14 So. 2d 873 | La. | 1943
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *26
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *27
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *28
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *29 The accused, a negro, was convicted by the jury of the crime of rape of a white woman and the judge sentenced him to death by electrocution. He appealed from the conviction and sentence and relies upon three Bills of Exception for the annulment of the judgment.
Bill of Exception No. 1 was reserved when the district judge overruled the defendant's motion to quash the indictment, the grand jury venire and the grand jury panel. He alleged that he was a negro and was charged with raping a white woman; that he was indicted by the grand jury of the Parish of Orleans; that his trial would be held before the Criminal District Court of that Parish where one-third of the population consisted of negroes; that the general venire box for the Parish of Orleans did not contain the names of any members of the colored race at the time the panel for the grand jury was drawn; that the members of the *30 grand jury, which had returned the indictment against him, were persons of the white race exclusively; that the officers charged by law with placing the names of persons qualified to act as jurors in the general venire box not only failed to place in the box the names of any negroes qualified to serve as grand jurors, but deliberately excluded them; that on information and belief, he alleges there has not been a negro on the grand jury of the Parish of Orleans for at least twenty years; that the officers of the said Parish have systematically, unlawfully, and unconstitutionally excluded negroes from the grand jury in the Parish of Orleans during that period of time; that this exclusion of negroes was made only because of their race and color; that he is informed and believes that the entire panel from which the grand jury was selected consisted of the names of seventy-five persons, none of whom were of the colored race; and that the above acts of the officials constitute a denial to him of due process of law and the equal protection of the law, guaranteed him by the Constitution of Louisiana and the Fourteenth Amendment of the Constitution of the United States. He prayed that the indictment against him and the entire grand jury venire and the grand jury panel be quashed and annulled.
The State filed a demurrer to the motion to quash on the ground that it was not filed, pleaded and urged until after the third judicial day of the expiration of the grand jury term of the Parish of Orleans during which the defendant was indicted, and prayed that the defendant's plea be dismissed. *31
The demurrer is based upon Article
"All objections to the manner of selecting or drawing any juror or jury or to any defect or irregularity that can be pleaded against any array or venire must be filed, pleaded, heard or urged before the expiration of the third judicial day of the term for which said jury shall have been drawn, or before entering upon the trial of the case if it be begun sooner; otherwise, all such objections shall be considered as waived and shall not afterwards be urged or heard."
The issue presented is to be determined by the correct interpretation of the above article.
The indictment was filed in open court on August 20, 1942, and it is alleged therein that the crime was committed on June 25, 1942. The accused was arraigned before the bar, accompanied by his counsel, Henry Read, Esq., on August 26, 1942, and pleaded not guilty. Mr. Read was succeeded by attorney Alcide J. Weysham, and on September 25, 1942, the court appointed Rudolph F. Becker, Jr., as counsel, to represent the defendant, and Weysham remained in the case as his associate. When the matter was called for trial on September 29th, the defendant's attorneys requested a continuance on the ground that they had not had sufficient time to prepare for the trial thereof, and a continuance was granted. On October 7th, counsel for the defendant filed an application, asking the court to appoint a Lunacy Commission to determine the defendant's mental condition. *32 On October 16th and 17th, a hearing was held to determine whether the court would appoint a Lunacy Commission and, on the latter date, the court refused to do so on the ground that the defendant was sane and able to understand the criminal proceedings filed against him and assist in his defense thereof. On the same day, the State asked that a date be set for the trial of the case and the defendant's attorneys objected to the defendant's arraignment at that time, because they desired to file further pleadings. It was then agreed, in open court, that if rearraigned, the defendant would be granted one week from October 17th to file any additional pleas, and that, at the time of filing them, he would be permitted by the court to withdraw his plea of not guilty. On October 23rd, the defendant filed, in open court, the motion to quash the indictment and the entire grand jury venire and panel, after obtaining permission from the judge to withdraw his former plea of not guilty. This motion was set for hearing on October 26th, and upon the State's request, the hearing was continued until October 28th, on which day the State filed its demurrer to the motion to quash. The matter was heard and taken under advisement by the court. On November 9th, the court sustained the demurrer on the ground that the motion to quash was not timely filed and assigned written reasons in which it was pointed out that the term of the grand jury, which returned the indictment against the defendant, began on March 2, 1942 and ended on September 8, 1942, and that the defendant's counsel had from August 26, 1942 through September 11, 1942 within which to file the motion to *33 quash, and having filed it on October 23rd, 1942, or forty-two days too late, it could not be considered on its merits. Thereupon, counsel for the accused reserved a bill of exception. The defendant was then rearraigned, pleaded not guilty, and the case was set for trial on November 17, 1942. After the trial, the accused was found guilty as charged by the jury on November 19, 1942. A motion for a new trial was then filed and overruled and on January 15, 1943, the court imposed the death sentence, by electrocution, upon defendant.
The attorneys for the defendant, in their brief, state:
"We * * * submit that Article
"* * * * * *
"Therefore to comply with the provisions of Article 202 of the Criminal Code of Procedure the defendant's counsel would have had to file his Motion to Quash the Indictment not later than March 5, 1942, which date was the latest date that he could have filed his Motion to Quash, in order to comply with the provisions of the Code.
