State v. Edwards

• Decision Date: 03 December 1973
• Docket Number: No. 53847,53847
• Citation: 287 So.2d 518
• Parties: STATE of Louisiana v. Charles Ray EDWARDS.
• Court: Louisiana Supreme Court

Page 518

287 So.2d 518

STATE of Louisiana v. Charles Ray EDWARDS.

No. 53847.

Supreme Court of Louisiana.

Dec. 3, 1973.

John Barkley Knight, Jr., Winnsboro, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., LeRoy A. Hartley, Special Asst. Atty. Gen., Don K. Carroll, Dist. Atty., S. E. Lee, Jr., Asst. Dist. Atty., for plaintiff-appellee.

SUMMERS, Justice.

On September 3, 1972, Charles Ray Edwards was apprehended and arrested for, and thereafter charged with, aggravated kidnapping. La.R.S. 14:44. ¹ By motion prior to trial, the District Attorney elected to proceed with the prosecution under the lesser included offense of simple kidnapping. La.R.S. 14:45. ² Edwards was tried by a jury which found him 'guilty as charged.' He was committed to the Department of Correction and sentenced to serve three years at hard labor.

Twelve bills of exceptions were reserved by defense counsel during the course of these proceedings. The bills have been perfected and are relied upon for reversal of the conviction and sentence.

Bill 1

Subsequent to arraignment, but prior to trial, a motion to quash was filed on behalf of the defendant, alleging as grounds therefor that 1) the grand and petit juries were improperly and unconstitutionally drawn in that women were excluded therefrom; 2) the grand jury was improperly and illegally selected and constituted because the name of Howard Roy Brown was drawn from the grand jury venire to serve but he did not serve; 3) Article 44 of the Criminal Code is unconstitutional; and 4) the short form of indictment for aggravated kidnapping does not meet the requirements of the Louisiana Constitution.

Women on the Jury

The contention that women are excluded from jury service in Louisiana is without merit.

A stipulation entered into between the State and defendant shows that the jury commission did not select women for jury service, for none had previously filed with the clerk of court of the parish a written declaration of her desire to be subject to jury service as the law requires. La.Const. art. VII, 41; La.Code Crim.Proc. art. 402. In effect, the jury commission determined to abide by the law of this State as expressed in the Constitution and the Code of Criminal Procedure:

The Legislature shall provide for the election and drawing of competent and intelligent jurors for the trial of civil and criminal cases; provided, however, that no woman shall be drawn for jury service unless she shall have previously filed with the clerk of the District Court a written declaration of her desire to be subject to such service. All cases in which the punishment may not be at hard labor shall, until otherwise provided by law, be tried by the judge without a jury. Cases, in which the punishment may be at hard labor, shall be tried by a jury of five, all of whom must concur to render a verdict; cases, in which the punishment is necessarily at hard labor, by a jury of twelve, nine of whom must concur to render a verdict; cases in which the punishment may be capital, by a jury of twelve, all of whom must concur to render a verdict. (La.Const. art. VII, 41)

A woman shall not be selected for jury service unless she has previously filed with the clerk of court of the parish in which she resides a written declaration of her desire to be subject to jury service. (La.Code of Crim.Proc. art. 402)

Women were not excluded from jury service by the jury commissioners or by law. The effect of our law is to permit them to serve if they volunteer for service; they cannot be compelled to serve otherwise. La.Const. art. VII, 41; La.Code Crim.Proc. art 402. This Court has consistently held that Louisiana's constitutional and statutory provisions, requiring women to file with the clerk of court of the parish in which they reside a written declaration of their desire to be subject to jury service before they can be selected, impair no federal constitutional right. State v. Womack, 283 So.2d 708 (La.1973); State v. Taylor, 282 So.2d 491 (La.1973); State v. Roberts, 278 So.2d 56 (La.1973); State v. Enloe, 276 So.2d 283 (La.1973); State v. Washington, 272 So.2d 355 (La.1973); State v. Daniels, 262 La. 475, 263 So.2d 859 (1972); State v. Curry, 262 La. 280, 263 So.2d 36 (1972); State v. Amphy, 259 La. 161, 249 So.2d 560 (1971); State v. Millsap, 258 La. 883, 248 So.2d 324 (1971); State v. Sinclair, 258 La. 84, 245 So.2d 365 (1971); State v. Pratt, 255 La. 919, 233 So.2d 883 (1970); State v. Comeaux, 252 La. 481, 211 So.2d 620 (1968); State v. Dees, 252 La. 434, 211 So.2d 318 (1968); State v. Reese, 250 La. 151, 194 So.2d 729 (1967); State v. Clifton, 247 La. 495, 172 So.2d 657 (1965).

