State v. Breedlove

• Decision Date: 01 December 1941
• Docket Number: 36216.
• Citation: 199 La. 965,7 So.2d 221
• Court: Louisiana Supreme Court
• Parties: STATE v. BREEDLOVE.

7 So.2d 221

199 La. 965

STATE v. BREEDLOVE.

No. 36216.

Supreme Court of Louisiana

December 1, 1941

[Copyrighted Material Omitted]

Eugene Stanley, Atty. Gen., Niels F. Hertz, Sp Asst. Atty. Gen., and Truett L. Scarborough, Dist. Atty., of Ruston, for the State, plaintiff and appellee.

Charles E. Barham, of Ruston, for defendant and appellant.

HIGGINS Justice.

The accused was indicted for the murder of Harold Posey, tried and convicted as charged without capital punishment and sentenced to life imprisonment. He appealed and relies upon alleged errors said to be patent upon the face of the record and thirteen bills of exception reserved during the course of the trial for the annulment of the verdict and the sentence.

The first error said to appear upon the face of the record resulted from the trial judge permitting the State to amend the indictment by changing the first name of the deceased from 'Harold' to 'Andrew Harrison (Hal),' while a plea of insanity filed by the defendant was pending before the court. The defendant objected on the ground that the plea of insanity had the effect of staying further proceedings until the report of the Sanity Commission--which later found the defendant sane--was returned.

The pertinent part of Article 253 of the Code of Criminal Procedure provides:

'* * * The court may at any time before, during or after the trial amend the indictment in respect to any defect, imperfection or omission in form or substance or of any variance with the evidence. * * *'

The ruling of the trial judge was proper under the law.

It is said that it appears from the record that when the motion to quash the indictment was tried, the defendant was not present in court when certain testimony was taken in connection therewith and, therefore, this was a reversible error, because under the law the accused must be present during the entire course of the trial, and particularly when evidence is being adduced in the case.

The State admits that the accused was not present in court in person and was represented there by counsel when the motion to quash was tried, but contends that under the law it was not necessary for the accused to be present at that time because issue was not joined.

Article 256 of the Code of Criminal Procedure reads as follows:

'Before arraignment there is no issue between the defendant and the State, but if the defendant voluntarily enters upon the trial without arraignment it shall be considered as if he had pleaded not guilty.'

In State v. Layton, 180 La. 1029, 158 So. 375, 377, the Court said:

'The jurisprudence of this state is settled to the effect that one who is tried for a felony must be personally present in court at every important stage of the trial from the moment of his arraignment to his sentence.'

The record shows that the defendant was personally present in court at every important stage of his trial from the moment of his arraignment to his sentence. Therefore, this bill is without merit. See, also, State v. Hayden, 71 La. 495, 131 So. 575.

Bill of exception No. 1 was reserved when the trial judge overruled the defendant's challenge for cause of the prospective juror, O. W. Hogan. The counsel for defendant then peremptorily challenged Mr. Hogan and he did not serve as a juror on the trial of the case. This prospective juror was an intelligent and highly regarded citizen. He stated that he had discussed the case with the two state eyewitnesses to the killing and had formed a deliberate opinion, and before changing it he would require evidence; and that he and the deceased were employees of the City of Ruston and were good friends. When the district judge and the district attorney questioned him, he stated that he would set aside the opinion that he had formed and consider the case solely and only upon the evidence adduced in the court. However, when he was questioned by the defense attorney, he was quite uncertain that he could be a fair and impartial juror in view of his friendship with the deceased and the deliberate opinion he had formed after hearing the statements of the two state eyewitnesses and that if he were the defendant, he would not wish to be tried by a jury, composed of jurors whose minds were in the same condition as his. While it is true the trial judge had the discretion of deciding whether or not the juror was competent (State v. Bouvy, 124 La. 1054, 50 So. 849, State v. Hebert, 104 La. 227, 28 So. 898 and State v. Mayfield, 104 La. 173, 28 So. 997, 998), nevertheless it is our opinion that he erroneously refused to sustained the defendant's challenge for cause. State v. Joiner, 163 La. 609, 611, 112 So. 503, and State v. McCoy, 109 La. 682, 692, 33 So. 730.