"In the case at bar, that would have been impossible, because the alleged crime was not committed until June 25, 1942, which was long after the expiration of the third judicial day of the term for which the Grand Jury was drawn to serve." *34
The State pleaded and the trial judge so ruled that Article
The Article of the Code in question has an historical background, which is helpful in arriving at the correct construction to be placed upon its provisions.
The first statute on this subject matter was Act No. 44 of 1877, Section 11 of which reads:
"That all objections to the manner of drawing juries, or to any defect or irregularity than [that] can be pleaded against any array or venire, must be urged on the first day of the term, or all such objections shall be considered as waived, and shall not afterwards be urged."
In 1889, while the above statute was in force and effect, the case of State v. Strickland, 41 La.Ann. 513, 6 So. 471, was tried. There the offense, murder, had been committed after the time fixed in the statute in which to object and plead "to the manner of drawing juries, or to any defect or irregularity" with reference to any array or venire. In short, the crime was committed after the first day of the term. The motion to quash the indictment was founded upon the alleged illegal drawing of the jury venire from which the grand jury had been formed. The Court pointed out that the statute was not applicable to a case where the offense charged was committed after *35 the first day of the term nor could it apply to defeat a motion to quash where the defendant was arraigned after the first day of the term. With reference to the legislative intent and purpose of the statute, the Court said:
"It is very clear to our minds that this legislation was prompted by the frequent rulings of the courts tending to cure a vicious practice on the part of defendants in criminal prosecutions who would take their chances of an acquittal before a defective jury, and who would in case of conviction urge irregularities in the formation of the jury, which they should have set up in the preliminary stages of the trial."
During that same year and term of the Supreme Court, the case of State v. Sterling, 41 La.Ann. 679, 6 So. 583, 584, was presented to it. The offense of embezzlement therein charged had been committed in 1887, the indictment was returned on December 1, 1887, and the defendant was arraigned and pleaded to the indictment on December 12, 1887. In February, 1889, or two years later, the defendant filed a motion to quash the indictment on the ground that the drawing of the panel from which the grand jury was selected was irregular and illegal. On the issue of whether or not the motion to quash had been seasonably or timely filed, after quoting the provisions of Section 11, Act No. 44 of 1877, the Court said:
"* * * The motion set forth no excuse for the untimely filing. It did not allege prior ignorance and recent discovery of the defect. Obviously, nothing in the motion exempted it from the operation of the *36 statute, and, under the plain terms thereof, the judge was not only authorized, but bound, to overrule it, and the correctness of his ruling in so doing cannot be questioned.
"After the motion to quash had been thus properly overruled, defendant filed a motion to reopen the motion to quash, with the view of proving his prior ignorance of the defect pleaded as an excuse for the untimeliness of his plea.
"We cannot say the judge erred in refusing this motion. There must be an end to such questions. There was no good reason why the proper ground should not have been laid in the original motion to quash."
In the year 1917, the question was again presented to the Court in the case of State v. Thomas,
On the original hearing, in holding that the motion to quash was filed too late, the Court stated:
"No reason is alleged for the delay in the filing of the motion, and, in a stronger case than is here presented, it was said by the court:
"`Obviously nothing in the motion exempted it from the operation of the statute' (Act 44 of 1877, § 11), `and, under the plain terms thereof, the judge was not only authorized, but bound, to overrule it, and the correctness of his ruling in so doing cannot *37 be questioned.' State v. Sterling, 41 La.Ann. [679], 681, 6 So. [583], 584."
A rehearing was granted, limited to this issue. In the opinion on rehearing, the Court pointed out that Act No. 89 of 1894 repealed and superseded Act No. 44 of 1877 and the provisions of Section 11 of the Act of 1877 were retained in Section 10 of the Act of 1894; that Act No. 99 of 1896 repealed and superseded Act No. 89 of 1894, but the eleventh section of the Act of 1896 retained the tenth section of the Act of 1894. However, when the Legislature through Act No. 135 of 1898 repealed and superseded the Act of 1896, Section 16 of the Act of 1898 modified the law so as to grant the accused the right to file any objection or plea to any irregularity or illegality in the selecting or drawing of the jury or the array or venire at any time before entering upon the trial of the case, otherwise all such objections shall be considered waived. As the motion to quash the indictment had been filed before entering upon the trial of the case, it was held to have been filed in time. The Court stated that the ruling in State v. Sterling, supra, was rendered in accord with the statute of 1877. After a consideration of the merits of the motion to quash, it was concluded by the Court that it (the motion) was not well founded and the original opinion affirming the verdict and sentence appealed from was reinstated.
In the case of State v. Jenkins,
In 1928, the Legislature adopted the Code of Criminal Procedure of which Article 202 is a part.
The controversial provisions of that article of the Code are quite different from those of Section 16 of Act No. 135 of 1898 but are similar to the provisions of Section 11 of Act No. 44 of 1877, except that Section 11 of the Act of 1877 provides for a delay of one judicial day, or that the objection to the drawing of the jury, etc., must be urged on the first day of the term, and Article
The Legislature must be presumed to have passed Article
In the case of State v. Smothers, 1929,
We observe that the provisions of Article 287 are in harmony with the latter portion of Article 202, which governs the case where the trial is started during the same term when the indictment is returned.
