State v. James

• Decision Date: 29 March 1976
• Docket Number: No. 57180,57180
• Citation: 329 So.2d 713
• Parties: STATE of Louisiana v. Sam H. JAMES and Doris Reed Enloe Finch.
• Court: Louisiana Supreme Court

Page 713

329 So.2d 713

STATE of Louisiana v. Sam H. JAMES and Doris Reed Enloe Finch.

No. 57180.

Supreme Court of Louisiana.

March 29, 1976.

William J. Guste, Jr., Atty. Gen., Walter L. Smith, Jr., L. J. Hymel, Jr., Asst. Attys. Gen., R. Neal Wilkinson, Staff Atty; Ossie Brown, Dist. Atty., Edwin O. Ware, Special Prosecutor, Alexandria, for plaintiff-appellant.

Robert L. Kleinpeter, Baton Rouge and Gerard F. Thomas, Jr., Natchitoches Kleinpeter & Nevils, New Orleans, for defendant-appellee, Sam H. James.

Stacey Moak, Cicero & Moak, Baton Rouge, for defendant-appellee, Doris Reed Enloe Finch.

MARCUS, Justice.

Sam H. James, Sheriff of Natchitoches Parish, and Doris Reed Enloe Finch were indicted by the East Baton Rouge Parish Grand Jury for simple escape in violation of La.R.S. 14:110. Additionally, Sam H. James was indicted by the East Baton Rouge Parish Grand Jury for malfeasance in office in violation of La.R.S. 14:134. Both defendants moved to quash the indictments and alleged, Inter alia, that East Baton Rough Parish was not a parish of proper venue for the trial of the offenses charged. The trial judge granted defendants' motions to quash on the ground of improper venue. The state has appealed from this adverse ruling pursuant to La.Code Crim.P. art. 912(B)(1) (1966). ¹

I.

Although the issue has not been briefed or raised by either of the parties, we note, Ex proprio motu, that this court is without jurisdiction to entertain the state's appeal. Article V, section 5(D)--(E) of the 1974 constitution, which is applicable in this case, ² confers upon the supreme court appellate jurisdiction in the following criminal cases:

(D) Appellate Jurisdiction. In addition to other appeals provided by this constitution, a case shall be appealable to the supreme court if (1) a law or ordinance has been declared unconstitutional; (2) The defendant has been convicted of a felony or fine exceeding five hundred dollars or imprisonment exceeding six months Actually has been imposed.

(E) Other Criminal Cases; Review. In all criminal cases not provided in Paragraph (D)(2) of this Section, A defendant has a right of appeal or review, as provided by law.

(Emphasis added.) Article V, section 5(D)(2) provides that a case is appealable to the supreme court only where the defendant has been convicted of a felony or a fine exceeding five hundred dollars or imprisonment exceeding six months actually has been imposed. Article V, section 5(E) authorizes the legislature to grant a right of appeal in other criminal cases, but only to the Defendant. The clear and unambiguous language of these provisions compels us to conclude that the state has no right under the present constitution to invoke the criminal appellate jurisdiction of the supreme court prior to defendant's conviction of a felony or the actual imposition of a fine exceeding five hundred dollars or imprisonment exceeding six months, except in criminal cases in which a law or ordinance has been declared unconstitutional. La.Const. art. V, sec. 5(D)(1) (1974).

In contrast, the 1921 constitution vested the supreme court with appellate jurisdiction in the following criminal cases:

Appellate jurisdiction; criminal. The appellate jurisdiction of the Supreme Court shall also extend to criminal Cases on questions of law alone, Whenever the penalty of death, or inprisonment at hard labor may be imposed; or where a fine exceeding three hundred dollars or imprisonment exceeding six months has been actually imposed.

La.Const. art. 7, § 10(7) (1921) (emphasis added).

Under the 1921 constitution, which extended our appellate jurisdiction to criminal Cases where the death penalty or imprisonment at hard labor (I.e., a felony, La.R.S. 14:2(4); La.Code Crim.P. art. 933(3)) May be imposed, we held that the state, as well as the accused, had the right to appeal from a prejudicial judgment or ruling by the trial court that finally disposed of the case. State v. Shushan, 204 La. 672, 16 So.2d 227 (1943) (upholding the state's right to appeal a Nolle prosequi entered by the trial court on a plea of prescription). See also La.Code Crim.P. arts. 540, 541 (1928). Article 912(B) of the 1966 Code of Criminal Procedure, in delineating the state's right to appeal adverse judgments or rulings (other than verdicts of acquittal), was intended to codify the existing jurisprudence. La.Code Crim.P. art. 912, Official Revision Comment (b) (1966). We have stated, however, that article 912(B) is applicable only where the supreme court was conferred with appellate jurisdiction by the constitution. State v. Murphy, 254 La. 873, 227 So.2d 915 (1969). ³

Under the 1974 constitution, this court is no longer ⁴ vested with criminal appellate jurisdiction before such time as defendant has been convicted of a felony or a fine exceeding five hundred dollars or imprisonment exceeding six months has actually been imposed, except in criminal cases in which a law or ordinance has been declared unconstitutional. Hence, article 912(B) is no longer applicable insofar as it permits the state to appeal pre-conviction final adverse judgments or rulings. To that extent, article 912(B) is in conflict with the present constitution, and ceased as of its effective date. La.Const. art. XIV, sec. 18(B) (1974).

