State v. Hataway

• Decision Date: 02 April 1923
• Docket Number: 25819
• Citation: 153 La. 751,96 So. 556
• Court: Louisiana Supreme Court
• Parties: STATE v. HATAWAY

96 So. 556

153 La. 751

STATE v. HATAWAY

No. 25819

Supreme Court of Louisiana

April 2, 1923

Appeal from Thirteenth Judicial District Court, Parish of Rapides J. A. Williams, Judge.

Elbert Hataway was convicted of petty larceny, and he appeals.

Verdict and sentence annulled, and case remanded.

T. F Hunter, of Alexandria, for appellant.

A. V Coco, Atty. Gen., and T. A. Carter, Dist. Atty. pro tem., of Alexandria (T.S. Walmsley, of New Orleans, of counsel), for the State.

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

OPINION

O'NIELL, C.

Appellant was prosecuted for burglary and grand larceny, was tried by a jury of 12, and convicted of petty larceny. The two accusations were made in separate counts in the bill of information, the first count charging the breaking and entering of a dwelling house with intent to steal, the second count charging larceny of goods valued at $ 150. The verdict was not guilty of either burglary or grand larceny, but "guilty of larceny, value $ 95."

Appellant did not have the assistance of counsel until the jury had rendered the verdict. He requested the judge to appoint an attorney to represent him, after the trial had commenced and when several jurors had been drawn, but the judge refused the request, thinking it had come too late. After the verdict was rendered, but before sentence was pronounced, defendant procured the services of an attorney, who filed a motion for a new trial and a motion in arrest of judgment. The judge overruled both motions and sentenced defendant to imprisonment at hard labor in the penitentiary for a term not less than 18 months nor more than 2 years.

The most important question in the case is presented by the bill of exception taken to the overruling of the motion in arrest of judgment; that is, whether the jury of 12 had jurisdiction to try the case of larceny.

In the statement per curiam annexed to the bill the judge has given a reason that is not tenable for saying that the jury of 12 had jurisdiction of the prosecution for larceny; that is, that the accusation was for "larceny in an amount exceeding $ 100." Larceny of an amount exceeding $ 100 is punishable by imprisonment for a term not exceeding 10 years, with or without hard labor, at the discretion of the judge, and is therefore triable by a jury of 5, or by the judge, at the option of the party accused.

A prosecution for burglary of a dwelling house with intent to steal is triable only by a jury of 12, because the only penalty that can be imposed for the crime is imprisonment at hard labor. Const. 1921, art. 7, § 41 (Const. 1898 and 1913, art. 116). In such cases the defendant cannot legally waive the trial by a jury of 12, or elect to be tried by less than 12 jurors, or even by the judge alone. State v. Thompson, 104 La. 167, 28 So. 882.

A prosecution for any crime for which the punishment is imprisonment either with or without hard labor, at the discretion of the court, is triable by a jury of only 5 members or by the judge alone, at the option of the defendant. Const. 1921, art. 7, §§ 41 and 42 (Const. 1898 and 1913, arts. 116 and 117). If the defendant, in such case, waives his right to a trial by a jury of 5, he must be tried by the judge alone. He cannot be tried by a jury of 12, even with his consent. In State v. Beebe, 127 La. 493, 53 So. 730, the defendant, being indicted for a crime for which the penalty was imprisonment with or without hard labor, at the discretion of the court, was, without objection on his part, tried by a jury of 12, and was convicted. This court set aside the verdict, saying that jurisdiction to try such a case could not be conferred upon a jury of 12, by the defendant's consent, any more than it could be thus conferred upon a jury of 3 or a mob of 50. And in State v. Reeves, 128 La. 37, 54 So. 415, the defendant, having been indicted for a crime for which the penalty was "imprisonment at hard labor or otherwise," was, without objection on his part, tried by a jury of 12, and was convicted and sent to the penitentiary. This court released him from the penitentiary on a writ of habeas corpus, and, declaring the conviction an absolute nullity, ordered the case returned to the docket of the district court "to be proceeded with as if no trial had been had."

