Petition for Writ of Certiorari — Scott v. Louisiana

Supreme Court brief1959

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Supreme Court of the United States

_ . OCTOBER TERM, 1958

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en ‘ i> idle »

. ‘

No. :

i “ANDREW J SCOTT, 3

ee Cal ae Petitioner, .

3 ; “ versus _

STATE OF LOUISIANA, 7

Respondent. -

PETITION FOR WRIT OF CERTIORARI TO THE

“SUPREME COURT OF LOUISIANA.

‘ . &

Pe ees ' * ARRIS M PNGLISN.*-: s

Pete. enrere eo 00 Convention Street,

Ea - Baton Ronee. Louisiana,

WILLIAM T. BENNETT.

. (laity se / for Be titre RV?

Clinton, Louisigna.’

4 : . en zt er Tes INC NEW QGRLEANS ,

SS eee

INDEX

¥, fs % e [ <i ~ ; a

PAGE

CITATIONS TO. OPINIONS BELOW. 1

JURISDICTION , te % 1

| a PRESENTED | 2.

CONS TUTIONAL PROVISIONS INVOLVED | : “f

(STATEMENT OF THE CASE - ne A

"REASONS FOR GRANTING THE WRIT - 8 /

= eee rani eee ake

“APPENDIX - 3 ori fh

Constitutional Provisions Involved 17

Opinion and Judgment. Below : * of 18.

Indictment = | : “of i ae

oe “Motion to Quash indictment Fok 38

Motion to Quash the Venire Case 42,

Motion.for a Change of Venue d 45

Extract of Minutes, Rehearing i 50

Petition for Stay of Execution 18 Mandate 51 -

Certificate of. Service on Assigtant ‘auerien 4 :

General “s/ eee sex 54

cian -@

ee Cases ; "aaa |

State,v. Anderson, 205 La. 710, 18 So. (2d) 33. 10

- State v. Nichols, = han 622, 44 So. (2d) 318 10

Strauder vy. West Virginia, 100 — 303,25 L. Ed. °

664 eae aa

- Neal v. Por 2 103 U.S. 370, 36 L. Ed. 567 ar

"Gibson v. Miggissippi, 162 US. _565, 16 S. Cf. 904,

40 L. Ed'1075 11

Carter v. Texas, 177 USS. 442; cdl Ss. Ct 687,°44 L. ...

Ed." ae 10

~ CITATIONS—(Continued)

‘ Cases—| Continued) bg mes PAGE

‘State v. Pierre, 189 La. 764, 180 So. 630 me 11

Rogers v. Alabama, 192. U.S 226, 24 s. Ct. “257, 48

~ s. Ed. 417. 7enage ]1-

State v. Pierre, 198 La. 619, 3.So. (2a) 895 12

Martin v. Texas, 200 US. 316, 26 S. Ct. 338, ” ‘ eek

> Ed: 497 ce }

_ Norris v. labama, 294 US. 587, 55 ‘s: Ct. 579, 79.

: L. Ed! 1074 beers en See as

Pierre .v. Léuisiaha, 306 U.S? 354, 59 S. Ct. 536. ‘jl

~ Smith v. Texas, 311) U.S. 128, 618 S.Ct. 164, 85 L.

Ed. 84

Hill v. Texas, 316 USS. 400, 62 Sy sc 1159, 86 .

Ed.+ 1559 : Pitas 13, 16

Akins v. ‘Texas, 325 US. 398 | x ie | Regt

Patton v. Mississippi, 332 U:S. 463; 68 S. Ct. “184,

; 92 L. ss es Oe See ee ey

Cassell v. Texas, 339 U-S.. 282, Saeed eon

Reece .v. Georgia, 350 US a 8. Ct. 33, “100 is

Ed. ‘1. = es 13

“Eubanks: \ y Louisiana, 356. US. Posie 584 | 14

tie - Miscellaneous - 7

Fifth Amendment United States Constitution ‘37

-Fourteenth Amendment United States Constitution | 17

18 Stat. 336, 8 U.S.C., Section 44

Article 1, Section 2, Constitution of Louisiana _.