II.

Where the state desires review of a final pre-conviction adverse judgment or ruling in a criminal case, application to this court for a writ of review under our supervisory ⁵ jurisdiction is now the proper procedure for it to follow. Because this case is the first to have considered the validity of article 912(B) under the 1974 constitution, we shall treat the state's appeal as an application for a writ of review.

The state alleges that the trial judge erred in quashing the indictments on the ground that East Baton Rouge Parish is not a parish of proper venue for trial of the offenses charged.

Every person charged with a crime is entitled to a trial in the parish where the offense or an element of the offense occurred, unless venue is changed in accordance with law. La.Const. art. I, sec. 16 (1974). See also La.Code Crim.P. art. 611 (1966). Improper venue may be raised by motion to quash, and even if the issue of venue has been passed upon by the judge prior to trial, the state on the trial shall have the burden of proving proper venue beyond a reasonable doubt. La.Code Crim.P. art. 615 (1966).

The facts in this case show that defendant Sam H. James, Sheriff of Natchitoches Parish, flew to East Baton Rouge Parish in July, 1974 for the purpose of obtaining from Elayn Hunt, Director of the Louisiana Department of Corrections, an order that would permit the release of defendant Doris Finch, an inmate serving a five-year sentence for manslaughter at the Louisiana Correctional Institute for Women at St. Gabriel in Iberville Parish. The order was secured after a meeting with Mrs. Hunt at her office that lasted approximately forty-five minutes. Deputy Sheriff Asher Vandenburg of Natchitoches Parish and Stacey Moak, Doris Finch's attorney, were also present at this meeting. According to Mrs. Hunt's testimony at the hearing on the motions to quash the indictments, Sheriff James told her during their discussion that he desired Doris Finch be released from custody at St. Gabriel in order that she might visit with her dying father in Natchitoches Parish. Mrs. Hunt testified that Sheriff James said at the meeting that Doris Finch would be in his custody during the time she was on release and that he would be responsible for her. They also discussed the possibility of using defendant Finch's clerical skills in a program at the Natchitoches Parish jail. Mrs. Hunt testified that no conditions were attached to the prisoner's release. Sheriff James and Deputy Sheriff Vandenburg also testified at the hearing on the motions to quash and recounted a similar version of the matters discussed in Mrs. Hunt's office. According to the testimony of both Mrs. Hunt and Sheriff James, it is not uncommon practice to allow the temporary release of an inmate under a sheriff's supervision. La.R.S. 15:833.

After securing the order permitting Doris Finch's release, Sheriff James, accompanied by Deputy Sheriff Vandenburg and Mr. Moak, proceeded to St. Gabriel in Iberville Parish, where defendant Finch was discharged under his custody. They then returned to Natchitoches Parish, where defendant Finch visited her ill father. She was brought back to St. Gabriel in March, 1975. During the period of her release, she made a trip to East Baton Rouge Parish to enroll her daughter in a school there. At the hearing there was also testimony to the effect that she may have spent some time in Ascension Parish. Sheriff James testified, however, that he kept in contact with defendant Finch during her absence from Natchitoches Parish.

It is the state's contention that Sheriff James failed to maintain adequate supervision of Doris Finch while she was released from prison. Averring in its brief that a 'conspiracy' in Natchitoches Parish had taken place to secure defendant Finch's release by unlawful means, the state alleges that Sheriff James never intended to supervise the inmate and that he misrepresented his intentions to Mrs. Hunt at their meeting. According to the state, Doris Finch's release from the prison constituted an escape, Sheriff James was a principal in that crime, and Sheriff James' failure to maintain adequate supervision of the inmate also constituted the crime of malfeasance in office. Because the release of Doris Finch would not have been possible but for the order of release that Sheriff James obtained in East Baton Rouge Parish from Mrs. Hunt, the state contends that their meeting constitutes an element of both crimes, and that venue is therefore proper in East Baton Rouge Parish.

The state's contention is without merit. No evidence was adduced at trial to show that Doris Finch had conspired with Sheriff James before her release in...