State v. Burks

• Decision Date: 30 November 1942
• Docket Number: 36843.
• Citation: 11 So.2d 518,202 La. 167
• Court: Louisiana Supreme Court
• Parties: STATE v. BURKS.

11 So.2d 518

202 La. 167

STATE v. BURKS.

No. 36843.

Supreme Court of Louisiana

November 30, 1942

Rehearing Denied Dec. 30, 1942.

J. A. Williams, of Lake Charles, for defendant-appellant.

Eugene Stanley, Atty. Gen., Niels F. Hertz, Sp. Asst. Atty. Gen and Griffin T. Hawkins, Dist. Atty., and Joseph J. Tritico and Preston L. Savoy, Asst. Dist. Attys., all of Lake Charles, for State, plaintiff-appellee.

ODOM Justice.

The defendant was convicted of the crime of murder and on June 8, 1940, was sentenced to suffer death by being 'hanged by the neck until dead'. He appealed to this court, and the verdict and sentence were affirmed on November 4, 1940. 196 La. 374 199 So. 220.

The infliction or imposition of the death penalty was in conformity with law. Section 784 of the Revised Statutes provides that 'Whoever shall commit the crime of * * * murder, on conviction thereof, shall suffer death'.

At the time the defendant was convicted and sentenced, the law provided that every sentence of death imposed in this state should be executed by 'hanging the convict by the neck until he is dead' (Code of Criminal Procedure, Article 569); so that the sentence imposed and the method of executing it, as specified in the judgment, were in strict conformity with the law which existed at that time.

The sentence of death imposed upon the defendant has not been executed. After the death sentence was imposed and while the case was pending on appeal, the Legislature of 1940 adopted Act No 14, page 79, which amended and re-enacted Articles 569 and 570 of the Code of Criminal Procedure 'relative to the method of inflicting the sentence of death'. Article 569 of the Code, as amended, provides that 'Every sentence of death imposed in this state shall be by electrocution'.

On June 30, 1942, after Act No. 14 of 1940 had become effective, the defendant on motion of the district attorney was brought into the district court of Calcasieu Parish, the court in which the verdict was rendered and by which the death sentence was imposed, in order that the sentence might be amended so as to conform with the statute of 1940, which, as already stated, charged the method of inflicting the death penalty from hanging to electrocution. The defendant through counsel filed a plea to the jurisdiction of the court, alleging that he had been convicted and sentenced by that court, that he had appealed to the Supreme Court, that the verdict and sentence had been affirmed, and that 'this Court [the district court] is therefore without jurisdiction again to bring him before this Court and sentence him for the reason that the Court has lost complete jurisdiction in this case'.

The court overruled the plea and ordered the defendant 'to pay the death penalty by being electrocuted in the manner and form prescribed by Act No. 14 of the Regular Session of the Legislature of the State of Louisiana, for the year A. D. 1940', and amended its original judgment accordingly. The defendant appealed from the ruling of the court.

Counsel for defendant in his pleadings raised certain other issues, all of which were presented and decided adversely to his contention in the case of State ex rel. Pierre v. Jones, Governor, 200 La. 808, 9 So.2d 42, and the cases of Mrs. Annie Beatrice Henry v. Reid, Sheriff, 10 So.2d 681, and George L. Iles v. Flournoy, Sheriff, 11 So.2d 16, the latter two cases having been decided on November 4, 1942. These issues have been abandoned by counsel, so that the only issue before us is whether the district court was vested with jurisdiction to amend its original sentence or judgment to the extent only of making it conform with the then existing law relating to the method of inflicting the death penalty.

The court did, we think, have jurisdiction for that purpose. Counsel says in his brief (he did not argue the case orally) that, after the accused had been sentenced and after his case had been decided by this court on appeal, the district court had lost jurisdiction and had no right 'to call the case before it again and change the sentence'.

We find no merit in counsel's argument, for the reason that the court did not 'change the sentence', but merely amended its decree so as to make it conform to the existing law relating to the method of executing the sentence. The word 'sentence', as used in criminal law, means 'the pronouncement by the judge of the penalty or punishment as the consequence to the defendant of the fact of his guilt'. It is the action of the court 'declaring the consequences to the convict of the facts ascertained'. 'A sentence is a judgment on conviction for crime.' (See 38 Words and Phrases, Perm.Ed., page 597 et seq., under the general heading 'Sentence'.)

To sentence one convicted of crime means 'to pass or pronounce judgment on' him; 'to doom'; 'to condemn to punishment'. (Webster's New International Dictionary)

After the defendant was convicted 'as charged' of the crime of murder, it was the function and duty of the judge to pronounce the penalty or punishment to be inflicted upon him which the law exacts in all such cases, which penalty is death. The sentence imposed was a judgment ordering that the defendant suffer the penalty of death as punishment for the crime which he had committed, and the reference in the judgment to the method of executing the penalty was in no real sense a part of the judgment. The method of executing a death sentence is prescribed by law. In was therefore not necessary to refer in the judgment to the method of executing the sentence imposed. In the case of Mrs. Annie Beatrice Henry v. Reid, supra, the judgment ordered that the sentence of death be 'executed in the manner provided by law' , and we approved the sentence.

Act No. 14 page 79, of 1940, did not change the punishment for the crime of murder, but merely substituted electrocution for hanging as the method of inflicting the punishment. The defendant has been condemned to suffer the penalty of death, and it is not suggested by counsel that this penalty can...