State v. Kifer

• Decision Date: 01 March 1937
• Docket Number: 34227
• Citation: 173 So. 169,186 La. 674
• Court: Louisiana Supreme Court
• Parties: STATE v. KIFER

173 So. 169

186 La. 674

STATE v. KIFER

No. 34227

Supreme Court of Louisiana

March 1, 1937

Appeal from Sixth Judicial District Court, Parish of Tensas; F. X Ransdell, Judge.

Melvin Everett Kifer was convicted of rape, and he appeals.

Verdict, sentence, and indictment annulled.

Geo Wesley Smith, of Rayville, and Thompson L. Clark, of Monroe for appellant.

Gaston L. Porterie, Atty. Gen., James O'Connor, Asst. Atty. Gen., J. B. Snyder, Dist. Atty., of Tallulah, and Philip Watson, Asst. Dist. Atty., of St. Joseph, for the State.

FOURNET Justice. O'NIELL, C. J., and HIGGINS, J., absent.

OPINION

FOURNET, Justice.

The defendant, Melvin Everett Kifer, has appealed from his conviction without capital punishment and sentence to life imprisonment in the state penitentiary on a charge by indictment of having committed the crime of rape.

The defendant filed two motions to quash the indictment: One is based on the ground that the grand jury, which indicted him, was not drawn as directed by law, in that the names of the grand jurors were drawn from an open box and not from an envelope containing the names of the jury venire as the law directs; and the other is based on the ground that the district attorney and his assistant were in the grand jury room while the grand jury was deliberating and voting upon the indictment returned by them in this case.

The evidence on the first motion to quash the indictment shows that, in drawing the grand jurors, who later indicted the defendant in this case, the deputy sheriff took the envelope out of the box, emptied the contents thereof into the box, and then drew the grand jury therefrom.

This identical question was presented to this court for consideration in four cases at about the same time, in the year 1907, and was decided by a divided court in the case of State v. Mitchell, 119 La. 374, 44 So. 132, as follows:

"The statutory requirement that the slips on which are written the names of grand jurors shall be drawn from the envelope in which they have been placed by the jury commission is merely directory; and the drawing of such slips from a box provided for the purpose is not per se such an irregularity as will warrant the quashing of the venire." (Syllabus No. 1.)

See, also, State v. Lively, 119 La. 363, 44 So. 128; State v. Freeman, 119 La. 663, 44 So. 334; State v. Matthews et al., 119 La. 665, 44 So. 336.

But it is well to note that the organ of the court in the Mitchell Case concluded the opinion on this point with the following:

"In the instant case the common practice of drawing the names of grand jurors from a box was followed. This practice is, however, contrary to the letter of the statute, which requires such drawing to be from the envelope. There is no good reason why this provision of law should not be observed and enforced in the district courts throughout the state." (Italics ours.)

The history and purpose of the requirement of the statute is succinctly stated in the dissenting opinion of the court in the case of State v. Freeman, supra, 119 La. 663, 44 So. at pages 334, 335:

"A host of decisions could be cited to the effect that the indictment will not be quashed because of irregularities in the organization of the grand jury (E. of P.P. verbo 'Indictment'; Cyc. verbo 'Grand Juries'); but on examination it will be found that those decisions have reference to unimportant details, or are not all in point because rendered under such a statute as section 15, quoted supra. On the other hand, a large number of decisions hold that the requirements of a statute prescribing the manner of drawing the grand jury must be observed under penalty of the nullity of the indictment. For instance, in State v. Texada, 19 La.Ann. 436, the indictment was quashed because in impaneling the grand jury the sheriff had simply read the names from the list, instead of having drawn them from the box.

"As a matter of course, the statute must be complied with; else the Legislature would be a mere advisory board to the court; and, as a matter of course, also, the statute has a sanction; and that sanction is not the impeachment of the judge, but the nullifying or undoing of his act. An indictment should not be set aside, however, for the nonobservance of every insignificant detail, and therefore the whole question resolves itself into whether the requirement that has been disregarded in the particular case is one ofimportance, or of no importance. I think the particular requirement which the court disregarded in this case must be classed among those to which the Legislature attached importance.