In the case of State v. White,
The trial judge ruled that as the defendant had not availed himself of his right to file a motion to quash the indictment, the jury venire, and the grand jury panel, and having elected to go to trial without doing so, he waived his rights to set up any objections to the proceedings of the Jury Commission, the drawings, the organization and qualifications of the jury venire or the grand jury panel. The Court stated:
"But counsel for defendant contends that defendant's conviction and sentence should be reversed for the reasons, as stated in his brief, that (1) under the recent decision of the Supreme Court of the United States in the case of Pierre v. Louisiana, 1939,
"It is expressly provided by the Code of Criminal Procedure, in prescribing the qualifications of a grand or petit juror, that `* * * there shall be no distinction made on account of race, coloror previous condition of servitude * * *.' Article 172. (Italics ours.) State v. Turner,
"The United States Supreme Court in the case of United States v. Gale, supra, held that (
"The identical question raised in the instant case was raised and answered by the Supreme Court of Arkansas in the case of Hicks v. State of Arkansas, supra (which decision was affirmed by the United States Supreme Court without comment,
"`It is insisted as ground for reversal in each case that appellants, who are all men of color, were discriminated against on that account, and that no colored man sat, or was summoned to serve, upon either the grand jury which returned the indictments or upon the petit juries which tried the cases, and that no colored man had served on any jury in Phillips county — where the trials occurred — for many years. This assignment of erroris answered by saying that the question was first raised in themotion for a new trial, *44 and it, therefore, comes too late to be now considered.' (Italics ours.)
"An analysis of the Pierre case conclusively shows that counsel is mistaken about the holding in that case. The defendant in the Pierre case, conforming to the well established law of procedure,properly and timely moved to quash the indictment and thegeneral venire from which had been drawn the grand jury thatreturned the indictment against him and the petit jury drawn forthe week of his trial, and the United States Supreme Court based its decision on the fact that the evidence in the record supported the motion to quash the indictment. He is equally mistaken about the time limit for the filing of a motion to quash the indictment, because, under the express provisions of the Code of Criminal Procedure, a motion to quash the indictment may be made at any time before the trial of the case. Articles 202 and 253; State v. Thomas,
"Counsel concedes the constitutionality of the law providing for the selection of juries and under this law an accused is not entitled of right to be indicted or tried by a jury composed of any particular type or class of persons, either of negroes, of whites, or of a mixture of both. The composition of a jury is a matter that can be waived and the accused evidently did this in the instant case, since the record does not disclose that his counsel, before the trial of the case, either filed or requested the court's permission to file motions of any kind. *45
"A grand jury is presumed to be legally constituted and to possess the qualifications prescribed by law. 1 Marr's Criminal Jurisprudence, 428, page 652; State v. Gonsoulin, 38 La.Ann. 459; State v. Guillory, 44 La.Ann. 317, 10 So. 761. It was counsel's duty, therefore, if he knew or had reason to believe the contrary to be true, to request of the judge permission to file the necessary motions to cure the defects complained of in the organization of the jury and to reserve bills of exception in the event such permission was not granted.
"* * * It is our opinion that when defendant went to trial without first filing a motion to quash the indictment for the reasons urged here, he waived his right to do so and cannot, for the first time, after trial and conviction, in a motion for a new trial, urge them. To hold otherwise would give an accused the advantage of another trial in the event of his conviction, in that he could urge, as was done here, the invalidity of the indictment upon which he was convicted after conviction, instead of before going to trial as provided for by law. On the other hand, if the accused had been acquitted and later had been reindicted by a grand jury selected as defendant is contending for now, he certainly could successfully plead former jeopardy."
The verdict and sentence were affirmed.
It will be noted that as the accused waited until after the trial and verdict to attempt to raise the issue as to the legality of the drawing of the grand jury and panel, it was unnecessary for the Court to consider *46 the question presently before us. Under all of the pertinent articles of the Code of Criminal Procedure the defendant's plea in that case was too late, coming after the verdict was rendered.
The instant case is identical with the above cited one, in that the trial thereof was begun after the expiration of the grand jury term during which the accused was indicted. It is different in that the defendant actually went to trial and filed his motion to quash after the verdict was returned finding him guilty as charged and only in connection with the motion for a new trial. The case is authority for the proposition of law that if the motion to quash the indictment, the jury venire, or jury panel is not timely or seasonably filed, the accused is held to have waived his right to file such pleadings. Article
The constitutionality of Article
This Court, in the case of State v. Strickland, supra, in interpreting the provisions of Section 11 of Act No. 44 of 1877, and, in State v. White, supra, in applying the provisions of Article
Article 191 of the Code of Criminal Procedure provides the machinery for the selection of grand and petit juries for the Parish of Orleans. The Jury Commissioners place in the jury wheel or general venire box a list of approximately 1,200 names. From this list of names is selected the grand and petit jury venires.
Under the provisions of Article 196 of the Code of Criminal Procedure, the Jury Commissioners and the Sheriff draw 75 *48 names from which the judge of the Criminal District Court, whose term it happens to be, selects 12 persons on the next day to serve as grand jurors. The drawing by the Jury Commissioners and the Sheriff shall take place twice a year between the fifteenth day and the twentieth day of February and the fifteenth day and the twentieth day of August.
