State v. Pierre

• Decision Date: 30 June 1941
• Docket Number: 36069.
• Citation: 198 La. 619,3 So.2d 895
• Court: Louisiana Supreme Court
• Parties: STATE v. PIERRE.

3 So.2d 895

198 La. 619

STATE v. PIERRE.

No. 36069.

Supreme Court of Louisiana

June 30, 1941

Rehearing Denied July 18, 1941.

Writ of Certiorari Denied Nov. 10, 1941.

Eugene Stanley, Atty. Gen., Niels F. Hertz, Asst Atty. Gen., and Jno. E. Fleury, Dist. Atty., and Ernest M Conzelmann, Asst. Dist. Atty., both of Gretna, for the State.

Maurice R. Woulfe, of New Orleans, for defendant-appellant.

FOURNET Justice.

Hugh Pierre was tried, convicted, and sentenced under an indictment for the murder of Ignace Roussell, and from his conviction and sentence to hang he has appealed.

The record reveals that as the result of a controversy between the accused and Leopold Ory over a plow during the afternoon of October 20, 1936, a warrant for his (Pierre's) arrest on a charge of assault with a dangerous weapon with intent to kill was issued upon the affidavit of Ory filed before the Justice of the Peace for the First Ward of St. John the Baptist Parish. On the same evening, at about 7, the constable of the ward, Ignace Roussell, attempted to serve this warrant on Pierre at his mother's home, where he resided, and was informed by her that he 'wasn't going to take Hugh to jail that night.' In the midst of this conversation, Pierre, standing inside the house, fired two loads of buckshot from a sawed-off shotgun into Roussell's body, instantly killing him, and he fell at the foot of the porch steps where he had been standing. The accused immediately escaped through the rear of the house and fled into the adjoining parish of St. Charles, where he remained in hiding until the morning of October 22, when he was arrested at about 11:30 in the morning in the shed at the home of Varise Champagne. On the same day the accused was questioned by the District Attorney for the Twenty-fourth Judicial District in the presence of Police Captain Cook and T. J. Carbrey, the official court stenographer for the judicial district who took down his testimony, comprising some twelve typewritten pages. Pierre's version of the shooting was fairly summarized in a question propounded by the District Attorney in the following words: 'In other words, you want me to understand that when Roussell came there, you went back to get that gun while Roussell was outside, as you say, by the door with a pistol, you were back in there loading the gun and put one shell in it and shot him, and you took the shell out and put five more in it and went down to Champagne's with it?' To this question Pierre answered 'Yes.' Neither the statement of the accused that the deceased had drawn his pistol nor his statement inferring that the deceased had demonstrated hostility, is corroborated by any evidence whatsoever; in fact, the evidence is conclusively to the contrary.

On January 18, 1937, following, Pierre was indicted by a grand jury for the Parish of St. John the Baptist for the murder of Roussell, and, on the trial of the case, was found guilty as charged. His conviction and sentence to hang were affirmed by this court on appeal (State v. Pierre, 189 La. 764, 180 So 630) but the decision was reversed when reviewed on a writ of certiorari granted by the United States Supreme Court (Hugh Pierre, Petitioner v. State of Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757) for the reason that members of his race (negro) had been systematically excluded from the general venire from which was drawn the grand jury that had returned the indictment against him for the murder of a white man, in contravention of the due process clause of the constitution of the United States (Amendment No. 14) and of the State of Louisiana (Section 2 of Article I).

Following the decision of the Supreme Court of the United States the defendant was indicted on three different occasions. The trial judge quashed the first indictment for the reason that one of the grand jurors returning the same was disqualified to serve as such because of his inability to read and write the English language. The second indictment was quashed because the trial judge though some of the testimony of two of the jury commissioners who had selected the grand jury indicting the defendant might be construed to mean that these two commissioners were prejudiced against negroes serving on either grand or petit juries, although, as a matter of fact, negroes had actually served on the grand jury that indicted the defendant the second time. Prior to the quashing of this second indictment, the trial judge, because of the testimony of the two commissioners just referred to, requested their resignation and, on June 15, 1940, appointed three new commissioners, two to replace the commissioners resigned and one to replace another commissioner whose business did not permit him to serve.

