State v. Flanagan, 49451

• Citation: 254 La. 100,222 So.2d 872
• Decision Date: 05 May 1969
• Docket Number: No. 49451,49451
• Parties: STATE of Louisiana v. Louis FLANAGAN.
• Court: Supreme Court of Louisiana

Page 872

222 So.2d 872

254 La. 100

STATE of Louisiana v. Louis FLANAGAN.

No. 49451.

Supreme Court of Louisiana.

May 5, 1969.

Dan A. Spencer, Shreveport, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., J. Reuel Boone, Dist. Atty., Thomas A. Self, Asst. Dist. Atty., for appellee.

FOURNET, Chief Justice.

The defendant, Louis Flanagan, is appealing from his conviction on a charge by indictment with aggravated rape and his sentence to serve life imprisonment in the state penitentiary.

Counsel, both orally and in brief, concedes that no formal bills of exception were timely filed in the case at bar and therefore under the jurisprudence of this court 'the appeal is limited solely to errors patent on the face of the record'¹ and to his knowledge 'there are * * * no such errors involved in this proceeding,' and confined his argument solely to this court's refusal of defendant's application for writs of certiorari and mandamus² seeking to have this court order the trial judge to sign the bills of exception and made a part of this appeal that had been lodged here and set for hearing.

According to the record defendant was represented during the trial of the case by reserved during the trial shall be his trial was conducted strictly in accordance with the rules and procedure prescribed for the trial of criminal cases by the Legislature of the State of Louisiana in adopting Act No. 310 of 1966, becoming effective January 1, 1967.

Following his conviction and sentence on May 10, 1969, the trial judge granted an appeal on defendant's written motion filed on May 24, 1968 pursuant to Article 914⁴ and set the return date to this court as July 17, 1968 in conformity with Articles 915⁵ and 919⁶, giving defendant's counsel until July 1, 1968 for their presentation of the bills of exception relied upon for the reversal of his conviction in conformity with Article 845.⁷ The time for presentation of the formal bills to the trial judge for his approval was extended upon the request of counsel for defendant to July 28, 1968 as provided in Article 845, whereupon the trial judge also extended the return day to july 28, 1968 as provided in Articles 919 and 916.⁸ Counsel without securing an order for further extending the return date of the appeal or time for filing the bills of exception placed some of the bills in the mail on July 30, 1968 to the clerk of court which the trial judge refused to sign when submitted to him for approval on August 2, 1968. The trial judge also refused to sign a motion and order for extension subsequently submitted to him for his approval, whereupon counsel applied to this court for writs of mandamus and certiorari seeking to compel the trial judge to grant defendant additional time within which to prepare and file bills of exception, which was denied by this court on January 20, 1969. We held in a per curiam opinion that the trial judge's 'actions were correct because the extended return date had passed,' and we also pointed out the defendant's appeal had already been lodged here and was set for hearing on February 28, 1969.

From the foregoing it is obvious that the trial judge was without right or authority to sign the bills of exception when presented to him on August 2 or grant the defendant's motion for additional time within which to do so, for under the express provisions of Article 916 (reported in footnote 8) the trial judge upon entering the order of appeal was divested of all jurisdiction and that of the appellate court attached, except the trial judge was reserved the limited jurisdiction, insofar as pertinent here, to '(1) Extend the return day of the appeal or the time for filing and signing the bills of exceptions and per curiae.' It necessarily follows when July 28, the return date to which the appeal had been extended, expired the trial court lost all jurisdiction; in fact, the record had already been lodged here and set for hearing when the bills of exception were presented to the trial judge on August 2.

Ingenious counsel, relying on the recent decision of the Supreme Court of the United States in the case of Entsminger v. Iowa, 386 U.S. 748, 87 S.Ct. 1402, 18 L.Ed.2d 501, urges that the imputation of the dereliction of duty and ineffectiveness on the part of counsel to the defendant deprives him of his rights guaranteed under the Sixth and Fourteenth Amendments to the Constitution of the United States and, therefore, Article 920 as applied to this defendant is unconstitutional.

