State v. Sevin
| Decision Date | 18 February 1963 |
| Docket Number | No. 46169,46169 |
| Citation | 243 La. 1023,150 So.2d 1 |
| Parties | STATE of Louisiana v. Carroll SEVIN, Edgar Lawrence, Jackie Deese and Ernest Bergeron. |
| Court | Louisiana Supreme Court |
Kilbourne, Dart & Jackson, St. Francisville, William F. Kline, Jr., R. G. Van Buskirk, Clinton, for defendants-appellants.
Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Richard Kilbourne, Dist. Atty., for appellee.
Carroll Sevin, Jackie Deese, Edgar Lawrence and Ernest Bergeron, all convicts at the Louisiana State Penitentiary, were jointly indicted by the Grand Jury of West Feliciana Parish for the October 27, 1961, murder of Jerry Loper, another convict. While the jury was being selected the district attorney entered a nolle prosequi as to Sevin. The other three defendants were tried, convicted of the lesser included offense of manslaughter, and sentenced. They have appealed from the conviction and sentence assigning, among other specifications of error in the conduct of the proceeding in the trial court, the following:
THE DISTRICT COURT ERRED IN DENYING EACH OF THE DEFENDANTS THE RIGHT TO EXERCISE TWELVE PEREMPTORY CHALLENGES.
This contention is based upon bills of exceptions which present the following facts and issues relied upon to support the contention that error occurred a quo. When examination of the prospective jurors commenced, the appellants and their codefendant, Carroll Sevin, were represented by court appointed counsel. On the second day, during voir dire examination of the prospective jurors, defendant Deese retained counsel of his choice and, with the court's permission, Deese's counsel was recognized and court appointed counsel were permitted to withdraw from their appointment insofar as Deese was concerned. The examination of the prospective jurors continued. According to the trial judge's per curiam, until the defense had exercised thirty-six peremptory challenges no effort was made by the defense to allocate or designate the peremptory challenges that had been exercised on behalf of the defense. Rather, the per curiam sets forth that the challenges were made jointly. At that time the district attorney entered a nolle prosequi as to the codefendant, Sevin. As a result of this action, at the time the thirty-seventh challenge was sought to be exercised, there were three prisoners on trial and, because thirty-six peremptory challenges had been exercised, the court, upon objection by the district attorney, denied any further peremptory challenge. Nevertheless, upon motion of counsel for Deese, the trial court, according to the per curiam 'in an abundance of caution' granted two additional peremptory challenges to Deese. Thereafter appellants having exhausted their peremptory challenges, according to the trial court's ruling, sought to challenge a prospective juror for cause, which was denied, and because of the court's refusal to permit further peremptory challenges they assert they were obliged to accept an obnoxious juror.
These facts present this question: Where multiple defendants have jointly exercised peremptory challenges without designating who was exercising the challenge, can the State, by entry of a nolle prosequi as to one of the defendants, charge all of the peremptory challenges theretofore used to the remaining defendants, thereby exhausting the peremptory challenges to which the remaining defendants are entitled by law? (LSA-R.S. 15:354)
The State's contention is that the nolle prosequi is not an acquittal. It is asserted that the nolle prosequi partakes of the nature of a nonsuit or discontinuance as in a civil case, and leaves the matter in the same condition in which it was before the commencement of the prosecution. The argument proceeds from this proposition that when the nolle prosequi was entered the matter assumed the same status it would have had if Carroll Sevin had not been indicted in the first place. The conclusion then, according to the State's contention, is that when the State chose to abandon the prosecution as to Sevin, the other three defendants were left in exactly the same position they would have occupied had Sevin never been indicted. That is to say, the remaining three defendants were each entitled to twelve peremptory challenges, a total of thirty-six, and thirty-six peremptory challenges had been exercised. 1 Consequently they had consumed the peremptory challenges to which they were entitled by law.
The argument is not acceptable. The nolle prosequi does have the effect for which the State's attorney contends insofar as the accused whose charge has been subject to a nolle prosequi is concerned. That party's position resumes the status it occupied before indictment. However, such a nolle prosequi cannot have the effect of altering the facts existing at the time it is invoked insofar as the other codefendants are concerned.
The right of an accused to peremptory challenges of prospective jurors who are to try him is guaranteed by the constitution of our State. LSA-Const. art. 1, § 10. By that constitutional provision, the...
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State v. Square
...State v. Durr, 39 La.Ann. 751, 2 So. 546 (1887). See also State v. Barksdale, 247 La. 198, 170 So.2d 374 (1965) and State v. Sevin, 243 La. 1023, 150 So.2d 1 (1963). The cases outside our jurisdiction, which have passed upon the question of the use of peremptory challenges to exclude person......
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State v. Nelson
...be denied unless the accused voluntarily chooses not to avail himself thereof. It has been called an absolute right." State v. Sevin, 150 So. 2d 1, 3 (La. 1963). In cases involving co-defendants, each defendant has a statutory right to twelve peremptory challenges. La. C. Cr. P. art. 799.20......
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State v. Pierce
...peremptory challenges is a substantial violation of his constitutional right to a fair trial and requires reversal.” State v. Sevin, 243 La. 1023, 150 So.2d 1, 3 (1963). Therefore, if the trial court's rejection of Stevenson's race neutral reason(s) for striking Ms. Ehrlicher was erroneous,......
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... ... Breedlove, 199 La. 965, 7 So.2d 221, and in State v. Oliphant, 220 La. 489, 56 So.2d 846, the ruling of the trial judge in connection with the situation [251 La. 140] reflected by this Bill of Exceptions constitutes prejudicial and reversible error. They also rely on the case of State v. Sevin, 243 La. 1023, 150 So.2d 1, as sustaining their contention ... The trial judge in his per curiam to the instant bill stated: ... 'Mr. Gravel was chief counsel for both defendants. As he excused (sic) his peremptory challenges, he would state that it was on the part of the ... ...