The penalty of imprisonment for grand larceny in this state always has been either with or without hard labor, at the discretion of the judge. And so is the penalty for petty larceny, if the money or goods stolen be of the value of $ 20 or more. Under section 812 of the Revised Statutes, the penalty for the crime of larceny, no matter what amount of money or property was stolen, was imprisonment "at hard labor or otherwise, not exceeding two years." By section 8 of Act 124 of 1874, p. 223, the larceny of money or goods of the value of $ 100 or more was declared to be grand larceny, punishable by imprisonment with or without hard labor, at the discretion of the judge, for a term not exceeding 10 years, and the larceny of money or goods of a value less than $ 100 was declared to be petty larceny, punishable by imprisonment with or without hard labor, at the discretion of the judge, for a term not exceeding 2 years. By section 5 of Act 107 of 1902, p. 162, petty larceny not accompanied by any sort of burglary or other crime is graded. If the amount of money or value of goods stolen is less than $ 20, the penalty of imprisonment is without hard labor, the term being from 10 to 60 days if the amount stolen is less than $ 5, and from 1 month to 6 months if the amount stolen is not less than $ 5, though less than $ 20. If the amount of money or value of property stolen is $ 20 or more, but less than $ 100, the penalty is imprisonment with or without hard labor, at the discretion of the court, for a term not exceeding 2 years nor less than 3 months. The same section of the act of 1902 makes the penalty for theft from the person of another, when not amounting to robbery, of money or goods of any value less than $ 100, imprisonment with or without hard labor, at the discretion of the judge, for a term not exceeding 3 months.

In those jurisdictions where the crime of burglary and the crime of larceny are triable by the same tribunal, as by a jury of 12, the two crimes, if alleged to have been committed at the same time and place, may be charged in one indictment, provided the accusations be made in separate counts. But the rule that two or more crimes, if committed in one transaction, may be charged in one indictment, is subject to the qualification that the two or more crimes so charged "are subject to the same mode of trial and nature of punishment." 14 R. C. L. 197, citing Johnson v. State, 29 Ala. 62, 65 Am. Dec. 383; Bell v. State, 48 Ala. 684, 17 Am. Rep. 40; Lascelles v. State, 90 Ga. 347, 16 S.E. 945, 35 Am. St. Rep. 216, and note; Sarah v. State, 28 Miss. 267, 61 Am. Dec. 544; State v. Houx, 109 Mo. 654, 19 S.W. 35, 32 Am. St. Rep. 686; State v. Carragin, 210 Mo. 351, 109 S.W. 553, 16 L.R.A. (N.S.) 561; and notes 48 Am. St. Rep. 961, and 49 Am. St. Rep. 771.

Before the adoption of the Constitution of 1879, all classes of criminal cases in this state were tried by 12 jurors. In article 7 of the Bill of Rights the Legislature was expressly authorized to provide for the trial of criminal cases by juries less than 12 in number, when the penalty for the crime was not necessarily imprisonment at hard labor or death. The Legislature, by Act 35 of 1880, provided for the trial of such cases by juries composed of only 5 members, with the proviso that, if the defendant waived his right to a trial by jury, he should be tried by the judge alone.

Before the enactment of the statute of 1880, when the crimes of burglary and larceny were subject to the same mode of trial, there was no objection to the charging of both crimes in one indictment, provided they were alleged to have been committed at the same time and place, and provided the accusations were made in separate counts. State v. Malloy, 30 La.Ann. 61; State v. Depass, 31 La.Ann. 487.

It has always been the rule in this state, as in other jurisdictions, that an accusation of larceny made in the same count with an accusation of burglary does not vitiate the indictment for burglary, but merely shows the unlawful intent with which the breaking and entering was committed. When both crimes are charged in one count, however, the indictment is for burglary only. The jury cannot then convict the accused of larceny. Therefore, if the verdict in such case be "guilty" or "guilty as charged," the sentence must be within the penalty prescribed for the crime of burglary only. State v. Ford, 30 La.Ann. 311; State v. Christian, 30 La.Ann. 367; State v Johnson, 34 La.Ann. 48; State v. King, 37 La.Ann. 662; State v. Nicholls, 37 La.Ann. 779; State v. Robertson, 48 La.Ann. 1026, 20 So. 167; State v. Carriere, 127 La. 1029, 54 So. 339; State v. Fuselier, 134 La. 632, 64 So. 493. There was one decision to the contrary. That was in State v. Morgan, 39 La.Ann. 214, 1 So. 456. In that case the accused, being indicted for burglary and larceny in one count, requested the judge to charge the jury that a verdict of "guilty of larceny" would not be responsive; but the judge declined to give the charge, and instructed the jury, to the contrary, that the verdict could be for "both burglary and larceny, or either." The verdict was "guilty of larceny," and it was sustained on appeal. The decision, however, was, in effect, overruled by the rulings in State v. Robertson, 48 La.Ann. 1024, 20 So. 166; State v. Robertson, 48 La.Ann. 1026, 20 So. 167; State v. Carriere, 127 La. 1029, 54 So. 339; and State v. Fuselier, 134 La. 632, 64 So. 493. The language of the ruling in each of those cases is in direct...