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Docket Number

No. 30538.

Attorney(S)

Warren Doyle, of New Orleans, for appellant McKee. Percy Saint, Atty. Gen., E.R. Schowalter, Asst. to Atty. Gen., and Eugene Stanley, Dist. Atty., Conrad Meyer, Jr., Asst. Dist. Atty., and J. Bernard Cocke, Asst. Dist. Atty., all of New Orleans, for the State.

Judges

BRUNOT, J.

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Smart Summary

State v. McKee et al., No. 30538 (La. May 5, 1930)

Factual and Procedural Background

Robert Altmeyer, Robert McKee (also known as Robert Horn), and William Woolfarth were arraigned in Section B of the Criminal District Court for the Parish of Orleans on an information charging robbery. On the day of trial the prosecuting officer moved for, and the court ordered, a severance as to William Woolfarth. Altmeyer and McKee were tried together, convicted, and sentenced to terms in the Louisiana State Penitentiary. The state invoked and the trial court imposed the double penalty for second offenders on Altmeyer. Both defendants appealed; Altmeyer subsequently withdrew his appeal and is now serving the sentence imposed upon him. Robert McKee is the only remaining appellant. During the trial the defendants reserved three bills of exception, which McKee urges on appeal.

Legal Issues Presented

Whether the trial court erred in proceeding with the trial without serving the defendant with a copy of the regular venire of Section D of the Criminal District Court 48 hours before tales jurors from that venire were called into Section B to complete the jury panel (Bill No. 1).
Whether the trial court erred in (a) permitting a statement by the assistant district attorney in his opening argument concerning testimony the state expected to prove but did not produce, (b) refusing to grant a mistrial on that ground, and (c) allowing a remark by the judge ("That is ridiculous") in the presence of the jury (Bill No. 2).
Whether the trial court erred in overruling the defendants' motion for a new trial where the motion alleged the verdict was contrary to the law and the evidence (Bill No. 3).

Arguments of the Parties

Appellant's (Defendant's) Arguments

(Bill No. 1) Counsel contended that regular venires for all sections of the criminal court were drawn at the same time and that, because jurors drawn for Section D were called into Section B as tales jurors, the defendant should have been served with a list of those jurors 48 hours before trial as required by Rev. St. § 992.
(Bill No. 2) Counsel objected to the assistant district attorney's opening statement referencing testimony he expected from witnesses (the Lafonts and Le Blanc) that were not subsequently called, and asked for a mistrial; counsel also excepted to the trial judge's remark characterizing the mistrial request as "ridiculous."
(Bill No. 3) The motion for a new trial alleged, among repeated grounds, that the verdict was contrary to the law and the evidence.

