State v. Ross

• Decision Date: 26 May 1947
• Docket Number: 38357.
• Citation: 31 So.2d 842,212 La. 405
• Court: Louisiana Supreme Court
• Parties: STATE v. ROSS.

31 So.2d 842

212 La. 405

STATE v. ROSS.

No. 38357.

Supreme Court of Louisiana

May 26, 1947

Rehearing Denied June 16, 1947.

Appeal from Seventeenth Judicial District Court Parish of Lafourche; J. Louis Watkins, Judge.

Hubert A. Lafargue, and Clyde C. Caillouet, both of Thibodaux, for defendant-appellant.

Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., and C. A. Morvant, Dist. Atty., of Thibodaux, for appellee.

HAWTHORNE Justice.

Albert Ross a Negro, was indicted by the grand jury for the murder of William Howard Braus, a white man. Defendant was tried adjudged guilty, and sentenced to death. From this conviction and sentence he has appealed.

Bill of Exception No. 1 was taken by defendant's counsel to the overruling by the trial judge of a motion to quash the indictment founded on the following facts and circumstances:

In empaneling the grand jury which returned the indictment against the accused, from the grand jury list the court selected as foreman P. G. Richard, who was present. Thereafter, under the direction of the court, the sheriff drew by lot from the envelope endorsed 'List of Grand Jurors' the names of 11 individuals. All grand jurors whose names were drawn from the envelope were present and answered as their names were called, with the exception of Joachim J. Lagarde, his name being the tenth one drawn from the envelope.

Prior to the drawing of the names from the envelope, the absent juror had failed to answer his name when the entire jury list was called, and the judge ordered that an attachment issue instanter for his appearance. Before the attachment issued, the sheriff's office telephoned the absent juror, who stated that he was under the impression that he was to report for jury duty the following day, that this was the reason for his absence, and that he was leaving his home immediately for the purpose of appearing in court. When the judge was given this information, he ordered the issuance of the attachment to be held in abeyance, and it was never issued. The absent juror actually appeared approximately one hour after his name was called. In the meantime, prior to his appearance, the oath was administered to the foreman and the remaining members of the jury, and the court's charge was delivered, as provided by law. When Mr. Lagarde made his appearance in court, and after the cause of his tardiness was ascertained by the judge, a deputy clerk administered to him the regular juror's oath, but upon the instructions of the court administered to him the complete oath as taken by the foreman and also the oath taken by each member of the grand jury. The judge then proceeded to charge Mr. Lagarde in the same manner and from the same notes used when he had delivered his charge to the foreman and the other members of the grand jury. Thereupon Mr. Lagarde retired to the jury room and joined the remaining members of the grand jury.

The record discloses that counsel for the accused and the district attorney agreed and stipulated into the record a statement to the effect that, after the said Joachim J. Lagarde was duly sworn as a grand juror out of the presence of the foreman and the other members of the grand jury, he joined the grand jury in the jury room and participated in all its deliberations until its final report, and that as a member of the grand jury he heard all the witnesses who appeared before it in the matter of the State of Louisiana v. Albert Ross.

Counsel for defendant contend that, when Mr. Lagarde failed to appear and answer his name when drawn from the envelope, the judge should have required the sheriff to draw additional names until the eleventh juror announced himself as present, and that, instead of drawing the name of another grand juror, the court permitted Mr. Lagarde to report later, after the foreman and the other members had been sworn and charged, and that he became a member of the grand jury contrary to a provision contained in Article 184 of the Code of Criminal Procedure that the judge shall select from the list of grand jurors a suitable person to act as foreman of the grand jury, and the sheriff under the direction of the court shall draw by lot from the envelope endorsed 'List of Grand Jurors' the names therein until 11 answer, who, with the foreman, shall constitute the grand jury.

Counsel also complain that Mr. Lagarde did not take the full oath as required by Article 204 of the Code of Criminal Procedure, and for this reason was not competent to sit as a member of the grand jury or even be present during its deliberations.