The attack on the array and venire here is based upon alleged discrimination by the Jury Commissioners and the Sheriff in the drawing of the grand and petit jury venires. It is stated that thirty per cent of the population of New Orleans is composed of members of the colored race, who are qualified to serve on both the grand and petit juries. On the trial on the merits of this issue, it would be necessary to summon and interrogate the twelve hundred or more persons comprising the array, and also determine the relative portion of thirty per cent of negroes who could qualify for jury service. Persons charged with offenses under indictments are usually not brought to trial for months and sometimes for years after the time when the members of the grand jury who returned them have gone out of office. The persons who composed the array from which the venires were drawn are very likely to be scattered over a wide area within a reasonable time after the grand jury term ends. If a defendant, under the law, were granted the right to raise this type of objection and file this character of pleading at any time before trial, it is easy to see that in innumerable instances the State would be put at serious disadvantage in making its proof *49
and this would result in a great many guilty persons escaping justice. Apparently, our Legislature had this in mind because under Section 16 of Act No. 135 of 1898, the defendant was granted the right to file these types of objections and pleadings at any time before the beginning of the trial of the case. The members of the Legislature in 1928 changed that statute by placing into the Code of Criminal Procedure Article
The defendant's attorneys contend that Article
On the contrary, if the construction contended for by the State were given the Act, the defendant would be granted the full remainder of the grand jury term during which he was indicted and three full judicial days in addition thereto to file such objections and pleas, unless the State placed him upon trial before that period of time had elapsed under which circumstances he would have to file such objections and pleas before entering upon the trial of the case. Articles 202, 253 and 287, Code of Criminal Procedure. In the latter event, he would have an opportunity to file *51 a motion to quash the indictment, the jury venire, array and panel up until the time that the trial of the case was begun. He would have to be arraigned. He would be entitled to reasonable notice (dependent upon the seriousness of the charge) of at least forty-eight hours previous to the fixing of his case for trial and, therefore, could safeguard his legal rights against any irregularities and illegalities in the selection and drawing of the grand and petit juries and venires. Thus interpreted, the provisions of Article 202 would not be placed in danger of being declared either unconstitutional or completely ineffective. Furthermore, if the State's interpretation of the law were held to be correct, the defendant would not be denied the equal protection of the law because the article would be universal in its application and relate to defects in the manner of selecting or drawing as well as any and all other irregularities in the composition of the grand jury, without regard to race, color or any other arbitrary condition or distinction that would be discriminatory.
It is said, if Article 202 is construed by the Court to mean that a defendant has until three judicial days after the expiration of the term of the jury to file such objections and pleas to the drawing and selecting of the jury, the venire or panel, that when the article is applied to petit juries, absurd results would follow. In short, that the accused would have three days after the expiration of the petit jury term within which to attack the petit jury or venire, although that particular petit jury or venire had gone out of legal existence *52 by the expiration of the term. This argument is not sound because it fails to take into consideration the latter part of Article 202, which requires the defendant to file such objections and pleas before the trial begins, as is also required by the provisions of Articles 253 and 287 of the Code of Criminal Procedure. The accused would have no interest in attacking the validity of the composition of the petit jury or venire during a term when he was not tried. His interest in the validity of the drawing and selecting of the petit jury or venire is confined to the jury before whose members he will be tried. If in a previous term of the petit jury, the petit jury and the venire were illegally composed, a defendant who was not put on trial before that jury, would have no interest in attacking the drawing and selecting of it. If he were put on trial during a subsequent term of a petit jury, he would likewise have the right to attack the validity of the composition of that petit jury and venire until such time as he was placed on trial. Consequently, the fact that the first part of the Article gives him three judicial days after the jury term within which to attack the validity of the drawing and selecting of the jury or venire becomes an immaterial circumstance, which does not in any way adversely affect either the rights of the State or the accused or cause any prejudice or harm to the assertion of their respective rights. It is obvious that under the construction placed upon the statute by the State, the defendant is granted more time within which to file such pleas and objections then he would be entitled to under *53 the interpretation contended for by the defendant. On the other hand, as we have already pointed out, if Article 202 is interpreted to mean the first three judicial days from the drawing of the grand jury, the grand jury, the district attorney, the trial court, as well as this the Court of last resort, become involved in impossible situations that lead to absurd consequences and endangers the constitutionality of Article 202 or renders its provisions totally ineffective.
It is our opinion that the Legislature intended to allow an accused indicted for a crime to file a motion to quash the indictment and the grand jury venire and panel for any irregularity or defect in drawing or selecting the jury, jury venire, panel and array until three judicial days after the expiration of the term of the grand jury, which returned the indictment, have elapsed, or before entering the trial of the case in the event the trial is started sooner. As the former delay or period of time elapsed on September 11, 1942, and the defendant did not file his motion to quash until October 23, 1942, the judge properly refused to consider the merits of his motion, on the ground that it was filed too late or not in accordance with the provisions of Article
The defendant makes the point that the court did not appoint Rudolph F. Becker, Jr., Esq., as his counsel until September 25, 1942, which was subsequent to the expiration of the time limit of September 11, 1942, within which time such motion to quash could have been filed and, consequently, *54 his attorney could not do an impossible thing.
