State v. Pierre

• Citation: 189 La. 764,180 So. 630
• Decision Date: 07 March 1938
• Docket Number: 34742
• Court: Supreme Court of Louisiana
• Parties: STATE v. PIERRE

180 So. 630

189 La. 764

STATE v. PIERRE

No. 34742

Supreme Court of Louisiana

March 7, 1938

Rehearing Denied April 4, 1938

Appeal from Twenty-Fourth Judicial District Court, Parish of St John the Baptist; L. Robert Rivarde, Judge.

Hugh Pierre was convicted of murder, and he appeals.

Affirmed.

Maurice R. Woulfe and George M. Brooks, both of New Orleans, for appellant.

Gaston L. Porterie, Atty. Gen., James O'Connor, Asst. Atty Gen., and John E. Fleury, Dist. Atty., and Ernest M. Conzelmann, Asst. Dist. Atty., both of Gretna, for the State.

OPINION

ODOM, Justice.

Defendant was charged with murder, tried, convicted as charged, and sentenced to be hanged. He appealed, and for reversal relies on three bills of exception.

He filed a motion to quash the indictment on the following grounds:

"That the general venire box for the Parish of St. John, did not contain the names of any negro at the time the panel for the Grand Jury was drawn, which returned the Indictment herein against mover; that the officers of the law in charge of said matter not only failed to place in said venire box the names of any negroes qualified to serve as Grand or Petit Jurors but deliberately excluded therefrom the names of any negroes qualified to serve as Grand or Petit Jurors, which action on the part of said officers is a denial of due process of law, and is a violation of movers constitutional rights as granted him by the Constitution of the State of Louisiana, of 1921 [article 1, § 2], and specially the Fourteenth Amendment of the Constitution of the United States of America.

"Mover further shows, that he is informed and believes and so avers that there has not been a negro on the Grand Jury or Petit Jury of said Parish for at least 20 years; that the officers of said Parish have systematically, unlawfully and unconstitutionally excluded negroes from the Grand or Petit Jury in said Parish during this period of time; that this exclusion of negroes as Jurors in this Parish is done solely and only because of their race and color and results in a denial to mover of due process of law and the equal protection of the law guaranteed him under the Constitution of the State of Louisiana of 1921, and the Constitution of the United States of America."

The motion to quash was overruled, and a bill of exception was reserved.

After conviction he filed a motion in arrest of judgment, based on the same grounds as those which formed the basis of the motion to quash. The motion in arrest was overruled, and a bill was reserved.

During the course of the argument, the district attorney said:

"Gentlemen of the Jury -- Finally and in conclusion when they call the roll of the damned already inscribed with the name of Dreher and LeBoeuf, Dalleo and Capaci, Eisenhardt and James, I say to you, make an example of this accused, stamp out cold blooded murder in this Parish by inscribing the name of Hugh Pierre on the roll call of the damned by returning a verdict of guilty as charged."

Counsel for defendant objected to this language because "said statement was prejudicial to defendant, was entirely outside of the evidence presented on the trial of said case and was for the sole purpose of prejudicing defendant before the Jury in making a comparison of the case upon which defendant was being tried with that of cases of banditry and murder."

Counsel requested the court to instruct the jury to disregard the remarks. The court refused to give the requested instruction, and a bill was reserved to the ruling;

Defendant is a negro and was prosecuted for killing a white man. The motion to quash the indictment and that in arrest of judgment are based upon the same grounds and will be considered together. These grounds were successfully urged by the defendant in the case of Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074.

In the Norris Case the Supreme Court reaffirmed its ruling in the earlier cases of Carter v. Texas, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839, and in Martin v. Texas, 200 U.S. 316, 26 S.Ct. 338, 50 L.Ed. 497, where it was said:

"Whenever by any action of a state, whether through its Legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race or color, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied to him, contrary to the Fourteenth Amendment of the Constitution of the United States."

In the Norris Case, the court said:

"And although the state statute defining the qualifications of jurors may be fair on its face, the constitutional provision affords protection against action of the state through its administrative officers in effecting the prohibited discrimination."

