State v. Flood

• Decision Date: 06 November 1972
• Docket Number: No. 52783,52783
• Citation: 263 La. 700,269 So.2d 212
• Parties: STATE of Louisiana v. Ellen McDaniel FLOOD.
• Court: Louisiana Supreme Court

Page 212

269 So.2d 212

263 La. 700

STATE of Louisiana v. Ellen McDaniel FLOOD.

No. 52783.

Supreme Court of Louisiana.

Nov. 6, 1972.

Williams & Fisher, Nathan S. Fisher, Baton Rouge, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Lee A. Hartley, Special Counsel, Wilmore J. Broussard, Jr., Dist. Atty., Robert B. Butler, III, Asst. Dist. Atty., for plaintiff-appellee.

DIXON, Justice.

We granted writs in this case, as in State v. Holmes, No. 52812, 263 La. 685, 269 So.2d 207, this day decided, to consider the effect of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), upon the administration of criminal justice in Louisiana.

The State reserved a bill of exceptions when, at a hearing to fix bond for defendant, accused of murder, the district judge ruled that C.Cr.P. 313 was no longer effective, due to the unconstitutionality of the imposition and execution of the death penalty. The district judge ruled that he would hear no testimony to determine if the 'proof is evident or the presumption great.' Apparently considering only the factors set out in C.Cr.P. 317, the district judge fixed bail at $10,000.

As in State v. Holmes, supra, we are met not only with statutory provisions (C.Cr.P 312, 313) but also with constitutional ¹ provisions which refer to 'capital offenses.' Louisiana Constitution, Article 1, Section 12, provides:

'Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted. All persons shall be bailable by sufficient sureties, except the following: 1. Persons charged with a capital offense, where the proof is evident or the presumption great. Persons convicted of felonies, provided that where a minimum sentence of less than five years at hard labor is actually imposed, bail shall be allowed pending appeal until final judgment.'

Since the Furman case has eliminated 'capital offenses' in Louisiana, argues the defendant, she is entitled to bail pending trial regardless of whether the proof is evident or the presumption great.

The right to bail in Louisiana is and has always been a fundamental one. Our present constitutional provision for bail tracks the language found in each of the eight preceding constitutions of this State. ²

As far as we can determine, there have always been capital offenses in Louisiana until Furman v. Georgia, supra. Now, since there are no capital offenses in Louisiana, must we disregard part of our constitutional bail provisions, and enforce another part? We think not, as long as there is an interpretation which will give meaning and significance to the entire provision.

As in State v. Holmes, supra, we conclude that Furman v. Georgia does not destroy the system of classification of crimes in Louisiana. Murder is still a crime, and, when our legislature last acted with respect to it, murder was, as it has ever been, a capital crime. The crime remains unchanged; only the penalty has been changed. True, the penalty is what made murder a capital offense, and it is not actually a capital offense in Louisiana today. But the Nature of the offense has not changed--only the punishment.

Because the system of classifying certain serious offenses as capital, and then providing the procedural structure for the administration of criminal justice based on that classification is so fundamental in the organization of our criminal statutes, we find it preferable to make no change in the interpretation of the constitutional provisions concerning bail. Those offenses classified as capital before Furman v. Georgia are still classified as capital offenses, and those charged with an offense punishable by death before Furman v. Georgia are not entitled to bail where the proof is evident or the presumption great. ³ For the reasons, and those expressed in State v. Holmes, supra, we find merit in Bill of Exceptions No. 1. Upon motion of the State and after notice to defendant, the district judge shall conduct a hearing pursuant to the provisions of C.Cr.P. 313.

BARHAM, J., dissents with written reasons.

TATE, J., concurs in BARHAM, J.'s dissent and additionally dissents for the reasons stated by him in State v. Holmes, 263 La. 685, 269 So.2d 207, this date.

BARHAM, Justice (dissenting).

