State v. Clifton

• Decision Date: 23 February 1965
• Docket Number: No. 47352,47352
• Citation: 247 La. 495,172 So.2d 657
• Parties: STATE of Louisiana v. Francis Aubrey CLIFTON.
• Court: Louisiana Supreme Court

Page 657

172 So.2d 657

247 La. 495

STATE of Louisiana v. Francis Aubrey CLIFTON.

No. 47352.

Supreme Court of Louisiana.

Feb. 23, 1965.

Rehearing Denied March 29, 1965.

Edwin O. Ware, Kelly Hamm, Alexandria, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., F. Jean Pharis, Dist. Atty., for plaintiff and appellee.

SUMMERS, Justice.

Francis Aubrey Clifton was indicted by the grand jury of Rapides Parish for the September 15, 1962, murder of Clifton Carl Wilson. He was tried, convicted and sentenced to death. This appeal followed.

By motion to quash, appellant attacks the indictment returned against him and the composition of the petit jury which tried him. He relies upon alleged errors in the method employed by the jury commission in the selection of the general venire from which the grand jury and petit jury were drawn.

The objection is grounded upon the provisions of LSA-R.S. 15:179 and LSA-R.S. 15:180 ¹ requiring that at the time of the meeting of the jury commission in composing the general venire they 'shall select from the persons qualified to serve as jurors * * * three hundred persons, a list of whom shall be made under the supervision of the commission.'

Appellant contends that this language is mandatory and a strict compliance with its provisions is required by law. There is a lack of strict compliance, he pleads, because each jury commissioner, when notified of the forthcoming meeting, prepared a list in advance of the meeting of those they would suggest for inclusion on the general venire. On each of these lists the commissioners also designated the persons recommended by them for inclusion on the grand jury panel.

The lists were submitted in advance to the clerk of court who cross-checked the names thereon with a card index file maintained in his office to ascertain if these persons were unable to read and write, had any physical infirmity or were otherwise disqualified to serve as jurors. The lists were then typed in advance of the meeting into one comprehensive master list. When the official meeting was held the commissioners and the clerk of court, as a body, in the presence of witnesses, went over the master list to determine whether the persons thereon were qualified and to make other changes they considered necessary.

After eliminating persons not qualified and after making the necessary supplements to the master list, the commission approved the selection and finalized the list. The paper on which the list had been prepared was then cut so that each name was on a separate slip as the law requires, and, except for the names of persons chosen to compose the grand jury, the slips were then placed in the general venire box.

The method employed by the individual jury commissioners in preparing their lists in advance may, upon first impression, appear to be a departure from the obvious intendment of LSA-R.S. 15:179, requiring that there be supervision and common deliberation by the jury commissioners as a body over the names composing the general venire list.

On the other hand, the fact that advanced preparation is made by the jury commissioners in the compilation of names to be suggested for inclusion on the general venire does not require the conclusion that the venire was made without the benefit of common deliberation. Rather, a conscientious jury commissioner would not in every instance leave the important task of selecting none but good and competent jurors to be performed entirely at the time of the meeting. It would seem otherwise. He would, as some testified they did in this case, compile a list of persons from time to time in anticipation of the meeting and submit his suggestions to the assembled body for final selection and approval, much as was done in this case.

It could hardly be considered objectionable, and the case would be little different, if the commissioner, instead of writing his list in advance, came to the meeting with a list of names committed to memory which he would then submit to the jury commissioners as a body for approval and inclusion on the general venire.

In any event the final selection in this case was actually made by the body as a whole with the benefit of the experience of the individual commissioners and the information they had previously compiled concerning persons they considered qualified as jurors. The final list, then, was made under their supervision after common deliberation regardless of the plans and preparations which preceded the meeting. There was, therefore, a substantial compliance with the requirement of LSA-R.S. 15:179 that At the time of the meeting the jury commission Shall select from the persons qualified to serve as jurors three hundred persons, A list of whom shall be made under the supervision of the commission.

