State v. Comeaux, 48990

• Decision Date: 04 June 1968
• Docket Number: No. 48990,48990
• Parties: STATE of Louisiana v. Claude COMEAUX.
• Court: Louisiana Supreme Court

Page 620

211 So.2d 620

252 La. 481

STATE of Louisiana v. Claude COMEAUX.

No. 48990.

Supreme Court of Louisiana.

June 4, 1968.

Rehearing Denied June 28, 1968.

Carmouche & Shelton, Emile A. Carmouche, Thomas Robert Shelton Rayne, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Bertrand DeBlanc, Dist. Atty., Nolan J. Edwards, Asst. Dist. Atty., for appellee.

SUMMERS, Justice.

On October 5, 1966 Claude Comeaux was charged by bill of information with aggravated burglary of the dwelling of Mr. and Mrs. David Arceneaux on June 26, 1965. La.R.S. 14:60. He was convicted and sentenced to serve thirty years at hard labor. Six bills of exceptions are relied upon in this appeal for revresal of the conviction and sentence.

Bill of Exceptions No. 2 was reserved when the trial judge denied a motion to quash the bill of information. The motion to quash alleged that the general venire from which the petit jury was drawn was illegally constituted in that the Jury Commission purposely excluded 'potential jurors' who were unable to read and write the English language, notwithstanding that the potential jurors may have been capable of understanding and speaking the language and were citizens and qualified electors of the United States and State of Louisiana. The motion further alleged that, in like manner, the Commission selected no woman for jury service.

Article 172 of the Code of Criminal Procedure (1928) requires that a petit juror in any of the courts of this State shall be 'able to read and write the English language.' Article 172.1 provides that 'No woman shall be drawn for jury service unless she has previously filed with the clerk of the district court a written declaration of her desire to be subject to jury service.' The testimony of a member of the Jury Commission reflects that the Commission makes an effort to exclude persons who are illiterate and that no women had filed a declaration of their desire to serve as jorors for the current term of court and, therefore, none were called.

Appellant contends that the statutes in question and the actions of the Commission pursuant thereto are discriminatory and prejudicial to the accused in violation of Article III, Section 2, Clause 3 and Article IV, Sections 1 and 2, of the Constitution of the United States and the Fifth, Sixth and Fourteenth Amendments in that he is deprived of a jury which represents a fair cross section of the local population.

The requirement that a person be able to read and write the English language to be qualified for jury service is a reasonable and nondiscriminatory regulation by the state which operates equally against all persons tried by juries; it affords no advantage to the state which it does not offer to the accused. Literacy is a requirement, moreover, which, if not essential to that purpose, is more apt to assure an understanding of the evidence and the law and bring about a fair verdict for both the accused and the State. We are of the opinion that this qualification is just as essential to the State's obligation to assure a fair trial to the accused as it is to assure a fair trial for the State. No authority has been cited which refutes these propositions, and we have been referred to no decisions which hold that the literacy qualification for jurors violates constitutional rights.

Nor can we conclude that the statute exempting women from jury service on the basis of their sex is not based upon a reasonable classification. Women by nature are the center of home and family life. Louisiana, acting in pursuit of the general welfare, may conclude that women may be relieved from the civic duty of jury service. Hoyt v. State of Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961). See also State v. Reese, 250 La. 151, 194 So.2d 729 (1967).

Bill of Exceptions No. 3: Prior to trial, counsel for appellant was advised by the District Attorney that he intended to inform the jury in his opening statement that he would introduce evidence at the trial of certain purported confessions, incriminatory statements or admissions made by the accused as required by Article 333 of the 1928 Code of Criminal Procedure ¹ and by decisions of this court. See State v. Davis, 241 La. 974, 132 So.2d 866 (1941); State v. Augustine, 241 La. 761, 131 So.2d 56 (1941). When the case was fixed for trial on December 14, 1966, counsel filed a motion to set aside the fixing and continue the trial to a date subsequent to January 1, 1967.

