State v. Doucet
| Decision Date | 27 March 1933 |
| Docket Number | 32197 |
| Citation | 177 La. 63,147 So. 500 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. DOUCET |
Appeal from Fourteenth Judicial District Court, Parish of Jefferson Davis; Jerry Cline, Judge.
Desire Doucet was convicted of manslaughter, and he appeals.
Reversed and remanded, with directions.
Carmouche & Carmouche, of Crowley, for appellant.
Gaston L. Porterie, Atty. Gen., James O'Connor, Asst. Atty Gen., and John J. Robira, Dist. Atty., and S. H. Jones, Asst Dist. Atty., both of Lake Charles, and James O'Niell Asst. to Atty. Gen., for the State.
OPINION
The accused was convicted of manslaughter, and sentenced to hard labor in the state penitentiary for not less than 6, nor more than 10, years. From this conviction and sentence he prosecutes this appeal.
During the course of the trial, a number of bills of exception were reserved, but only two, Nos. 12 and 13, are urged on appeal.
The accused was charged with murder. But prior to proceeding with the trial the state abandoned the charge of murder and elected to go to trial only on the charge of manslaughter. The trial judge charged the jury that it took the concurrence of nine only of the members to render a verdict. Counsel for defendant objected to this charge as being illegal, and asked the court to charge that it took the concurrence of all twelve members of the jury to render any verdict. The court refused to so charge, and Bill No. 12 was reserved.
1. This bill discloses no error. The charge of manslaughter is included in that of murder, being a crime of the same generic class as murder, but one of a lesser degree. In such cases the state may abandon the charge of the greater crime and proceed with the prosecution of the lesser, and no formal amendment of the indictment is necessary for that purpose. A motion in open court in the presence of the accused and entered on the minutes prior to the beginning of the trial is sufficient. State v. Bourgeois, 158 La. 713, 104 So. 627; State v. Kelly, 176 La. 405, 146 So. 6.
The charge under which defendant was prosecuted was manslaughter, a crime which is punishable at hard labor for a term not exceeding twenty years. Cases in which the punishment is necessarily at hard labor are triable by a jury of twelve, nine of whom must concur to render a verdict. It is only in capital cases that all twelve of the jurors must concur to render a verdict. Constitution 1921, art. 7, § 41.
2. Bill No. 13 presents a more serious question. After the trial judge delivered his charge to the jury, they retired to their room for deliberation, where they remained for quite a while. They asked that they be permitted to return into the courtroom forthe purpose of receiving additional instructions. In the presence of the accused and his counsel and the district attorney, representing the state, the jurors asked the court if it was within their power to qualify their verdict by making a recommendation to the court for mercy. The court instructed the jury that it was, and that they might do so if they saw fit. Whereupon counsel for defendant asked the court to instruct the jury that, whereas it was within their power to make such recommendation, yet the court had the legal right to disregard such recommendation. The court so instructed the jury, but added "that it always gave great weight to the recommendations of the jury."
Counsel for defendant in open court objected to this latter remark by the judge, and reserved bill of exceptions No. 13.
The basis of the objection was that the court's remark that it always gave great weight to the recommendation of juries was calculated to influence the jury in rendering a verdict.
3. Under our law, the function of juries in criminal cases is to pass upon the guilt or innocence of the person on trial according to the testimony adduced and the law as given them in the charge by the court. They have nothing to do with the question of punishment, but only with guilt or innocence. In some instances they may fix the grade of the offense and in capital cases may qualify their verdict so as to remit the death penalty. They have nothing whatever to do with the quantum or kind of punishment to be inflicted when the grade of the offense is fixed. The fixing of the punishment to be inflicted is a function of the court.
See cases cited in Marr's Criminal Jurisprudence under the general heading "Respective Functions of Judge and Jury."
There is no statute in this state authorizing juries to qualify their verdicts by recommending that the court extend mercy to the defendant. However, it is now and has always been the custom for juries to make such recommendation if they see fit, and no objection has been raised to such practice. Such a recommendation, however, is not considered as a qualification of the verdict, but is regarded only as surplusage. State v. Bradley, 6 La.Ann. 554; State v. O'Brien, 22 La.Ann. 27; State v. Rosa, 26 La.Ann. 75; State v. Cook, 117 La. 114, 41 So. 434.
We see no reason why this practice should be condemned, and we expressly refrain from doing so. In cases where juries seek the advice of the court as to whether they may make such recommendations, there is no error in instructing them that they may do so. But, in so instructing them, the court should further inform them that, while it is within their province and power to make such recommendation, yet the court is not bound by it, and that it is entirely within its discretion whether such recommendation be regarded in fixing the punishment. Any statement or intimation by the court to the jury that such recommendation will be favorably considered in regard to the fixing of the punishment is fatal error.
The reason is that a statement or an intimation by the court to the effect that such recommendations might alter the penalty or mitigate the punishment is well calculated to influence the verdict, especially in a doubtful case. The function of the jury is to pass upon the guilt or innocence of the accused. That is what they are sworn to do and what they are instructed to do. Presumably they do their duty. But it is no reflection upon the personnel of any jury to say that they may be influenced in their findings, to someextent at least, by a consideration of the penalty or punishment which may follow their verdict. An intelligent citizen, and a perfectly honest and conscientious one, serving as a juror, might be willing to convict an accused for stealing a pig if such conviction carried with it punishment by imprisonment in jail for 60 days. But, if he knew that the conviction carried with it the death penalty or imprisonment for life, he would hardly be willing to pronounce the defendant guilty, even though the facts and the law warranted such verdict. It is a matter of common knowledge that the severity of the penalty deters prosecutions and convictions in some instances. Neither jurors nor judges willingly convict if, in their opinion, the punishment which necessarily follows is out of all proportion to the wrong done.
The circumstances which we have cited are extreme, but they illustrate the point, which is that juries in some instances may be influenced in their deliberations by a consideration of the penalty which may follow their verdict.
The fact alone that a jury, after having deliberated for hours without being able to agree upon a verdict, comes into court and asks if they have the power to recommend mercy, indicates strongly, if it does not show, that some of them at least would not agree upon a verdict of guilty on any other terms. And the further fact that, after being told that they could make such recommendation and that it would be given great weight, the jury again retires and later brings in a verdict of guilty "and recommend leniency of the court" as was done in the case here, raises a strong presumption that the remark made by the court that it always gave great weight to such recommendations influenced the final result.
The trial judge correctly told the jury that they might recommend mercy if they saw fit, but that such recommendation might, within his discretion, be disregarded. If he had stopped there, there would have been no error. But he went further and said, "But the court always gives great weight to the recommendations of the trial jury." Therein lies the error.
The eminence of the trial judge in this case, his devotion to duty, and his well-known habits of fairness in the trial of criminal cases preclude all thought that he intended by the remark made to influence the jury in its deliberations. But his remarks were virtually an assurance that the jury could, by incorporating in their verdict a recommendation to mercy, reduce the penalty or in some way mitigate the punishment. It is so highly probable that such remark influenced the jury to the prejudice of the rights of the accused that we cannot sanction the proceeding. It probably resulted in a miscarriage of justice and constitutes a substantial departure from the well-recognized and established rules of procedure in criminal trials. Code of Criminal Procedure, art. 557.
4. The precise question here involved has not heretofore been passed on by this court. But the point has been before courts of last resort in other jurisdictions, in a number of cases.
The case of State v. Kiefer, decided in 1902, and reported in 16 S.D. 180, 91 N.W. 1117, 1118 (see 1 Ann. Cas. 268, 12 Am. Cr. Rep. 619), is on all...
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