The grand jury which returned the indictment against the accused in this case was drawn from a grand jury list containing the names of 18 white men and two Negroes. Counsel contend that, as a result of the procedure in the selecting of the grand jury, the jury was composed entirely of persons of the white race, and that defendant lost the chance of having one of the Negroes who were on the grand jury list drawn as a grand juror, and that thereby he was deprived of due process of law, in violation of Article 184 of the Code of Criminal Procedure, Section 2 of Article I of the Louisiana Constitution of 1921, and the Fourteenth Amendment of the Constitution of the United States.

After the name of the absent juror had been drawn from the envelope and when the court had been informed that he was available for jury duty and was on his way to court, he became thereby a member of the grand jury, and the judge was powerless to remove him or excuse him except for legal cause.

In State v. Smith, 145 La. 1091, 83 So. 264, 266, this court said: '* * * In these circumstances, if the judge be allowed to excuse or discharge one member of the jury so drawn without good cause (and by this is meant a legal cause), then he may excuse any number (6 having been excused in the present case), and thereby choose a grand jury of his own liking. Such a course is not contemplated by the law, and, when a competent male citizen is once drawn in the manner provided by law as a grand juror, he becomes thereby irrevocably a member of the jury, and the judge is powerless to remove him, except for legal causes subsequently accruing. State v. McGarrity, 140 La. [436], 444, 73 So. 259, and authorities there cited.'

Defendant does not contend that the juror Lagarde did not possess the qualifications necessary to become a member of the grand jury, but insists that the trial judge should have proceeded to draw from the envelope the name of another juror when Lagarde failed to answer his name when called and drawn therefrom. The members of the grand jury are presumed to possess the necessary qualifications, and the burden of proof is on him alleging the contrary. There is no such allegation in this case. State v. Gonsoulin, 38 La.Ann. 459; State v. Guillory, 44 La.Ann. 317, 10 So. 761; State v. Wilson, 204 La. 24, 14 So.2d 873.

It is true that certain persons are exempt from serving as grand or petit jurors, as set out in Article 174 of the Code of Criminal Procedure, but these exceptions are personal and must be claimed by the jurors themselves, and no such exemption was claimed here.

In this case the better procedure may have been for the trial judge to have awaited the appearance of the absent juror before administering the oath to the foreman and the other grand jurors whose names had been drawn to serve as such. But, in view of the stipulation of counsel that the absent juror, after having been sworn, participated in all the deliberations of the grand jury until its final report was rendered and as a member of the grand jury heard all the witnesses who appeared before it in this body's investigation of the charge against the defendant Albert Ross, the accused was not harmed or prejudiced in any manner, nor did he suffer any injury thereby.

There is no merit in counsel's complaint that Mr. Lagarde did not take the full oath as required by Article 204 of the Code of Criminal Procedure and for this reason was not competent to sit as a member of the grand jury or to be present during its deliberations.

The record discloses that he took the oath which had been previously administered to the foreman as well as the oath which had been administered to each member of the grand jury, and the very article cited by counsel provides '* * * that the full oath shall be administered * * * to every grand juror not personally present at the taking of the oath by the foreman.' (All italics ours.)

In support of counsel's contention that defendant was denied due process of law because of the manner of selecting the grand jury which returned the indictment against him, they cite the cases of State v. Pierre, 189 La. 764, 180 So. 630, rev'd Pierre v. State, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757; and State v. Pierre, 198 La. 619, 3 So.2d 895. There being no evidence whatsoever that there was any systematic discrimination or exclusion of Negroes, solely because of their race or color, from the grand jury which returned the indictment against this defendant, these cases are not applicable.

Possibly, if the trial judge had discarded the name of the absent juror and had proceeded to have drawn from the envelope the name of another juror in his stead, then in that event, there might be some ground for the complaint that the defendant was deprived of due process of law as guaranteed by the Constitutions of this state and of the United States; for, as pointed out hereinabove, the trial judge has no right to select the jury but must be governed solely by the provisions of Articles 172 and 174 of the Code of Criminal Procedure of this state.

Bill of Exception No. 2 was taken to the introduction in evidence of a number of confessions of the accused, over the...