State v. Cascio, 40199

• Decision Date: 19 March 1951
• Docket Number: No. 40199,40199
• Court: Louisiana Supreme Court
• Parties: STATE v. CASCIO.

Page 95

54 So.2d 95

219 La. 819

STATE v. CASCIO.

No. 40199.

Supreme Court of Louisiana.

March 19, 1951.

On Rehearing June 29, 1951.

Samuel P. Love, Kenneth Rigby, Shreveport, for plaintiff-appellant.

Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Edwin L. Blewer, Dist. Atty., John A. Richardson, Asst. Dist. Atty., Shreveport, for appellee.

HAWTHORNE, Justice.

From a verdict of guilty of receiving stolen things of the value of $375.00 and a sentence therefor of 15 months' imprisonment without hard labor, defendant has appealed to this court, relying for reversal of the conviction and sentence on one bill of exception.

According to this bill of exception, associate counsel for the State in the closing argument to the jury 'made statements to the effect that he had worked in conjunction with the District Attorney's Office in all phases of the case since the date of its inception, and was convinced that the accused was involved in the matter'. Defense counsel's objection to these statements was overruled by the court, and the bill was reserved.

In brief and before this court appellant's attorneys argue that the statement made by the associate counsel for the State constituted his opinion as to the guilt of the accused, based upon evidence not adduced during the trial, and was reversible error.

The trial judge in his per curiam informs us that 'This objection was overruled for the reason that in his argument to the jury counsel for the defense stated to the jury that Mr. Bryan Bush, who was enrolled in the case as an assistant prosecutor, was the attorney for the party from whom the meat herein involved was stolen, and, further, that his presence indicated an attempt on the part of Mr. Bush to get this defendant convicted in order that he would have a good civil suit against this defendant for the recovery of the value of the meat received by the defendant. In rebuttal, Mr. Bush in answering this argument of defense counsel merely explained his connection with the case and why he was present, which we have no doubt Mr. Bush had a perfect right to do under the circumstances.'

In our opinion it is extremely doubtful that the statement attributed to the associate counsel was his opinion as to the guilt of the accused. For the accused to be 'involved in the matter' does not necessarily mean that he was guilty of the crime charged. One could, for instance, receive stolen property in perfect good faith and without knowing or having reason to know that it was stolen, and under such circumstances he would be 'involved in the matter' although not guilty of the crime denounced by the statute.

Even if we should concede that the statement was improper, the law of this state is well settled that it is only in extreme cases or for gross misconduct calculated to have influenced the jury that a verdict will be set aside by reason of improper remarks by the district attorney. State v. Cloud, 130 La. 955, 58 So. 827; State v. Atkins, 136 La. 844, 67 So. 926; State v. Shoemake, 143 La. 65, 78 So. 240; State v. Cole, 161 La. 827, 109 So. 505, and authorities therein cited.

The statement of the associate counsel, according to the trial judge's per curiam, was in reply to, and was provoked by, remarks made by counsel for the defendant in his argument to the jury and for this reason, even if improper, did not constitute justifiable reason for setting, aside the verdict of the jury. State v. Satcher, 124 La. 1015, 50 So. 835; State v. McAdams, 149 La. 779, 90 So. 170; State v. Ellis, 167 La. 390, 119 So. 402; State v. Taylor, 167 La. 1113, 120 So. 875; State v. Bryant, 209 La. 918, 25 So.2d 814.

In State v. McAdams, supra [149 La. 779, 90 So. 171], this court said:

'* * * It would be an intolerable situation, if the counsel for the defendant in every state case in which assistant counsel should be employed, could impugn the motive of the state's associate counsel in prosecuting the case as being purely mercenary, and, after prejudicing the jury against the prosecution by such an accusation, could close the mouth of associate counsel against all reply, and thereby deny him the right of vindicating himself before the jury.'

There are decisions in our jurisprudence to the effect that an expression of opinion by the district attorney as to the guilt of the accused, formed by him before trial or from evidence not adduced at the trial, constitutes reversible error, even though provoked by argument of counsel for the defendant, and that such expressions constitute reversible error even though the judge charges the jury to disregard them. State v. Accardo, 129 La. 666, 56 So. 631. See also State v. Iverson, 136 La. 982, 68 So. 98. For the reasons given hereinabove, however, we do not think that these cases have any application here, since, as we have stated, the statement here was not an expression of opinion as to the guilt of the accused.

