# State v. Shaffer > Supreme Court of Louisiana · November 23, 1971 · 260 La. 605 URL: https://www.frixlaw.com/law-library/cases/9670196 ## Case - **Full name:** STATE of Louisiana v. Matthew SHAFFER Et Al. - **Court:** Supreme Court of Louisiana - **Decided:** November 23, 1971 - **Citations:** 260 La. 605; 257 So. 2d 121; 1971 La. LEXIS 3845 - **Precedential status:** Published - **Opinion:** Concurring in part by Sanders - **Judges:** Barham, Sanders, Summers - **Cited by:** 73 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9670196 ## Opinion text SANDERS, Justice (concurring in part and dissenting in part). The Louisiana Criminal Code now provides the death penalty for murder, aggravated kidnapping, and aggravated rape. I stand on the proposition that if the death penalty is to be abolished, it should be abolished by the Legislature, not by the courts. In Witherspoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770, 1777 , 20 L.Ed.2d 776 (1968), the United States Supreme Court held: “[A] sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” The Court made it quite clear that the conviction remains valid. 1 It also made *641 it quite clear that only a death sentence imposed by a non-conforming jury is vitiated. In the present case, the Grand Jury of East Baton Rottge Parish indicted the four defendants for aggravated rape. The trial jury returned a verdict requiring the death sentence as to Shaffer, Lewis, and Willis. The majority has now set aside the death sentence and ordered the trial judge to impose a sentence of life imprisonment. Such action violates both the letter and spirit of our law. LSA-R.S. 14:42 provides: “Whoever commits the crime of aggravated rape shall be punished by death.” Under the law, the death sentence is mandatory. In only one instance can the judge impose life imprisonment: when the jury qualifies its verdict by the addition of the words “without capital punishment.” LSA-C.Cr.P. Art. 817. No court has the authority to impose a life sentence after an aggravated rape conviction unless a jury dispenses with capital punishment. I conclude, therefore, that the life sen-., fence ordered in the present case is illegal. As noted by the majority, Article' 3 of the Louisiana Code of Criminal Procedure provides: “Where no procedure is specifically prescribed by the Code or by statute, the court may proceed in a manner consistent with the spirit of the provisions of this Code and other applicable statutory and constitutional provisions.” The key words in this article are consistent with the spirit of the provisions of this code and other applicable statutory and constitutional provisions. How can a life sentence imposed without' a jury be consistent with the spirit of our law? Obviously, it cannot. Our statutes prohibit such a sentence. I believe, however, that the consistent-spirit requirement can be met by a sentence-hearing conducted with a jury selected as' in capital cases in compliance with the' criteria set forth in Witherspoon v. Illinois. At the hearing, evidence would be admissible to prove the offense and the circumstances surrounding it. Depending upon the jury verdict, the trial judge would then impose either a death or life sentence as directed in Article 817 of the Code of Criminal Procedure. This procedure is now being used in ■ several states, including California, 2 Georg *643 ia, 3 and Mississippi 4 . In his brief, the District Attorney strongly urges this Court to approve this procedure. I see no reason why the sentence hearing procedure should not be followed in Louisiana. Such a procedure would maintain the conviction. It would also permit a jury of twelve to consider all the circumstances and individualize the sentence in each capital case. My colleagues would blanket all invalid death sentences into sentences of life imprisonment. Thus, a death sentence is converted into one that really means imprisonment for only ten years and six months. No true life sentence exists in Louisiana law. See LSA-R.S. 15:571.7. In the present case, they reduce the sentence in a brutal gang-rape, committed under the most aggravated circumstances. In so doing, they usurp the sentencing power of the jury. I concur in affirming the conviction and sentence of Garner and affirming the conviction of the other defendants. I dissent from that portion of the judgment ordering the imposition of a life sentence as to Shaffer, Lewis, and Willis. As to them, I would remand the case for a new trial as to sentence. . “Nor does tlie decision in this case affeet the validity of any sentence other than one of death. Nor, finally, does today’s holding render invalid the cort motion, as opposed to the sentence, in this or any other case.” Footnote 21, 391 U.S. 517 , 88 S.Ct. 1777 , 29 L.Ed.2d 785 . . In re Anderson, 69 Cal.2d 613 , 73 Cal.Rptr. 21 , 447 P.2d 117 (under bifurcated trial statute). . Miller v. State, 224 Ga. 627 , 163 S.E.2d 730 (on appeal); Massey v. Smith, 224 Ga. 721 , 164 S.E.2d 786 (on habeas corpus). . House v. State (Miss.) 222 So.2d 145 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9670196. Public record. Not legal advice.