State v. Elmore

• Decision Date: 21 May 1934
• Docket Number: 32811
• Citation: 155 So. 896,179 La. 1057
• Court: Louisiana Supreme Court
• Parties: STATE v. ELMORE

155 So. 896

179 La. 1057

STATE v. ELMORE

No. 32811

Supreme Court of Louisiana

May 21, 1934

Appeal from Fourth Judicial District Court, Parish of Ouachita; J T. Shell, Judge.

Orville Elmore was convicted of manslaughter, and he appeals.

Affirmed.

George Wesley Smith and K. Ann Dodge, both of Monroe, for appellant.

G. L Porterie, Atty. Gen., James O'Connor, Asst. Atty. Gen and Frank W. Hawthorne, Dist. Atty., of Bastrop, and George W. Lester, Asst. Dist. Atty., of Monroe (James O'Niell, Sp. Asst. to Atty. Gen., of counsel), for the State.

OPINION

ODOM, Justice.

The defendant was indicted for murder and convicted of manslaughter. On appeal the conviction was set aside and the case remanded for retrial (177 La. 877, 149 So. 507). At the second trial he was prosecuted for manslaughter, convicted and sentenced. From the second conviction and sentence he appealed.

There are only two questions presented for our consideration. The first is whether article 354 of the Code of Criminal Procedure is constitutional, and the second is whether testimony tending to show that defendant was guilty of murder was admissible at the second trial when he was on trial for manslaughter only, having been acquitted of murder on the first trial.

1. The trial judge ruled that the state was entitled to twelve peremptory challenges, the same number allowed defendant. This ruling was in conformity with article 354 of the Code of Criminal Procedure, which reads as follows:

"In all trials for any crime punishable with death, or necessarily with imprisonment at hard labor, the defendant shall be entitled to challenge peremptorily twelve (12) jurors, and the prosecution twelve (12). In all other criminal cases the defendant shall have six (6) peremptory challenges and the State six (6)."

This article of the Code makes a radical change in the criminal procedure of this state, in that it allows to the state and the defendant an equal number of peremptory challenges in all criminal cases tried by jury, whereas, under the prior statutes, the state had only half as many as the defendant. Act No. 135 of 1898; section 997, Revised Statutes of 1870, as amended by Act No. 36 of 1880.

Defendant's contention is that the above-quoted article of the Code is unconstitutional. It is conceded that, if that article of the Code, which has reference only to the number of peremptory challenges allowed each side in criminal prosecutions, is procedural law, the article is constitutional. But it is argued that the article is "substantive" and not "procedural" law, and is therefore unconstitutional under the ruling in State v. Rodosta, 173 La. 623, 138 So. 124, 128, where it was held that "the Legislature could not, by adopting the Code of Criminal Procedure, change the substantive law of the state because no such authority was conferred by the Constitution."

In the Rodosta Case we pointed out the difference between "substantive" and "procedural" law, and said that, "as relates to crimes, substantive law is that which declares what acts are crimes and prescribes the punishment for committing them. Procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished."

Counsel for defendant say in their brief at page 12 that "it is true that a statute fixing the number of peremptory challenges is procedural in its nature." But they say further, and this is the ground on which they base their argument, that the article of the Code is unconstitutional: "We contend that a statute which fixes procedure is as much substantive law as one which defines a crime and fixes its punishment." In other words, the argument is that all statutes relating to crimes and offenses and all those regulating criminal procedure, in effect at the time the Code was adopted, are "substantive" laws by reason of their existence as laws, and that, under the holding in the Rodosta Case, the Legislature could not, by adopting the Code, change any of these laws.

Counsel are in error. "Law is a solemn expression of legislative will." Civ. Code, art. 1. A statute relating to criminal procedure is a law, but not substantive law. The term "law" includes "substantive law" and "adjective law" or the law of procedure. Substantive law, speaking broadly, is that which creates duties, rights, and obligations. 25 Cyc. 164, citing Black's Law Dictionary. "It orders and permits and forbids" and "announces rewards and punishments." Civ. Code, art. 2.

