State v. Harvey

• Decision Date: 13 July 1925
• Docket Number: 27123
• Citation: 159 La. 674,106 So. 28
• Court: Louisiana Supreme Court
• Parties: STATE v. HARVEY

106 So. 28

159 La. 674

STATE v. HARVEY

No. 27123

Supreme Court of Louisiana

July 13, 1925

Rehearing Denied November 2, 1925

Appeal from Fourteenth Judicial District Court, Parish of Cameron Thomas F. Porter, Judge.

Ned Harvey was convicted of murder, and appeals.

Affirmed.

A. R Mitchell, of Lake Charles, and Paul A. Sompayrac, of New Orleans, for appellant.

Percy Saint, Atty. Gen., John J. Robira, Dist. Atty., and Sam H. Jones, Asst. Dist. Atty., both of Lake Charles, and Percy T. Ogden, Asst. Atty. Gen. (J. Bernard Cocke, of New Orleans, and Griffin T. Hawkins, of Lake Charles, of counsel), for the State.

LAND, J. O'NIELL, C. J., concurs.

OPINION

LAND, J.

Defendant was indicted for the murder of one John Springer in the parish of Cameron on January 1, 1925. From a verdict of guilty, as charged and sentence to death, defendant prosecutes this appeal, and relies, for the reversal of the judgment against him, upon the following bills of exception, assignment of errors, and original and supplemental pleas to the unconstitutionality of the prosecution and sentence against him.

Bill of Exceptions No. 1.

1. Defendant filed a motion to quash the indictment in this case on the ground that the grand jury that returned the indictment against him was not properly and legally instructed by the trial judge as to their duties.

The charge delivered by the trial judge to the grand jury at its impanelment on July 16, 1924, is as follows:

"It is the grand jury's duty to examine into and to inquire into every violation, in Cameron parish, of the criminal laws of this state, about which any grand juror may hear or know of, or which may be presented to the grand jury by any person. It is the duty of each of you gentlemen to bring to the attention of the grand jury every violation of the law occurring since the last sitting of the grand jury, and which took place in Cameron parish, which you have personal knowledge of, or about which you have had any information. If you should violate this duty imposed upon you by the law, you become liable to fine, imprisonment in jail, or in the penitentiary. If any person wishes to inform you of the violation of a criminal law, it will be your duty to hear him, whether or not you have summoned him to appear before you.

"You will hear and examine only the witnesses for the prosecution. You shall not examine witnesses for the defense, and you do not decide the guilt or innocence of an accused."

The charge delivered to the grand jury at its session on January 25, 1925, at which the indictment was returned in this case, is as follows:

"Whenever you believe, from what you yourselves may know, or from evidence you may hear, or any other evidence, that it is probable an accused is guilty of some crime inquired into, and that there exists a prima facie case of guilt against him, and that probably he can be convicted, it will be your duty to find a true bill."

In State v. Lewis, 38 La.Ann. 680, 681, it was held by this court that --

"The finding of the grand jury is not a verdict or judgment; it amounts, at most, to an accusation; and we know of no law which fixes the nature or quantum of the evidence on which the grand jury must rest their conclusions."

It is well settled that a defendant, or accused person, may not, as a matter of right, have his witnesses heard by the grand jury.

There is no law of this state giving to a defendant the right to summon his witnesses before a grand jury, or requiring a grand jury to examine witnesses for a defendant, in its investigation of crime.

Moreover, as said by this court in State v. White, 37 La.Ann. 172, 173:

"We know of no authority recognizing errors in the general charge of the judge to the grand jury, as ground for quashing indictments found by them."

2. Defendant, in his original plea to the unconstitutionality of the prosecution and sentence against him, avers that in the prosecution against him herein he was denied due process of law and equal protection of the law, in violation of the inhibition contained in the Fourteenth Amendment to the Constitution of the United States, and in violation of article 1, sections 2, 6, and 9, and of article 7, section 42, of the Constitution of the state of Louisiana of 1921.

Defendant further avers that the record herein fails to show that defendant was indicted by a grand jury, in accordance with the provisions of section 42 of article 7 of the Constitution of this state, which declares that a grand jury shall be composed of 12 persons, 9 of whom shall constitute a quorum and must concur to find an indictment.

