State v. Sandiford

• Decision Date: 31 October 1921
• Docket Number: 24545
• Citation: 149 La. 933,90 So. 261
• Court: Louisiana Supreme Court
• Parties: STATE v. SANDIFORD

90 So. 261

149 La. 933

STATE v. SANDIFORD

No. 24545

Supreme Court of Louisiana

October 31, 1921

[Copyrighted Material Omitted]

On Application for Second Rehearing, November 28, 1921

Original Opinion of May 2, 1921, Reported at 149 La. 933.

OVERTON J. O'NIELL, J.

OPINION On Rehearing.

OVERTON, J.

Defendant was tried on a charge of murder, and was convicted of manslaughter. He has appealed, and relies on a number of bills of exception for a reversal.

The first bill that presents itself for consideration is one excepting to the ruling of the court for refusing to permit defendant to withdraw his plea of not guilty and file a motion to quash, based on the ground that the grand jury that returned the indictment was illegally drawn. Defendant, as reason why this permission should have been given him, urges that he was not arraigned at a regular term of court, nor at any term at all; that his leading counsel was absent at the time; that he moved to withdraw the plea and file the motion to quash as soon as knowledge of the illegal drawing of the jury reached him; that he had, under the law, until the first day of the next session of court to file the motion.

Defendant is in error when he says that he was not arraigned in open court. The minutes of November 22, 1920, the day on which the arraignment took place, show that on that day court opened according to adjournment. There is nothing showing from what day it adjourned. The presumption is that it convened regularly.

There seems to have been nothing unusual about the session of the 22nd. On November 13th, the day upon which the indictment was returned, the trial judge gave notice from the bench, to the sheriff, to have in court, on November the 22nd for arraignment, all persons indicted at that session, and accordingly, when court opened on that day, the defendant was arraigned.

It is true that when the arraignment took place, the counsel, who now appear of record as defendant's leading counsel, were not present, but, it is also true, that at the time of the arraignment defendant was assisted by an attorney at law, who is at present of counsel for him, and who, the trial judge states, in his per curiam, informed the court at the time that he represented defendant as leading counsel. There was no effort made to postpone the arraignment.

Defendant had ample time to inquire into the legality of the grand jury. The motion to quash was based upon the ground that the general venire list from which the grand jurors were selected contained many fictitious names, and the names of persons not residing in the parish. It is not, however, suggested that nonresidents, or jurors incompetent otherwise, sat as members of that body.

The motion should have been filed before the plea of not guilty was entered. It is within the discretion of the trial judge to refuse to permit the withdrawal of such a plea in order that a motion to quash may be filed. State v. Rester, 116 La. 985, 41 So. 231; State v. Boudreaux, 137 La. 227, 68 So. 422. From what we have said we are not of the opinion that the judge a quo abused that discretion. Defendant did not have, under the law, as he contends, till the first day of the next session to file the motion.

The next bill presents an exception to the ruling of the court permitting Mr. R. L. Richey, who was of counsel for the prosecution, to explain to a juror the various verdicts that might be rendered in a murder case, while the juror was being examined on his voir dire. The objection to the explanation is based upon the ground that the judge was the proper person to state to the juror the law, and that counsel was without right to state his version of it, and to ask the juror what his verdict would be, based on that version. The bill does not state what the explanation was, beyond what has been said. The trial judge states that the prosecution was explaining to the juror the various verdicts that could be rendered in a murder case; that this was done correctly; that the state peremptorily challenged the juror; and that finally the defendant secured a jury without exhausting all of his challenges. We are of the opinion that there is no merit in the bill.

The third bill reserved is to the effect that, after defendant had made the objection just passed upon, the court made the statement that no more objections would be tolerated from defendant's counsel; that the court's decision was final; that the court made many other statements over defendant's objection; that the court had previously, and even then, refused defendant's request for a stenographer, and had permitted the trial to proceed without noting many of his objections.

The trial judge says that the above statement is incorrect; that he did, however, remark to counsel that he had ruled on certain matters, and that the ruling, in so far as his court was concerned, was final; that he made this remark, because, after he had ruled, counsel would not heed his ruling; that he permitted counsel to make all the objections he saw fit to make; that he advised counsel that he had no court stenographer; that he would appoint one, if one could be found; that he finally induced a young lady, who was a beginner in stenography, to take some testimony in the case; but that whenever the attorney for the defendant made an objection, he informed him that the clerk of court would take down the objection and the evidence objected to, if such was desired, and that this was invariably done.

There is a conflict between the statement of defendant and that of the trial judge. In so far as the conflict exists, in the absence of proof that the trial judge is in error, his statement will be accepted. State v. Hopper et al., 114 La. 557, 38 So. 452. So accepting the statement of the judge a quo, and taking up for consideration the remark made to counsel to the effect that his rulings were final, in so far as his court was concerned, it is evident, as indicated by the per curiam of the judge, that the remark was intended to cause counsel to desist from ignoring the rulings of the court which the judge states counsel was doing. So viewed, it affords no ground for reversal. Nor can the defendant properly complain because the court failed to procure a stenographer, when one was desired by him. Unquestionably the defendant has a right, in a criminal case, to have the facts, upon which his exception is based, reduced to writing. The law, however, names the clerk of court as the one to reduce them to writing. Act No. 113 of 1896. Hence the defendant was beyond his right when he insisted upon a stenographer. The judge states that he refused no request to have the clerk reduce to writing the objections and the evidence objected to, but constantly offered this official for that purpose. The defendant should have acted upon the offer. We therefore conclude that this bill is not well founded.

Bill No. 4 was taken, in part, to the ruling of the court in permitting the state, while examining a juror on his voir dire, to use the expression "cold-blooded murder"; and in permitting the state to explain to jurors, during such examinations, the various verdicts they might render, under the law.

The court states, in the per curiam attached to the bill, that the juror had stated he was opposed to capital punishment, in some cases; whereupon the district attorney asked the juror whether he was opposed to it in cases of cold-blooded murder. We are of the opinion that the use of the expression, in that connection, was not objectionable. The state had the right to ascertain whether, under the circumstances, the prospective juror was opposed to capital punishment in that class of cases, and that is all that the question implied. The mere fact that the district attorney explained to jurors, while they were being examined on their voir dire, the various verdicts that, under the law, they might render, does not call for a reversal. There is no suggestion that the district attorney erred in making the explanation by stating them incorrectly. The verdict rendered by the jury was a legal one, responsive to the indictment. The defendant was not injured by the explanation.

In the same bill of exception the defendant also states that --

"Having noted that his objections and exceptions were not being noted by the clerk and were therefore being lost, the defendant's counsel objected to proceeding further for the reason and on the ground that his bills of exception to the court's rulings were being lost, whereupon the court ruled that if defendant wanted his bills taken down he would have to get a stenographer, as the court would not provide one, and the parish would not pay for one, to which remark, made in the presence of the jury, and to which ruling, the defendant, through his counsel, objected and excepted."

And then follows the usual clause relative to the presentation of the bill to the judge for signature.

The judge, in his per curiam, denies that the remark, in respect to the stenographer, was made, and states that he said he was willing at all times to appoint one, if one could be found, and to see that the stenographer was paid for his services; and told the defendant:

"That the clerk would take down any statement or objection; that if the attorney didn't see that the clerk did it, that he had no knowledge of the same."

While Act No. 113 of 1896 requires the judge, when an exception is taken to his ruling, to order the clerk to reduce to writing the facts upon which the bill has been retained, yet this requirement may be waived; and it is frequently waived in practice, by the attorney for the defendant not dictating the objection to the clerk to be taken down, after the ruling is made. In this instance, the judge,...