State v. Doucet

• Decision Date: 05 January 1942
• Docket Number: 36454.
• Citation: 199 La. 276,5 So.2d 894
• Court: Louisiana Supreme Court
• Parties: STATE v. DOUCET.

5 So.2d 894

199 La. 276

STATE v. DOUCET.

No. 36454.

Supreme Court of Louisiana

January 5, 1942

S. Allen Bordelon, of Marksville, and Lessley P Gardiner, of Opelousas, for relator.

Seth Lewis, Dist. Atty., of Opelousas, for respondent.

HIGGINS Justice.

On May 15 1941, the Grand Jury of St. Landry Parish returned thirty bills of indictment against the relator, charging him with the crime of embezzlement of public funds on various dates from 1937 to 1940, during the time he served in the capacity as sheriff and ex-officio tax collector of the Parish of St Landry. A similar indictment was returned against him on July 10, 1941, by the Grand Jury, and, on October 17, 1941, he was likewise also charged with the crime of embezzlement, in two informations filed against him by the district attorney.

In all of these cases, the defendant filed motions to have the district judge, Honorable Kenneth Boagni, recused, alleging that the judge had a personal and pecuniary interest in them, because it was through his activities and efforts and those of his close associates, under a plan or scheme to gain greater political power by having him removed from office, that the defendant was indicted by the Grand Jury; and that the district judge, as a party to the scheme and plan, 'stacked and hand-picked' the Grand Jury by appointing on the Jury Commission persons who were hostile to the defendant and politically friendly with the judge, and by having members of the Grand Jury or their relatives given employment on state, parish and city jobs.

The cases were consolidated for the purpose of considering the motions to recuse and Judge Boagni appointed Judge Lester Bordelon of an adjoining district to hear and pass upon these motions. After a trial, Judge Bordelon decided that the accused failed to introduce sufficient evidence to show that there was legal cause for the recusation of Judge Boagni and overruled the motions. Whereupon, the defendant duly notified the district attorney and Judge Bordelon of his intention to apply to this Court for writs of certiorari, prohibition and mandamus.

We granted the writs, under our supervisory jurisdiction, with a stay order. In response to the order of this Court, the entire record, as well as the returns of the district attorney and the district judge were filed here and the matter is now before us for review.

The district attorney, in his return, asked this Court to rescind its action in ordering up the case because the writs were improvidently issued, citing Article 312 of the Code of Criminal Procedure, which provides:

'No ruling of the court, before sentence, recusing or refusing to recuse shall be reviewable by any other court, either under its appellate ofsupervisory powers.' (Italics ours.)

He also refers us to the case of State v. Davis, 154 La. 928, 936, 98 So. 422, wherein this Court stated that a defendant in a criminal prosecution for either a misdemeanor or a felony had no right to interrupt the trial by giving notice of his intention to apply to this Court to exercise its supervisory jurisdiction to compel the district judge either to recuse himself or to refer the question of recusation to a judge ad hoc, and that the remedy of the accused was to reserve a bill of exception to an adverse ruling, and, in the event of conviction and sentence, to appeal therefrom. It is argued that this authority has not been in any way modified or overruled.

The relator pleads the unconstitutionality of that part of Art. 312 of the Code of Criminal Procedure affecting the supervisory jurisdiction of this Court and cites the case of State v. Burris, 169 La. 520-536, 125 So. 580, 585. In that case, the defendant was indicted for murder and filed pleas of present insanity as well as insanity at the time of the commission of the alleged crime.

Article 273 of the Code of Criminal Procedure provides:

'No ruling of the court made on the trial of any plea of insanity shall, before sentence, be reviewable by any other court, either under its appellate or supervisory powers.' (Italics ours.)

