State v. Flood

269 So. 2d 212, 263 La. 700, 1972 La. LEXIS 5772

Opinions

DIXON, Justice.

We granted writs in this case, as in State v. Holmes, No. 52812, 263 La. 685, 269 So.2d 207, this day decided, to consider the effect of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), upon the administration of criminal justice in Louisiana.

The State reserved a bill of exceptions-when, at a hearing to fix bond for defendant, accused of murder, the district judge ruled that C.Cr.P. 313 was no longer effective, due to the unconstitutionality of the imposition and execution of the death pen 'alty. The district judge ruled that he would hear no testimony to determine if the “proof is evident of the presumption great.” Apparently considering only the factors set out in C.Cr.P. 317, the district judge fixed bail at $10,000.

As in State v. Holmes, supra, we are met not only with statutory provisions (C. Cr.P. 312, 313) but also with constitutional¹ provisions which refer to “capital offenses.” Louisiana Constitution, Article 1, Section 12, provides:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted. All persons shall be bailable by sufficient sureties, except the following: 1. Persons charged with a capital offense, where the proof is evident or the presumption great. Persons convicted of felonies, provided that where a minimum sentence of less than five years at hard labor is actually imposed, bail shall be allowed pending appeal until final judgment.”

Since the Furman case has eliminated “capital offenses” in Louisiana, argues the defendant, she is entitled to bail pending trial regardless of whether the proof is evident or the presumption great. •

The right to bail in Louisiana is and has always been a fundamental one. Our present constitutional provision for bail tracks the language found in each of the eight preceding constitutions of this State.²

As far as we can determine, there have always been capital offenses in Louisiana until Furman v. Georgia, supra. Now, since there are no capital offenses in Louisiana, must we disregard part of our constitutional bail provisions, and enforce another part? We think not, as long as there is an interpretation which will give meaning and significance to the entire provision.

As in State v. Holmes, supra, we conclude that Furman v. Georgia does not destroy the system. of classification of crimes in Louisiana. Murder is still a crime, and, when our legislature last acted with respect to it, murder was, as it has ever been, a capital crime. The crime remains unchanged; only the penalty has been changed. True, the penalty is what made murder a capital offense, and it is not actually a capital offense in Louisiana today. But the nature of the offense has not changed — only the punishment.

Because the system of classifying certain serious offenses as capital, and then providing the procedural structure for the administration of criminal justice based on that classification is so fundamental in the organization of our criminal statutes, we find it preferable to make no change in the interpretation of the constitutional provisions concerning bail. Those offenses classified as capital before Furman v. Georgia are still classified as capital offenses, and those charged with an offense punishable by death before Furman v. Georgia are not entitled to bail where the proof is evident or the presumption great.³

For these reasons, and those expressed in State v. Holmes, supra, we find merit in Bill of Exceptions No. 1. Upon motion of the State and after notice to defendant, the district judge shall conduct a hearing pursuant to the provisions of C.Cr.P. 313..

BARHAM, J., dissents with written reasons. TATE, J., concurs in BARHAM, J.’s dissent and additionally dissents for the reasons stated by him in State v. Holmes, 263 La. 685, 269 So.2d 207, this date.

Footnotes

1

. We are concerned in this case only with Louisiana constitutional requirements. The United States Supreme Court has never decided whether state provisions, which provide that no bail shall be allowed in certain crimes, violate the Eighth Amendment to the United States Constitution. However, the United States Court of Appeals for the Eighth Circuit decided, in Mastrian v. Hedmann, 326 F.2d 708 (1964), that there are offenses for which the state may constitutionally provide that the right to bail does not exist. At least one federal district court, in Arsad v. Henry, 317 F.Supp. 162 (D.C.N.C.1970), and one state supreme court, in Steigler v. Superior Court In and For New Castle County, 252 A.2d 300 (Del.1969), cert. denied 396 U.S. 880, 90 S.Ct. 160, 24 L.Ed.2d 139 (1969), have held that a state may constitutionally provide that there is no right to bail in “capital cases.”

2

. Art. 6, § 19, La.Const. of 1812; Art. 108 of La.Const. of 1845; Art. 104 of La.Const. of 1852; Art. 106 of La.Const. of 1864; Art. 7 of La.Const. of 1868; Art. 9 of La.Const. of 1879; Art. 12 of La.Const. of 1898; Art. 12 of La.Const. of 1913.

The same language appears in the 1682 Laws of the Province of East Jersey. State v. Johnson, 1972, 61 N.J. 351, 294 A.2d 245.

3

. The Supreme Courts of Colorado and California have applied the “classification” theory to uphold bail provisions similar to those of Louisiana after the application of the death penalty became unconstitutional in their jurisdictions. People v. District Court (Nixon and McElravy). Colo.1972, 500 P.2d 358 and People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880 (1972) (fn. 45). The Supreme Court of New Jersey and the Texas Court of Criminal Appeals found that bail provisions similar to those in Louisiana are no longer viable because there are no more “capital offenses.” State v. Johnson, 1972, 61 N.J. 351, 294 A.2d 245 and Ex Parte Contella, Tex. Cr.App.1972, 485 S.W.2d 910. The Supreme Court of Florida in Donaldson v. Sack, 265 So.2d 499 (Fla.1972), noted that Furman v. Georgia did not affect the Florida bail provisions because Art. 1, See. 14 of the Florida Constitution, F.S.A., provides that there shall be no bail available where the defendant is “charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great.”. .