Public-domain · open source
OpenJurist

258 La. 332

State v. Banks

Supreme Court of Louisiana

Decided March 29, 1971

Supreme Court of Louisiana · decided 1971-03-29

Cited by 6 later decisions — most recently June 1974

6 state decisions

Key passage — most relied on by later courts

“"The determination of the appropriate penalty and the imposition of sentence in non-capital cases are functions of the judge. The jury is concerned only with guilt. "Under Article 802 of the Louisiana Code of Criminal Procedure, the judge is required to charge the jury as to the law applicable to the case. Under Article 774, argument to the jury is restricted to the evidence admitted, to the lack of evidence, to conclusions of fact, and to the law applicable to the case. . . . . . . "We have held that sentence regulations in non-capital cases, such as those relating to mandatory terms, probation, or parole, are inappropriate subjects for the judge's charge to the jury. These matters are foreign to the jury's function of guilt determination and, consequently, form no part of `the law applicable to the case.' "By the same token, sentence regulations form no part of the applicable law to be argued by counsel before the jury. To allow argument of these matters would inject irrelevant considerations into the jury's deliberations as to guilt." [2]”

quoted by 1 later decision, including State v. Lewis

“"Under the law of this state the judge is required to charge the jury all the law applicable to the accused's guilt or innocence of the crime charged, or any lesser crime included therein, in the light of the evidence adduced. It is the duty of the jury in such cases to determine the guilt or innocence of the accused, but in the event of conviction it is the duty of the judge, and not the jury, to impose sentence. The fixing of the punishment for conviction is solely within the province of the judge, and is no concern of the jury except in capital cases where the jury may return a verdict of `guilty without capital punishment' and preclude the judge from imposing the death sentence. Therefore this requested special charge was not pertinent, and was correctly refused."”

quoted by 1 later decision, including State v. Lewis

Relies on State v. Andrus · State v. Green · State v. Doucet

Good law ✅— No negative treatment on recordhow we know

Decided 1971-03-29

View the full empirical analysis of this case →

TATE, Justice.

¶1The defendant was convicted of the sale of narcotic drugs (marijuana), La.R.S. 40:962 (1951), and sentenced to ten years in the state penitentiary. Although he relies on several bills of exceptions in this appeal, we discuss only Bill of Exception No. 8, because we find the error urged by it warrants reversal.

¶2This bill was perfected as to an erroneous instruction of law given by the trial court. This instruction was added by the court sua sponte and given to the jury without advance notice to counsel, cf. La.Code Crim.P. Art. 801, that it would be given.

¶3The erroneous instruction occurred in this context:

¶4The defendant, a person over 21 years of age, was, if convicted, subject to a mandatory penitentiary sentence of 10 to 50 years, without benefit of parole, probation, or suspension of sentence. La.R.S. 40:981 (2) (1963). Over the objection of the prosecution, our trial brother permitted the defense counsel to include in his argument a reference to this circumstance and to the severity of the sentence.1

¶5*335In an effort then to balance the effectiveness of this argument, our conscientious trial brother sua sponte decided to include in his charge a reference to suspending sentences and probations. He therefore read to the jury La.Code Crim.P. Art. 893, which pertinently provides that the trial court may suspend the sentence in favor of supervised probation in all non-capital felony convictions, “when it appears that the best interest of the public and of the defendant will be served.”

¶6This instruction and statement of law was erroneous. As we decided shortly before the trial below, the special prohibition against parole, suspension, or pardon in narcotic cases is not superceded by Article 893’s provision permitting suspension and probation generally in felony cases. State v. Glantz, 254 La. 306, 223 So.2d 813 (1969).

¶7In the context of the facts and argument of this case, such erroneous instruction was plainly prejudicial. It tended to induce conviction through an erroneous statement of law, in view of the (incorrect) possibility of suspension of sentence and probation. State v. Doucet, 177 La. 63, 147 So. 500 (1933) ; State v. Harville, 170 La. 991, 129 So. 612 (1930); State v. Melvin, 11 La. Ann. 535 (1856). It must also have destroyed the credibility of defense counsel before the jury, in that the trial court in effect stated that counsel had misled it as to the law.

¶8We note that the present instance is to be distinguished from those where a correct statement of the law as to parole, etc., was held to be non-prejudicial, Annotation, Reference to Parole or Pardon, 12 A.L.R.3d 832 (1967), cf. State v. Sweat, 159 La. 769, 106 So. 298 (1925), or where prejudice was held negated where the jury returned a lesser verdict permitting parole, etc., State v. Shilow, 252 La. 1105, 215 So.2d 828 (1968), State v. Satcher, 124 La. 1015, 50 So.835 (1909).

¶9For the reasons assigned, the verdict and sentence are set aside, and this case is remanded for a new trial.

¶10Reversed and remanded.

¶11. This court lias affirmed the refusal of trial judges to give special charges relative to mandatory penitentiary sentences such as that provided by the present statute. State v. Andrus, 250 La. 765, 199 So.2d 867 (1967) ; State v. Green, 244 La. 80, 150 So.2d 571 (1960). The reason given is that the imposition of sentence in non-capital cases is solely for the judge, with the jury’s concern being only to determine the guilt or innocence of the accused.

/258/la/332 · .json · Public domain