State's Arguments

(Bill No. 1) The state relied on Article 201 of the Code of Criminal Procedure, which authorizes, when a panel is exhausted, either drawing tales jurors from the tales jury box or calling jurors summoned for other sections to serve as tales jurors; the trial judge acted within his discretion under Article 201.
(Bill No. 2) The assistant district attorney, in compliance with Article 333 of the Code of Criminal Procedure, announced the names of state witnesses and summarized expected testimony in good faith; the state closed its case without calling some witnesses and believed the charge had been proven beyond a reasonable doubt without further testimony.
(Bill No. 3) The state relied on established authority that a new trial cannot be granted on the mere allegation that the verdict is contrary to the law and evidence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Washington, 108 La. 227, 32 So. 396	That Rev. St. § 992 (service of information and jury venire two full days before trial where imprisonment may be seven years or more) does not apply to tales jurors.	Cited as one of the repeated holdings establishing that § 992 does not apply to tales jurors; supports denial of Bill No. 1.
State v. Bordelon, 113 La. 690, 37 So. 603	That Rev. St. § 992 does not apply to tales jurors.	Cited to support the same proposition and the court's disposition of Bill No. 1.
State v. Thompson, 116 La. 829, 41 So. 107	That Rev. St. § 992 does not apply to tales jurors.	Cited to support the same proposition and the court's disposition of Bill No. 1.
State v. Laborde, 120 La. 136, 45 So. 38	That Rev. St. § 992 does not apply to tales jurors.	Cited to support the same proposition and the court's disposition of Bill No. 1.
31 Cent. Dig. Jury, § 598	Cases in point in other jurisdictions regarding the treatment of tales jurors and venires.	Cited as additional authority from other jurisdictions relevant to Bill No. 1.
Nichamin v. U.S. (C.C.A.) 263 F. 880	That opening statements made in good faith by the prosecution are not prejudicial to the defendant.	Cited among authorities supporting the proposition that the assistant district attorney's opening argument (made in good faith) was not prejudicial; supports denial of Bill No. 2.
People v. Reitz, 86 Cal.App. 791, 261 P. 526	That opening statements made in good faith by the prosecution are not prejudicial.	Cited in the list of authorities supporting the court's view of Bill No. 2.
Ragsdale v. State, 132 Ark. 210, 200 S.W. 802	That opening statements made in good faith by the prosecution are not prejudicial.	Cited in the list of authorities supporting the court's view of Bill No. 2.
State v. McDonald, 21 N.M. 110, 152 P. 1139	That opening statements made in good faith by the prosecution are not prejudicial.	Cited in the list of authorities supporting the court's view of Bill No. 2.
Nicholson v. State, 18 Wyo. 298, 106 P. 929	That opening statements made in good faith by the prosecution are not prejudicial.	Cited in the list of authorities supporting the court's view of Bill No. 2.
People v. Wong Hing, 176 Cal. 699, 169 P. 357	That opening statements made in good faith by the prosecution are not prejudicial.	Cited in the list of authorities supporting the court's view of Bill No. 2.
People v. Gleason, 127 Cal. 323, 59 P. 592, 593	That opening statements made in good faith by the prosecution are not prejudicial.	Cited in the list of authorities supporting the court's view of Bill No. 2.
People v. Searcey, 121 Cal. 1, 53 P. 359, 41 L.R.A. 157	That opening statements made in good faith by the prosecution are not prejudicial.	Cited in the list of authorities supporting the court's view of Bill No. 2.
People v. Donaldson, 36 Cal.App. 63, 171 P. 442	That opening statements made in good faith by the prosecution are not prejudicial.	Cited in the list of authorities supporting the court's view of Bill No. 2.
Shacklett v. State, 23 Okla. Cr. 4, 211 P. 1063	That opening statements made in good faith by the prosecution are not prejudicial.	Cited in the list of authorities supporting the court's view of Bill No. 2.
U.S. v. Stern (D.C.) 186 F. 854	That opening statements made in good faith by the prosecution are not prejudicial.	Cited in the list of authorities supporting the court's view of Bill No. 2.
People v. Davis, 26 Cal.App. 647, 147 P. 1184	That opening statements made in good faith by the prosecution are not prejudicial.	Cited in the list of authorities supporting the court's view of Bill No. 2.
State v. Rasco, 239 Mo. 535, 144 S.W. 449	That opening statements made in good faith by the prosecution are not prejudicial.	Cited in the list of authorities supporting the court's view of Bill No. 2.
Corpus Juris, vol. 16, § 2226, p. 890	Text authority supporting that opening statements made in good faith are not prejudicial.	Cited as text authority in support of the court's treatment of Bill No. 2.
State of Louisiana v. Joe Ricks, ante, p. 507, 128 So. 293	Recent decision cited in support of the proposition regarding opening statements and related procedural matters (decided March 31, 1930).	Cited among authorities supporting the court's view on Bill No. 2.
State v. Kennon, 45 La. Ann. 1192, 14 So. 187	The principle that "not only error, but injury, must be alleged and shown to justify the reversal of a judgment."	Quoted and relied upon to support the conclusion that the judge's remark and the assistant district attorney's argument were not reversible error absent a showing of injury.
State v. Robertson, 133 La. 806, 63 So. 363, 365	That a new trial cannot be obtained on the mere allegation that the verdict was contrary to the law and evidence.	Cited to support denial of the motion for a new trial (Bill No. 3).