Clearly the argument lacks merit. While the Sixth Amendment⁹ to the Constitution of the United States does guarantee an accused the right 'to have the Assistance of Counsel for his defence,' and the Fourteenth Amendment¹⁰ guarantees the protection from unequal or discriminatory treatment of an accused, it appears in the record that defendant was represented by two able counsel of his own choice who defended him vigorously throughout the eleven day trial in a competent and resourceful manner, reserving 108 bills of exception. Clearly, therefore, counsels' representation in this case cannot be considered merely perfunctory as held in Bell v. Alabama, 5 Cir., 367 F.2d 243, or a farce or mockery of justice as held in Grove v. Wilson, 9 Cir., 368 F.2d 414. And as above reflected the trial of defendant was conducted strictly in accordance with the law of Louisiana governing the procedure to be followed in all criminal cases.

A perusal of the case of Entsminger v. Iowa, supra, readily discloses it is inapposite from a factual as well as a legal standpoint. Therein the United States Supreme Court observing that the case concerned 'the constitutional requirements which are binding on a State in the administration of its appellate criminal procedures with respect to convicted indigents seeking initial review of their convictions,' pointed out in the opinion that the Iowa law provided alternate methods of appealing criminal convictions; the first method is on a 'clerk's transcript' which is used in absence of a request on the part of counsel for the alternate method being a plenary review of the case wherein the appeal is on the complete record of the trial. Although appointed counsel in that case had secured an order to perfect a plenary appeal as he had been requested to do by defendant, he failed to file same; hence, the case was submitted to the appellate court on the 'clerk's transcript' alone instead of the complete record pursuant to the order secured for a plenary appeal. In reversing the decision of the Supreme Court of Iowa the United States Supreme Court very aptly observed, 'Such procedure automatically deprived him of a full record, briefs, and arguments on the bare election of his appointed counsel, without providing any notice to him or to the reviewing court that he had chosen not to file the complete record in the case.' (Emphasis added.)

Although counsel conceded that there are no discernable errors appearing on the face of the record, we have, nevertheless, carefully inspected the same and fail to find any.

For the reasons assigned the conviction and sentence are affirmed.

BARHAM, Justice (dissenting).

I am in total agreement with the majority that we may not consider the bills of exception or any of the evidence and are required by Article 920(2) of the Code of Criminal Procedure only to inspect the 'pleadings and proceedings' in this case to determine whether there is reversible error. After a careful review of the record, however, I find prejudicial and reversible error.

The detailed and lengthy minutes, which constitute the official record of the proceedings of the trial court, fail to disclose that the selected petit jurors were sworn.

On April 2, 1968, the prospective petit jurors called for service were administered the oath for their voir dire examination, and the court began the selection of a jury. Repeatedly the minute entries show that certain named persons were 'selected and empanelled' to try the case.¹ On April 5, with the selected jury present in the courtroom the bill of indictment and the defendant's plea thereto were read, opening statements were made, and the first witness was called. The proceedings continued until a verdict of guilty without capital punishment was rendered on April 11 and a sentence of life imprisonment pronounced on May 10.

The minutes do not state that any individual juror or the jury as a whole was sworn to try the case,² and the words 'selected and empanelled' used in the minutes do not mean, or even imply, that the jury was sworn.³ Thus the record--the pleadings and proceedings--fails to show that the jury which convicted this defendant was sworn.

There are some holdings by the courts of other states that failure to swear the jury in a criminal case deprives the accused of his constitutional right to a trial by jury (Howard v. State, 80 Tex.Cr.R. 588, 192 S.W. 770, LRA 1917D 391; Commonwealth ex rel. Tate v. Banmiller, 393 Pa. 496, 143 A.2d 56; People v. Pelton, 116 Cal.App.Supp. 789, 7 P.2d 205), and it is uniformly held that the defendant is entitled to have the jury sworn. 50 C.J.S. Juries § 294. A diversity arises in othr jurisdictions on the question of whether it must affirmatively appear in the record that the jury was sworn.

It has been consistently held in Louisiana not only that the jury must be sworn, but that the record must affirmatively show that the jury was sworn, and that lack of such a showing will be noted as error 'patent upon the face of the record'. State v. Prater, Man.Unrep.Cas. 307; State v. Gates, 9 La.Ann. 94; State v. Phillips, 28 La.Ann. 387; State v. King, 28 La.Ann. 425; State v. Douglass, 28 La.Ann. 425; State v. Calvert, 32 La.Ann. 224.⁴ The general holding of these decisions is, as stated in the Gates case: 'We think that the record of conviction is defective, in not showing that the jurors who tried the issue were sworn. The original entry...