State v. White

• Decision Date: 30 October 1939
• Docket Number: 35412.
• Court: Louisiana Supreme Court
• Parties: STATE v. WHITE.

192 So. 345

193 La. 775

STATE v. WHITE.

No. 35412.

Supreme Court of Louisiana.

October 30, 1939

Rehearing Denied Nov. 27, 1939.

Appeal from Nineteenth Judicial District Court, Parish of East Baton Rouge; Charles A. Holcombe, Judge.

Willie White was convicted of murder, and he appeals.

Affirmed.

David M. Ellison, Atty. Gen., James O'Connor Asst. Atty. Gen., and Dewey J. Sanchez, Dist. Atty., and John Fridge, Asst. Dist. Atty., both of Baton Rouge, for the State, plaintiff-appellee.

Fred S. LeBlanc, of Baton Rouge, for defendant-appellant.

FOURNET, Justice.

Willie White was tried, convicted, and sentenced on an indictment for the murder of William P. Wales, and from his conviction and sentence to hang, he has appealed.

The defendant, jointly with Edna Miller, alias Edna Hicks, was indicted on October 18, 1935, for the murder of William P Wales on September 14, 1935. Defendant immediately fled the jurisdiction of the court and remained a fugitive from justice until apprehended on December 21, 1938. On February 9 following, he, together with Edna Hicks, was arraigned, both pleading not guilty, and the case was set for trial on March 2. Defendant, however, reserved the right to withdraw his plea of not guilty and file a motion to quash the indictment and such other motions as his counsel might deem advisable, which motion was granted by the trial judge.

Defendant went to trial on the date previously assigned therefor, his co-defendant having been granted a severance, without first filing a motion to quash the indictment or any other pleadings. The trial lasted two days, during which not a single bill of exception was reserved, and he was found guilty as charged.

Following his conviction, but before sentence, defendant filed a very lengthy motion and supplemental motion for a new trial, based on the grounds (1) that because of an alleged systematic exclusion of persons belonging to his race or color (negro) from the general venire and grand jury that returned the indictment against him, he has been denied the due process and equal protection of the laws guaranteed to him by the constitutions of Louisiana ana and of the United States (Const.U.S.Amend. 14, U.S.C.A.; Const.La.1921, Art. 1 sec. 2), and (2) that certain errors prejudicial to the accused were committed during the trial of the case, primarily in connection with an alleged attack upon his (defendant's) counsel.

The appeal is based on five bills of exception reserved during the trial of the motion for a new trial, none having been reserved during the trial of the case.

The trial judge disposed of these issues in his per curiam to defendant's Bill of Exception No. 1 (which bill incorporates verbatim the allegations contained in the motion for a new trial), as follows:

‘ As to the first proposition presented by said motions, the accused having failed to avail himself of the right to file a motion to quash the indictment or quash the jury venire and/or the Grand Jury panel, and having elected to go to trial without complaint, waived the right to set up any objections to the proceedings of the jury commission, or to the drawings, organization, or qualifications of the jury venire or Grand Jury panel for the first time after verdict.

‘ As to the second proposition raised by the motion for a new trial that certain errors were committed during the trial to the prejudice of the accused, no bills of exceptions whatsoever were reserved by counsel for the accused to any ruling of the court on the admissibility of evidence, the charge of the Court, or the argument or conduct of counsel for the State. As a matter of fact, the Court consistently sustained any and all objections which counsel urged during the trial. The Court gave its charge in writing, a copy of which is attached, as requested by defense counsel. At the close of the charge, counsel for the accused requested the Court to read to the jury Article 387 of the Code of Criminal Procedure, which the Court did, making no comment thereon. No bill was reserved to the charge of the Court or to the act of the Court in doing what counsel himself requested to be done, that is, in reading Article 387 of the Code of Criminal Procedure. Note a single bill of exception was reserved by defendant counsel to anything at any time during the trial. In the absence of a bill of exception properly reserved, counsel cannot be heard to complain of any errors, not patent on the face of the record, after verdict.’

Statutory laws and a long list of decisions of this state, of the United States, and of other states, were cited by the trial judge in support of his ruling.

The remaining bills of exception that grew out of the trial of defendant's motion for a new trial in connection with the alleged unwarranted attack upon defendant's counsel during the trial of the case are merely repetitions of the subject matter contained in the motion for a new trial and Bill of Exception No. 1, which we have just disposed of. They present nothing new for our consideration.