es i. : ay cee ° i

Supre eme. Court of the United a

: | OCTOBER TERM, , 1958 - oe

ANDREW J. SCOTT,

| = * Petitioner,

ote _ versus ap hy

STATE OF LOUISIANA, ie

3 RespoRdent.

PETITION F FOR WRIT OF CERTIORARI TO THE ”,

a SUPREME COURT OF- an

7. ANDREW i SCOTT, prays itiab a Writ of Certiorari .

issue to réview the judgment of the Supreme Court of

. Louisiana,’ entered in the: above — -case on April

"27, 1958.

CITATIONS TO OPINIONS 5 BELOW =— sD

e “The opinion ‘of the: Supreme Court of Louisiana, in-

cluding the extract from minutes wherein rehearing was

refused, | containéd in nen hereto, is a in 110

So. (24) | 530. | Bik ‘

_ JURISDICTION | oa

oe judgment of the Supreme Court- of ‘Louisiana

‘was entered March 23; 1959; all of which appears from

‘a certified copy of extract from. the minutes of the Su...

‘preme Court of Louisiana, ‘annexed hereto. The jurisdic- |

- Livingston, Louisiana, where the system that was,con- -

: — (3)...

—_—— —«:

2 .

tion. of this Court is involved: under 28 Uz S.C, Section:

QUESTIONS PRESENTED

Whether there was systematic ‘exclusion,’ or - only

token represepttation, of Negroes in the official selection

of Grand iatfles and Petit Jury venires in* the: Parish of

sistently. followed as long as any man remembers i

permitted only one Negro to. serve on a Grand Juryeend.,

. no Negroes to serve on‘any petit jury venire for criminal”

trials; and which constituted a systematic. exclusion of —

‘Negroes because of race, creed-or eolor and in. violation .

of the guaranteed equal rights of petitioner. under the

: constitution and etatutes of the United ‘States.

- CONSTITUTIONAL PROVISIONS INVOLVED :

- The constitutional provisions involved include the.

Fifth and Fourteenth Ameridrhents-to the Constitution, of

the United States, and Act of Congress, 18 Stat. 336. 8

- US.C., Section 44-and Article 1, Section 2 of the Louisi- .

ana Constitution, printed in Appendix hereto.

STATEMENT. OF THE CASE -

The petitioner herein, Andrew d. Scott, a ‘young -

colored male, who was‘ of the age of twenty (20) years

, at the time, was indieted by the Livingston Parish Grand

Jury, charging him with the crime of. ‘aggravated rape .

. of a white female by the name of Mrs. Larécy Blount |

Graham at, her, residence on Corbin North Road apprgxi-\

‘mately: six miles north of the unincorporated village of.

Corbin, on the 19th day of October, 1957. That thé said

Andrew J. Scott is a member of the Negro race and had ©

been a resident of the City of Baton Rouge and Parish

og eet llama

of East Baton Rouge, Louisiana, fop all of his lifetime

‘of slightly more than twenty years. (The significant facts

suounding this charge are that the complainant, some-

time between the hours of two and three p.m- ‘of the:

alleged afternoon of October 19, 1957, first reported that

she had been attacked by a negro man,-whom she claimed

had ‘walked into her home, with a ‘cloth mask tied over

his face; w hile ‘she was ironing. There was considerable .

. confusion as to the,extent: of :the attack first* reported

by ‘complainant, in her first outery as the two Baton

Rouge newspapers published reprinted reports in several *

issues that a “Baton Rouge Negro Held’ in*Livingston ‘

for ATTEMPTED Rape”, sagt clippings. were

admitted in evidence on trial of-motion-for change a

i venue, without objection, by State. Pet ewer

‘ eres A ies oe

_ Prior to the opening ‘of trial there were four motloris_.__

filed on behalf of defendant, including a motion for a

bill of particulars. prio \ arraignment which -the,-State

answered, only in part, “oud aki the Trial Court upheld

and let stand, to which ruling counsel for defendant duly -

ee and reserved ; a formal bill of apeepettes.

