State v. Henry
| Decision Date | 26 May 1941 |
| Docket Number | 36165. |
| Citation | 197 La. 999,3 So.2d 104 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. HENRY. |
[Copyrighted Material Omitted]
Eugene Stanley, Atty. Gen., Niels F. Hertz, Sp Asst. Atty. Gen., and C. V. Pattison, Dist. Atty., and Coleman D. Reed and John H. Martin, Asst. Dist. Attys., all of Lake Charles, for the State, plaintiff and appellee.
Clement M. Moss and Norman F. Anderson, both of Lake Charles, for defendant, appellant.
The defendant has twice been convicted of murder and twice had a death sentence imposed upon her. We set the first conviction and sentence aside and remanded the case for retrial. State v. Henry, 196 La. 217, 198 So. 910.
She has appealed from the second conviction and sentence. Her plea for reversal of the conviction and sentence is grounded upon numerous alleged erroneous rulings of the trial court during the progress of the trial, which alleged errors are set out in 20 or more bills of exception. Some of the bills have no merit. Others disclose fatal errors, and we find it necessary to set the verdict and sentence aside and again remand the case for retrial.
Some of the bills relate to alleged erroneous rulings which are not likely to be made at a subsequent trial. These we shall not discuss. Other bills relate to issues which are likely to arise at a subsequent trial, and for that reason we shall dispose of them although they have no merit.
The bills which have merit are numbered 7, 8, 9, 11, 13, and 14. Bills 7, 8, 9, 11, and 14 may be grouped and considered together because each relates to the same complaint urged by counsel for defendant, which is that the court permitted the district attorney to go beyond the limits allowed by law in his questioning of the veniremen on their voir dire as to their feelings and scruples relating to the infliction of the death penalty in capital cases. Specifically, the complaint urged by counsel for defendant is that the district attorney was permitted to propound certain questions to the prospective jurors while they were being examined on their voir dire with the purpose and intent of having them commit themselves in advance to the rendition of a certain verdict if the testimony convinced them that the accused was guilty of the crime of murder; that the court, over their objection, permitted such examination and allowed the jurors to answer the questions objected to, and that the answers made by the jurors did in fact show that they favored the rendition of a certain verdict. Therefore, counsel argue, these jurors were incompetent, and the court erred in refusing to sustain their challenge of them for cause.
Whether the district attorney intended that his examination of the jurors on their voir dire should have the effect of inducing them to commit themselves in advance to the rendition of a certain verdict is not the question. The question is whether as a result of his examination the jurors did in fact so commit themselves. We think such was the result.
There is merit in counsel's complaint. Kenneth Vincent, a venireman, while being questioned by the district attorney on his voir dire, was asked whether he had any conscientious scruples against the infliction of capital punishment, and said, 'No, not in a just case.' The district attorney propounded to him the following question:
'In a case where the penalty may be death, where you are satisfied beyond any reasonable doubt that the defendant is guilty, could you vote for the death verdict without hurting your conscience?'
The juryman's answer was 'Yes'.
Counsel for defendant urged no objection to the last above question and answer, the reason being, of course, that the question was but an amplification of the routine question relating to the juror's scruples as to the infliction of the death penalty.
The district attorney then asked the venireman the following question:
'In the same case if you were satisfied beyond any reasonable doubt that the defendant was guilty, you were convinced by all the facts and circumstances that the defendant were not entitled to a qualified verdict or mercy, would you vote for the death penalty?'
To this question counsel for defendant made the following objection:
'We object to the question for the reason that it is an attempt to commit the juryman in advance to some certain verdict, and that the rendition of a qualified or unqualified verdict is a matter solely under the discretion of the juror, to be exercised as they desire.'
The court overruled the objection and permitted the juror to answer it, his answer being 'Yes'.
The district attorney asked the venireman Lee Koone the following question:
'In a case where the law provides you may bring in such a verdict [meaning a verdict carrying with it capital punishment] and where you were satisfied beyond any doubt that defendant was guilty could you vote for the death penalty without hurting your conscience?'
His answer was 'Yes'. The district attorney then asked him:
'In the same case where you were satisfied that defendant was guilty beyond any reasonable doubt and were convinced considering all the facts and circumstances that the defendant was not entitled to a qualified verdict, or mercy, would you vote for such a verdict?'
