State v. Scott

• Decision Date: 30 June 1941
• Docket Number: 36224.
• Citation: 3 So.2d 545,198 La. 162
• Court: Louisiana Supreme Court
• Parties: STATE v. SCOTT.

3 So.2d 545

198 La. 162

STATE v. SCOTT.

No. 36224.

Supreme Court of Louisiana

June 30, 1941

Eugene Stanley, Atty. Gen., Niels F. Hertz, Asst Atty. Gen., Edwin M. Fraser, Dist. Atty., of Many (Robert C Gamble, of Mansfield, and Wellborn Jack, of Shreveport, of counsel), for the State.

Wm. C. Pegues, Jr., of New Orleans, and J. Reuel Boone, of Many, for defendant-appellant.

PONDER Justice.

The defendant, John Scott, was indicted by the grand jury of DeSoto Parish for the murder of Amos D. Williams. He was tried and found guilty of manslaughter and thereafter sentenced by the court to be confined in the penitentiary for a period not less than six and two-thirds years nor more than twenty years. He has appealed from the conviction and sentence.

During the course of the trial sixteen bills of exceptions were taken by the defendant's counsel to the rulings of the trial court. Bills of exceptions Nos. 1 and 2, having been withdrawn by counsel for the defendant, are not incorporated in the transcript and are not urged upon this appeal.

Bills of exceptions Nos. 3 and 4, 7 and 8 being of a similar nature are treated together by counsel for the defendant and counsel for the State. These bills involve the rulings of the trial court refusing to permit counsel for the defendant to elicit from prospective jurors, on their voir dire examination whether or not they would convict the accused on the testimony of an admitted perjurer.

Counsel for the defendant states in his brief that it was common knowledge that the only direct evidence of the guilt of the accused which the State proposed to offer was the testimony of a Negro witness whom it was commonly known had testified at a preliminary examination contrary to what he had testified to before the coroner's jury. Counsel states that he desired to impeach the testimony of this witness and contends that the law does not contemplate that a person should be convicted on such evidence alone. Counsel takes the position that under such circumstances it is proper to inquire of the prospective juror if he is biased or prejudiced against a person charged with an offense to an extent that he would convict on testimony of this nature in order that he may properly exercise peremptory challenge. In support of this contention counsel cites Article I. Section 10 of the Constitution of 1921, and State v. Henry, 196 La 217, 198 So. 910.

The constitutional provision and the case cited are to the effect that a defendant is entitled to the right of peremptory challenge and that in exercising such right the examination of a prospective juror cannot be limited so as to destroy or impair the constitutional or statutory right of challenge. The authorities cited are not pertinent for the reason that it is apparent from the question propounded that counsel sought to elicit from the prospective jurors what weight they would give to the testimony before the testimony was offered in evidence. We have considered this question on several occasions.

In the case of State v. McIntosh, 141 La. 150, 74 So. 886, wherein a prospective juror was asked questions on his voir dire that amounted to a prejudging of testimony before it was introduced this Court in effect stated that to permit an examination of this nature would establish a bad precedent and if followed would lead to confusion and obstruction in administering criminal justice.

In the case of State v. Plummer, 153 La. 730, 96 So. 548, it is in effect stated that an accused is not entitled to put before a juror on his voir dire an assumed state of facts and ask him thereon what his verdict would be.

In the case of State v. Dyer, 154 La. 379, 97 So. 563, wherein it was sought to elicit from a prospective juror whether he would give greater credence to the testimony of a white man than that of a black man, it was held that the question was properly excluded.

In the recent case of State v. Henry, 3 So.2d 104, handed down by this Court on May 26, 1941, we reviewed the question here presented and arrived at the conclusion that a juror cannot be committed in advance of the introduction of testimony as to the weight he would give to it.

Bill of exception No. 5 is not urged upon this appeal.

Bills of exceptions Nos. 6, 9 and 10 involve the right of the defendant to challenge for cause a juror who had stated that he would not return a verdict carrying the death penalty on circumstantial evidence alone. Counsel for the defendant states in his brief that counsel for the State in examining prospective jurors on their voir dire only asked part of them if they would vote for such a verdict on circumstantial evidence alone and that counsel for the State was using this method to disqualify those he did not desire. Counsel contends that since the State failed to ask the instant juror this question he is entitled to have the juror excused for cause if his answer is in the negative when the question is propounded by counsel for the defendant. Counsel cites no authority to support his contention.

In the case of State v. Davis, 154 La. 295, 97 So. 449, wherein it was contended that the State would question certain jurors that it desired to disqualify for cause as to whether they were opposed to capital punishment on circumstantial evidence merely as a subterfuge in order to disqualify them without exhausting peremptory challenges, this Court arrived at the conclusion that the defendant was not prejudiced by the exercise of the challenges for cause by the State in this manner. It is stated therein to the effect that the defendant cannot complain of the ruling of the trial judge in rejecting a juror who is challenged for cause by the State for the reason that the law gives the accused the right to object to an obnoxious juror but not the right to select.

The defendant cannot challenge for cause a prospective juror who has conscientious scruples against the infliction of capital punishment on circumstantial evidence. Only the State has such right. Article 352, Code of Criminal Procedure; State v. Erwin, 133 La. 550, 63 So. 167.

Bill of exception No. 11 is leveled at a statement made by an attorney who was assisting in the prosecution in the presence of eleven jurors and a prospective juror, viz.: 'ordinarily in a case the defendant doesn't mind the case blowing up.' From the per curiam of the trial court it appears that counsel for the defendant was addressing some remarks to the jurors criticizing the manner employed by counsel for the prosecution in examining prospective jurors and that the statement by the attorney assisting in the prosecution was made at the time. The court immediately instructed the jurors to disregard the statement. This cured any effect the statement might have had.

Bills of exceptions Nos. 12 and 13 were taken to the rulings of the trial court admitting three photographs in evidence. Some 30 or 60 days after the killing the coroner, an amateur photographer and two of the attorneys for the prosecution went to the scene of the killing with the view of taking the photographs complained of. The coroner placed the deceased's truck and two poles on the ground near the truck in the positions he found them when he first visited the scene on the morning after the killing. He placed one of the attorneys for the prosecution in the position he found the deceased's body on that morning. After the coroner had placed the objects, three photographs were taken by the amateur photographer from different positions showing the objects in the...