The precise question in this case is whether those charged with offenses which were formerly punishable by death are to be admitted to bail since Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), declared the death penalty unconstitutional. The majority approaches this problem as though it were res nova, a problem suddenly created in every state in this country because the Supreme Court of the United States has stricken down the death penalty. As a matter of fact, in a very cursory examination I find that the question has been presented many times beginning as early as 1865, an that the answer has been uniform except in one recent case. ¹

Our Louisiana Constitution provides that all persons shall be bailable except '* * * Persons charged with a Capital offense, where the proof is evident or the presumption great'. La.Const. of 1921, Art. I, Sec. 12. (Emphasis supplied.) Our Code of Criminal Procedure Article 933 defines 'capital offense' as 'an offense that may be punished by death'. Moreover, if we did not have a definition in our Code, we would be required to look for a definition in common law and its source. 'Capital offense' apparently has had one meaning and one meaning only in England and in the United States. Bacon said that capital punishment was 'That which affects life'. Over the years in various editions of Webster's and The Century dictionaries, quotations from Spencer, Milton, Swift, and Macaulay have been used to illustrate that 'capital punishment' means the forfeiture of head or life, punishment by death. The Random House Dictionary of the English Language (1967) says a capital crime is punishable by death. The several editions of Black's Law Dictionary define capital crime as one punishable with death, and give numerous citations from jurisdictions throughout this country. Bouvier's Law Dictionary says a capital crime is 'one for which the punishment of death is inflicted'. See also Words and Phrases, 'Capital Crime or Offense'.

The jurisprudence is replete with the definition of 'capital offense', and it is undeviating. Therefore, under the specific legislative definition in Louisiana as well as under the consistent definition in statutes and jurisprudence of other states, a 'capital offense' is one punishable by death.

If there is no more offenses punishable by death in Louisiana because of the United States Supreme Court's pronouncements, there are no more capital offenses, and our constitutional limitation upon the right to bail in capital offense cases is without effect. Therefore all persons charged with crimes are bailable, subject to the Code criteria for fixing bail. This conclusion can be documented with a long history of jurisprudence.

In In Re Charles A. Perry, 19 Wis. 676 (1865), it was said: 'The court are of opinion that since the abolition of capital punishment in this state, persons charged with murder are in all cases bailable.' ²

In State v. Johnston, 83 Wash. 1, 144 P. 944 (1914), it was held that since capital punishment was abolished by that state in 1913, the 12 challenges previously afforded in prosecutions for capital offenses were no longer available, and that the provisions for six peremptory challenges in non-capital offenses should be applied in a murder prosecution. ³

Ex Parte Ball, 106 Kan. 536, 188 P. 424 (1920), held that when the Constitution of that state (like ours) made all offenses bailable except capital offenses and the legislature declared that murder could no longer be punished by death, murder became a bailable offense.

For other cases with similar holdings, see In Re Welisch, 18 Ariz. 517, 163 P. 264 (1917); In Re Wood, 18 Ariz. 527, 163 P. 268 (1917); City of Sioux Falls v. Marshall, 48 S.D. 378, 204 N.W. 999 (1925); State v. Pett, 253 Minn. 429, 92 N.W.2d 205 (1958); see also Taglianetti v. Fontaine, 105 R.I. 596, 253 A.2d 609 (1969).

It can be seen from a reading of these cases that the abolition of capital punishment is not new in some jurisdictions within this country. It becomes more readily apparent that in these earlier cases where states have abolished capital punishment, these offenses, previously not bailable, became bailable upon the abolishing of the death penalty.

The majority of the cases that have arisen recently have followed the uniform rule. In People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880 (1972), bail was not an issue. However, as an afterthought on rehearing the court said in dictum '* * * Subject to our future consideration of this issue in an appropriate proceeding, we hold that they (offenses formerly capital) remain as offenses for which bail should be denied * * *.' In People ex rel. Dunbar v. District Court, 500 P.2d 358 (Colo.Sup.Ct.1972), that court, without looking to the vast authority throughout this country for an answer to this question, supported its decision with that meager gleaning from the California case.

Courts of all other...