State v. Broadnax

• Decision Date: 20 March 1950
• Docket Number: No. 39697,39697
• Citation: 45 So.2d 604,216 La. 1003
• Parties: STATE v. BROADNAX. . Feb., 13, 1950. Rehearing Denied
• Court: Louisiana Supreme Court

Page 604

45 So.2d 604

216 La. 1003

STATE v. BROADNAX.

No. 39697.

Supreme Court of Louisiana.

Feb., 13, 1950.

Rehearing Denied March 20, 1950.

G. Wray Gill and Eugene Stanley, New Orleans, for defendant-appellant.

Bolivar E. Kemp, Jr., Atty. General, M. E. Culligan, Asst. Atty. General, Herve Racivitch, District Atty., Robert E. LeCorgne, Jr., Asst. District Atty., New Orleans, for appellee.

HAWTHORNE, Justice.

It was charged in a bill of information that the defendant, Joseph Broadnax, 'did wilfully and unlawfully possess and have under his control, a narcotic drug, to wit: six (6) capsules of heroin, a compound derivative, mixture and preparation, containing opium', which crime is denounced by Section 2 of Act No. 14 of the Second Extra Session of 1934, as amended by Section 2 of Act No. 416 of 1948, the Uniform Narcotic Drug Act. The defendant was placed on trial before a jury, which in due course returned the following verdict:

'New Orleans, La., May 31, 1949. Guilty of Attempted Possession.

'(sgd) Alex. S. Allain, Foreman'

Following this conviction the defendant was sentenced to serve a term of two and one-half years at hard labor in the state penitentiary. From this conviction and sentence he has appealed.

The section of the act which defendant is charged with violating reads as follows: 'It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug, or to be or become an addict as defined in subsection 21 of Section 1 of this Act, except as provided in this Act.'

The exceptions apply to physicians, veterinarians, dentists, and other persons named therein who may lawfully manufacture, possess, or sell narcotics under the terms and provisions as set forth in the act itself. The accused makes no defense that he comes within any of the exceptions set forth in the act, and it is well settled that an information or indictment does not have to allege that an accused does not come within the exceptions for Article 228 of the Code of Criminal Procedure provides that it is no objection to an indictment that it does not aver that the accused was not embraced within the terms of the proviso of the statute creating the offense; that what comes by way of proviso or exception in a statute must be urged by way of defense. Moreover, the act itself provides in Section 18 that in any indictment or proceeding brought under its provisions it shall not be necessary to negative any exceptions contained in the act, and that the burden of proof of any such exception shall be upon the defendant.

Defendant contends that the verdict returned by the jury is a legal nullity on its face and plainly shows that the jury rendered a meaningless verdict when it found the defendant 'Guilty of Attempted Possession' as there is no such crime known to the laws of this state.

Under the provisions of the Code of Criminal Procedure of this state, a verdict of a jury may be delivered orally or in writing. See Arts. 400, 401, La.Code Cr.Proc. Article 402 provides that, if the verdict is incorrect in form or not responsive to the indictment, the judge shall refuse to receive it and shall remand the jury with oral instructions as to what verdicts are permissible and as to proper form. Article 405 provides that the verdict must be responsive to the indictment, that is to say, that no one can be found guilty of an offense not charged in the indictment or not necessarily included in the offense charged, and that no verdict can be of any effect if found upon an indictment so defective as to charge no crime.

The bill of information charging the defendant with possession of narcotics in this case has numerous endorsements thereon, among these being the verdict heretofore quoted.

There are certain well recognized rules of construction to be used in determining whether a verdict returned by a jury is so obscure, uncertain, and meaningless as to be invalid.

Bishop, in Bishop's New Criminal Procedure (4th ed. 1895) sec. 1005a, p. 636, states the following as a guide for interpreting verdicts: 'The language of the verdict, being that of 'lay people', need not follow the strict rules of pleading, or be otherwise technical. Whatever conveys the idea to the common understanding will suffice. And all fair intendments will be made to support it. * * *'

In 53 Am.Jur., 'Trial', sec. 1036, p. 716, we find the following: 'Because inartificial expressions and words are sometimes employed in framing a verdict, the first object in the construction of a verdict is to learn the intent of the jury, and when this can be ascertained, such effect should be given to the verdict, consistent with legal principles and construing it as a whole, as will most nearly conform to the intent. The jury's intent is to be arrived at by regarding the verdict liberally, with all reasonable intendments in its support and with the sole view of ascertaining the meaning of the jury, and not under the technical rules of construction which are applicable to pleadings. In the interpretation of an ambiguous verdict, the court may make use of anything in the proceedings that serves to show with certainty what the jury intended, and for this purpose, reference may be had, for example, to the pleadings, the evidence, the admissions of the parties, the instructions, or the forms of verdict submitted.' (All italics ours.)