The trial judge, in his per curiam, maintains, first, that the juror was competent, but, secondly, he rests his ruling on Article 353 of the Code of Criminal Procedure, which reads as follows:

'No defendant can complain of any ruling sustaining or refusing to sustain a challenge for cause, unless his peremptory challenges shall have been exhausted before the completion of the panel; moreover, the erroneous allowance of challenges for cause affords the defendant no ground of complaint, unless the effect of such ruling is the exercise by the prosecution of more peremptory challenges than it is entitled to by law, or unless the defendant by such ruling is forced to accept an obnoxious juror.'

In the instant case, it must be borne in mind that Hogan, who was peremptorily challenged by the defendant, did not sit as a juror in the case, and that after the defendant exhausted his twelve peremptory challenges, he made no complaint and it does not appear from the record that he was thereafter forced to accept an obnoxious juror; on the contrary, however, the per curiam of the district judge shows that after the defendant exhausted his twelve peremptory challenges, he accepted every juror without any complaint or objection whatsoever and that all of the jurors, who sat on his case, were accepted voluntarily by him.

The state contends that under the above quoted article of the Code of Criminal Procedure, before the defendant can complain of the ruling of the trial judge in refusing to sustain his challenge for cause, it must appear from the record (1) that the trial judge erroneously failed to sustain the defendant's challenge for cause, (2) that the defendant exhausted all of his peremptory challenges before the completion of the jury panel, and (3) that the defendant, by such erroneous ruling of the trial judge in not sustaining his challenge for cause, was forced to accept an obnoxious juror.

Counsel for the defendant contends that under the jurisprudence, as well as under the correct interpretation of Article 353 of the Code of Criminal Procedure, in order to obtain relief the defendant only has to show that the trial judge erroneously failed to sustain his challenge for cause and that he thereafter exhausted all of his peremptory challenges before the completion of the jury panel.

Whether or not an accused convicted of a criminal offense is entitled to obtain an annulment of the verdict of the jury and the sentence of the court and a new trial by merely showing, first, that the trial judge erroneously overruled his challenge for cause against the prospective juror and thereby illegally compelled him to use one of his peremptory challenges in order to prevent the juror from sitting in his case, and, second, that he subsequently exhausted all of his peremptory challenges before the jury panel was completed, is a question that has caused conflict in our jurisprudence. Some of the authorities declare that it is only necessary for the defendant on appeal to show that the trial court's ruling was incorrect and that he subsequently exhausted his peremptory challenges. Other cases hold that, in addition to the foregoing circumstances, the defendant must also show that as a result thereof, he was compelled to accept an obnoxious juror. Examples of the former authorities are State v. McCoy, 109 La. 682, 689, 33 So. 730 and State v. Guillory, 146 La. 434, 439, 83 So. 754. Authorities holding the latter view are State v. Creech, 38 La.Ann. 480, State v. Tibbs, 48 La.Ann. 1278, 20 So. 735, and State v. Addison, 134 La. 642, 64 So. 497, State v. Messer, 194 La. 238-253, 193 So. 633, and State v. Crawford, 195 La. 428-430, 196 So. 921. It will be noted, in the foregoing cases, no reference is made to the conflicting authorities. For a discussion of the subject, see Marr's Criminal Jurisprudence (1923), Volume 1, page 700, Section 461.

Apparently the vacillating jurisprudence above referred to was the reason why the framers of our Code of Criminal Procedure inserted Article 353 therein to clarify the law.

In State v. Tibbs, supra, the Court, on page 1282 of 48 La.Ann., on page 736 of 20 So., said:

'* * * Assuming, however, as correct, that the court should have at once ordered Barrow to stand aside, and have not compelled Tibbs to peremptorily challenge him, we find no resulting injury, for it is not claimed that 'in consequence of the judge's ruling defendants had been compelled to accept an obnoxious juror.' State v. Creech, 38 La.Ann. 480.'

In the case of State v. Addison, 134 La. 642, 651, 64 So. 497, 500, the accused was indicted, convicted, and sentenced for accepting a bribe, and he appealed. Bills of exception Nos. 2 and 3 were reserved to the court's ruling in refusing to sustain the defendant's challenges for cause against Messrs. McAlpin and Millican, who were called to serve as jurors. As a result of the judge's ruling the defendant used two of his peremptory challenges in order to keep them off the jury and thereafter exhausted all of his peremptory challenges. After the...