State v. Williams

248 So. 2d 295, 258 La. 801, 1971 La. LEXIS 4381

Opinions

TATE, Justice.

The' defendant was convicted of manslaughter, La.R.S. 14:31(1), and sentenced to five years in the state penitentiary. The defendant perfected six bills of exceptions, but abandoned three of them (Nos. 2, 3, and 6) on appeal. We find no error in the trial court’s rulings complained of by the remaining bills (Nos. 1, 4, and 5).

Bill of Exceptions No. 1

On the date the jury term commenced, the trial judge announced he had previously excused nine prospective jurors for cause. Before the first case was called for trial, he excused eleven others of the venire for cause (illiteracy, hard of hearing, ill, etc.). The minutes do not show the defendant was present.

When the defendant’s case was called, her counsel objected to trial before a jury drawn from this panel, since a number of jurors had been excused out of her presence. She contends this violated her right to be present at every stage of the proceedings, including the calling and examination of the jury. La.Crim.P. Art. 831(3).

A trial court may excuse a member of the petit jury venire at any time prior to the time he is sworn as a juror to try a particular case. La.C.Crim.P. Art. 783. He may excuse members of the venire in advance of the time of trial, providing he does not abuse his discretion in this regard. Official Revision Comment (b), Article 783; State v. Ceaser, 249 La. 435, 187 So.2d 432 (1966).

A juror is not “called” or “examined” within the meaning of La.C.Crim. P. Art. 831(3), until he is called for examination in the trial of that particular defendant, see La.C.Crim.P. Art. 761. The defendant need not be present when the trial judge excuses prospective jurors before his own case is called for trial. State v. McGuire, 254 La. 560, 225 So.2d 215 (1969).

No abuse is here shown of the trial court’s discretion to excuse prospective jurors in advance of the defendant’s trial. The trial court correctly overruled the defendant’s objection and permitted trial before a jury drawn from the reduced ve-' nire.

Bill of Exceptions No. 4

At the close of the State’s case, the defendant moved for a directed verdict under La.C.Crim.P. Art. 778. This code provision states that the judge may direct the verdict “if the evidence is insufficient to sustain a conviction.” The defendant objected to the trial court’s denial of the motion and perfected a formal bill of exceptions (No. 4) to this ruling. A majority of this court adheres to the view that Article 778 is unconstitutional. State v. Hudson, 253 La. 992, 221 So.2d 484 (1969). The trial court properly denied the motion for directed verdict.¹

Bill of Exceptions No. 5

The defendant moved for mistrial after the jury was shown a paper bag marked “murder”.² The bag contained some of the exhibits. The defendant also (belatedly) objected to the admission into evidence of this bag.

Prior to the belated objection and motion for mistrial, the bag (S-22) and contents had been introduced in evidence and shown to the jury. The defendant’s counsel had specifically stated, “No objection”, when the bag was introduced. He did not object to its being shown to the jury until after the prosecutor had received permission from the court and had shown the bag to the jurors. After defense counsel made his (belated) objection, the court instructed the jury to disregard .the writing on the bag as of no significance.

Under the circumstances, we are of the opinion that the defendant waived his right to object to admission of the evidence by not doing so before the bag was introduced and shown to the jury. La.Code Crim.P. Art. 841. Further, the admonition by the trial court' to disregard as irrelevant the informal investigatory identification mark had the effect of curing what slight prejudice under the circumstances may have been caused the defendant.

Decree

The conviction and sentence are affirmed.

Affirmed.

BARHAM, J., concurs in the concurring opinion of TATE, J. TATE, J., assigns additional concurring reasons. DIXON, J., concurs with the majority on Bills of Exceptions No. 1 and No. 5 and joins in the concurring opinion of TATE, J., on Bill of Exceptions No. 4.

Footnotes

1

. This court has since followed Hudson on several occasions: State v. Holmes, 258 La. 221, 245 So.2d 707 (1971); State v. Square, 257 La. 743, 244 So.2d 200 (1971); State v. Braxton, 257 La. 183, 241 So.2d 763 (1970); State v. Douglas, 256 La. 186, 235 So.2d 563 (1970); and State v. O'Brien, 255 La. 704, 232 So.2d 484 (1970).

2

. The pencilled notation had been made for identification by a deputy sheriff during the investigative period, when the defendant was charged with “murder” rather than “manslaughter”.