The trial judge points out and the minutes of the court show that the indictment was filed in open court on August 20, 1942, that the defendant was arraigned on August 26, 1942, and, through his counsel, Henry Read, pleaded not guilty. He also had the benefit of the services of Attorney Alcide J. Weysham, who remained as his counsel throughout the trial. Neither Read nor Weysham filed any motion to quash the indictment or the grand jury venire and panel. Although Becker was appointed on September 25, 1942, he did not file the motion to quash until October 23, 1942. No reason whatsoever is assigned why the motion to quash was not filed timely or sooner. It is not claimed that the alleged irregularity or defect was recently discovered. Defendant, long before the expiration of the delay, had two attorneys representing him. They permitted the prescriptive period to elapse without filing the plea. One of them remained as his counsel throughout the trial. The defendant cannot by engaging other counsel or having the court appoint an additional attorney to represent him thereby gain any greater delay to file such a plea than any other accused who is represented by counsel. Having failed to file the motion to quash within the time provided for by Article
Although, in the defendant's brief, his counsel make statements apparently conceding that Article
It is our view that Bill of Exception No. 1 under which all of the foregoing contentions were made, is without merit.
Bill of Exception No. 2 was reserved when the trial court overruled the defendant's attorneys' objection to the judge asking a State witness a question after the *56 defendant's counsel had cross-examined him. This witness, Detective Thomas Whalen, on cross-examination, stated that the prosecuting witness had told him that the man who attacked her was a negro. The defendant's counsel then said: "No further questions." Thereupon, the Court started to ask the witness a question as follows: "In telling you that the man who attacked her was a negro —". At this point, the defendant's attorney interrupted him, stating: "If your Honor please, I object to your Honor questioning the witness further, on the ground that it will amount to a comment on the evidence." Then the Court said: "I understand. I don't have any desire to comment on the evidence. The jury will appreciate my question and the witness' answer, and you have a right to object to my question — Q. In telling you that the man who attacked her was a negro, did she clear that up by saying whether he was a black negro, or a white negro or a middle of the road negro?" Counsel renewed his objection and the court overruled it and a bill of exception was reserved. The witness then answered the question — "A. She said he was a very light brown skin negro and that the odor of him proved to her that he was a negro."
Prior to the time that Detective Thomas Whalen took the stand, the prosecuting witness, Mrs. Crawford, had testified on direct, cross, and re-direct examinations that the man who had attacked her was a light complexioned negro; and that she had had an opportunity to observe his face because of the bright street lights at the *57 corner of Belfast Street and Carrollton Avenue, where he first grabbed her by the throat. She also testified that she had described her assailant as a light complexioned negro to the police and identified him in the show-up room after his arrest. Her identification was corroborated by the testimony of Mr. Friedman, who responded to the woman's cries for help and shot the negro over the right eye with a revolver, the testimony of the doctor who treated the defendant at the Marine Hospital and the X-ray pictures taken of his injury, as well as by the defendant's clothes, which were identified by his father-in-law, mother-in-law and sister-in-law.
It is obvious that counsel endeavored to have Detective Whalen's statement — that she said the man who attacked her was a negro — stand unexplained because it would then tend to contradict what the prosecuting witness had said and, in order to give the detective an opportunity to explain what the woman had told him, the judge asked the question. The court had the right to ask the question and it will be observed that even before the judge asked the question counsel objected on the ground that it would amount to a comment on the evidence. The judge then assured counsel that he had no intention of commenting upon the evidence as would appear from the question that he would ask and the witness' answer. A reading of the entire testimony of this witness together with the testimony of Mrs. Crawford, the prosecuting witness, and particularly pages 49 through 164 and 97 through 120 of the transcript, inclusive, *58 shows that the judge did not in any way comment upon the evidence.
Bill of Exception No. 2 is, therefore, likewise without merit.
Bill of Exception No. 3 is based upon the trial court's action in overruling the motion for a new trial which reiterates the errors complained of in Bills of Exception Nos. 1 and 2. As these two bills have hereinabove been fully discussed and answered, Bill of Exception No. 3 presents nothing new for consideration.
This case was tried before the Criminal District Court of the Parish of Orleans (Section "E"), where the testimony of all of the witnesses is taken down in short hand and transcribed by a stenographer.
Since this is a capital case, we have carefully read the entire record and find no error patent on the face thereof. On the contrary, it appears that the defendant received a fair and impartial trial before an impartial judge and jury and had the benefit and assistance of able and experienced attorneys. The lay and medical testimony, as well as the other evidence in the case, shows beyond any doubt that Mrs. Crawford, a young white woman and trained nurse, was brutally choked and ravished. The State's proof leaves no doubt that the accused was the person who committed the crime and it was so complete that the defendant did not offer any countervailing testimony or evidence whatsoever. Besides the Bills of Exceptions which we have already discussed, the defendant did not reserve any others and the record reveals that on a number of *59 occasions the court maintained his objections in excluding certain testimony.