} in prior to arraignment..a motion to ‘webs: the in- _

dictment. was: filed. gn behalf of defendant. dnd upon

- arraignment petitioner. entered a plea of. “not guilty”.

“> Before’ trial began a motion for change of venue ‘and

motion te quash the array or,. regular petit jury venire, . :

were filed. “The last three motions were overruled by

“the Court ‘and to ‘which rulings defense: counsel duly ex-. -

-cepted and reserved formal bills: of - exception ‘to ‘each

‘eruling respectively. And after trial, but before senténce*

_Was imposed, a- motion for anew trial and a motion in

arrest of judgment were filed by defense, both of which

were ree: ‘and to each of Ww hich rulings counsel uke-

od wu

wise exception and reserved formal ° bills of exception,

- ther Repti

ereto. \:

That the héaring and trials on the preliminary + ‘mo-

tions together with. the trial of the alleged charge together

extended « over a period of ten days during which hear-"

ings and -trials there were numerouS material errors.

made in the proceedings, which defense counsel contends

are reversible errors and to ~which exceptians were taken

timely during trial and covered: in eleven formal bills of. |

exception and. “a substantial number of which revgrsible ‘~

errors, Were grouped and. covered in formal bill -of ex-

ceptions ‘numbered five based on. 17 defense reasons set

up in, and on,which his motion’ for a new trial was based -

‘and urged to The Court at the lfearing thereon. And most

all of ‘which reasons were discussed,.in the argument on

othey bills, other than the bill of exceptions numbered

five.

And also, a substantial number of these material

errors were likewise grouped and urged on appeal in

defense bill of exceptions numbered -11, which fqrmal

exception is based on -the objectién of defense -to the

verdict. and the imposition’ of sentence, thereon, for the

reason that “the verdict ‘herein was ~~. to both the

_law and@he evidence, which objection, wag overruled. by

_ the ‘Court and a formal bill of exceptions dMy taken and.

reserved thereto, and ‘based on the entire record of the

case, which is duly. attached to, and ‘included, in extenso,

in said bill of exceptions: numbered eleven, in the appeal

-herein, .to the State Supreme Court.

Then on September’ 15, 1958, ‘the Court immediately

proceeded to pass sentence on defendant, and imposed. a

sentence carrying the de:

And to. whieh cebier

h penalty by electrocution.

defendant through his coun-”.

5 + . 4 ; A ° ‘DY

Z a : -

‘sil: filed a written motion for an appeal to the Supreme .

» Court of Louisiana,with an order, in blank, attached, |

‘which motion for appeal was duly granted and the order .

for same signed and issued, by. the Court on the 19th day

of September, 1958. - abe eae t

The facts: as reflected in the transcript show that

defendant was in -Livington Parish on the alleged after-

noon of October 19, 1957, and directed and sent there. by:

his Baton Rouge employer, with approximately one-half |

.\ dozen orders of new automobile tires to. be delivered. to

| dierent customers of B. F. Gogdr ich Company of Baton

Rouge, which customers are located along U. S$. Highway

190 at Denham Springs,, Walker and Livington, Louisi-

ana, and with other instructions to put air in certain

truck tires, of certain customers, particularly truck tires

of we Hufsi Pole Company, at, or near, the. Town of —

s Walker, Louisiana. And the testimony of three State

witnesses, corroborated by the testimony of defendant, }

“reflected that, from the time of 1:30 p.m. ta 3:05 p.m.”