Impaneling the Grand Jury

The motion to quash also alleges that the grand jury was improperly and illegally selected and impaneled.

When the trial court met for the purpose of impaneling the grand jury on February 20, 1973, the judge instructed the sheriff to call the names of all persons listed on the grand jury venire who had been subpoenaed for service. When the sheriff called the name of Howard Roy Brown he failed to answer.

The trial judge then read the qualifications of grand jurors to those present and entertained requests to be excused. After hearing these requests the judge instructed the sheriff to proceed with the drawing of the grand jurors. After drawing several names, the name of Howard Roy Brown was drawn--he again failed to answer when called. The judge then instructed the sheriff to ascertain his whereabouts, in the meantime continuing the drawing of the grand jury.

Eleven grand jurors were then drawn, sworn and seated. Since Brown's whereabouts were not yet known, another name was drawn from the venire in his place, thus filling the composition of the grand jury. Approximately an hour or hour and one-half after Brown's name was first called, and almost one hour after the grand jury retired to deliberate, the sheriff's office located Brown. Brown reported to the judge that he was under the mistaken impression that the subpoena issued to him required his attendance in court at 9:30 in the evening of February 20, rather than 9:30 in the morning.

The defendant contends that once the name of a grand juror is called, that person becomes at that time a member of the grand jury and that the court is powerless to remove him except for legal cause. In support of this position counsel cites State v. Ross, 212 La. 405, 31 So.2d 842 (1947).

In State v. Ross, decided under Article 184 of the 1928 Code of Criminal Procedure, the trial judge held that a juror whose name had been drawn became a member of the grand jury although he was absent. There the judge was informed that the absent prospective juror was available for service and was on his way to court. Under those circumstances, on appeal, this Court held the judge was powerless to remove or excuse him except for legal cause, the rationale being that permitting the judge to excuse prospective grand jurors for other than legal cause would enable him to, in effect, control the composition of the jury.

The distinction between State v. Ross and the case at bar is readily appearent and significant. In the Ross case the judge knew the juror was available for service and would report shortly. To substitute another under such circumstances would permit the judge to effectively nullify the requirement that jurors be drawn 'indiscriminately by lot'. ³ The prospect that the absent juror would report in the Ross Case was certain and no undue delay or disruption of the impaneling process or deliberations of the jury was anticipated or did in fact occur. In the instant case, however, imposing the rule of the Ross Case would involve a halt to all proceedings until the absent juror's whereabouts were determined. Conceivably this may, in some cases, involved such inordinate delay as to disrupt the orderly proceedings of the grand jury and the court. Brown was not located for an hour or hour and one-half after his name was called. The judge had no way of knowing whether Brown would ever be located and did not feel that the business of the court, the jurors, and numerous witnesses awaiting the impaneling of the jury should be held in abeyance on the chance that Brown would report without additional delay.

The provisions of our Code of Criminal Procedure are intended 'to provide for the just determination of criminal proceedings.' They are to be construed 'to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable delay.' La.Code Crim.Proc. art. 2.

In our opinion the judge made the practical, common sense decision under the particular circumstances of this case. The Code contemplates vacancies in the grand jury and provides a method for filling these vacancies. La.Code Crim.Proc. art. 415. Exemptions from jury service are also contemplated. La.Code Crim.Proc. art. 403. It does not follow that, because the Code does not specifically cover unexplained absences, the absence of a prospective grand juror should result in a nullification of the entire proceedings. Where the law is silent in such cases, the inherent authority of the court would permit a rule of reason requiring the proceedings to be conducted with dignity and in an orderly and expeditious manner. La.Code Crim.Proc. art. 17.

The law requires that the drawing be 'indiscriminately and by lot.' This was done, and those jurors available at the time of the drawing who were drawn did in fact serve. There is no evidence or intimation whatsoever that the judge employed a procedure here to influence the selection of jurors for a purpose not sanctioned by law.

Variations from the strict letter of the law in the impaneling of the grand jury does not permit the composition of the jury to be set aside because of insignificant technicalities or irregularities, unless there is a showing that some fraud has been practiced or great wrong committed which would work irreparable injury to the accused....