The opinion
OVERTON, J.
(dissenting). Until comparatively recent times one accused of crime enjoyed the right of trial by jury; that is, by the historic jury of 12, whether he was charged with misdemeanor, felony, or treason. In 1879, however, a partial departure from the above rule was deemed advisable, and the General Assembly was authorized, by the Constitution of that year, to provide f oi; the trial of cases in which the penalty was not necessarily imprisonment at hard labor, or was not death, by a jury composed of less than 12' members. Even in those cases, however, the right to a trial by a jury of 12 was retained, subject only to the right vested in the General Assembly to provide for their trial by a jury of less than that number. Constitution 1879, art. 7. In the last paragraph of article 117 of the Constitution cited, the General Assembly was directed to provide for special juries to serve at other than regular jury terms, when necessary, for the trial of criminal cases; and, pursuant to that article and to article 7, it adopted Act 35 of 1880, by which it authorized district judges, “at terms other than regular jury terms,” to order a special jury, and to designate the number of jurors to be drawn for the venire, ifor the trial of all criminal cases in which the penalty was not necessarily imprisonment at hard, labor or death. The act provided that all trials held under its provisions should be before a jury composed of 5 members. Act 35 of 1880. See, also, State v. White, 33 La. Ann. 1220 ; State v. Briggs, 34 La. Ann. 69 ; State v. Everage, 33 La. Ann. 120 .
In 1898 a more decided and far-reaching change was made. The Constitution adopted in that year' provided that all cases in which the punishment was not at hard labor should be tried by the court without a jury until otherwise provided by law, which should not be prior to 1904; that cases in which the punishment was with or without hard labor should be tried by a jury of 5, all of whom were required to concur to render a verdict; that cases in which the punishment was necessarily at hard labor, by a jury of 12, 9 of whom were required to concur to render a verdict; and that cases in which the punish! ment might be death, by a jury of 12, all of whom had to concur to render a verdict. Constitution 1898, art. 116. This provision was carried into the Constitution of 1913 verbatim, except that there was no limitation placed on the. power of the General Assembly to permit trial by jury in cases not punishable at hard labor, but that body was expressly authorized to grant the privilege whenever it saw proper. Constitution 1913, art. 116. The provisions of the Constitution of, 1913 • relative to jury trial were carried verbatim into the present Constitution, under which this case is to be determined. Constitution 1921, art. 7, § 41, p. 50.
It is obvious that the purpose sought to be accomplished by the Constitution of 1879, in authorizing the General Assembly to provide in a certain class of cases for trial by a jury composed of less than 12, was to expedite the trial of such cases, and to lessen the cost of criminal procedure; it being considered that this could be done without affecting injuriously the administration of justice. It is likewise obvious that, when the constitutional convention of 1898 went even further than the convention of 1879, by adopting the provision mentioned relative to the trial of criminal cases, its purpose was the same, though more enlarged, as that of the convention of 1879, and that the purpose of keeping down criminal expenses and expediting criminal trials was the end in view that prompted the carrying into the Constitution of 1913, and thence into the Constitution of 1921, the provisions of that of 1898, with the unimportant exception mentioned above, relative to the *773 limitation on the power of the General Assembly to provide for trial by jury, where none was granted by the Constitution of 1898 ■ — a limitation which; prior to the adoption of the Constitution of 1913, had expired, by the lapse of time.
No other purpose, in my view, can be assigned for including the above provisions in the Constitutions mentioned than the one named. This court, in the case of Sfate v. White, in interpreting article 7 of the Constitution of 1879, which, as stated, authorized the General Assembly to provide for the trial of a certain class of criminal eases by a jury of less than 12, said that the purpose of the article was to provide for the more speedy trial of such cases and to reduce criminal expenses, and, later, in passing on a case arising under the Constitution of 1898, in interpreting article 116 of -that'instrument, ascribed substantially the same purpose to that article, when the court said:
“It is obvious that it requires a greater expenditure of time and money to attain results in criminal prosecutions by means of trials by juries of 12, where all must agree, than by such juries, where 9, concurring, may bring in the verdicts; that juries of 12, where 9, concurring, may bring in the verdicts, are slower and more expensive than juries of 5; that results are facilitated and expenses reduced when the juries of 5 are waived, or when, without such waivers, the judges try the cases. From which, and from common knowledge upon the subject, we are satisfied that the purpose, and the only purpose, of the framers of, the Constitution, in providing the different methods of trial thus mentioned, was to facilitate, , expedite, and reduce expense in the administration of criminal justice.” State v. Lewis, 129 La. 800 , 56 South. 893 .