As relates to crimes and offenses, it declares "what acts are crimes and prescribes the punishment for committing them." State v. Rodosta, supra.

Adjective or procedural law is that which "provides a method of enforcing and protecting such duties, rights and obligations" as are created by substantive laws. 25 Cyc. 164, citing Black's Law Dictionary. As relates to criminal prosecutions, procedural law includes within its meaning whatever is embraced by the three technical terms "pleading," "evidence," and "practice." It relates to "those legal rules which direct the course of proceedings to bring parties into court and the course of the court after they are brought in." See "Procedure" in 6 Words and Phrases, First Series, 5631; Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506; Bishop's Criminal Procedure, § 2.

There are approximately three hundred sections of the Revised Statutes of 1870 which relate exclusively to criminal law and its administration in this state. Nearly two hundred of these sections are listed under the general heading "Crimes and Offenses," and have to do only with the general subject of what are crimes and the punishment therefor. These sections, together with kindred statutes adopted since 1870, are the substantive criminal laws of the state. Sections 976 to 1090, inclusive, are listed under the general heading "Criminal Proceedings," and relate exclusively to those statutory rules of procedure for bringing accused persons into court and "the course of the court after they are brought in." These sections of the Revised Statutes and similar statutes adopted since are what may properly be referred to as procedural laws, or laws of procedure. Section 997, which provides that in all criminal cases tried by jury the defendant shall have double the number of challenges allowed the state, is printed under this general heading and is procedural law.

By an amendment to the Constitution adopted November 2, 1926 (Act No. 262 of 1926), the Governor was authorized to appoint a commission "to prepare a draft of a Code of Criminal Procedure for this State." Section 1-a. The commission was appointed, a draft was made, submitted to the Legislature, and adopted with certain amendments. The Code was adopted as an act of the Legislature (Act No. 2 of 1928) which contains the following repealing clause: "Section 2. All laws or parts of laws contrary to or in conflict with the provisions of this Code are hereby repealed."

Upon the adoption of the Code, all statutory and other rules of criminal procedure theretofore existing, which were in conflict with its provisions, were set aside, and the Code itself became the procedural law of the state.

We cannot sanction the contention made by counsel for defendant that it was intended that the Code should be merely a compilation of the statutory rules of procedure then existing. The Legislature was not authorized by the constitutional amendment merely to revise, or make a codification or revision, of the laws of the state relative to criminal procedure. On the contrary, it was authorized to adopt a code of criminal procedure for the state. By conferring this general authority, it was intended that the Legislature should adopt a general, complete, and comprehensive system or body of laws in one act relative to criminal procedure in this state. It was not intended that the provisions of the Code should be drawn from any particular source, or conform to the rules of practice and pleading then existing. The Legislature was authorized to adopt new and different rules and to discard old ones, to carry into the file Code such of the old rules as it saw fit, and to repeal all laws not in conformity with the new regulations. General authority to adopt a code of laws for the state is quite different from authority to make a codification of existing laws. Authority to adopt a code is much broader in its scope and more comprehensive than authority to compile existing laws. Authority to adopt a code includes the power to enact a general system or body of laws, whereas authority to make a compilation of laws includes only the power to convert or bring together existing statutes, into a code. The Legislature was authorized to adopt a code, not merely to make a compilation of existing statutes. Article 354 of the Code relates to a matter which is purely procedural, and is constitutional.

2. Defendant was indicted for murder and, on first trial, was convicted of manslaughter, which had the effect of acquitting him of murder. That conviction was set aside on appeal and the case remanded. He was then put on trial for manslaughter and convicted. This appeal is from the second conviction and sentence.

At the second trial, the state was permitted, over the objection of counsel, to introduce testimony showing that defendant had entered into a conspiracy with two others to rob one Ted Riser, and that, while attempting to perpetrate the robbery one of the conspirators shot and killed Riser, the defendant being then present. Robbery being a felony under the law of this state, it is conceded by counsel for the state that, under the...