The same work continues in sec. 1050, p. 727: '* * * every reasonable construction should be adopted for the purpose of working the verdict into form so as to make it serve. Further, if, by reference to the record, any uncertainty in the verdict can be explained, it is sufficient to sustain the appropriate judgment.'

The rule is stated in 23 C.J.S., Criminal Law, § 1398, page 1077, in the following language:

'The verdict should be expressed in plain and intelligible words, so that its meaning may be understood readily by the court in giving judgment thereon. The verdict should be sufficiently definite, certain, and specific to identify the crime. Where the verdict is so indefinite and uncertain as to be unintelligible, it is invalid.

'However, a strict adherence to the statutory form of verdict usually is not required; and although the verdict is informal or contains inaccuracies in the language used, if the intention of the jury to return a verdict of guilty or not guilty of the offense charged may be understood readily, it is sufficient; any words which convey beyond a reasonable doubt the meaning and intention of the jury are sufficient.

'A verdict will not be void for uncertainty if its meaning can be determined by reference to the record, as by reference to the indictment or information, or to the evidence and charge of the court.'

And, further, in § 1409, p. 1107, it is stated:

'In construing a verdict the object is to arrive at the intention of the jury, and when this can be ascertained, if it is consistent with legal principles, such effect should be given to their finding as will conform to the intent.

'In arriving at the intention of the jury the verdict should receive a liberal rather than a strict construction. The verdict is not to be construed as strictly as a pleading, but is to have a reasonable intendment and construction. It should be construed with reference to the pleadings, and it should be construed with reference to the evidence, instructions, the proceedings at the trial, the forms of verdict submitted, and to the entire record; and if, when so construed, it is definite and clearly expresses the intention of the jury and is otherwise legal, technical objections or mere inaccuracies of expression will not render it void. If the intention of the jury can be ascertained with reasonable certainty, the verdict will be sustained.'

The appellate courts of this country have recognized, accepted, and followed these rules, as evidenced by the following decisions: Blackshare v. State, 94 Ark. 548, 128 S.W. 549, 140 Am.St.Rep. 144; Yarborough v. State, 94 Fla. 143, 114 So. 237; Barnhill v. State, Fla., 41 So.2d 329; Arnold v. State, 51 Ga. 144; Warren v. State, 12 Ga.App. 695, 78 S.E. 202; People v. Schmidt, 364 Ill. 313, 4 N.E.2d 382; People v. Bailey, 391 Ill. 149, 62 N.E.2d 796; People v. Jensen, 392 Ill. 72, 64 N.E.2d 1; State v. Doolittle, 153 Kan. 608, 113 P.2d 94; Hunn v. Commonwealth, 143 Ky. 143, 136 S.W. 144; State v. Lovitt, 243 Mo. 510, 147 S.W. 484; State v. Polich, 70 Mont. 523, 226 P. 519; Ex parte Booth, 39 Nev. 183, 154 P. 933, L.R.A.1916F, 960; State v. Cody, 224, N.C. 470, 31 S.E.2d 445; Fowler v. State, 26 Okl.Cr. 170, 223 P. 206; Smith v. State, 83 Okl.Cr. 392, 177 P.2d 523; State v. Setsor, 61 Or. 90, 119 P. 346; Bray v. State, 140 Tex.Cr.R. 3, 143 S.W.2d 593; Henderson v. Commonwealth, 98 Va. 794, 34 S.E. 881; State v. Domanski, 9 Wash.2d 519, 115 P.2d 729.

In Blackshare v. State, 94 Ark. 548, 128 S.W. 549, 551, the Supreme Court of Arkansas expressed the rule thus: 'In a criminal case the verdict should be construed with reference to the indictment or information and the entire record, and, if when so construed it is definite and clearly expresses the manifest intention of the jury and is otherwise legal, mere inaccuracies of expression will not render the verdict void.'

The Supreme Court of Illinois in People v. Bailey, 391 Ill. 149, 62 N.E.2d 796, 789, said: 'The test in determining the sufficiency of a verdict and the judgment of conviction based thereon is whether or not the intention of the jury can be ascertained with reasonable certainty. Verdicts are to be liberally construed and all reasonable intendments indulged in their support. A verdict is not to be held insufficient unless from necessity there is doubt as to its meaning; and in determining the meaning the entire record will be searched and all parts of the record interpreted together. * * *'

We find the following language in State v. Lovitt, 243 Mo. 510, 147...