State v. Lewis

• Decision Date: 11 December 1911
• Docket Number: 19,132
• Citation: 129 La. 800,56 So. 893
• Court: Louisiana Supreme Court
• Parties: STATE v. LEWIS

56 So. 893

129 La. 800

STATE v. LEWIS

No. 19,132

Supreme Court of Louisiana

December 11, 1911

Appeal from Second Judicial District Court, Parish of Webster; John N. Sandlin, Judge.

J. E Lewis, alias D. W. Clarke, alias B. C. Clarke, was convicted of burglary, and appeals. Affirmed.

Percy &amp Drew, for appellant.

Walter Guion, Atty. Gen., and T. W. Robertson, Dist. Atty. (G. A Gondran, of counsel), for the State.

OPINION

MONROE J.

Defendant was prosecuted under a bill of information charging, in separate counts, burglary, with intent to steal, and larceny, committed at the same time and place; and, having been found "guilty as charged," was sentenced to five years' imprisonment at hard labor. He filed motions in arrest of judgment and for new trial, and in this court assigns as error that he was tried for larceny by a jury of 12, whereas that offense, not being, necessarily, punishable at hard labor, is required by the Constitution to be tried by a jury of 5.

The article of the Constitution which is thus invoked, so far as to need be here quoted, as, also, part of article 117, read as follows:

"Art. 116. * * * All cases in which the punishment may not be at hard labor shall, until otherwise provided by law, which shall not be prior to 1904, be tried by the judge, without a jury. Cases in which the punishment may be at hard labor shall be tried by a jury of five, all of whom must concur to render a verdict; cases in which the punishment is, necessarily, at hard labor, by a jury of twelve, nine of whom, concurring, may render a verdict; cases in which the punishment may be capital, by a jury of twelve, all of whom must concur to render a verdict.

"Art. 117. * * * The district judges shall have authority to try, at any time, all misdemeanors and, when the jury is waived, all cases not, necessarily, punishable at hard labor, and to receive pleas of guilty in cases less than capital."

The laws enacted under the Constitution of 1868 authorized the trial of offenses, the penalties for which were not, necessarily, imprisonment at hard labor or death, by the parish courts, when juries were waived, and the Constitution of 1879 (article 7) specifically authorized the General Assembly to provide for the trial of such cases by juries of less than twelve, which authority was exercised in the passing of Act No. 35 of 1880, providing that all trails of such offenses (i.e., offenses not, necessarily, punishable at hard labor or by death) should be by juries composed of five persons; the accused being accorded the right to waive the juries and be tried by the judges. In a case arising under, and governed by, the constitutional and legislative enactments last above referred to, our predecessors in this court said:

"The object which they (the lawmakers) had in view is very apparent; it was to secure the chances of a speedy trial to the accused and to relieve the parishes of the enormous expense and great inconvenience of drawing, summoning, and impaneling large numbers of juries, five or six times a year." State v. White, 33 La.Ann. 1218; State v. Askins, 33 La.Ann. 1253; State v. Wright and Davis, 45 La.Ann. 57, 12 So. 129.

We have, more than once, expressed the same opinion in regard to the provisions of article 116 of the present Constitution; and, accordingly, in a case which was decided nearly, or quite, 10 years ago, where, in one count, the defendant was charged with an offense, necessarily, punishable at hard labor, and where it was thought by the trial judge that the jury of twelve, nine concurring, could not convict of an offense which was said to be included in that charged, and which of itself, was triable before the judge, it was held that article 116 of the Constitution was not intended to abrogate or change the rule that, when an accusation of crime includes an offense of inferior degree, the jury may discharge the defendant of the higher crime and convict him of the less atrocious. State v. Fruge, 106 La. 694, 31 So. 323. In a later case the defendant was charged, in separate counts: (1) With breaking and entering a dwelling house, in the daytime, with intent to steal; and (2) with larceny, committed at the same time and place. And, having been found guilty on both counts, moved in arrest of judgment, on the ground that the two offenses could not be prosecuted under the same information, for the reason that the burglary was triable by a jury of twelve, nine of whom concurring could bring in a verdict, whilst the larceny was triable by a jury of five. The district attorney thereupon entered a nolle prosequi as to the charge of larceny, and the defendant was sentenced for the burglary, alone, to which he objected, alleging that he was entitled to have the entire conviction set aside; but the trial judge overruled the objection, saying that all the evidence heard by the jury was admissible to prove "intent" on the charge of burglary, which ruling was sustained by this court, on the ground, specifically stated, that the nolle prosequi was properly allowed, and, having been allowed that:

"There remained nothing for the objection that defendant had been deprived of the privilege of being tried on that charge (larceny) by a jury of five, to rest upon, even if there had been a foundation for it originally."