Counsel for defendant objected to the question for the same reasons they urged to the same question propounded to the venireman Vincent. The court overruled the objection and permitted the juryman to answer the question, his answer being 'Yes'.
The identical questions propounded to the veniremen Vincent and Koone were propounded to each of the jurors who served, and in each case the same objections were made by counsel for defendant and overruled by the court, and the answers were the same. The court explained to counsel for defendant that they need not reserve a bill in each case, for the reason that his ruling would be the same and that counsel's objection would serve the purpose of a bill.
Because defendant's peremptory challenges were exhausted before the jury was completed, she was compelled to accept jurors who, like Vincent and Koone, stated that, if they were convinced from the evidence that the accused was guilty and if in their opinion there were no mitigating circumstances, they would render a verdict carrying with it the death penalty.
If the district attorney had gone no further than to ask the veniremen whether, in case they were convinced from the evidence that the accused was guilty of the charge brought against her, they could render a verdict which would carry with it the death penalty without offending their conscience, defendant's complaint would have no merit. But it was highly improper for him to go further and ask them whether under like circumstances they would render such a verdict. By answering that question in the affirmative, as each of the jurors did, according to the record, the jurors, in effect, committed themselves in advance to the proposition that, if after hearing the evidence they were convinced that the defendant was guilty of the crime of murder and if in their opinion there were no mitigating circumstances entitling her to a qualified verdict, 'or mercy', they would render a verdict carrying with it capital punishment.
The effect of the line of questioning which the district attorney was permitted to pursue, and which elicited from the jurors the answers which they gave, was to put them definitely on record as favoring death rather than life imprisonment as punishment for murder where there were no mitigating circumstances.
Article 409 of the Code of Criminal Procedure reads as follows:
'In all capital cases the jury may qualify its verdict of guilty with the addition of 'without capital punishment,' in which case the punishment shall be imprisonment at hard labor for life.'
The language of this article of the Code is plain. In 'all capital cases', or cases involving a crime for which the punishment may under the law be death, the jury is given the absolute, unconditional right and power so to qualify its verdict of guilty as to relieve the defendant of the payment of the extreme penalty for the commission of the crime. The jury may accomplish such purpose by rendering a verdict of guilty followed by the words 'without capital punishment', the effect of which is to fix the punishment at hard labor for life. This power is analagous to the commuting power of the governor. This power may be exercised by the jury without regard to the circumstances under which the crime was committed. Even though a jury may be convinced after hearing the evidence that the crime was an atrocious, revolting one, it still has the power to remit the extreme penalty.
Instead of adopting Article 409 of the Code to read as it does, the Legislature could have worded it so as to provide that the jury, after finding an accused guilty as charged, might so qualify its verdict as to remit the extreme penalty 'if the circumstances of the case in the opinion of the jurors justify it'. But it did nothing of the kind. Its intent and purpose evidently was to vest the jury with authority to mitigate the punishment within the limits specified, the authority to be exercised at the discretion of the jury. The jurors are not required to find or have any special reason for their conclusion to render a qualified verdict, but under the statute as written there is extended to them the privilege and the power of rendering either a qualified or an unqualified verdict. They should be left entirely free to consider that question after they have agreed upon a verdict of guilty.
The law does not contemplate that counsel on either side should question prospective jurors in capital cases as to the kind of verdict they would favor under ...
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... ... 47 Am.Jur.2d, Jury, § 203 (1969); See Christianson v. United States, 290 F. 962 (6th Cir. 1923); Sherman v. William M. Ryan & Sons, Inc., 126 Conn. 574, 13 A.2d 134 (1940); Pope v. State, 84 Fla. 428, 94 So. 865 (1922); State v. Henry, 197 La. 999, 3 So.2d 104 (1941); State v. Pinkston, 336 Mo. 614, 79 S.W.2d 1046 [287 N.C. 337] (1935); State v. Bryant, supra; State v. Huffman, 86 Ohio St. 229, 99 N.E. 295 (1912) ... Types of questions which have been considered improper include 'those asking a juror what his ... ...
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