Court's Reasoning and Analysis

Bill No. 1:

The court examined Rev. St. § 992 and Article 201 of the Code of Criminal Procedure. It noted that § 992 requires service of the information and jury venire two full days prior to trial when imprisonment may be seven years or more, but that this court has repeatedly held § 992 does not apply to tales jurors (citing State v. Washington; State v. Bordelon; State v. Thompson; State v. Laborde).
The court quoted Article 201 in full and explained that Article 201 provides two methods for completing the jury in Orleans Parish after the regular venire is exhausted: (1) drawing talesmen from the tales jury box; or (2) calling jurors summoned for other sections to report as tales jurors, at the trial judge's discretion with consent of presiding judges.
The trial judge adopted the latter authorized method by calling jurors drawn for Section D into Section B as tales jurors. Because Article 201 authorizes this procedure and its constitutionality was not questioned, the court found no merit in the objection that the defendant had not been served with the Section D venire 48 hours before trial.

Bill No. 2:

The assistant district attorney, complying with Article 333 of the Code of Criminal Procedure, announced state witnesses and summarized expected testimony, including that Ferdinand Lafont, Jr. would testify he scooped envelopes from Lake Pontchartrain and that other witnesses would identify envelopes recovered from a canal as matching the payroll.
The state closed its case without calling the Lafonts and Le Blanc; the record does not disclose why they were not called. The court observed there is no law requiring the district attorney to call all state witnesses who are present.
The court treated the assistant district attorney's opening statement as a legitimate inference to be drawn from the testimony actually presented by other state witnesses (including Mrs. Winkler and witnesses who found and identified a package of pay envelopes). The court concluded the assistant district attorney's statement was made in good faith and was not prejudicial, citing numerous authorities (federal and state cases and Corpus Juris).
Regarding the trial judge's remark ("That is ridiculous") in response to defense counsel's mistrial request, the court held the characterization was not prejudicial to the defendant. The court invoked the principle from State v. Kennon that reversal requires not only error but injury, and emphasized the rule's special force where no request to correct the error and no exception to the charge to the jury were made.

Bill No. 3:

The motion for a new trial largely repeated grounds raised in the earlier bills and merely alleged the verdict was contrary to the law and the evidence.
The court applied the settled rule (State v. Robertson) that a new trial cannot be granted on the mere allegation that the verdict was contrary to the law and the evidence, and therefore found no basis for a new trial.

Holding and Implications

HOLDING: The verdict and sentence are AFFIRMED.

Implications: The trial court's procedures for completing the jury under Article 201 were upheld; the court endorsed that reasonable opening statements made in good faith by the prosecution are not reversible error when some expected witnesses are not called; and a motion for a new trial will not be granted on the mere allegation that the verdict is contrary to the law and evidence. The direct effect is that Robert McKee's conviction and sentence are sustained. The opinion does not announce or claim to establish any new legal doctrine beyond applying settled statutes and precedent.

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STATE v. McKEE ET AL.

BRUNOT, J.

Robert Altmeyer, Robert McKee, also known as Robert Horn, and William Wollfarth were arraigned in section B of the criminal district court of the parish of Orleans, upon an information charging them with the crime of robbery. On the date of the trial, the court, upon the motion of the prosecuting officer, ordered a severance as to William Woolfarth. Altmeyer and McKee were tried, convicted, and sentenced to serve a term in the Louisiana state penitentiary. The state invoked, and the court imposed, the double penalty provided by law for second offenders, upon Altmeyer, and both defendants appealed. After the appeals were lodged in this court, Robert Altmeyer withdrew his appeal and is now serving the sentence imposed upon him.

During the trial the defendants reserved three bills of exception, which are now urged by Robert McKee, the only remaining appellant.

Bill No. 1.

This bill is based upon the fact that defendant was not served with a copy of the regular venire of section D of the criminal district court 48 hours before said jurors were called into section B of the court, as tales jurors, to complete the jury panel for the trial of this case. The overruling of defendant's objection to proceeding with the trial, for the reason stated, is the only question the bill presents. The crime of robbery is necessarily punishable by imprisonment in the state penitentiary, and may exceed seven years. Rev. St. § 992, provides that where the term of imprisonment may be seven years or more the defendant must be served with a copy of the information or indictment and the jury venire two full days before the trial of the case. This court has repeatedly held that section 992, Rev. St., does not apply to tales jurors. State v. Washington, 108 La. 227, 32 So. 396; State v. Bordelon, 113 La. 690, 37 So. 603; State v. Thompson, 116 La. 829, 41 So. 107; State v. Laborde, 120 La. 136, 45 So. 38. For cases in point in other jurisdictions, see 31 Cent. Dig. Jury, § 598.

