State v. Bass

• Decision Date: 04 November 1936
• Docket Number: 34070
• Citation: 171 So. 829,186 La. 139
• Court: Louisiana Supreme Court
• Parties: STATE v. BASS

171 So. 829

186 La. 139

STATE v. BASS

No. 34070

Supreme Court of Louisiana

November 4, 1936

On Rehearing January 4, 1937

Appeal from First Judicial District Court, Parish of Caddo; J. H Stephens, Judge.

B. A Bass was convicted of murder, and he appeals.

Reversed and remanded.

Jack &amp Jack, of Shreveport, for appellant.

Gaston L. Porterie, Atty. Gen., James O'Connor, Asst. Atty. Gen., and James U. Galloway, Dist. Atty., of Shreveport, for the State.

OPINION

HIGGINS, Justice.

Defendant was indicted for the murder of his twenty-four year old son, who had at one time been confined to an insane asylum, but, at the time of his death, was residing with his father and stepmother.

The deceased was found dead in bed, in the family residence, on October 15, 1935, [171 So. 830] at 8 a. m., as a result of having been shot twice with a revolver, one bullet having entered the head slightly above and to the right of the right ear, lodging in the left cheek, and the other entering slightly below the right ear, passing through the head and lodging under the skin just above the left ear.

The State contended that the accused shot and killed his son on October 14, 1935, at about 10 o'clock p. m., in order to collect a $ 5,000 insurance policy on the life of the deceased, in which he was named the beneficiary.

The theory of the defense was that the young man was mentally unbalanced, nervous, and despondent and committed suicide, or that some person other than the defendant killed him.

The jury found defendant "guilty as charged, without capital punishment," and the judge sentenced him to life imprisonment. A motion for a new trial and a motion in arrest of judgment were overruled, and defendant has appealed.

There were a number of bills of exception reserved and they are grouped by counsel for defense under the following "specification of errors":

"I. The Court erred in overruling defendant's motions to quash the lists of tales jurors who had all been purposely selected by the Clerk of Court from the corporate limits of the City of Shreveport and especially in view of the fact that the clerk selected the names from the telephone book and gave them to the jury commissioners who had nothing to do with their selection.

"II. The Court erred in failing to give the jury defendant's special requested charge number seven, to-wit: 'The fact that the defendant had a preliminary hearing to seek bond has no bearing on his guilt or innocence in this case and it should be disregarded by you.'

"III. Where the deceased was found dead with two bullet holes in the right side of his head and the State claimed there were powder burns around only one of the holes, the Court erred in admitting in evidence an experiment performed out of court and out of the presence of defendant and his counsel and without their knowledge, by the sheriff firing a pistol, with a half inch shorter barrel than the one used in the case and loaded with different makes of cartridges than those in the case, against a piece of white pasteboard for the purpose of demonstrating the effect of powder burns at various distances."

It appears that in selecting and impaneling the jury in this case, the regular jury venire list, as well as 400 prospective tales jurors, was exhausted. After the regular criminal venire list and the hundred names in the original tales box had been depleted and the tales jury box had been refilled by the jury commission at the judge's order, and 50 names had been drawn therefrom for jury service, the defendant objected to this list of 50 names on the ground that the clerk of court had filled the tales box that morning with the names of 100 people residing within the corporate limits of the city of Shreveport, and that there had been a systematic exclusion of people living outside of the city of Shreveport, who were qualified to serve as jurors. The defendant had the clerk of court sworn, and he testified that he had selected more than 200 names from the telephone directory of the city of Shreveport, because those persons could be easily served, and that he had given them to the jury commissioners. The court overruled the defendant's objection to the list of tales jurors, and he reserved bill of exception No. 3 1/2.

The same issue was again presented when the list of 50 tales jurors was exhausted and the defendant objected to another list of tales jurors on the same or identical grounds. The court overruled the objections and Bills of Exception Nos. 4, 6, 7, 9, and 11 were reserved. The legal question presented in all of these bills was renewed in the motion for a new trial and in the motion in arrest of judgment, both of which were overruled, the defendant reserving Bills of Exception Nos. 51 and 52, respectively.

