State v. Ferguson

• Decision Date: 21 June 1937
• Docket Number: 34404
• Citation: 187 La. 869,175 So. 603
• Court: Louisiana Supreme Court
• Parties: STATE v. FERGUSON

175 So. 603

187 La. 869

STATE v. FERGUSON

No. 34404

Supreme Court of Louisiana

June 21, 1937

Appeal from Nineteenth Judicial District Court, Parish of East Baton Rouge; Charles A. Holcombe, Judge.

Walker Ferguson was convicted of murder, and he appeals.

Conviction and sentence annulled, and case remanded for a new trial.

Fred G Benton and Carlos G. Spaht, both of Baton Rouge, for appellant.

Gaston L. Porterie, Atty. Gen., James O'Connor, Asst. Atty Gen., and Dewey J. Sanchez, Dist. Atty., and John R. Fridge Asst. Dist. Atty., both of Baton Rouge, for the State.

OPINION

FOURNET, Justice.

The defendant, Walker Ferguson, prosecutes this appeal from his conviction of murder without capital punishment and his sentence to imprisonment at hard labor for life, and, for the reversal thereof, he relies on several alleged errors committed by the State during his trial to which timely objections were made and bills of exceptions reserved to the ruling of the trial judge.

The first bills of exceptions argued by counsel for defendant orally and in brief are exceptions Nos. 2 and 3. Both were leveled at the ruling of the trial judge requiring the defendant, over his counsel's objection, to accept or reject prospective jurors before the State was required to accept or reject them.

The record shows that, after nine veniremen had been examined, two of whom were accepted by the State and the defendant, the district attorney examined three more jurors on their voir dire and tendered them to the defendant for examination by his counsel. After their examination, the jurors were tendered back to the State for acceptance or rejection before the defendant exercised his right to accept or peremptorily reject either of them. The trial judge ruled that the "district attorney had the right to examine the jurors and tender them to counsel for defendant for acceptance or rejection with the right on the part of the district attorney to re-examine said jurors if he so desired and to accept or reject them as he sees fit." The defendant reserved bill of exception No. 2 to the ruling of the court. Bill of exception No. 3 was reserved to a similar ruling by the court when the next three jurors were tendered by the defendant to the district attorney for acceptance or rejection. The defendant then requested that the same objection and ruling be made to apply to the examination of all subsequent jurors. It also appears that the defendant exhausted his peremptory challenges before the jury panel was completed.

The procedure governing the examination and challenging of jurors is embraced in articles 358 and 359 of the Code of Criminal Procedure, reading as follows:

"358. The jurors shall be tendered first to the prosecution, and, if accepted, then tendered to the defense. After a juror has been accepted by both sides, neither side has the right to challenge him peremptorily, but it shall be within the discretion of the court, and not subject to review to allow either side to peremptorily challenge jurors up to the time that the jury is impaneled."

"359. Although a juror may have been accepted by both the prosecution and the defense, he may, none the less, up to the beginning of the taking of evidence, be challenged for cause by either side, or be excused either for cause or by consent of both sides."

We had these two articles under consideration in the cases of State v. Wells, 171 La. 795, 132 So. 349, and State v. Ussery, 178 La. 593, 152 So. 302, 303, on the question of whether the prosecution was compelled to accept or reject the prospective juror before tendering him to the defendant for examination, and in disposing of that issue, in the latter case, we said:

"The objection made by the defendant's counsel, and overruled by the judge, was the same objection that was held to be not well founded in State v. Wells, 171 La. 795, 132 So. 349. The district attorney, having examined a prospective juror on his voir dire, tendered him to the defendant's attorneys for examination; whereupon they objected to being called upon to examine the prospective juror until the district attorney announced that he accepted the juror. The district attorney then announced that he accepted the juror tentatively, meaning that the acceptance was provisional, being subject to the provisions of articles 358 and 359 of the Code of Criminal Procedure. Article 358 provides that the jurors shall be tendered first to the prosecution for examination on their voir dire, and, if accepted, then tendered to the defense; and that, after a juror has been accepted by both sides, neither side shall have the right to challenge him peremptorily, but that it shall be then absolutely within the discretion of the judge either to allow or to deny a peremptory challenge up to the time the jury is impaneled. And article 359 provides that, after a juror has been accepted by both sides, he may yet be challenged for cause, or be excused by consent of both sides, up to the beginning of the taking of evidence. It is plain, therefore, that the tendering of a juror to the defendant's counsel, by the district attorney, after he has examined the juror on his voir dire, is in itself an acceptance of the juror by the district attorney, subject, of course, to the rights which are accorded to both sides under articles 358 and 359 of the Code of Criminal Procedure. The only way that a cause for complaint on the part of the defendant could arise in such a proceeding would be for the district attorney to attempt to withdraw his acceptance of the juror, or to proceed in a way not consistent with his acceptance of the juror, after tendering him to the defendant's counsel for examination."

The trial judge in his per curiam stated that after a close study of these two decisions, he was convinced that he had erred in his ruling, but stated further that:

"However * * * I am...