The defendant in his motion for a new trial does not complain that he was prejudiced in any respect except as recited in the three bills of exception. He does not state that he did not receive a fair and impartial trial. The motion for a new trial was properly overruled. A careful reading and analysis of the testimony and consideration of the evidence in this case reveals that the jury's verdict was justified.
For the reasons assigned, it is ordered, adjudged and decreed that the verdict of the jury and the sentence of the court are affirmed.
O'NIELL, C.J., dissents and hands down reasons.
Dissenting Opinion
The court is not called upon now to decide whether the jury commission failed to place the names of negroes on the list from which the judge selected the grand jury that indicted the defendant in this case, — or to decide whether the jury commission by discriminating in that way denied the defendant the equal protection of the laws, in violation of the Fourteenth Amendment of the Constitution of the United States, and of the Act of Congress of March 1, 1875, 18 Stat. at L. 336, 8 U.S.C.A. § 44. The trial judge denied the defendant the right to urge that plea, on the ground that he had waived the right by failing to make the plea before the expiration of the third day after the end of the six-months term of the grand *60 jury that indicted him. The only question before us, therefore, is whether the judge was right or wrong in refusing to hear the defendant's plea that he was denied the equal protection of the laws; and that question depends upon whether the judge was right or wrong in construing the phrase "before the expiration of the third judicial day of the term" as meaning "before the expiration of the third judicial day after the end of the term".
The phrase "before the expiration of the third judicial day of the term", in article
"All objections to the manner of selecting or drawing any juror or jury or to any defect or irregularity that can be pleaded against any array or venire must be filed, pleaded, heard, or urged before the expiration of the third judicial day of theterm for which said jury shall have been drawn, or before entering upon the trial of the case if it be begun sooner; otherwise, all such objections shall be considered as waived and shall not afterwards be urged or heard." [The italics are mine.]
Heretofore this court has held consistently that the expression "before the expiration of the third judicial day of the term for which said jury shall have been drawn" means before the end of the third judicial day counting from the beginning *61 of the term — not from the expiration of the term — for which the jury shall have been drawn. Accordingly, if a defendant has been indicted, or if a bill of information has been filed against him, before the beginning of the jury term in which he is to be tried, and if he has any objection to the manner of selecting or drawing the jury venire or list from which the jury is to be impaneled for the trial of his case, he must file his objection "before the expiration of the third judicial day of the term for which said jury shall have been drawn, or before entering upon the trial of the case if it be begun sooner." The expression "if it be begun sooner" means if the trial be begun sooner than the expiration of the third judicial day of the term for which the jury shall have been drawn.
It is not impossible — or even unlikely — for a trial to "be begun sooner" than the expiration of the third judicial day of the term for which the jury was drawn, if the defendant was already indicted or if a bill of information was filed before the term began — or "before the expiration of the third judicial day of the term for which said jury shall have been drawn". That was the case in State v. Smothers,
"Bill No. 2 was reserved to the overruling of a motion to quash the petit jury venire. This motion is based upon the same grounds alleged in the motion to quash the indictment. The trial judge's reason for overruling this motion is because it was not filed timely, as provided by article
"In this case the indictment was returned into court before the criminal term at which the trial was had begun [began]. We think article
In the present case the so-called "third judicial day rule" is not applicable to the defendant's objection to the manner of selecting or drawing the jury venire or array, from which the grand jury was selected that indicted the defendant; and the reason why the "third judicial day" rule is not applicable to the defendant's objection to the grand jury that indicted him is that the third judicial day of the term for which the grand jury was drawn had passed before the defendant was *63 indicted, — and in fact this third judicial day of the term for which the grand jury was drawn had passed before the date of the alleged crime.
In the Parish of Orleans there are two grand-jury terms in each year, each term lasting six months. According to article 196 of the Code of Criminal Procedure the jury commissioners, together with the sheriff, draw from the jury wheel, containing not less that 1,000 names, the names of not less than 75 persons, twice in each year, that is, not earlier than the 15th nor later than the 20th of February, and not earlier than the 15th nor later than the 20th of August, of each year; and on the next legal day following the drawing, the 75 names are submitted by the jury commissioners to the presiding judge of the section of the Criminal District Court whose turn it happens to be to impanel the incoming grand jury for the 6 months term; and the judge then selects from the list of 75 names 12 persons to constitute the grand jury for the next ensuing term of six months. In the present instance the crime is said to have been committed on June 25, 1942; the indictment was returned on August 20, 1942; the grand jury that returned the indictment commenced its term on March 2, 1942, and the term expired on September 8, 1942, when the succeeding grand jury was impaneled and commenced its term. Therefore it is not possible to apply to this case the provision in article
The trial judge made the "third judicial day" limitation upon the defendant's right to object to the manner of selecting or drawing the jury venire applicable to the defendant's case by giving the article a meaning which, in my humble opinion, the phraseology does not justify. I cannot see how the phrase "the third judicial day of the term" can mean "the third judicial day"after the expiration of the term.