We think that the trial judge's appreciation of the matter is well expressed in the following excerpts from his per curiams. He was of the opinion that:

‘ * * * no evidence offered in support of the allegations of the motion for a new trial should be heard. However, * * * out of an abundance of precaution and a spirit of extreme fairness [he] heard counsel for accused with reference to any prejudice he might have sustained by virtue of certain evidence that crept into the record with reference to his former employment as assistant District attorney . * * * (Italics and brackets ours.)

‘ There was nothing in the testimony taken in connection with the application for a new trial to show that any prejudice resulted to counsel or the accused in connection with certain alleged testimony as to counsel's connection with the district attorney's office at the time of the commission of the alleged crime or at the time of the coroner's inquest. As a matter of fact, the testimony of counsel's own witness, Honorable John Fred Odom, former District attorney, completely absolved defense counsel of any impropriety in representing the accused. Counsel for the State did not at any time make any comment thereon in their arguments. There was nothing in defendant's counsel's conduct of the case that indicated that his client suffered as a result of the alleged necessity to defend himself. As no attack was made upon him personally or professionally, there was no occasion for him to defend himself. His conduct was not made an issue in the case, nor was anything said or done that prejudiced him in any manner in the conduct of this trial. * * *’

But counsel for defendant contends that defendant's conviction and sentence should be reversed for the reasons, as stated in his brief, that (1) under the recent decision of the Supreme Court of the United States in the case of Pierre v. Louisiana, 1939, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757,‘ * * * the mere fact that negroes are not selected for grand jury service, constitutes discrimination against negroes on account of race or color * * *’ and that his failure to file motions to quash the indictment cannot be treated as a waiver of his constitutional rights, inasmuch as the time allotted by the trial judge for the filing of such motions had expired when the Pierre case was handed down; and (2) that even though no motions to quash the indictment were filed and no bills of exception were reserved during the trial of the case, these errors are merely procedural, while the errors complained of here are sufficiently serious and prejudicial under our jurisprudence to warrant a reversal.

It is expressly provided by the Code of Criminal Procedure, in prescribing the qualifications of a grand or petit juror, that ‘ * * * there shall be no distinction made on account of race, color or previous condition of servitude * * *.’ Article 172. (Italics ours.) State v. Turner, 133 La. 155, 63 So. 169; State v. Gill, 186 La. 339, 172 So. 412. But the accused who claims that he has been deprived of his rights because of the failure of the jury commission to follow this mandate of the law must raise the question properly and timely, that is, in a motion to quash the indictment or to set aside the jury panel before going to trial, otherwise he waives his right to do so. All such matters cannot be raised for the first time after conviction in a motion for a new trial. Articles 202, 253, 284, 286, and 287 of the Code of Criminal Procedure; 1 Marr's Criminal Jurisprudence 425, page 648; State v. Thompson, 28 La.Ann. 187; State v. Saba, 191 La. 1009, 187 So. 7. See, also, State v. Washington, 33 La.Ann. 896; State v. Jackson, 36 La.Ann. 96; State v. Tolett, 174 La. 553, 141 So. 57; United States v. Gale, 109 U.S. 65, 3 S.Ct. 1, 27 L.Ed. 857; Hicks v. State of Arkansas, 143 Ark. 158, 220 S.W. 308; Washington v. State of Florida, 95 Fla. 289, 116 So. 470, writ refused by the United States Supreme Court, 278 U.S. 599, 49 S.Ct. 8,73 L.Ed. 598.

The United States Supreme Court in the case of United States v. Gale, supra, held that [109 U.S. 65, 3 S.Ct. 2, 27 L.Ed. 857]‘ * * * by pleading not guilty to the indictment and going to trial without making any objection to the mode of selecting the grand jury, such objection was waived .’ (Italics ours.)

The identical question raised in the instant case was raised and answered by the Supreme Court of Arkansas in the case of Hicks v. State of Arkansas, supra (which decision was affirmed by the United States Supreme Court without comment, 254 U.S. 630,41 S.Ct. 7,65 L.Ed. 447), as follows [ 143 Ark. 158, 220 S.W. 309]:

‘ It is insisted as ground for reversal in each case that appellants, who are all men of...