State v. Dorsey
| Decision Date | 26 March 1945 |
| Docket Number | 37636. |
| Citation | 207 La. 928,22 So.2d 273 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. DORSEY. |
Rehearing Denied April 30, 1945.
Appeal from Criminal District Court. Parish of Orleans; Fred W. oser, judge.
Oliver P. Carriere, of New Orleans, amicus curiae.
Edwin I. Mahoney and George P. Nosacka, both of New Orleans, for defendant.
Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., J Bernard Cocke, Dist. Atty., and Geo. J. Gulotta, Asst. Dist Atty., James P. O'Connor, Dist. Atty., and Alex. W Swords, all of New Orleans, for State of Louisiana.
John Dorsey, Jr., Robert Green, and Marion Miller, all Negroes, were charged in a bill of indictment with the murder of one Hyman Barkoff, a white man. The defendant John Dorsey, Jr., was granted a severance on his own motion, placed on trial, convicted as charged, and sentenced to death. From this conviction and sentence he appealed, and for reversal relies on 11 bills of exception.
On the trial of a motion to quash the bill of indictment, J. A. Palfrey, a witness for the State, gave the following testimony under direct examination by an assistant district attorney:
To this testimony objection was made on the ground that .
The trial court overruled said objection, to which ruling the defendant, John Dorsey, and his codefendant, Robert Green, through counsel reserved this bill of exception.
It is to be observed that the case was not then on trial on its merits, and that the objection was made during the taking of testimony on a motion to quash filed by the defendants previous to trial; or, in other words, the question of guilt or innocence of the accused was not at this time before the court. If the trial judge erred--and on this point we express no opinion--, counsel for defendant have not called to our attention, and we cannot see, in what way such error was prejudicial to the substantial rights of the accused, how the same constituted a substantial violation of a constitutional or statutory right, or how it resulted in a miscarriage of justice.
Article 557 of the Code of Criminal Procedure provides that: 'No judgment shall be set aside, or a new trial granted by any appellate court of this State, in any criminal case, on the grounds of misdirection of the jury or the improper admission or rejection of evidence, or as to error of any matter of pleading or procedure, unless in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right.'
In State v. Barnhart, 143 La. 596, 78 So. 975, it was held that a ruling on evidence may be in itself erroneous and yet disclose no such injury or prejudice to the defendant as would warrant the setting aside of the conviction.
In the case of State v. Pierfax, 158 La. 927, 105 So. 16, 18, we find the following expression:
Aside from the fact that the error here, if any, was not in itself prejudicial, it is to be noted that the admission of incompetent evidence is not prejudicial if the facts which it tended to prove are subsequently proven by similar evidence in the record. State v. Higdon, 153 La. 374, 95 So. 868. In the present case, it was subsequently proven without objection, when Mr. Hogue was examined as a witness for the State, that he had contacted, and communicated with, the witness Palfrey for the purpose of getting the names of colored persons for the jury wheel.
This bill of exception was reserved to the overruling by the trial judge of defendant's motion to quash the indictment.
In the motion to quash defendant alleges, among other things, that he is a person of the colored or Negro race, and a resident of the Parish of Orleans, and that the grand jury which found the bill of indictment against him was composed entirely of persons of the white race, from a panel of venire of 75 names of persons, all of whom were also of the white race; that more than one-third of the population of said Parish of Orleans are persons of the colored or Negro race; that the general venire or panel from which the grand jury was drawn contained no names of persons of the colored or Negro race at the time said grand jury was selected, and that the State officials charged with the duty of providing the names of persons for the general venire deliberately excluded therefrom the names of persons of the Negro race who are residents of said parish and who are duly qualified to serve as, and perform the duties of, grand jurors; that said State officials charged with this duty had, and have, systematically, unlawfully, and unconstitutionally excluded persons of the colored or Negro race from the grand jury for more than 25 years, solely and only because of their race and color, in violation of Article 172 of the Code of Criminal Procedure of Louisiana, the Constitution of Louisiana of 1921, art. 1, � 2, and the Fourteenth Amendment to the Constitution of the United States, and that as a result thereof defendant was, and is being, clearly and manifestly deprived of due process of law, in violation of constitutional rights and guarantees granted to him by the State Constitution and the Fourteenth Amendment to the Constitution of the United States of America.
Defendant also alleges that said bill of indictment was based on illegal evidence presented to, and received by, the grand jury, etc., but appears to have abandoned these grounds, as no evidence was taken thereon and the same have not been mentioned in briefs.
The State appeared through the district attorney for the Parish of Orleans and filed a written answer to said motion to quash, in which answer it admits that the grand jury which found the indictment in this case was selected and appointed from a venire or panel of 75 persons, which venire or panel was furnished by the Jury Commissioners for the Parish of Orleans, and that, having no knowledge that the said panel or venire was composed of persons all of the white race, the State denies this allegation. This answer further denies any knowledge on the part of the State of the percentage of Negroes in the population of said parish, and denies that the general venire from which the panel of 75 names was drawn contained no names of persons of the colored or Negro race, and denies that the Jury Commissioners deliberately excluded from the grand jury panel the names of persons of the colored or Negro race who were residents of said parish and who were qualified to serve as grand jurors. It further denies that the Jury Commissioners of the Parish of Orleans have systematically, unlawfully, and unconstitutionally excluded persons of the colored or Negro race from the grand juries of said parish for more than 25 years, solely and only because of their race and color; and alleges that from the grand jury which indicted defendant there was no unlawful exclusion of persons of the colored or Negro race.
The method for the drawing and selecting of jurors in the Parish of Orleans is found in the Louisiana Code of Criminal Procedure, which Code, after providing for the appointment of three persons to constitute a Board of Jury Commissioners, to be selected and appointed by the Governor from the registered voters of said parish, provides in Article 192 that: 'The Jury Commissioners for the Parish of Orleans shall qualify all persons before their selection as jurors, but the judges of the several District Courts shall have the right to decide upon the competency of jurors.'
Article 194 previous to its amendment by Act 151 of 1944, being the law at the time this teneral venire was drawn, read as follows: ...
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