From each of the 6 tales juror lists, which the defendant objected to, there were selected one or more jurors, who served in the trial of the case.

The judge in his per curiam states:

"The selection of names of tales jurors rests within the discretion of the jury commissioners and no law requires that they be selected from any particular locality. After the tales jury box was first depleted, the jury commission, having been ordered to duly refill the same, selected names of citizens of Shreveport, Ward No. 4 of Caddo Parish. Similar action has been sustained by the Supreme Court. * * *"

In the case of State v. Evans, 137 La. 379, 68 So. 732, it was held that the selection by the jury commission of tales jurors from one ward of the Parish of Rapides, in which the city of Alexandria is located, in no way affected the qualifications, as jurors, of the tales jurors so drawn.

In the case of State v. Dunn, 161 La. 532, 109 So. 56, it was held that the jury commissioners, in the absence of fraud or wrongdoing, were authorized, in their discretion, to select tales jurors from the city of Lake Charles and the ward in which it was situated.

It is argued that considerable publicity was given to the ruling and opinion of the trial court in refusing to grant the defendant bail on a preliminary hearing, and that the residents in Shreveport, and particularly the class of people listed in the telephone directory, read the newspaper articles and were influenced and prejudiced thereby.

The pertinent part of article 351 of the Code of Criminal Procedure reads, as follows:

"1. That he is not impartial, the cause of his bias being immaterial; but an opinion as to guilt or innocence of the accused, which is not fixed, or has not been deliberately formed, or that would yield to evidence, or that could be changed, does not disqualify the juror."

In the case of State v. Flores, 169 La. 22, 124 So. 132, the above article was applied.

The jury commissioners had the right to have the clerk of court assist them in securing a list of names and in the absence of fraud or wrongdoing, this circumstance does not affect the validity of the selection of the names.

In the instant case, no suggestion of improper intention or motive on the part of the commission is made. It is not sufficient cause to challenge the venire, because of a defect in the manner of selecting the jury, or in the composition, summoning, or proceedings of the jury commission, unless some fraud has been practiced or some wrong committed that would injure or prejudice the rights of the accused. Article 203, Code of Criminal Procedure; State v. Taylor, 44 La.Ann. 783, 11 So. 132; State v. Johnson, 116 La. 856, 41 So. 117; State v. Smothers, 168 La. 1099, 123 So. 781; State v. Bussa, 176 La. 87, 145 So. 276.

Bill of Exception No. 50 was reserved to the trial court's refusal to give the following requested special charge to the jury: "The fact that defendant had a preliminary hearing to seek bond has no bearing on his guilt or innocence in this case and it should be disregarded by you."

It was shown that on November 21, and 22, 1935, the accused was given a preliminary hearing, and the trial judge, in refusing to admit him to bail, gave written reasons, which were published in two daily newspapers of the city of Shreveport. It also appears that, in order to contradict the defendant, who took the witness stand in his own defense, the State used his testimony given at the preliminary hearing.

Counsel for the defendant argues that under the provisions of article 390 of the Code of Criminal Practice, the accused was entitled to have the requested special written charge given to the jury, since it was pertinent, and the general charge was insufficient, citing State v. Atkins et al., 136 La. 844, 67 So. 926.

The trial judge, in his per curiam, states:

"The minutes of the Court as to the preliminary hearing and the action taken therein by the presiding judge were not in evidence before the Jury. The Court repeatedly throughout the trial, admonished the jury that they were to try this case upon the law and the evidence given and adduced during the trial; that they were to disregard everything else in reaching their verdict; that the defendant was presumed to be innocent; that the burden was upon the State to prove his guilt as required by the law, which burden never shifted. The general charge of the Court was to the same effect.

"The proceedings and results of the preliminary hearing had no part in the case and were, therefore, not a proper subject of specific comment by the Court. The jury cannot be presumed to have been influenced by what may have appeared in the newspapers prior to the trial, and not in evidence especially when every juror was questioned thereon on voir dire and where each one answered on oath that newspaper comment or reports concerning the case had either created no impression upon him or he could and would entirely disregard same."

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