State v. Hills

¶1On Rehearing

¶2After affirming the conviction and sentence in this case we granted a rehearing, limited to a reconsideration of Bills of Exceptions Nos. 1, 2, 14 and 15.1

¶3Bills Nos. 1 and 2 were reserved to the ruling of the Trial Judge sustaining the State’s objection to questions propounded collectively to six veniremen tendered to the defense by the State on their voir dire examination. Counsel for defendant asked the prospective jurors — the fact having been previously brought out that the defendant was a colored man and the victim of the alleged rape a white woman — (1) if they were “in sympathy with an integration or segregation organizations,” and (2) whether any of them belonged to any “religious or segregation groups.” Following the first question, the District Attorney objected that while a prospective juror might be interrogated as to his prejudice against the particular individual accused, the question “could not take in the whole race or the whole people of an organization;” counsel for defendant stated that *395•the sole purpose was to determine the mental condition of the prospective jurors concerning the defendant; the Trial Judge sustained the objection (to which ruling Bill of Exception # 1 was reserved) and in his Per Curiam stated that the question was irrelevant, was too general for the answer to indicate prejudice against any individual; was confusing to the Court and the jurors and was an attempt to enlarge the scope of what could be considered legal prejudice or legal bias; and when the defendant’s attorney propounded question (2) above, the Court ruled the question out, stating it was objectionable because the defense was trying- to enlarge the scope of personal prejudice. In the Per Curiam to the Bill of Exception (No. 2) reserved to that ruling, the view was expressed that the same legal point was involved as in the first Bill and the Court asked that the reasons given in reply to the first Bill be considered as applying to and being made part of the second.

¶4It is a general view as to voir dire examination that the defendant in a criminal prosecution is entitled to make reasonable and pertinent inquiries of the prospective juror so that he may exercise intelligently and wisely his right of peremptory challenge — since each party has the right to put questions to a juror not only to show that there exists proper grounds for a challenge for cause, but to elicit facts to enable him to decide whether or not he will make a peremptory challenge. For this reason, a wide latitude is allowed counsel in examining jurors on their voir dire, and the scope of inquiry is best governed by a liberal discretion on the part of the Court so that if there is any likelihood that some prejudice is in the juror’s mind which will even subconsciously affect his decision, this may be uncovered. It is by examination into the attitudes and inclinations of jurors before they are sworn to try a case that litigants are enabled to reject those persons, by use of peremptory challenges where necessary, who are deemed to be unlikely to approach a decision in a detached and objective manner.2 The Constitution itself (La.Const. of 1921, Art. 1, Sec. 10) guarantees to the accused the right to peremptorily challenge jurors, “the number of challenges to be fixed by law;” that number, in the trial of any crime for which the penalty is death or necessarily imprisonment at hard labor, is twelve (R.S. 15:354). The intelligent exercise of the right of rejection, by use of those twelve peremptory challenges, is the meat of the privilege, and can be substantially weakened by a restriction of ques*397tions — the answers to which might be regarded as informative of a juror’s attitude and therefore of vital importance to his defense. In State v. Henry, 196 La. 217, 198 So. 910, 915, this Court quoted with approval from 35 C.J. at pages 387, 405 and 406; “ ‘ … parties have a right to question jurors on their examination not only for the purpose of showing grounds for a challenge for cause, but also, within reasonable limits, to elicit such facts as will enable them intelligently to exercise their right of peremptory challenge, and … it is error for the court to exclude questions which are pertinent for either purpose. … The right of peremptory challenge is a substantial right, and its freest exercise should be permitted.’ … ” (Emphasis supplied.)

¶5Upon the facts revealed by the bills under discussion and the Per Curiam thereto, it is clear that the inquiry proposed in the instant case, though inartistically phrased, was a proper one, and we fail to discern anything in its nature that would warrant denial of the privilege of eliciting a reply as to membership in a segregation group or organization. Information as to affiliation with various associations is often sought by defense counsel 3 and while such membership does not necessarily disqualify one for service as a juror,4 counsel have the right in good faith to ask jurors if they are members of organizations in order that defendant may make a more intelligent exercise of his right to challenge jurors peremptorily without cause, and thus promote the selection of a jury that is free from even an implied bias.5 Membership in an organization advocating segregation of the races might be regarded as a proper notification upon which the defendant could wish to base a peremptory challenge.6 In numerous cases refusal to allow counsel to so interrogate the jurors for the purpose of laying a foundation for peremptory *399challenge has been expressly denominated reversible error.7

¶6The prejudicial ruling in such case is not cured by the fact (as stated in the Per Curiam) that at the time the above questions were disallowed, the defense had used only two peremptory challenges, and that prior to the trial of the cause twelve jurors were peremptorily excused by the defense. Counsel may have accepted, among the six veniremen tendered, jurors he would otherwise have challenged peremptorily, and he was therefore deprived of information to which he was entitled to enable him to exercise judiciously his right of peremptory challenge. The defendant is entitled to an impartial jury, and may make such inquiries as will enable him to secure that constitutional right; and while one may not be incompetent as a juror, yet he may hold views which, if known to the accused, would be deemed a good reason for use of a peremptory challenge. If defendant is blindly to make his peremptory challenges, he may strike from the panel the very men whom he would have wished to retain, and retain those he woud have refused.8