This court has held that an objection to a remark or statement made by the district attorney, although a bill is reserved, presents nothing for our consideration on appeal unless the trial judge was requested to instruct the jury with reference to the remark. State v. Cullens, 168 La. 976, 123 So. 645. This rule was announced and given effect to in the following cases: State v. Genna, 163 La. 701, 112 So. 655; State v. Glauson, 165 La. 270, 115 So. 484; State v. Sims, 197 La. 347, 1 So.2d 541; State v. Bryant, supra.

In the instant case no such request was made of the judge, and it falls within this rule, since the remark of the associate counsel for the State was not one of those remarks which because of their nature (such as an appeal to race prejudice) could not be cured by instructions from the court.

For the reasons assigned, the conviction and sentence are affirmed.

FOURNET, C. J., takes no part.

On Rehearing.

McCALEB, Justice.

The sole question on this appeal is whether it was reversible error for associate counsel for the prosecution to state during his closing argument to the jury 'that he had worked in conjunction with the District Attorney's Office in all phases of the case since the date of its inception and was convinced that the accused was involved in the matter'. On the original hearing, we held in the negative for three reasons--viz.: (1) that the statement was not an expression of an opinion of guilt, (2) that, even conceding it to be improper, the error was not reviewable inasmuch as counsel for defendant failed to request the judge to instruct the jury to disregard it and (3) because it was provoked by, and was in answer to, remarks of counsel for defendant in his argument to the jury.

A re-examination of the case has convinced us that the statement of associate counsel for the prosecution that the accused was 'involved in the matter' imports that he was of the opinion that the defendant was guilty of the crime charged. It is of course true, as observed in the original opinion, that to say that a person is involved in the charge of receiving stolen property does not necessarily connote that he is guilty because he may have received the property in good faith. But we cannot assume that associate counsel for the State intended that his remark should be thus construed or that the jury, composed of ordinary laymen, considered it in that aspect. On the contrary, it is more reasonable to conclude that counsel intended to impress the jury with his honest belief in defendant's guilt and that the jury understood it accordingly. Therefore, under normal circumstances, the remark would be considered improper as counsel's expression of his belief in defendant's guilt was not founded entirely upon evidence adduced at the trial but upon the investigation made by him in conjunction with the district attorney's office. State v. Clayton, 113 La. 782, 37 So. 754; State v. Accardo, 129 La. 666, 56 So. 631; State v. Iverson, 136 La. 982, 68 So. 98 and State v. Horton, 151 La. 683, 92 So. 298. See also 53 Am.Jur. 'Trial' Section 486 and 23 C.J.S., Criminal Law, § 1104.

We are further of the opinion that it was not necessary for defense counsel to request the judge to instruct the jury to disregard the remarks in order to have their impropriety considered on appeal. In the original opinion, it was correctly stated that it has been held, citing State v. Cullens, 168 La. 976, 123 So. 645; State v. Genna, 163 La. 701, 112 So. 655; State v. Glauson, 165 La. 270, 115 So. 484; State v. Sims, 197 La. 347, 1 So.2d 541 and State v. Bryant, 209 La. 918, 25 So.2d 814, that a bill of exceptions taken to the overruling of an objection to a remark made by the district attorney presents nothing for consideration on appeal in the absence of a request by defendant for instructions to the jury to disregard it. However, these pronouncements do not appear to rest on sound footing. Indeed, they require that the defendant do a vain thing for it seems to be utterly futile to request the judge to instruct the jury to disregard an allegedly improper statement when he has already approved it by his action in overruling a timely objection.

An examination of the cases holding that it is essential that defendant request the judge for instructions, even though his objection to the remarks has been denied, will reveal that the conclusions reached are founded on the ruling in State v. Poole, 156 La. 434, 100 So. 613, that a bill of exceptions, which does not disclose that counsel for defendant either objected or requested the court to instruct the jury to ignore the alleged improper statement of the district attorney, presents nothing for consideration on appeal. That decision is manifestly sound, its rationale being that this court cannot pass on a bill when it does not appear that there was either a ruling or a request for a ruling by the trial judge. Yet, in State v. Cullens and State v. Sims, supra, the deduction in the Poole case was erroneously construed as meaning that defense co...