State v. Jack

• Decision Date: 29 October 1973
• Docket Number: No. 53548,53548
• Citation: 285 So.2d 204
• Parties: STATE of Louisiana v. Wilford JACK.
• Court: Louisiana Supreme Court

Page 204

285 So.2d 204

STATE of Louisiana v. Wilford JACK.

No. 53548.

Supreme Court of Louisiana.

Oct. 29, 1973.

Rehearing Denied Nov. 20, 1973.

W. Glenn Soileau, Ville Platte, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., LeRoy A. Hartley, Asst. Atty. Gen., Alfred R. Ryder, Dist. Atty., Errol D. Deshotels, Asst. Dist. Atty., for plaintiff-appellee.

SANDERS, Chief Justice.

Defendant, Wilford Jack, was tried under an indictment charging him with aggravated rape. R.S. 14:42. Defendant was convicted after a trial by jury and sentenced to life imprisonment in the state penitentiary. Defendant appeals, relying on 11 bills of exceptions.

BILLS OF EXCEPTIONS NOS. 1 and 3

Bill of Exceptions No. 1 was reserved after the trial court denied a motion to quash the jury venire. The motion was grounded upon the alleged exclusion of women, negroes, persons between 21 and 30 years of age, persons not obligated to pay utility bills and those who are not registered voters.

This Court has consistently upheld the constitutionality of Article 402 of the Louisiana Code of Criminal Procedure, exempting women from jury service. See, e.g., State v. Millsap, La., 274 So.2d 696 (1973); State v. Washington, La., 272 So.2d 355 (1973); State v. Rollins, La., 271 So.2d 519 (1973); State v. McLeod, La., 271 So.2d 45 (1972); State v. Sinclair, 258 La. 84, 245 So.2d 365, penalty vacated and remanded, 408 U.S. 939, 92 S.Ct. 2871, 33 L.Ed.2d 760 (1971). We adhere to these holdings.¹

With regard to the exclusion of Negroes from the jury venire, it appears from the hearing on the motion for change of venue and motion to quash the indictment, that there was a member of the black race on the petit jury venire. (Tr. 12). Moreover, on the original jury venire list, chosen at random from the voter registration rolls, 47 of the 350 were of the black race. See LSA-C.Cr.P. Art. 408. Thus, there exists no showing of purposeful discrimination in the selection of the jury venire. The circumstance that the general venire was selected from the voter registration rolls does not, of itself, constitute a deprivation of constitutional rights. State v. Douglas, 256 La. 186, 235 So.2d 563, cert. denied, 401 U.S. 914, 91 S.Ct. 888, 27 L.Ed.2d 814 (1970); State v. Poland, 255 La. 746, 232 So.2d 499, penalty vacated and remanded, 408 U.S. 936, 92 S.Ct. 2862, 33 L.Ed.2d 754 (1970).

Moreover, no requirement exists that there be proportionate representation on the jury venire. Rather, the procedures must be reasonably designed to secure a representative sampling of the community. See: Coleman v. Alabama, 389 U.S. 22, 88 S.Ct. 2, 19 L.Ed.2d 22 (1967); Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25 (1967); Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967).

Since there has been no showing of discrimination, the bill lacks merit.

Bill of Exceptions No. 3 pertains to the alleged systematic exclusion of college students from the jury.

The record indicateds that two college students were excused from jury duty by the judge on their request because they were faced with final examinations in a few days.

Article 783 of the Louisiana Code of Criminal Procedure provides:

'The court may excuse a member of the petit jury venire at any time prior to the time he is sworn as a juror to try a particular case.'

Excusing prospective jurors in advance of time of trial is within the sound discretion of the trial court. State v. Williams, 258 La. 801, 248 So.2d 295 (1971). The reasonable exercise of this discretion will not be disturbed unless there is a showing of fraud or collusion resulting in prejudice to the accused. State v. Ceaser, 249 La. 435, 187 So.2d 432 (1966).

No such showing has been made in the present case. Hence, the bill of exceptions lacks merit.

BILL OF EXCEPTIONS NO. 2

This bill of exceptions was reserved when the trial court denied a motion for dismissal and mistrial. The motion was grounded upon an alleged defect in the indictment, in that neither the indictment nor the record indicates that nine grand jurors concurred in the indictment. Attack is also made upon the endorsement by the Grand Jury foreman.

The requirements of an indictment are set forth in Article 383 of the Louisiana Code of Criminal Procedure:

'An indictment is a written accusation of crime made by a grand jury. It must be concurred in by not less than nine of the grand jurors, endorsed 'a true bill,' and the endorsement must be signed by the foreman. Indictments shall be returned into the district court in open court; but when an indictment has been returned for an offense which is within the trial jurisdiction of another court in the parish, the indictment may be transferred to that court.'