This court then went on to say that the larceny in question, being ungraded by Act No. 107 of 1902, § 5, was necessarily punishable at hard labor; and, further, that the case would have been the same if it had not been so punishable, as, to quote the language:

"We do not understand that article 116 of the Constitution of 1898 so changed the law regulating the methods of procedure in criminal cases as to prevent the trial, under the same indictment or information, of offenses that might, previously, have been tried in that manner." State v. Perry, 116 La. 231, 40 So. 686.

There was, no doubt, error in the statement that the larceny was necessarily punishable, "under R. S. 812," at hard labor, since the punishment prescribed by that section is imprisonment, "at hard labor, or otherwise," and the present writer, as the organ of the court, overlooked the words "or otherwise." The error was, however, immaterial to the judgment, which, as we have seen, was predicated on other grounds.

It is obvious that it requires a greater expenditure of time and money to attain results in criminal prosecutions by means of trials by juries of twelve, where all must agree, than by such juries, where nine, concurring, may bring in the verdicts; that juries of twelve, where nine, concurring, may bring in the verdicts, are slower and more expensive than juries of five; that results are facilitated and expenses reduced when the juries of five are waived, or when, without such waivers, the judges try the cases. From which, and from common knowledge upon the subject, we are satisfied that the purpose, and the only purpose, of the framers of the Constitution, in providing the different methods of trial thus mentioned, was to facilitate, expedite, and reduce expense in the administration of criminal justice. It is equally obvious that such purpose would be defeated if, in the many cases in which the charge of a higher crime includes or may have joined with it that of a lower, the tribunal having jurisdiction of the former may not convict of the latter. If the construction sought to be placed upon the article in question be correct, a defendant, charged with murder, cannot be convicted of manslaughter, since, in such case, conviction of manslaughter is acquittal of murder; but the conviction of manslaughter may be by a jury of twelve, nine concurring, and acquittal, like conviction of murder requires the unanimous vote of twelve jurors. The law, however, requires, and this court, before and since the adoption of the present Constitution, has held it to be the law, that in all trials for murder it is the duty of the judge to instruct the jury that they may convict of manslaughter. R. S. § 785; State v. Brown, 40 La.Ann. 728, 4 So. 897; State v. Brown, 41 La.Ann. 410, 6 So. 670; State v. Clark, 46 La.Ann. 704, 15 So. 83; State v. Wright, 104 La. 45, 28 So. 909; State v. Hicks, 113 La. 779, 37 So. 753; State v. Parks, 115 La. 765, 40 So. 39; State v. Cook, 117 La. 116, 41 So. 434; State v. Kinchen, 126 La. 39, 52 So. 185.

Act No. 35 of 1880, to which we have referred, provides:

"Section 1. * * * That it shall be the duty of the sheriff, immediately after the arrest and conviction of any person charged with an offense, not necessarily punishable by imprisonment at hard labor or death, to notify the district attorney of such arrest."

Section 2 authorizes the district attorneys to file informations in the clerks' offices.

Section 3 authorizes the judges to order special juries for the trial of the case contemplated by the act.

"Sec. 4. That, in all trials held under the provisions of this act, said trial shall be before a jury composed of five persons; provided, that the accused may waive a trial by jury and be tried by the court. * * *"

It was therefore clearly within the contemplation of the act that the offenses of the class mentioned in section 1 should be tried by juries of five, or by the judge. We, however, find no case in which it was held, or even contended, that, where such an offense was included in an indictment or information charging an offense of a higher class, whether in one count or more, the tribunal vested with jurisdiction quoad such higher offenses was without jurisdiction to convict, as the evidence might warrant either of the higher or the lower offense so included. And the reason is apparent. The act was intended to secure speedy trials, in the class of cases to which it refers, and to relieve...