In the annotations under article 202 in Dart's edition of the Code of Criminal Procedure appears this note:
"The law does not require impossibilities, and thus the `third judicial day' rule does not apply when the crime was committed or the indictment found after said day. State v. Vegas, 19 La.Ann. 105; State v. Texada, 19 La.Ann. 436; State v. Vance, 31 La.Ann. 398; State v. Simmons, 43 La.Ann. 991, 10 So. 382; State v. Taylor, 43 La.Ann. 1131, 10 So. 203; State v. Clavery, 43 La.Ann. 1133, 10 So. 203.
"The `third judicial day' rule does not apply when the irregularity was not known either to accused or to his counsel until after said day. State v. Strickland, 41 *65 La.Ann. 513, 6 So. 471; State v. Hinson. 42 La.Ann. 941, 8 So. 471; State v. Oliver, 42 La.Ann. 943, 8 So. 471; State v. Robertson, 50 La.Ann. 1101, 24 So. 138."
The reason for the so-called "third judicial day" rule is that it would hamper the administration of justice if a defendant could wait until a jury term is well advanced, and until other persons have been indicted by the grand jury and tried by the petit juries drawn or selected from the venire complained of, before urging his complaint. For that reason the so-called "third judicial day" rule is applicable more often to objections to the venire from which the petit jury is to be drawn than to objections to the venire from which the grand jury was drawn. Whether this "third judicial day" rule would be applicable to an objection to the grand jury in a case where the defendant is indicted before the expiration of the third judicial day of the term for which the grand jury that indicted him was drawn is a matter which does not concern us in this case, because, in fact, the defendant was not indicted before the expiration of the third judicial day of the term for which the grand jury that indicted him was drawn, and hence the "third judicial day" rule cannot possibly be applied to the objection to the grand jury in this case.
Article
"All objections to the manner of drawing juries or to any defect or irregularities that can be pleaded against any array or venire must be urged within the first three judicial days of the term for which said Jury was drawn, or all such objections shall be considered as waived and shall not afterwards be urged."
The phrase which we have just quoted, "within the first three judicial days of the term" was only another way of saying "before the expiration of the third judicial day of the term", — as it is expressed now in Article
In the closing sentence in Section 2 of Act No. 114 of 1921, Ex.Sess., reorganizing the Criminal District Court for the Parish of Orleans, as established by sections 82 to 86 of Article VII of the Constitution of 1921, the limitation on the time in which to file objections to the *67 selecting or drawing of a jury venire was expressed thus:
"No objection to the manner of drawing any juror, or jury, and no defect or irregularity set up against any array or venire may be filed, pleaded, heard or urged after the expiration of the third judicial day of the term for which said jury shall have been drawn."
That was only another way of saying that all objections to any defect or irregularity in the selecting or drawing of any jury venire or array must "be filed, pleaded, heard or urged" before the expiration of the third judicial day of the term. It is obvious that this provision in Section 2 of Act No. 114 of 1921, Ex.Sess., was the pattern for the drafting of article
The earliest statute that we have found on this subject, applicable only to the district courts in the other parishes, and expressly excepting the Parish of Orleans, is Section 3 of Act No. 243 of 1855, p. 299, which was retained as Section 3 of the Revised Statutes of 1856, title "Juries", page 296; which reads as follows:
"All or any objections which might or could be made on account of any defects *68 or informality which may have occurred either in the formation, drawing, or summoning of Jurors, or any other defect whatsoever, in the construction of said Juries, shall be made on the first day of the term of said District Court, and not afterwards."
The next statute on the subject, applicable only to the district courts in the country parishes, and expressly excepting the Parish of Orleans, is Section 11 of Act No. 44 of 1877, p. 58, which provided:
"That all objections to the manner of drawing juries, or to any defect or irregularity than [that] can be pleaded against any array or venire, must be urged on the first day of the term, or all such objections shall be considered as waived, and shall not afterwards be urged."
That section of the Act of 1877 was retained as section 10 of the Act No. 89 of 1894, page 124, without any change whatever except that the phrase "manner of drawing juries" was changed to "manner of selecting juries". And this section was retained, without any change whatsoever, as section 11 of Act No. 99 of 1896, page 149.
The next statute on this subject, applicable only to the district courts in the country parishes, and expressly excepting the Parish of Orleans, was Act No. 135 of 1898, the 16th section of which provided:
"That all objections to the manner of selecting or drawing the jury or to any defect or irregularity that can be pleaded against any array or venire must be urged before entering on the trial of the case; otherwise, all such objections shall be *69 considered as waived and shall not afterwards be urged or heard."
In State v. Texada, 19 La.Ann. 436, decided in August 1867, and referring to the act of 1858, it was said:
"Where the offence charged in the indictment was committed on the first day of the term, it is impossible for the accused to file his objections to the mode of drawing the jury on the first day of the term; in such cases the objections may be made afterwards."
In State v. Vance, 31 La.Ann. 398, decided in 1879, it was declared:
"Section eleven of the act No. 44 of the year 1877 which requires all objections to the manner of drawing venires to be made on the first day of the term of court, does not apply to juries drawn after the first day of the term, or to persons indicted during the term for an offense committed after the first day of the term."
In State v. Strickland, 41 La.Ann. 513, 6 So. 471, decided in 1889, under Act No. 44 of 1877, it was held that a motion to quash an indictment because of a defect in the drawing of the jury venire might be filed at any time before the trial because the defect was not known by the accused or his counsel on the first day of the term or before he was arraigned.
