State v. Wilson
| Decision Date | 21 June 1943 |
| Docket Number | 37077. |
| Citation | 204 La. 24,14 So.2d 873 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. WILSON. |
Rehearing Denied July 13, 1943.
Rudolph F. Becker, Jr., of New Orleans, for appellant.
Eugene Stanley, Atty. Gen., Niels F. Hertz, Asst. Atty. Gen., and J Bernard Cocke, Dist. Atty., and Alex W. Swords and George Gulotta, Asst. Dist. Attys., all of New Orleans, for the State.
The accused a negro, was convicted by the jury of the crime of rape of a white woman and the judge sentenced him to death by electrocution. He appealed from the conviction and sentence and relies upon three Bills of Exception for the annulment of the judgment.
Bill of Exception No. 1 was reserved when the district judge overruled the defendant's motion to quash the indictment the grand jury venire and the grand jury panel. He alleged that he was a negro and was charged with raping a white woman; that he was indicted by the grand jury of the Parish of Orleans; that his trial would be held before the Criminal District Court of that Parish where one-third of the population consisted of negroes; that the general venire box for the Parish of Orleans did not contain the names of any members of the colored race at the time the panel for the grand jury was drawn; that the members of the grand jury, which had returned the indictment against him, were persons of the white race exclusively; that the officers charged by law with placing the names of persons qualified to act as jurors in the general venire box not only failed to place in the box the names of any negroes qualified to serve as grand jurors, but deliberately excluded them; that on information and belief, he alleges there has not been a negro on the grand jury of the Parish of Orleans for at least twenty years; that the officers of the said Parish have systematically, unlawfully, and unconstitutionally excluded negroes from the grand jury in the Parish of Orleans during that period of time; that this exclusion of negroes was made only because of their race and color; that he is informed and believes that the entire panel from which the grand jury was selected consisted of the names of seventy-five persons, none of whom were of the colored race; and that the above acts of the officials constitute a denial to him of due process of law and the equal protection of the law, guaranteed him by the Constitution of Louisiana and the Fourteenth Amendment of the Constitution of the United States. He prayed that the indictment against him and the entire grand jury venire and the grand jury panel be quashed and annulled.
The State filed a demurrer to the motion to quash on the ground that it was not filed, pleaded and urged until after the third judicial day of the expiration of the grand jury term of the Parish of Orleans during which the defendant was indicted, and prayed that the defendant's plea be dismissed.
The demurrer is based upon Article 202 of the Code of Criminal Procedure, which reads:
'All objections to the manner of selecting or drawing any juror or jury or to any defect or irregularity that can be pleaded against any array or venire must be filed, pleaded, heard or urged before the expiration of the third judicial day of the term for which said jury shall have been drawn, or before entering upon the trial of the case if it be begun sooner; otherwise, all such objections shall be considered as waived and shall not afterwards be urged or heard.'
The issue presented is to be determined by the correct interpretation of the above article.