"In saying this, I base myself upon the fact that its adoption has been the outcome of gradual elaboration on the part of the Legislature; in other words, that it is the final result of repeated amendments, through a long series of years by way of betterment of the jury law, as the following will show.

"Act No. 110 of 1868, p. 141, required the jury commissioners to place in a box, on separate slips of paper, the names of the persons on the venire from which would have to be drawn the grand and petit juries at the next ensuing term of court, and required the sheriff to draw the grand jurors from the box. It made no provision for the publication of the venire, or for the locking and sealing of the box, or for its safe-keeping.

"Act No. 44 of 1877, 1st Sess. p. 55, improved upon the act of 1868 by requiring the slips of paper to be placed in an envelope, and the envelope to be first sealed, and then placed in a box, and this box to be locked and sealed and confided to the safe-keeping of the clerk, and the list to be published. It was however, very vague in its prescription of how the grand jury should be drawn, simply requiring that it be from the box; thus giving rise to the inference that the envelope might be emptied into the box, and the jury drawn from the box.

"Act No. 89 of 1894, p. 121, was similar in its provisions to the act of 1877, except that it required that there should be two venires and two envelopes -- one for the grand jury and one for the petit jury -- instead of only one, as theretofore, for both juries, and required the grand jury to be drawn 'from the list of grand jurors,' instead of, as theretofore, 'from the box.'

"Act No. 99 of 1896, p. 144, was similar in its provisions to the act of 1894, except that it reverted to the single venire and single envelope plan of the act of 1877; and except, also, that, in prescribing the mode of drawing the grand jury, instead of using the vague expression 'from the list,' it provided explicitly that the drawing should be 'from the envelope.'

"Act No. 135 of 1898, p. 216, our present jury law, made a wide departure in the manner in which the commissioners should choose the venire of the grand jurors -- requiring that they 'select' them, and, as much as possible, take them from the different parts of the parish, instead of as theretofore, drawing them; and that the venire be of only 20, and it went back to the two venire and two envelope system of the act of 1857; and, finally, it required, as had done the act of 1896, that the drawing of the grand jurors should be 'from the envelope.'

"A requirement thus gradually evolved after long and repeated efforts at improvement, and expressed in terms of command, should not be lightly waived aside as being merely directory. A statute is never held to be merely directory when the effect would be 'to make a new law, instead of the one made by the Legislature.' 26 A. & E.E. 688. The ruling complained of in this case has the effect of making a new law, since it sets aside the statute prescribing that the drawing shall be 'from the envelope,' and provides that the drawing may be 'from the box.' It sets aside the act of 1898 on this point of the manner of drawing the jury, and reinstates the acts of 1868 and 1877, long since abolished by the Legislature.

"Another fact going to show the importance of the requirement in question is that, by permitting the drawing from an open box, instead of from the envelope, the sheriff's opportunity for selecting the jury is increased, it being easier to see and read and select the names as they lie scattered in the open box than as inclosed in the envelope; and thus the element of chance which, by requiring that the drawing be from the envelope the Legislature has manifestly aimed to conserve is decreased. True, the margin thus afforded the sheriff is but narrow. Yet narrow as it is, it is one that the statute has clearly provided against his enjoying. And it is one which, if availed of, would cause one or several men to be on the grand jury who would not have been on it if the statute had been observed, and even a single man on a grand jury may change results.

"Let it be noted that the requirement in question is about the most important in connection with the drawing of the jury, and that therefore, if it may be disregarded, all the others may, in like manner, and for the same reason, be disregarded, and the court proceed to draw the jury after a manner of its own invention. Put aside the envelope, and there is no more reason for adopting the box method than any other, and the sheriff may hold the slips in his hand and read them off in the manner condemned by this court in the Texada Case, supra.

When the Legislature adopted the Code of Criminal Procedure in 1928, it had in mind the various changes recited in the foregoing, as well as the interpretation of this court on the subject-matter in the cases above referred to, and it again expressed its will, using mandatory and not directory language. Article 184 of the Code of Criminal Procedure provides that:

"The judge shall select from the list of grand jurors a suitable person to act...