The motion for continuance is based upon the argument that the Legislature, at its regular session in 1966, enacted a new code of criminal procedure which was to become effective on January 1, 1967, and Article 767 of the new code ² repealed Article 333 of the 1928 Code. Since the new provision would not permit the State, in its opening statement, to advert in any way to a confession or inculpatory statement made by the defendant, the Legislature had effectively abolished the concept of Article 333 as explained by the jurisprudence. Therefore, it would offend any acceptable concept of basic justice to try the accused at a time so near the effective date of the new code. The contention which this bill raises is without merit. If, as counsel contends, the enactment of Article 767 of the new code denounces Article 333 of the old, the denunciation is only effective on January 1, 1967. There was no intimation in the new code that all prosecutions should await its effective date. Hence the new law has no effect on this prosecution. Nor are we prepared to agree that the new enactment is more nearly attuned to concepts of fair play than the old.

Bill of Exceptions No. 13 was reserved during the empaneling of the jury. When ten jurors had been selected the regular venire was exhausted; whereupon the trial judge ordered the clerk to draw the names of fifteen tales jurors from the tales jury box. The sheriff, having received the names at 12:15 p.m., proceeded forthwith to summon the tales jurors to report. About two o'clock that same afternoon seven of the fifteen talesmen were present in court. At that time defense counsel objected to proceeding with the selection of the jury until all fifteen of the tales jurors had been summoned and were present in court. The objection was overruled and the remaining two jurors were selected from the seven tales jurors present.

The testimony attached to the bill of exceptions shows that the sheriff and his deputies made reasonable efforts to summon all fifteen of the tales jurors. Telephone calls were made, either to the residences or places of business or employment of each tales juror. It was ascertained from these calls, and in some instances from other sources, that the tales jurors were either out of town and unavailable, or that they would not be available for several hours. The per curiam of the trial judge discloses that appellant was deprived of no peremptory challenges by the proceedings.

Article 186 of the Code of Criminal Procedure provides, in pertinent part, that,

'If on the trial of any criminal case, the regular venire is exhausted, or it appears that it will be exhausted, before the selection of the jury therein, the court at its discretion may instruct the clerk to open the tales jury box and draw therefrom such number of tales jurors as in its judgment may be necessary to serve on said case * * *'

There is no statutory requirement, and none in reason, which compels us to conclude that the trial may not proceed unless the total number of tales jurors selected are present in court. It would be impracticable, and in some instances impossible, to comply with such a requirement. It does appear, however, that the court should be satisfied that a reasonable effort was made to summon all of the tales jurors and that they could not be produced in court for several hours, and to await their response to the summons would unduly retard the progress of the trial. This requirement was met in the instant case. Moreover, there was no showing that the sheriff intentionally selected certain talesmen for appearance in court to the exclusion of others, or otherwise practiced any fraud to the prejudice of the accused. La.Code Crim.P. art. 557 (1928). Under these circumstances, it was not necessary to delay the proceeding. State v. Lebleu, 137 La. 1007, 69 So. 808 (1915).

Bill of Exceptions No. 4 was reserved to the overruling of a motion to suppress as evidence a piece of cloth and pinking shears found by Dr. Ray Herd, State Criminologist, in the dwelling house of appellant. Bill No. 14 was reserved at the trial when the court overruled defendant's objection to the introduction of the cloth and pinking shears into evidence.

The facts which form the background of these bills of exceptions may be briefly stated. On June 26, 1965 Mr. and Mrs. David Arceneaux resided in a rural dwelling west of Soctt and north of Highway 90 in Lafayette Parish. About 5:15 that morning the dwelling was burglarized. One of the three actors in the crime, Bobby Elias, was shot and killed instantly by Mr. Arceneaux. Another, Douglas Simmons, was injured as he fled the scene and was apprehended nearby.

The third party to the crime fled the scene. At approximately 10:00 or 10:30 that morning appellant was found concealed in a shallow trench in an isolated section of a cotton field about seven-tenths of a mile from the Arceneaux dwelling.

A burlap bag containing burglary tools was found on the Arceneaux premises. Among other items contained in the bag were white rags used to wrap the burglary tools. The rags had been cut with pinking shears.

The sheriff's officers knew from prior investigations that Comeaux had connections with Douglas Simmons, who had been arrested in connection with other investigations. Comeaux and Simmons had been seen together.

When the sheriff received notice of Comeaux's arrest by his officers, he applied for and received a warrant to...