Even if the practice outlined is considered technically irregular, it is not such an irregularity that the proceedings of the jury commission must be invalidated. For appellant's contention that the quoted portion of LSA-R.S. 15:179 is mandatory in all its details is not supported by the law of this State. ² To the contrary, a variation from the strict letter of this law does not permit the composition of a grand or petit jury to be set aside because of insignificant technicalities or irregularities, unless there is a showing that some fraud has been practiced or great wrong committed which would work irreparable injury to the accused. LSA-R.S. 15:203; State v. Murphy, 234 La. 909, 102 So.2d 61 (1958), cert. denied, 357 U.S. 930, 78 S.Ct. 1376, 2 L.Ed.2d 1373 (1958); State v. Pierre, 198 La. 619, 3 So.2d 895 (1941), cert. denied, 314 U.S. 676, 62 S.Ct. 186, 86 L.Ed. 541 (1941); State v. Dunn, 161 La. 532, 109 So. 56 (1926); State v. Davis, 154 La. 295, 97 So. 449 (1923); State v. Evans, 137 La. 379, 68 So. 732 (1915); State v. Sheppard, 115 La. 942, 40 So. 363 (1906), 1 Marr. Criminal Jurisprudence of Louisiana, §§ 424--426 (2d ed. 1923).

In the instant case there is not one scintilla of evidence nor the slightest intimation that the jury commissioners and the clerk of court were guilty of fraud in any respect. Indeed no contention is made to this effect by appellant. Moreover, we do not find, and appellant has not shown, how this particular method of selection, as such, brought about any great wrong which in any way prejudiced his cause. To substantiate this conclusion, among other things, the brief informs us that the accused was not compelled to accept any obnoxious juror and no complaint by way of a bill of exceptions is made to that effect.

By his motion to quash appellant also attacks the actions of the jury commission in not including on the general venire the names of persons entitled by law to claim exemption from jury service.

In support of this contention it is urged that by excluding persons entitled to exemptions from jury service from the general venire the due process and equal protection clauses of the state and federal constitutions are violated in that the grand and petit juries were not drawn from a cross section of the community.

The statute creating exemptions from jury service, as it existed in November 1962 when the general venire in question was formed, permits exemption to be claimed by officers and clerks of the legislature, the governor and other officials of the State, their clerks and employees, judges, officers of the courts, attorneys-at-law, physicians, surgeons, dentists, school teachers, school bus drivers, apothecaries, fire department employees, commercial travelers, employees of common carriers, persons over sixty-five years of age, persons who had served as grand and petit jurors, telephone and telegraph operators, etc. ³

The jury commissioners testified that these persons were not placed upon the list of persons comprising the general venire for, by their experience, it was shown that these exemptions were invariably claimed by the persons entitled to them and because of this the process of jury selection in court was delayed by their inclusion. ⁴ But appellant points out that the exemptions created by this statute are not in the nature of disqualifications of the categories therein enumerated, but, the exemptions are '* * * personal to those entitled thereto to be claimed by them alone, and the Jury Commission is not authorized by that law to bar those individuals from the jury lists.' as we declared in State v. Goree, 242 La. 886, 139 So.2d 531 (1962).

A review of the language of LSA-R.S. 15:174 makes it quite clear that it was irregular for the jury commission to refuse to place the persons belonging to the exempted categories upon the general venire solely because they were entitled to claim exemption from jury service by that act.

However, it has often been held that persons in this category may properly be excluded from jury service by state law without impairing the right of the accused to a jury selected from a cross section of the community when the excluded categories are such as those concerned with official public duties, health, spiritual affairs, education, legal counsel, etc., as is true of those entitled to exemptions under our law. In such cases it is said that the best needs and interests of the community are served by permitting these categories to continue their services without the interruptions incident to jury service. Rawlins v. Georgia, 201 U.S. 638, 26 S.Ct. 560, 50 L.Ed. 899 (1906); 21 Tul.L.Rev. 116 (1946).

What we found in the Goree case was that there were many Negroes in that parish but not many were qualified, and among those who were qualified many were Negro professors, school bus drivers and others who were entitled to claim exemptions from jury service. By excluding these exempted categories from the general venire, we found, the jury commission thereby reduced substantially the number of qualified Negroes who might be included on the jury lists. The accused in the Goree ...