There is no law which requires that tales jurors shall be drawn or summoned prior to the trial. That is a matter within the discretion of the judge. Nor is there any law requiring that the progress of the trial shall be halted in order that an accused might be served with the list of talesmen summoned to complete the panel after the regular venire had been exhausted. The contention of counsel for defendant is that regular venires for all sections of the criminal court were drawn at the same time, and as the judge of section B called in the regular venire drawn to serve in section D to complete the panel for the trial of this case, the defendant should have been served with a list of said jurors 48 hours before the trial. The judge followed the letter and spirit of article 201 of the Code of Criminal Procedure. The article is as follows:

"Whenever a petit jury for the Criminal District Court shall have been drawn, and before the trial of every cause, the criminal sheriff shall place in a box the names of the persons composing the said petit jury, and shall draw therefrom, in open court, by lot; and the order in which the names shall be * * * presented for empanelment; provided, in case the said panel should be exhausted, the names of the tales jurors shall be placed by said criminal sheriff in said box, and shall be drawn in open court, by lot, and said tales jurors shall be presented for empanelment in the same manner as herein provided for the regular panel of petit jurors.

"Provided further, that the judge of any Section of the Court wherein a case is being tried, if the jury panel in said Section of said Court is, or about to be, exhausted, before ordering the tales jurors to be summoned and drawn from the Jury Wheel, as provided in this Code, may, at his discretion, when jurors are serving on the regular or special panels, in other Sections of the said Criminal District Court, with the consent of the presiding Judges of said Section, have all of the panel of jurors, in any one, or all of the said Sections, who are not actually serving as petit jurors in the trial of a case report to his said Section of the said Court, as tales jurors, and when the panel of such Section of the said Court, so summoning the said jurors, is exhausted, their names shall be placed in the box provided, as aforesaid, for the selection of petit jurors, and drawn therefrom, in open Court, by lot, and the order in which the said names shall be drawn shall be that in which they shall be presented for impanelment as provided for the jurors of the regular panel, and those sworn and selected shall serve as though regularly summoned as tales jurors, and those not selected shall report back to the said Sections where they are serving until discharged.

"Provided further, that this is not to be construed as in any manner preventing the trial judge from ordering other tales jurors to be summoned, as provided for in this Code."

It is seen that the quoted article of the Code of Criminal Procedure provides two methods, for the parish of Orleans, for completing the jury, after the regular venire has been exhausted; one, by the regular drawing of talesmen from the tales jury box, and the other by calling, as talesmen, the regular venire drawn to serve in other sections of the criminal district court of that parish. The judge adopted the latter course in this case, and as he is authorized by Article 201 of the Code of Criminal Procedure to do so, and as the constitutionality of this article of the Code of Criminal Procedure is not questioned, we see no merit in this bill.

Bill No. 2.

This bill is based upon three objections unsuccessfully urged by counsel for defendant, viz.: An objection to a statement made by the prosecuting officer in his opening argument to the jury; an objection to the refusal of the court to order a mistrial of the case; and an objection to a remark made by the judge in the presence of the jury.

When the jury had been completed, the assistant district attorney, in compliance with article 333 of the Code of Criminal Procedure, announced to the jury the names of the witnesses for the state and summarized the testimony he expected each state witness to give. He named, among other state witnesses, Ferdinand Lafont, Sr., Ferdinand Lafont, Jr., and Le Blanc. He stated that these witnesses would testify that the accused spent the night before the robbery at the elder Lafont's camp near Little Woods; that said witnesses left the accused at the camp at 7:30 a.m. the morning of the robbery, and upon their return to the camp at noon of that day they found the accused there. He stated that he expected to prove by Ferdinand Lafont, Jr., that about dusk on the day of the robbery, Robert Altmeyer, one of the accused, caused him to put on a bathing suit, and, with a scoop net, go into the waters of Lake Pontchartrain, near the camp, and scoop up a number of envelopes or slips similar to pay envelopes which he expected to identify, by other witnesses, as the envelopes in which were contained the money, the subject of the robbery. The state closed its case without offering either of the Lafonts or Le Blanc as state witnesses, but did call Mrs. Peter Winkler, who testified that, on the day of the robbery, she saw Ferdinand Lafont, Jr., clad in a bathing suit, and with a net in his hand, go into the waters of the lake and scoop something therefrom. The state offered another witness who testified that he found a package of pay envelopes or slips under a bridge across the Dwyer Canal on the Downman or Little Woods road, and another witness who, after identifying the contents of the package, testified that the names, numbers, and amounts typewritten on the face of the envelopes corresponded with his pay roll sheet of September 28, the date of the robbery, and that, prior to the robbery, he had placed in each envelope the sum of money typewritten on the face thereof. It appears that the defendants did not offer any testimony whatever. In the opening argument the assistant district attorney said:

"Now Gentlemen, referring to these envelopes or slips, which has been testified were taken out of the Dwyer Canal on the Dowman Road, couldn't it be inferred or the conclusion drawn, that these are the same envelopes that were taken from the waters of Lake Pontchartrain, by young Lafont, when it was said that he put on a bathing suit and with a scoop net went into the lake and scooped them out of the water at Little Woods at Lafont's camp."

The quoted statement of the assistant district attorney was objected to by counsel for the accused for the reason that the prosecuting officer had failed to call either of the Lafonts or Le Blanc to the stand as state witnesses, and he therefore requested the court to order the entry of a mistrial of the case. The court denied counsel's request and characterized it as ridiculous. The exact words of the court were, "That is ridiculous." Counsel excepted to this statement by the court and reserved a bill of exceptions both to the overruling of his request for the entry of a mistrial and to the language of the court.

It is not contended that the assistant district attorney is chargeable with bad faith or with any misstatement of the facts he expected to prove by the Lafonts and Le Blanc. The record does not disclose why the persons named were not called to the stand as witnesses. As the accused were convicted, we may assume that when the assistant district attorney closed the state's case, in chief, he believed that the charge had been proven, beyond a reasonable doubt, without the necessity of offering further testimony; and as the defendants offered no testimony, there was nothing for the state to rebut. There is no law which requires the district attorney to cause all state witnesses, who are present in court, to testify. The opening statements of the district attorney, when made in good faith, are not prejudicial to the defendants. Nichamin v. U.S. (C.C.A.) 263 F. 880; People v. Reitz, 86 Cal.App. 791, 261 P. 526; Ragsdale v. State, 132 Ark. 210, 200 S.W. 802; State v. McDonald, 21 N.M. 110, 152 P. 1139; Nicholson v. State, 18 Wyo. 298, 106 P. 929; People v. Wong Hing, 176 Cal. 699, 169 P. 357; People v. Gleason, 127 Cal. 323, 59 P. 592, 593; People v. Searcey, 121 Cal. 1, 53 P. 359, 41 L.R.A. 157; People v. Donaldson, 36 Cal.App. 63, 171 P. 442; Shacklett v. State, 23 Okla. Cr. 4, 211 P. 1063; U.S. v. Stern (D.C.) 186 F. 854; People v. Davis, 26 Cal.App. 647, 147 P. 1184, State v. Rasco, 239 Mo. 535, 144 S.W. 449; Corpus Juris, vol. 16, § 2226, p. 890; State of Louisiana v. Joe Ricks, ante, p. 507, 128 So. 293, decided March 31, 1930.

It is our opinion that the argument of the assistant district attorney, to which defendant excepted and made the basis of this bill, was a legitimate inference to be drawn from the testimony of the three witnesses which we have summarized supra. We are also of the opinion that the judge's characterization of the defendant's request that a mistrial of the case be ordered as ridiculous was not prejudicial to the defendant.

"Not only error, but injury, must be alleged and shown to justify the reversal of a judgment." State v. Kennon, 45 La. Ann. 1192, 14 So. 187.

The rule that error and injury must be shown has especial force where there is no request that the error be corrected and no exception is taken to the charge to the jury.

Bill No. 3.

This bill was reserved to the overruling of a motion for a new trial. Aside from a repetition of the grounds urged in the two bills we have disposed of, the motion merely contains an allegation that the verdict is contrary to the law and the evidence.

"A new trial cannot be obtained on the mere allegation that the verdict was contrary to the law and evidence." State v. Robertson, 133 La. 806, 63 So. 363, 365. See also authorities cited in 2 La. Dig. § 447 page 675.

For the reasons stated, the verdict and sentence are affirmed.

STATE v. McKEE