Defendant further avers that the proceedings against him in the district court of Cameron parish were coram non judice, and in violation of article 1, section 9, of the Constitution of this state, which prohibits holding a person to answer for capital crime, unless on a presentment or indictment by a grand jury, and that the record herein does not show that defendant was indicted on a presentment made by a grand jury against defendant for murder.

Article 14 of the Amendments to the Constitution of the United States declares that

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction equal protection of the laws."

The Fourteenth Amendment to the federal Constitution does not guarantee to citizens of the United States the privilege or immunity of being held to answer for a capital crime in a state court unless on a presentment or indictment of a grand jury.

Due process of law is process according to the law of the land. This process in the states is regulated by the law of the states. Hurtado v. People of the State of California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232.

It is true that the Fifth Amendment to the Constitution of the United States declares that --

"No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment by a grand jury," etc.

It is well settled, however, that the Fifth Amendment to the federal Constitution is a limitation upon the national government, and has no reference to state action. Fox v. Ohio, 46 U.S. 410, 5 How. 410, 12 L.Ed. 213; U.S. v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588; Ohio v. Dollison, 194 U.S. 445, 24 S.Ct. 703, 48 L.Ed. 1062; Jack v. Kansas, 199 U.S. 372, 26 S.Ct. 73, 50 L.Ed. 234, 4 Ann. Cas. 689.

"Due process of law" in the state of Louisiana in all capital cases is by presentment or indictment by a grand jury. Article 1, § 9, Const. 1921.

That such process has been duly complied with in the present case is fully shown by the minute entry, page 1 of the transcript, reciting the impanelment of the grand jury in this case; the calling in open court of the venire of grand jurors; the appointment by the court of the foreman; the drawing from the envelope containing the names of the grand jurors; the administration of the oath to the foreman and to the other 11 grand jurors.

This minute entry is of date June 16, 1924, and shows that the 12 grand jurors were regularly selected, sworn, impaneled, and charged by the court. Act 135 of 1898, § 4, as amended by Act 58 of 1904; Act 135 of 1898, § 7, as amended by Act 155 of 1906; Act 135 of 1898, § 8.

Under section 42 of article 7 of the Constitution of 1921 it is provided that at least one grand jury of 12 shall be impaneled each year in the parish of Cameron, while the impanelment of a grand jury in each of the other parishes of the state is required under this section to be had twice in each year, to remain in office until a succeeding grand jury shall have been impaneled.

The minute entry found at page 2 of the transcript shows that the Fourteenth judicial district court for the parish of Cameron met pursuant to adjournment on January 14, 1925, Thos. F. Porter, Jr., judge presiding, with the sheriff and the clerk in attendance, and recites that all of the grand jurors were present and answered to their names; that the court charged the grand jury; that the grand jury retired to the jury room for deliberation; and that the grand jury came into court and reported the following true bills, to wit: "State of Louisiana v. (No. 638) Ned Harvey, Charge, Murder." The minutes clearly show that the entire grand jury that had previously answered their names and had been charged reported on the same day and in open court, the true bill for murder against the defendant.

The indictment in this case is indorsed "A true bill," and is signed by Lloyd Vaughan, Foreman of the Grand Jury," and was filed by the clerkon January 14, 1925. On the same day defendant personally pleaded not guilty to the indictment.

In State v. Onnmacht, 10 La.Ann. 198, the entry on the minutes was, "The State of Louisiana v. K. Onnmacht, true bill and indictment, for lying in wait and shooting with intent to commit murder," and it did not affirmatively appear that the grand jury appeared in court and returned the indictment. The court said:

"This renders it sufficiently certain, that the indictment to which the prisoner subsequently pleaded was presented by the grand jury in open court. The clerk enters on the minutes only what is done while the court is in session, and only such proceedings as ought to appear of record. No entry would be made on the minutes of what did not transpire in open court; and to presume it possible that the grand jury did not, as a body, return the indictment in this case, and in open court, would be reversing directly the maxim, 'omnia rite acta.'"

The decision in the Onnmacht Case is expressly affirmed in ...