State v. McClain

• Decision Date: 05 February 1940
• Docket Number: 35498.
• Citation: 194 So. 563,194 La. 605
• Court: Louisiana Supreme Court
• Parties: STATE v. McCLAIN.

194 So. 563

194 La. 605

STATE v. McCLAIN.

No. 35498.

Supreme Court of Louisiana.

February 5, 1940

Rehearing Denied March 4, 1940.

Appeal from Fourth Judicial District Court, Parish of Ouachita; R R. Reeves, Judge.

Antwine McClain was convicted of murder, and he appeals.

Affirmed.

Lessley P. Gardiner, Atty. Gen., Edward M. Heath Asst. Atty. Gen., Frank W. Hawthorne, Dist. Atty., and Geo W. Lester, Asst. Dist. Atty., both of Monroe, and James O'Connor, Second Asst. Atty. Gen., for plaintiff appellee.

C. Elliot Thompson, Jas. H. Dormon, Guy P. Stubbs, Jr., and Hillyer S. Parker, all of Monroe, for defendant, appellant.

HIGGINS, Justice.

The defendant was indicted for the murder of Loretta Powell and placed on trial on Monday, May 15, 1939, before the Fourth Judicial District Court in and for the Parish of Ouachita, with Honorable D. I. Garrett presiding as Judge. On this date, a jury of twelve was duly selected and sworn and the indictment returned against the defendant and his plea of not guilty were read to the jury. The court then adjourned until 10 o'clock a. m., Tuesday, May 16, 1939. On that date, court opened with Honorable R. R. Reeves presiding as Judge and he ordered the trial of the case to proceed. Counsel for the defendant objected to the substitution of Judge Reeves in the place of Judge Garrett, on the ground that the jury having been selected and sworn before Judge Garrett, the defendant was entitled, under the law, to have Judge Garrett preside during the remainder of the trial. This objection was overruled and the defendant reserved a bill of exception thereto. The trial of the case was then resumed and the defendant was found guilty as charged. Motions for a new trial and in arrest of judgment, reiterating the above objection, were overruled and bills of exception were reserved thereto by the defendant. The Court then imposed the death sentence. The defendant appealed.

It appears that the accused lived with the deceased as his common-law wife. They separated and sometime later he went to her new place of abode, where a fight started, and he struck her with a flat iron. She fled from the house and, while he was pursuing her, fell to the ground. He then continued to beat her with the iron, causing the fatal injury.

On May 15, 1939, Judge Garrett, as a convenience to Judge Reeves, who was holding court in his own District and who had been assigned by this Court to another District in the place of Judge J. T. Shell, who was absent because of illness, and in compliance with the rules of the Fourth Judicial District Court providing for regular jury sessions of the criminal court, presided over the trial during the selection of the jurors, and, after the jury was sworn, in order to hear cases previously set for trial in Morehouse Parish, adjourned court, announcing that Judge Reeves would take the case up from that point, on the following morning.

The record shows that there were no bills of exception taken while Judge Garrett presided during the selection and empanelling of the jury; that the opening statement by the district attorney was presented to the court, evidence was introduced by both the State and the defense, the arguments of counsel were made, the charge was given by the court to the jury, the verdict of the jury was returned, the motions for a new trial and in arrest of judgment were filed and overruled, the sentence was imposed upon the accused, and the motion for the appeal was granted while Judge Reeves presided in the trial of the case.

Counsel for the defendant contend that under the provisions of the Articles of the Constitution of the State of Louisiana and the Code of Criminal Procedure, the accused was entitled to have his entire case presided over by one and the same judge and that it was reversible error to substitute, over his objection, another judge to preside during the trial, citing the following:

‘ Article 1, Section 9, Constitution of Louisiana:

" In all criminal prosecutions the accused shall have the right to a speedy public trial by an impartial jury; * *,'

‘ Article 7, Section 41:

" * * * cases in which the punishment may be capital, by a jury of twelve, all of whom must concur to render a verdict.'

‘ Article 19, Section 9:

" * * * The jury in all criminal cases shall be the judges of the law and of the facts on the question of guilt or innocence, having been charged as to the law applicable to the case by the presiding judge.'

‘ Article 385, Code of Criminal Procedure:

" The judge shall charge the jury on the law applicable to the case and shall charge the jury that it is their duty to accept and to apply the law as laid down for them by the judge."

The State urges that the law does not accord the defendant the rights which he claims; that it was not error under the facts and circumstances of the case for one judge to replace the other, and that, if any error or irregularity was committed thereby, it did not prejudice the substantial rights of the accused or probalby result in a miscarriage of justice, nor did it constitute a substantial violation of his constitutional or statutory rights.

Assuming that the law contemplates that one judge should preside over the entire trial, a view most favorable to the accused, but without deciding that issue, we shall pass to a consideration of whether or not the rights of the accused were prejudiced thereby.

Article 557 of the Code of Criminal Procedure reads:

‘ No judgment shall be set aside, or a new trial granted by any appellate court of this State, in any criminal case, on the grounds of misdirection of the jury or the improper admission or rejection of evidence, or as to error of any matter of pleading or procedure, unless in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right.’

Under the facts and circumstances of this case, can it be said that the substitution of the judge (a) probably resulted in a miscarriage of justice, (b) was prejudicial to the substantial rights of the accused, or (c) constituted a substantial violation of a constitutional or statutory right?

The instant case does not involve the absence of the judge at any time during the trial of the defendant, nor does it present a situation where the defendant was not tried before a legally constituted court with full jurisdiction. Each judge had the same power, authority, and concurrent jurisdiction-both being...