The new jury commission was then ordered by the trial judge to draw a new grand and petit jury from a list of 300 names to be submitted by them. Complying with this order the commission met, and, after having removed from the general venire box the names that remained there from the old commission, they proceeded to place in the box the 300 names submitted by them, after they had been written on slips of paper by the clerk of court, and, in compliance with the provisions of the Code of Criminal Procedure, to select the grand jury panel (Article 180) and to draw the petit jury panels for the weeks of July 22 and 29, 1940 (Article 181). Of the 300 names submitted by this new commission, 52 were negroes. There were five negroes on the grand jury panel of twenty and two on the grand jury of twelve that returned the third indictment against the defendant (the indictment upon which he was tried and convicted). One negro actually sat on the jury that tried and convicted Pierre.

The defendant, in a motion to quash the indictment, has challenged the general venire array, as well as the grand jury panel that indicted him the third time and the petit jury panel from which was selected the jury that convicted him. The defendant's first bill of exception is reserved to the trial judge's ruling refusing to quash the indictment.

The motion to qhash is lengthy, comprising some fourteen paragraphs. For the purposes of this opinion, however, the allegations of the motion may be said to be substantially as stated in defendant's brief-- '* * * that the Jury Commissioners fraudulently conspired to discriminate against negroes, because of their race and color, from serving upon Juries, although a certain amount, 31 in all [the record shows that there were 52 negroes on the venire list], had been placed in the Venire of 300 names; that they additionally packed the Jury with Jurors hostile to Defendant, incompetent in many ways, and many who were relatives of officers of the Parish hostile to Defendant, and also some who had served on Grand and Petit Juries that had indicted and tried Defendant.' (Brackets ours.)

It may be seen from the foregoing that counsel for the defendant has narrowed the basic allegations of the motion to quash the indictment to an alleged fraudulent scheme of the jury commissioners to discriminate against the defendant (1) by excluding negroes from the general venire list, and (2) by packing the list with persons incompetent to serve because of their hostility to the defendant, relationship to parish officials hostile to the defendant, or former service on grand juries that had indicted him or petit juries that had previously tried and convicted him, rather than on any defects in the indictment apparent on the face thereof or because of the incompetency of any particular member of the grand jury that had returned the indictment.

The Code of Criminal Procedure expressly provides that the five jury commissioners selected by the district judges of the state to serve in each parish and who, with the clerk of court or his deputy, who is an ex-officio member, constitute the jury commission of the respective parish, need have no other qualifications than that they be 'qualified electors, good men and true, able to read and write the English language * * *,' and hold no other public office. Article 175. It also specifically provides that the general venire list of 300 names shall be composed of persons selected by the members of the jury commission 'from the persons qualified to serve as jurors for their respective parishes * *.' Article 179. Persons who are qualified to serve as jurors in this state are those who are: (1) Citizens of the state, over the age of twenty-one, with two years' residence in the parish; (2) able to read and write the English language; (3) not charged with any offense or convicted of a felony; and (4) of well-known good character and standing in the community. Article 172. The article (172) further provides 'that there shall be no distinction made [in their selection] on account of race, color or previous condition of servitude * * *.' (Brackets ours.) But 'The law does not direct from what source the commissioners shall obtain knowledge of qualified jurors or seek for names * * *. The law seems to trust the matter to the discretion of the commissioners * * *. But the jury commission must make their own selection from those qualified for jury service * * *.' Vol. 1, Marr's Criminal Jurisprudence, 2d Ed., 624, Section 411. 'In the absence of proof of fraud or designed discrimination, it is to be presumed that the jury-commissioners in making up the jury lists performed their duties within the spirit of the law, and wisely and well.' Marr's work, supra, Section 413. (Italics ours.) See, also, State v. Guirlando, 152 La. 570, 93 So. 796.

In a motion to quash an indictment because of any defects or irregularities in the constitution of the grand jury returning the same, the allegations upon which the motion is based must be...