¶7Bill of Exception No. 14 was reserved to that part of the Court’s general charge to the jury which covered the subject of flight, following defense counsel’s objection that there was no element of flight in this case and therefore the Court’s charge on the subject of flight was confusing and prejudicial to the defendant.9

¶8The defendant was charged by indict-' ment with aggravated rape, allegedly committed on the 28 of March, 1958; he was not arrested until the night of August 23, 1958, some five months later, on another complaint. Prior to August 23, 1958, no identity had been established for the assailant of the prosecuting witness; after defendant’s arrest, he was in custody of the police and made no attempt to flee or escape justice. His defense to the charge in the instant case was mistaken identity. The Trial Court, in the Per Curiam to the Bill, asks “What is controlling in resolving the question of whether or not *401the accused fled? Is it a question of time? Must it be three years? Must it be five years?” and concludes: “In this case it certainly was an element, because the accused did flee from the scene and was not apprehended until some five months later. The Court felt it must include this phase, because it was supported by the evidence.”

¶9 The fact that a crime is committed on a certain date by a person whose identity is unknown, and that subsequently an individual is taken into custody and charged with the previously committed crime, affords no basis, of itself and in view of that individual’s denial of identity with the person who committed the crime of which he stands accused, for a charge covering flight. The Court’s statement that the accused “did flee from the scene and was not apprehended until some five months later” was apparently based on the assumption that the defendánt is in fact the person who committed the crime — yet that question had not yet been submitted for determination by the jury. Since the police did not know the identity of the person whom they sought, for all that appears the accused may have been in the locality during the whole period; and the fact that the accused was taken into custody on another complaint but in the general vicinity, several months after the commission of the assault here involved, suggests nothing in so far as flight is concerned. The situation (mentioned in the Per Curiam) of one charged as a fugitive from justice of another state who has never actually been in police custody is unlike the instant case in that the identity of such fugitive is known, and he may therefore be said to have fled the scene of the crime.10

¶10In a criminal case it is error to give an instruction which is not applicable to the crime charged and which is not borne out by the evidence.11 The rule obtains that it is only where there is evidence of flight that the jury may be instructed properly to consider such flight as a circumstance tending to prove guilt in connection with the other circumstances in evidence ; but that where there is no evidence of flight, it is error to instruct thereon.12 In the instant case, in view of the absence of evidence showing any attempt, effort, or purpose on the part of the defendant to flee, the Court’s instruction was highly prejudicial and sufficient in itself to cause a reversal, since the jury might well have *403concluded that the defendant must have fled from justice — else the Court would not have charged them on flight. The law is well settled, and has often been stated by this Court, that an instruction should not be given to a jury upon a theory to which the evidence affords no support.13

¶11Bill of Exception No. 15 was reserved to the refusal of the trial judge to give the jury a requested special charge concerning the identity of the defendant.14 The Per Curiam states that “the general subject matter had already been given in the general charge, and further, the said Special Charge was not wholly correct nor wholly pertinent, and moreover would require qualification, limitation and explanation,” therefore did not meet the requirements of R.S. 15:390 concerning the duty of a judge to give requested charges. The Trial Court further states that the requested charge is misleading, seeks to give the impression that certain testimony conclusively showed a discrepancy in the prosecuting witness’ description of the clothing worn by the assailant — but that such conclusion is unwarranted; and that the Court’s refusal to give a special charge which would have to be corrected to be made applicable to the law and the facts was no error, citing State v. Poree, 136 La. 939, 68 So. 83.

¶12The sole defense of the accused in this case was that he is not the man who committed the crime charged; and he contends that there was a lack of sufficient and reliable identification of himself as the assailant. A reading of the Court’s general charge shows that the matter of identification was not covered or even referred to, yet it was exclusively within the province of the jury to determine whether the defendant was in fact the person charged with the crime. The Court’s charge to the jury “must cover every phase of the case supported by evidence, whether accepted as true or not by the trial judge.” *405State v. Robichaux, 165 La. 497, at page 507, 115 So. 728, at page 731, citing State v. Tucker, 38 La.Ann. 789; State v. Irvine, 126 La. 434, 52 So. 567; State v. Atkins, 136 La. 844, 67 So. 926. To the same effect, see State v. Youngblood, 235 La. 1087, 106 So.2d 689. And from Marr’s Criminal Jurisprudence of La. Vol. 2, pp. 1031 and 1028 respectively, “ … When from the evidence the jury might reach a conclusion of fact favorable to accused, the judge should not limit his charge to his own conclusion upon such issue, but should give a special charge, if requested, on a theory favorable to accused;” and “It is his duty to charge upon every phase of the case made by the evidence, and where evidence is offered to prove a certain state of facts, and it is claimed that they are proved, he should, if requested, charge what the law is as applicable to the facts claimed to be proved, whether he believes or attaches any importance to this evidence or not, since it belongs to the jury alone to determine the weight and credibility of the evidence. … ”

¶13Conceding, without deciding, that the Trial Judge was right in his conclusion that the requested charge as drawn was not wholly correct and would require some modification, we think such a charge should be included in the main charge, since mistaken identity was the sole and only defense of the accused.

¶14For the foregoing reasons, it is ordered that the conviction and sentence of the lower court be set aside and reversed, and that this case be remanded for a new trial in accordance with the views herein expressed.