It was said by the court in the Norris Case that there was no controversy as to the constitutional principle involved. The same may be said with reference to the case at bar. The constitutional principle which was involved in the Norris Case, and is involved in the case at bar, is that, if the state, either through legislation, through its courts or its executive or administrative officers, excludes from jury service all persons of the negro or African race in criminal prosecutions of the members of that race, solely because of their race or color, the equal protection of the laws is denied the one prosecuted, under the Fourteenth Amendment to the Constitution of the United States and, in this state, contrary to the Due Process Clause of the Constitution of 1921, article 1, § 2.

We now recognize that principle, as we have always done. This is shown by the following cases: State v. Gill, 186 La. 339, 172 So. 412; State v. Turner, 133 La. 555, 63 So. 169; State v. Baptiste, 105 La. 661, 30 So. 147; State v. West, 116 La. 626, 40 So. 920; State v. Murray, 47 La.Ann. 1424, 17 So. 832; State v. Joseph, 45 La.Ann. 903, 12 So. 934; State v. Lawrence, 124 La. 378, 50 So. 406; State v. Casey, 44 La.Ann. 969, 11 So. 583.

In fact, it is specially provided in the law prescribing the method of drawing grand and petit jurors to serve in both civil and criminal cases that "there shall be no distinction made on account of race, color or previous condition." Act No. 135 of 1898, p. 216, § 1. If indeed it be true, as alleged in defendant's motion to quash the indictment, that members of the negro or African race, who possess the necessary qualifications as jurors, prescribed by the statutes, have been systematically excluded from such service in the parish of St. John, where this prosecution took place, solely because of their race or color, the indictment should have been quashed, and the motion in arrest of judgment should have been sustained.

The defendant having based his motion to quash and his motion in arrest of judgment upon the ground of such illegal discrimination, the burden was upon him to prove the facts alleged. Such has been the ruling of this court for many years. See State v. Murray, State v. Joseph, State v. West, State v. Baptiste, supra.

And such is the ruling of the Supreme Court of the United States. Martin v. Texas, supra. In Bush v. Kentucky, 107 U.S. 110, 1 S.Ct. 625, 631, 27 L.Ed. 354, a motion was made to quash the indictment on the ground of illegal discrimination from jury service of members of the negro race because of their race or color, and, in disposing of this motion, the court said:

"It is sufficient for this assignment to say that the motion was properly overruled, for the reason, among others, that the grounds upon which is was rested do not clearly and distinctly show that the officers who selected and summoned the petit jurors excluded from the panel qualified citizens of African descent because of their race or color."

In the case at bar, the defendant asked for, and was granted, the privilege of calling witnesses to support the allegations of his motion to quash. Twelve witnesses were called, including the clerk of court of St. John parish, who is ex officio chairman of the jury commission; the sheriff of the parish the superintendent of schools; the editor of a local newspaper who had been a census enumerator; a former clerk of the district court -- all white, and four colored citizens of the parish. We have reviewed the testimony of these witnesses and find that defendant failed utterly to prove his allegations. Not only did he fail to prove that there was discrimination against colored citizens of the parish because of their race or color at the time the grand jury which returned the indictment and the petit jury for that term of court were drawn, but he failed to prove that, as a matter of fact, the names of colored people were not included among the 300 names in the jury box. In fact, the testimony shows that, at the time the grand and petit juries were drawn, the names of at least four colored people were included in the list of 300 from which the grand jury was selected and the petit jury for that term of court was drawn. Mr. Martin, the clerk of court, said, on examining the general venire list, that there were two, three, or four names of colored people included, and the sheriff of the parish testified that he recognized the names of two or three negroes on the list and that there might be more. Both the clerk of court and the sheriff testified that they were not personally acquainted with all of the male citizens of the parish and especially the colored citizens, and that, with more time to check the list, they might find more names than those already pointed out. Mr. Martin, the clerk of court, testified that the name of at least one negro was drawn to serve on the petit jury drawn at the same time that the grand...