State v. Michel, 41632

Citation225 La. 1040,74 So.2d 207
Decision Date31 May 1954
Docket NumberNo. 41632,41632
PartiesSTATE v. MICHEL.
CourtSupreme Court of Louisiana

Page 207

74 So.2d 207
225 La. 1040
STATE
v.
MICHEL.
No. 41632.
Supreme Court of Louisiana.
May 31, 1954.
Rehearing Denied July 2, 1954.

[225 La. 1048]

Page 209

Gerard H. Schreiber, George H. Fust, New Orleans, for defendant-appellant.

Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Severn T. Darden, Dist. Atty., Peter J. Compagno, Asst. Dist. Atty., Geo. J. Gulotta, Executive Dist. Atty., New Orleans, for appellee.

McCALEB, Justice.

On the night of February 10, 1953, appellant, a nineteen year old negro, waylaid

Page 210

two fifteen year old white girls, who were returning to their homes in New Orleans after witnessing a carnival parade, and, while holding them captive with an open blade knife, robbed them of their meagre possessions, a wrist watch, two rings and a gold cross. After taking this jewelry, he released one of the girls but commanded the other to walk with him to a nearly secluded spot in the area of St. Bernard Avenue, where he forced her, by threats against her life, to perform an unspeakable and degrading carnal act upon his person and thereafter proceeded to rape her three times. He was indicted for aggravated rape on February 13, 1953 and subsequently was tried and convicted of the offense, being sentenced to death by electrocution. He is appealing from his conviction[225 La. 1049] and sentence, relying on 42 bills of exceptions for a reversal.

The first and second bills of exceptions may be considered together, as the complaint in the second is dependent upon whether the first bill is well founded. That bill was reserved to a ruling of the trial judge denying a motion to quash the indictment. In his motion, appellant challenged the validity of the indictment, contending that negroes had been systematically excluded from the general venire from which the Grand Jury returning the indictment was selected, in violation of the rights guaranteed to him by the Federal and State Constitutions. The State demurred to the motion to quash on the ground that it had not been filed within the time prescribed by law. The judge sustained the demurrer holding that, since the motion to quash had not been filed within three judicial days from the expiration of the term of the Grand Jury, which had returned the indictment, it could not be considered in view of the provisions of Article 202 of the Code of Criminal Procedure, as interpreted by this court in State v. Wilson, 204 La. 24, 14 So.2d 873.

The record shows that the Grand Jury that indicted appellant was impanelled on September 2, 1952 and that its term expired on March 2, 1953. Appellant's motion to quash was filed on March 9, 1953, seven days after the term of the Grand Jury ended.

[225 La. 1050] Article 202 of the Code of Criminal Procedure (now LSA-R.S. 15:202) provides:

'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 wasived and shall not afterwards be urged or heard'. (Emphasis ours.)

In State v. Wilson, supra, the court was called upon to construe the foregoing provision--precisely, to ferret out the meaning intended by the Legislature in its use of the above italicized language, that objections to the selection or composition of juries or venires must be urged 'before expiration of the third judicial day' of the jury term. After an exhaustive review of the history of the prior laws on the subject and a painstaking and comprehensive discussion of the language of the Article, it was concluded that, in order that the provision might be applied with fairness and consistency in all cases, the Legislature intended that anyone desiring to challenge the array or selection of any jury was required to urge his objection before the expiration of the third judicial day following the term for which the jury had been [225 La. 1051] drawn, or before entering upon the trial of the case if it be begun sooner.

Counsel for appellant assail the Wilson decision, proclaiming that the interpretation there given to LSA-R.S. 15:202 is unsound when applied to the facts of this case and that it should be overruled. Alternatively, they suggest that, at all events, the decision does not control the special situation presented here and should be differentiated.

We do not find it necessary to review in detail the basis of the ruling in the Wilson

Page 211

case. Suffice it to say that we think that it represents a correct analysis of the intention the Legislature was attempting to express in the writing of the statute and that, under this interpretation of the language, a reasonable time is provided to all persons charged with crime within which to file whatever objections they may have to the method of selecting any jury or venire. Moreover, it is evident that the Legislature has since approved of the construction given to Article 202 of the Code of Criminal Procedure by this court in the Wilson case, which was decided in 1943, as it incorporated the Article without change in the Revised Statutes of 1950.

However, counsel insist that the statute as interpreted in the Wilson case is unfair, if applied to the facts of this matter, as they claim that they were not appointed to defend appellant until more than three days after the expiration of the jury [225 La. 1052] term had elapsed--thus, depriving them of asserting on appellant's behalf his right to an equal protection of the law.

There might have been merit in this postulation if the predicate upon which it is based was supported by the record. But the minutes of the Court show that appellant's chief counsel, Mr. Gerard H. Schreiber, an attorney of experience in criminal cases, was appointed by the judge to represent him on March 2, 1953 (not on March 5, as counsel contend) and this is verified by the per curiam of the judge. It is true that the other counsel, also an experienced criminal lawyer, was appointed on March 6, 1953, but this is of no importance as appellant was already represented by an attorney. See State v. Wilson, supra. Hence, since appellant had the benefit of counsel on March 2, 1953, the same day that the Grand Jury term ended, his contention, that it is unreasonable to apply the prescription of the law in this case, falls of its own weight as his counsel had ample time, three judicial days from the date of his appointment, to have filed the motion to quash the indictment.

Our ruling that the judge was correct in sustaining the State's demurrer to the motion to quash the indictment effectually disposes of Bill of Exceptions No. 2, which was taken to the overruling of appellant's motion to perpetuate testimony in support of the motion to quash.

Appellant, having been indicated for aggravated rape under the short form provided[225 La. 1053] by Article 235 of the Code of Criminal Procedure, LSA-R.S. 15:235, availed himself of the provisions thereof by requesting the State to furnish a bill of particulars. In a supplemental motion, he asked that he be advised (a) of the particular type of aggravated rape on which the prosecution was based; (b) if any force was used and the type of force and (c) if any threats were made and...

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