In concluding that certain provisions of the articles of the Code of Criminal Procedure dealing with pleas of Insanity were constitutional, this Court, in State v. Burris, supra, said:

'* * * In holding that they are constitutional, we must not be understood as holding that section 273 of the Code, which attempts to prohibit this court from reviewing, prior to sentence, a ruling of a district court, touching a plea of insanity, even under our supervisory jurisdiction, is constitutional. Pretermitting the question of the right to appeal, prior to sentence, oursupervisory jurisdiction is vested in us by the Constitution, and we must look to that instrument to ascertain our right to exercise it.' (Italics ours.) It is clear that this Court has plenary power under Sections 2 and 10 of Article VII of the Constitution of 1921, granting it supervisory jurisdiction over all inferior courts and that these constitutional provisions must prevail over any provisions in a legislative act that conflict therewith. It is, therefore, apparent that this Court had the constitutional power and authority to issue the writs and, therefore, they were not improvidently granted.

The record shows that in July 1939, Honorable Kenneth Boagni and Honorable Seth Lewis, attorneys-at-law residing in St. Landry Parish, together with their associates, organized the nonfactional political group known as the Voluntary Guardians of Clean Government, which was later converted into a factional political organization. The realtor had been elected as the sheriff of St. Landry Parish for the term 1936-1940 and was a candidate to succeed himself in the first and second primary elections in January and February, 1940. L. Austin Fontenot and Isom Guillory were the district attorney and the district judge, respectively, at that time. Seth Lewis and Kenneth Boagni were declared elected to succeed L. Austin Fontenot and Isom J. Guillory as district attorney and district judge, respectively, on December 26, 1940. In the primary elections of January and February, 1940, Boagni and Lewis and the members of the Voluntary Guardians of Clean Government endorsed and supported the persons running for public office opposed to the then parish and state administration officials and an overwhelming number of their candidates were successful in the elections.

In his testimony, Judge Boagni stated that he was the organizer and the president of the Voluntary Guardians of Clean Government and that in the first and second primary election campaigns he delivered addresses throughout the parish against the relator, who was a candidate to succeed himself as sheriff, and the other affiliated public officials occupying parish and district offices; that he denounced them in speeches on the stump and in circulars, which he and his organization prepared and distributed, charging them with being guilty of graft, dishonesty and corruption; that as an attorney, he assisted Howard Strother in preparing an affidavit charging Judge Guillory, District Attorney Fontenot, and Sheriff Doucet with having failed to dicharge the duties of their offices in not suppressing the operation of slot machines; that as the president of the Voluntary Guardians of Clean Government, he wrote a letter to Attorney-General Leslie P. Gardiner requesting an investigation of the matter and that the Attorney-General supersede the district attorney and place the matter before the Grand Jury; that he appeared before the Grand Jury in connection with these charges and no true bills were returned; that later when Howard Strother was indicted by the Grand Jury for libel and slander and other offenses growing out of this situation, he acted as one of his attorneys in the trial of the case and filed a motion to recuse Judge Guillory on the ground that he was politically and personally hostile to Strother, because of the affidavit that he had filed against the judge; that Judge Guillory referred the motion of recusation to a judge of an adjoining district, who overruled it, and after the trial and the conviction of his client, he applied to the Supreme Court for writs of certiorari, prohibition and mandamus on the ground that the motion for recusation of Judge Guillory and the proof in support thereof showed that there were legal grounds for the recusation of the judge and that the district court had improperly and illegally overruled it; that while this matter was pending in the Supreme Court on writs, District Attorney Fontenot nol prossed the charges against Strother; that individually and as the president of the organization during these primary elections, he circularized pamphlets and had placed, in the newspapers, reproductions of affidavits made by several of the relator's former deputy sheriffs in which they stated that the sheriff had presented them with checks for the sum of $300 each and had them endorse the checks, in order to draw money from the sheriff's salary fund so that the sheriff could use this money in his campaign; that they did not receive the funds which were supposed to be for back salary; that he conferred with attorney Seth Lewis, who drew up the affidavits and had the former deputy sheriffs sign them; that most of the state and parish candidates supported by him and his organization were elected; that in May, 1940, he appeared before the committee of the State Legislation and advocated the passage of legislation to shorten the term of District Attorney Fontenot and District Judge Guillory, who had been appointed by the preceding governors, and requiring elections for those offices; that Lewis and himself were unopposed as candidates for district attorney and district judge,...