In State v. Sterling, 41 La.Ann. 679, 6 So. 583, the court affirmed the ruling in the Vance case that, under Section 11 of Act No. 44 of 1877, "the limitation could not apply to juries only drawn after the first day of term, or to defendants whose offenses were committed, and who were indicted, *70 during the term, and who were brought to trial during the term." The court affirmed also the ruling in the Strickland case.
In State v. Simmons, 43 La.Ann. 991, 10 So. 382, 383, the court again affirmed the ruling in the Vance case, 31 La.Ann. 398, and the ruling in the Sterling case, and the ruling in the Strickland case. Referring to Section 11 of Act No. 44 of 1877, the court declared:
"The letter of the statute is very peremptory that all objections to the array or venire `must be urged on the first day of the term, or all such objections shall be considered as waived, and shall not afterwards be urged.' We have, however, held that the statute does not require impossibilities, and have recognized certain cases to which it could not be applied. State v. Sterling, 41 La.Ann. 679, 680, 6 So. 583; State v. Strickland, 41 La.Ann. 513, 6 So. 471; State v. Vance, 31 La.Ann. 398."
In State v. Taylor, 43 La.Ann. 1131, 10 So. 203, the questions being identical with those in State v. Clavery, 43 La.Ann. 1133, 10 So. 203, the court assigned the reason for judgment in the Taylor case as its reason in this case, and, referring to Section 11 of Act No. 44 of 1877, it was said:
"If indicted at the same term of the court for which the jury is drawn, the defendant can, before arraignment, at the same term file his objection to the irregularity in the drawing of the jury."
In State v. White,
"All such matters cannot be raised for the first time after conviction in a motion for a new trial. Articles 202, 253, 284, 286, and 287 of the Code of Criminal Procedure", et cetera.
And, again, after explaining that the attorney for White was mistaken about the holding in a certain case that was cited, this court declared: "He is equally mistaken about the time limit for the filing of a motion to quash the indictment, because, under the express provisions of the Code of Criminal Procedure, a motion to quash the indictment may be made at any time *72
before the trial of the case. Articles 202 and 253; State v. Thomas,
The significant feature of the decision in State v. White is that no one suggested that White was too late for having failed to file his objection to the jury venire before the expiration of the third judicial day after the end of the term for which the grand jury that indicted him was drawn. The dates given in the report of the case show that the six months' term of the grand jury that indicted White must have expired more than two years before he was tried. Hence, if the interpretation which is given to article
The interpretation which the trial judge has given to article
Article
The trial judge has not given any reason — and I cannot imagine any good reason — why the lawmaker should have intended that the time limit on the right of a defendant to object to a defect in the method by which the jury venire was selected or drawn should extend beyond the end of the term for which the jury was drawn. Why should there be a limitation of three judicial days if the three judicial days are not to commence until the jury has become functus officio? Such a construction of the "third judicial day" rule really leads to *74 strange consequences when it is applied to an objection to a defect in the selection or drawing of the petit jury venire, because it is not possible that the trial of any case should not have been "begun sooner" than the third judicial day after the expiration of the term for which the petit jury was drawn. I respectfully submit therefore that the construction which the trial judge has given to the so-called "third judicial day" rule, in this case, is not only contrary to the wording of the statute — and contrary to the jurisprudence on the subject — but is in fact an impossible construction.
Articles 253, 284, 286 and 287 of the Code of Criminal Procedure, requiring that motions to quash an indictment must be filed before the trial begins, and for some causes before arraignment, have reference to defects in an indictment not founded upon a defect or an irregularity in the selecting or drawing of the venire.
When the attorneys for the defendant in this case relied upon our previous rulings that, in the circumstances of this case, they might file their objection at any time before entering upon the trial of the case, there was nothing in any statute or in the jurisprudence on the subject to suggest to them that their objection might "be considered as waived" if they did not file it before the expiration of the third judicial day after the end of the six months' term for which the grand jury that indicted the defendant was drawn.
Considering that article
My opinion is that the second bill of exception in this case also presents a serious complaint, but the ruling on this bill is not of such general importance as the ruling on the first bill of exception.
Addendum
While the constitutionality of Article
In our original opinion, we pointed out that the defendant had forty-two days within *77 which to file his motion to quash, which consisted of two typewritten pages and could be prepared in a very short period of time. The defendant, therefore, had more than sufficient time within which to comply with the provisions of this Article, but failed to do so. The mere fact that he happened to be a person of color does not exempt him from the rule of law therein set forth.
In the case of State v. Jerome Wilson,
Since a period of five days is held to be a reasonable length of time within which to prepare the defense on the merits in a capital case, surely a period of forty-two days is more than sufficient time within which to file only a motion to quash the indictment for defects in the drawing and selecting of the Grand Jury, the venire or panel, especially when the motion to quash only consisted of two typewritten pages of matter and could have been prepared in a short interval of time. No reason or cause is assigned for failure of defendant's counsel to file the motion to quash timely or sooner.
The reason why this Court in the case of State v. White,
The application for a rehearing is denied.
O'NIELL, C.J., adheres to his dissenting opinion. *79