It is this purpose of the Constitution of 1898, continued in the present organic law, which must be kept in view in construing the latter instrument. As stated in Corpus Juris, p. 700, § 43:
“The fundamental purpose in construing constitutional provisions is to ascertain and give effect to the intent of the framers and of the people who adopted it. The court, therefore, should constantly keep in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. Constitutional provisions are presumed to haye been more carefully and deliberately framed than is the case with statutes; hence it is sometimes said that less latitude should be indulged by the courts in their construction. On the other hand, it is a well-settled principle of constitutional construction that such construction should not be technical, and should be neither liberal nor strict, but the courts should aim to give effect to the purpose indicated by a fair interpretation of the language used.”
. Section 41 of article 7 of the Constitution of 1921, relative to the methods of trial by jury, in my view, máy be, and should be, interpreted so as to authorize the trial of an offense, not necessarily punishable at hard labor, by a jury of 12, under certain circumstances. These circumstances arise when the offenses charged are of kindred character, and grow out of the same transaction, and may be charged in the same indictment or information, in separate counts, and are so charged. It is not a sufficient answer to this statement to say that such offenses cannot be incorporated in separate counts in an indictment or information, for the reason that they are not triable in the same manner, and before the same tribunal, for the question is whether they are so triable. If they are so triable, there is no reason why they should not be .incorporated in the same indictment.
The language of section 41 of article 7 of the Constitution of 1921 is sufficiently broad to permit two offenses of kindred character, and growing out of the same transaction, such as burglary and larceny, when the larceny is charged to have been committed in connection with the burglary, to be joined in separate counts, in the same indictment or information, and to be tried before the tribunal having jurisdiction of the greater offense, and in the same manner in which that offense is triable, although, if the offenses were tried separately, each would be triable before a *775 different tribunal. The language of section 41 is not that offenses necessarily punishable at hard labor shall be tried by a jury of 12, or that offenses punishable with or without hard labor, at the discretion of the court, shall be tried by a jury of 5, or by the court, but that “cases, in which the punishment is necessarily at hard labor, by a jury of twelve,” and “cases in which the punishment may be at hard labor,” by a jury of 5, reserv^ ing to the defendant, in section 42, in the latter class of cases, the right to waive trial by jury, and to be tried by the court. In my view, the constitutional convention used the word “cases” advisedly, and intended that the word should be given its broadest signification. The convention was seeking to accomplish its purpose of keeping down criminal expenses, and of expediting the trial of criminal cases, without injuriously affecting the administration of justice, and hence used the word “cases” instead of “offenses,” on the theory that two or more offenses might be charged in separate counts, in the same indictment or information, and constitute but one case, and be docketed and tried as such. The convention of 1921 realized fully,, as did the one of 1898, that there were instances in which the above might be the case, and neither did it nor the convention of 1898 intend or desire to change criminal procedure in that respect, although it might be that the punishment for one of the offenses should be necessarily imprisonment at hard labor, and for the other imprisonment with or without hard labor. Such a change would have been directly in conflict with the purpose of those conventions in adopting the constitutional provisions mentioned. It would have increased the expense of trying such cases by requiring two trials where before only one was necessary, and, moreover, instead of expediting criminal trials in the class of cases under consideration, the change would have had a direct tendency, without promoting the interests of justice, to retard them. Hence the conventions of 1898 and 1921 were careful, in framing the provisions relative to trial by jury, contained in the Constitutions adopted and promulgated by them, to use such language as to permit the purpose they had in view to be accomplished. Under the language used, considered in connection with the purpose in view, it was the intention that, if the case should be one charging two kindred offenses, growing out of the same transaction, and charged in separate counts, it should be the more penal offense that should characterize the case, and be determinative of the method of'trial, when the prisoner is to be tried for both offenses at the same time.