The indictment was filed in open court on August 20, 1942, and it is alleged therein that the crime was committed on June 25, 1942. The accused was arrigned before the bar, accompanied by his coursel, Henry Read, Esq., on August 26, 1942, and pleaded not guilty. Mr. Read was succeeded by attorney Alcide J. Weysham, and on September 25, 1942, the court appointed Rudolph F. Becker, Jr., as counsel, to represent the defendant, and Weysham remained in the case as his associate. When the matter was called for trial on September 29th, the defendant's attorneys requested a continuance on the ground that they had not had sufficient time to prepare for the trial thereof, and a continuance was granted. On October 7th, counsel for the defendant filed an application, asking the court to appoint a Lunacy Commission to determine the defendant's mental condition. On October 16th and 17th, a hearing was held to determine whether the court would appoint a Lunacy Commission and, on the latter date, the court refused to do so on the ground that the defendant was sane and able to understand the criminal proceedings filed against him and assist in his defense thereof. On the same day, the State asked that a date be set for the trial of the case and the defendant's attorneys objected to the defendant's arraignment at that time, because they desired to file further pleadings. It was then agreed, in open court, that if rearraigned, the defendant would be granted one week from October 17th to file any additional pleas, and that, at the time of filing them, he would be permitted by the court to withdraw his plea of not guilty. On October 23rd, the defendant filed, in open court, the motion to quash the indictment and the entire grand jury venire and panel, after obtaining permission from the judge to withdraw his former plea of not guilty. This motion was set for hearing on October 26th, and upon the State's request, the hearing was continued until October 28th, on which day the State filed its demurrer to the motion to quash. The matter was heard and taken under advisement by the court. On November 9th, the court sustained the demurrer on the ground that the motion to quash was not timely filed and assigned written reasons in which it was pointed out that the term of the grand jury, which returned the indictment against the defendant, began on March 2, 1942 and ended on September 8, 1942, and that the defendant's counsel had from August 26, 1942 through September 11, 1942 within which to file the motion to quash, and having filed it on October 23rd, 1942, or forty-two days too late, it could not be considered on its merits. Thereupon, counsel for the accused reserved a bill of exception. The defendant was then rearraigned, pleaded not guilty, and the case was set for trial on November 17, 1942. After the trial, the accused was found guilty as charged by the jury on November 19, 1942. A motion for a new trial was then filed and overruled and on January 15, 1943, the court imposed the death sentence, by electrocution, upon defendant.
The attorneys for the defendant, in their brief, state:
'* * *
'Therefore to comply with the provisions of Article 202 of the Criminal Code of Procedure the defendant's counsel would have had to file his Motion to Quash the Indictment not later than March 5, 1942, which date was the latest date that he could have filed his Motion to Quash, in order to comply with the provisions of the Code.
'In the case at bar, that would have been impossible, because the alleged crime was not committed until June 25, 1942, which was long after the expiration of the third judicial day of the term for which the Grand Jury was drawn to serve.'
The State pleaded and the trial judge so ruled that Article 202 of the Code of Criminal Procedure should be interpreted as requiring the filing of such pleadings or motion to quash within three judicial days of the expiration of the grand jury term during which the indictment was returned, unless the trial of the case 'be begun sooner.'
The Article of the Code in question has an historical background, which is helpful in arriving at the correct construction to be placed upon its provisions.
The first statute on this subject matter was Act No. 44 of 1877, Section 11 of which reads:
'That all objections to the manner of drawing juries, or to any defect or irregularity than [that] can be pleaded against any array or venire, must be urged on the first day of the term, or all such objections shall be considered as waived, and shall not afterwards be urged.'
In 1889, while the above statute was in force and effect, the case of State v. Strickland, 41 La.Ann. 513, 6 So. 471, was tried. There the offense, murder, had been committed after the time fixed in the statute in which to object and plead 'to the manner of drawing juries, or to any defect or irregularity' with reference to any array or venire. In short, the crime was committed after the first day of the term. The motion to quash the indictment was founded upon the alleged illegal drawing of the jury venire from which the grand jury had been formed. The Court pointed out that the statute was not applicable to a case where the offense charged was committed after the first day of the term nor could it apply to defeat a motion to quash where the defendant was arraigned after the first day of the term. With reference to the legislative intent and purpose of the statute, the Court said:
'It is very clear to our minds that this legislation was prompted by the frequent rulings of the courts tending to cure a vicious practice on the part of defendants in criminal prosecutions who would take their chances of an acquittal before a defective jury, and who would in case of conviction urge irregularities in the formation of the jury, which they should have set up in the preliminary stages of the trial.'
During that same year and term of the Supreme Court, the...
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State ex rel. Henderson v. Russell
...holding) is also cited in the majority opinion. Some states have similar statutes. See State v. Covington, supra, and State v. Wilson, 204 La. 24, 14 So.2d 873, appeal dism. 320 U.S. 714, 64 S.Ct. 202, 88 L.Ed. 419. There is no such statutory time limitation in this State, and, consequently......
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