis- considerable causing were and windows timely objection was made to the over- judge time; that the time to from turbance crowded condition the of court room dur- doors; room the court closed never the course of the trial. we ing Since have doorway and in the gathered were people at arrived the conclusion that a new trial be and jury box the adjoining hall have to granted will the prej- because of oc- on several judge down quieted udicial errors in bills of reflected around crowded spectators the ; that casions 6, 7 and Nos. it is not necessary for us free move- the extent defense the determine whether the of the part on the consultation and ment' timely crowded court room could be raised prevented. was defense a for a in motion trial. new We have re- allegations show- cited these in the motion record in the photographs findWe point hew trial in order -surround- out that jury such and the ing permitted. (cid:127) back conditions should not be People were spectators. ed jury, opinion and press as whether duty the no it is the of seat, sides both on judge’s show the itself to of court that these photographs see condi- counsel. around all irrespective inside tions do not exist people timely congestion- complete objection. rail. per curiam
The trial appears states It the allegations from room but was crowded motion new trial and the testi and not a hostile crowd. He curious jury taken mony thereon picture was made' attached nights during states on two housed thanking court was camp Lake, while the fishing Black owned at a three-day that the and crowd jurors, eighteen service located one miles door, stand around the witness and in the court house. On the night first jury had drifted between the nine selected were carried jury. the deliberation He during twenty-five by road to bus some miles man sitting with his back deputy camp. charge sheriffs were in Two during operated by wasn’t box there bus who was an officer or in person not out of the way seem trial. There connected with the remanded to the district new court camp buildings trial. at have several officers it evidence two HAWTHORNE, J., dissents: appears that no one came in contact with were housed one HAWTHORNE, Justice. buildings camp in this in four or five respectfully I dissent from ruling *6 opening hallway. rooms into common On 6, bills 7, 8, numbered because I do night the twelve were car- second not think that the authorities cited in the camp ried and a bus to the one majority opinion pertinent are or control- deputy separated the others and went ling. In none of the cases cited was the seventy fished yards some the lake and ruling of the court based on the fact deputy other for a few minutes until the an improper question was pres- asked in the back. It seems called ence already selected. In the shaving and jurors at time were other principal case upon, relied State v. camp near the bathing place at a faces 197 La. the trial building. refused to objections sustain judge, curiam
From questions, all peremptory challenges were him on that'the informed it sheriff seems exhausted, compelled defense was day accommoda- the first accept jurors that, who stated if hotel obtained in the not be tions could were convinced from the evidence that the separate rooms. He except for the guilty accused was and if in opinion .their be better opinion that would was of there were no mitigating circumstances, house circumstances under the would render a carrying verdict with camps Black Lake. at one of penalty. it the death IAs understand record the instant conclusions, it previous of our view In case, prospective none of to whom question. pass necessary on this is not questions was chal- penal- the extreme However, where in cases lenged defense', for cause none of pre- imposed, every can be ty jury, them served on the and the defense ac- prevent any taken to be should caution peremptory did not exhaust its challenges. jury should not jury and a cess to the Conceding improper- separate. allowed prospective juror examination of a his gained could be purpose No a discus- dire, fail to voir I understand how the de- exceptions. other bills of sion of prejudiced under fense was the above facts and circumstances. assigned, For reasons the conviction are aside and respectfully and sentence set I dissent.