In the case of State v. Lewis, from which I have quoted above, such was substantially the view taken by this court under the Constitution of 1898. In the present case the majority opinion, however, takes the position that the Lewis Case is not precedent herein, for the reason that the Lewis Case does not turn on the question as to whether the jury, of 12 had jurisdiction of the larceny as well as of thfe burglary, but on the point that the trial court imposed but one sentence, which was less than the maximum sentence it had a right to impose on the conviction for burglary, and hence that the court in the Lewis Case refused to disturb the verdict and sentence. In my view, howfever, the judgment in the Lewis Case was affirmed on two grounds: First, on the ground that when the larceny is charged, in a separate count, as having been committed in connection with the burglary, and the accused is tried on both counts, at the same time, the jury having jurisdiction of the burglary also has jurisdiction of the larceny; and, secondly, where there is a conviction on both counts, and the judge imposes but one sentence, which is less than the maximum for burglary, the court will not disturb the sentence.
That the court decided the case on both *777 grounds, and especially on the first one mentioned, appears from the following facts: The opinion, after stating the two charges preferred against the prisoner, and after observing that the charges were laid in separate counts, and that the prisoner was found “guilty as charged,” and sentenced to five years at hard labor, states that iir this court the prisoner complained because he was tried for larceny by a jury of 12, whereas that offense, not being necessarily punishable at hard labor, was required by the Constitution to be tried by a jury of 5. The opinion then considers fully the right of a trial court to try a prisoner for larceny, under the conditions mentioned above, with a jury of 12, and, after having considered the question in connection-with the kindred question as to whether, if an accused be charged with an offenses triable by. a jury of 12, the jury may acquit him of it, and find him guilty of an offense included in the one charged, which, had it been charged as the one committed, would not have been triable by a ju^y of 12, draws the following conclusion:
“Our conclusion upon the question which we have been considering, then, is that article 116 of the Constitution [of 1898] has no such application to criminal prosecutions, in which, under established jurisprudence, the charge of a higher includes, or may have joined ivith it, in the same indictment or information, that of a lower offense, as to prevent the tribunal having jurisdiction of such higher offenses from convicting- of such lower offense so included or joined, and that the opinions upon that question heretofore handed down in the cases of State v. Fruge, 106 Ea. ,694, 31 South. 323 , and State v. Perry, 116 La. 231 , 40 South. 686 , should he affirmed.” (Italics mine.)
It therefore appears that the court decided the question submitted to it as to whether the jury of 12 had jurisdiction to return a verdict on the count for larceny. Aftet having decided that it had, the court then calls attention to the intimate relation between burglary with intent to steal and larceny, though it observes that they are distinct offenses, and, while, they may be charged either in one count or in separate counts, yet that, if charged in one count, only one sentence may be imposed, and, if charged in separate counts, and a general verdict of guilty is rendered, that the better practice would seem to be for the district attorney to enter a nolle prosequi as to the larceny and ask for sentence only on the count for burglary, but that, as larceny is no t included in burglary, it would hardly be considered reversible error if the court were to impose a cumulative sentence, where there was a vérdict of guilty on both counts and the district attorney failed to enter a nolle prosequi on the one for larceny. The court then discusses the proper course to be pursued in imposing sentence, and, after stating that “the more approved practice is to impose the penalty appropriate to the higher offence,” concludes this phase of the case by saying:
“In the instant case the sentence imposed is much lighter than might have been imposed for the burglary with intent to steal charged in the first count of the indictment, and we find no reason to disturb it.”
I therefore think it clear that the decision rests chiefly on the ruling that the jury had jurisdiction to return a verdict on the count for larceny, and not alone on the sentence actually imposed, though possibly, had the court seen proper, it might have rested it entirely on the latter ground, and certainly could have done so on the former.
For the above reasons, I think the Lewis Case should be considered as precedent in the case at bar, and should not be differentiated from it.
The majority opinion cites State v. Desselles et al., 150 La. 494 , 90 South. 773 , in support of the conclusion reached by the majority. However, the Desselles Case, in my view, should not be considered as precedent. As recognized.by the majority opinion, the opinion in the Desselles Case was not concurred *779 in by four of tbe members of the court. Only three signed the opinion and decree, the remaining justices concurring only in the latter. An opinion concurred in by only a minority of the court cannot have the force of precedent.
As the opinion handed down by the majority, in my view, gives no effect to the manifest purpose of section 41 of article 7 of the Constitution' of 1921, but, to the contrary, partially defeats its purpose by requiring two trials, where before the change in the method of trial by jury only one was necessary, the result of which requirement is, contrary to the purpose of the section cited, to increase criminal expenses and to retard criminal trials in that class of cases affected by the decision, and in some instances to hold unnecessarily an accused in jail awaiting what virtually amounts to á second trial, I respectfully dissent from the views and decree of the majority.
LAND, J., concurs.