This article provides that at least nine Grand Jurors must Concur in the true bill. No requirement appears, either in this provision or in the jurisprudence, that the concurrence of the Grand Jurors should be manifested by their signatures on the indictment.

Among the written charges presented by the presiding judge to the Grand Jury was the following:

'At least nine members of the Grand Jury must concur in returning a 'True Bill' or 'Not a True Bill ". (Tr. 91)

Acting under this charge, the Grand Jury, with 11 jurors present returned an indictment as a 'True Bill.' This action meets the requirements of Article 383 with regard to an indictment return.

Further, the defendant contends that the indictment was defective because it was not endorsed a 'True Bill.'

This allegation lacks substance. In the present case, the indictment appeared with the printed words 'A TRUE BILL.' Under this line appeared the signature of the Foreman of the Grand Jury.

In State ex rel. Lewis v. Henderson, 259 La. 691, 251 So.2d 639 (1971), this Court held that such an endorsement was valid.

'The endorsement 'A True Bill' may be printed as here, or typed--it need not be handwritten by the foreman--before it is signed by the foreman of the grand jury.'

This bill lacks merit.

BILL OF EXCEPTIONS NO. 4

This bill purports to have been reserved when the trial judge sustained an objection by the state to more than one defense attorney examining a juror. No evidence is attached to or made part of the bill. Moreover, the transcript contains no mention of this bill. Hence, the bill cannot be considered. See State v. Sinclair, supra; State v. Palmer, 251 La. 759, 206 So.2d 485 (1968).

BILL OF EXCEPTIONS NO. 5

This bill was reserved when the trial court overruled an objection to the state's use of peremptory challenges. Defendant alleges that the state used its peremptory challenges so as to systematically exclude Negroes from the jury.

A peremptory challenge is the statutory right to reject a given juror without disclosure of reason or motive. As such, the exercise of peremptory challenges is outside the control of the court and is not subject to judicial review. State v. Rossi, La., 273 So.2d 265 (1973); State v. Smith, 263 La. 75, 267 So.2d 200 (1972); State v. Square, 257 La. 743, 244 So.2d 200, penalty vacated and remanded, 408 U.S. 938, 92 S.Ct. 2871, 33 L.Ed.2d 760 (1971).

This bill is without merit.

BILL OF EXCEPTIONS NO. 6

This bill was reserved when the trial court denied a motion for a mistrial. The motion was grounded on alleged defects in the indictment, that is, failure to state the essential facts constituting the offense and to cite the statute the defendant was accused of violating.

The indictment in the present case reads as follows:

'That Wilford Jack at the Parish of Allen on the 26th day of October in the year of our Lord, One Thousand Nine Hundred Seveny-One Did Unlawfully Commit Aggravated Rape Upon Myrtis Jones, in violation of Louisiana Revised Statute--14:42.'

Under Article 465 of the Louisiana Code of Criminal Procedure, the short form indictment for the crime of aggravated rape is:

'A.B. committed aggravated rape upon C.D.'

The above indictment substantially complies with the statutory form. The addition of other language, that is, the designation of the statute violated, does not affect its sufficiency. See LSA-C.Cr.P. Art. 465 (last paragraph).

This bill is without merit.

BILL OF EXCEPTIONS NO. 7

This bill was reserved when the trial court denied a motion for a mistrial grounded on the alleged failure of the state to introduce any evidence of penetration.

Assuming, without deciding, that the absence of such evidence can be raised by motion for mistrial, we have examined the evidence. Without detailing the evidence, we find it fulfills all requirements for jury consideration.

Bill of Exceptions No. 7 is without merit.

BILLS OF EXCEPTIONS NOS. 8, 9 and 10

These bills pertain to the trial court's sustaining the state's objections to attempts by the defense to elicit testimony concerning the chastity of the victim.

In rape cases, the rule in Louisiana is that: '. . . evidence is not admissible to prove specific acts of intercourse by the prosecutrix with other men.' State v. Broussard, 217 La. 90, 46 So.2d 48 (1950).

However, evidence of the victim's general reputation for chastity is admissible when consent is put at issue by the defendant. State v. Smith, 259 La. 515, 250 So.2d 724 (1971); State v. Bolden, 257 La. 60, 241 So.2d 490 (1970); State v. Borde, 209 La. 905, 25 So.2d 736 (1946). Though such general reputation evidence may be admissible, specific acts of immorality cannot be shown. State v. Broussard, supra; State v. Perrine, 156 La. 855, 101 So. 243 (1924); State v. Hodgeson, 130 La. 382, 58 So. 14 (1912).

Bills of Exceptions Nos. 8 and 9 are without merit.

Bill of Exceptions No. 10 was perfected when the trial court refused to allow the defense counsel to inquire of Verona H. Aaron, who had testified that the general reputation of the victim for chastity was bad, about the content of sepcific conversations. (Tr. 293--297). The witness had already testified as to general reputation. The court correctly disallowed inquiry into...