State v. Ducre

• Decision Date: 03 November 1931
• Docket Number: 31238
• Court: Louisiana Supreme Court
• Parties: STATE v. DUCRE

137 So. 745

173 La. 438

STATE v. DUCRE

No. 31238

Supreme Court of Louisiana

November 3, 1931

Original Opinion of June 22, 1931. Reported at: 173 La. 444.

OPINION On Rehearing.

LAND J.

A rehearing was granted in this case, without limitation, but on further review and reconsideration of our original opinion, we find it necessary to reverse our former rulings only as to bill of exceptions No. 5, relating to the opening statement which the district attorney is required to make, under article 333 of the Code of Criminal Procedure of this state.

In our original opinion it is said: "Bill No. 5 was taken to the refusal to order the state's attorney to make an opening statement to the jury. The state's attorney read the information and the statute on forgery. The trial judge thought this was enough, and since the law does not define the nature of the opening statement of the prosecuting attorney beyond 'explaining the nature of the charge and the evidence by which he expects to establish the same.' (Code Cr. Proc. art. 333). We are of opinion that the scope and extent of such opening statement is within the control of the trial judge in the exercise of his own sound discretion. State v. Nahoum, 172 La. 83, 133 So. 370." (Italics ours.)

The error committed by us in our original opinion was in reaching the conclusion that the reading by the district attorney of the information and the statute on forgery constituted an opening statement by that officer.

Such is not the case, as clearly appears from the language of article 333 of the Code of Criminal Procedure, which reads as follows: "The jury having been empanelled and the indictment read, the trial shall proceed in the following order: The reading of the plea to the jury; the opening statement of the district attorney explaining the nature of the charge and the evidence by which he expects to establish the same; the opening statement by counsel for the defendant at his option explaining the defense and the evidence by which he expects to prove the same," etc.

The information or indictment and the plea of defendant are read to the jury before the opening statement of the district attorney is made. In making this opening statement, the district attorney is required to explain the nature of the charge and state the evidence by which he expects to establish the charge. This the district attorney did not do at all, and the trial judge refused to compel him to do so, when so requested by counsel for defendant.

In our opinion, the refusal of the trial judge to instruct the district attorney to comply with article 333 of the Code, by making an opening statement as therein directed, is reversible error.

The language of article 333 is mandatory: "The trial shall proceed in the following order."

While the scope and extent of the opening statement of the district attorney may be within the control of the trial judge in the exercise of a sound discretion, it is not within his discretion to dispense with the opening statement of the district attorney entirely, since it is the mandatory duty of that officer to make such statement.

The framers of the Code of Criminal Procedure clearly intended that the making of the opening statement by the district attorney should be deemed sacramental, since article 333 leaves it to the mere option of the counsel for defendant as to whether he shall make any opening statement at all as to the defense and the evidence in support of same.

Judging from its phraseology, the purpose of the article in question must be to make the district attorney show his hand as to the state's evidence, as a matter of fairness to the accused, as...