of the afternoon of’ the alleged attack deféndant was

making a delivery of new tires and putting air in six-

Wheel high pressure truck tires of the Hurst: Pole Com-

‘pany at Walker, Louisiana, with a portable air pressure

. machine; and making deliveries of other new tires to

another customer in’ Walker, Louisiana, and tr aveling®

aalong Highw ay~190. the approximate distance of six miles

from Hurst’ Pole Company to the Town *of Livingstan,

Louisiana,-where 4fis ‘fina! two new tire deliveries were

made to Pope’s. and Loyd’s service stations, respectively,

at approximately 3:00 to.3:05 p.m. of aforesaid after-

- noon, and during this above time from 1:30 p.m. to 3:05)

p.m. and during that. entire lapse of time of one hour and

¢ thirty-five minutes transpiring between the time of 1:30 .

p-m. and 3: 05 = ae ‘the » State and defense evidence .

showed defendant was at least six: miles, or“more, from

the residential location of the alleged crime ‘and never

coming closer than six miles at the nearest’ point as he

drove along .the main highway between ,the village of

Corbin, Louisiana and the town of Livingston, Louisiana’

And very soon thereafter, and at the approximate

hour of 4 -p.m. defendant’ was arrested by. a Deputy

Sheriff of Livingston Parish, Louigiana, as he turned

into the privgte driveway or lane leading to the plant of

Hudson Sanfl and Gravel Company; Denham Springs,

Louisiana, where defendant was attemtping to: make his

last and. final call and delivery for the day. Whereupon,

defendant was placed in the Deputies’ car and driven:

-back toward Livingston during which ride defendant was

questioned severely as to what he had. been doing and

his mission and whereabouts in Livingston Parish for °

the previous several hours and during all the interroga-

‘tions he was Spunched’ violently many times while he was

: being threatened at periodie intervals with an officer's

heavy: billet club or stick, and finally driven to a country

residence along a gravel road, extending north several

miles from Highway 190, where he was further ques- °

tioned and an attack was attempted on him, aimed and

directed at his throat, by &@ white man armed with an

“open blade knife, which violent attack was prevented

‘only by the alterness of officer B. K. Stewart, one of the .

investigating deputies: who also, examined’ and observed.

defendant's eves and” turned to one of his fellow officers

and remarked, “there ain't nothing wrong with. this

nigger’s eyes@so we just as well turn him aloose”. Where-:

upon, his fellow offiver in reply said “we ‘had better let

the womarn®i complainant) look at him. Thereupon, a

woman wag called from inside the residence, who came

towards the Sheriff’s-car, pointed a finger towards the

rear seat. of’ me car where defendant was seated and she

announced, “that’s the nigger, that’s the black bastard,

oe you gonna burn nigger”. 3) -

“ee baal

Then dkfendant’ was placed under arrest and soon

after that he. was asked if -he: would sign a statement,

“that he had gone in that particular house to take or

steal something”, which. defendant refused to sign for

the reason, he told them, “he had not gone into, that

house and had never been there before they took him

there and he would not sign enything -he did not do even

if, they would promise to turn him aloose”. Defendant

never. at any time made any confession or any. admission

that would, in any way, tend td show or indicate ‘guilt

of this charge. And no confession; admission, finger->

print or line-up iden‘ification-of the accused defendant

was ever offered in evidence nor ever claimed to have

been taken from him, or given by him, when he refuséd

to sign a confession “the Deputy Sheriff called petitioner

a liar and he was beziten”. eons °

: ieiadlaeal the defendant was placed in the Lvies-

ston Parish jail ‘and held. by the Sheriff originally on a

complaint of an “attempt te commit aggravated’ rape”,

however, defendant was later indicted for aggravated

rape, as stated hereinabove, and the prosecutrix did tes- -

.tify on the trial that she was actually raped. And the

jury did brjng in a verdict, thereon, as is also stated and -

set out hereinabove.

The trial of the defendant commenced on March 18,

1958. On March’ 26, 1958, the petit jury returned a

verdict .of guilty as charged against petitioner.

‘. | ae

On June 23, 1958, the petitioner filedag motion for

‘a new trial and a motion in arrest of judgment, which .

were denied. - Petitioner filed all formal bilis .of exception,

including those based upon the motion to quash the: in-

dictment, the motion to quash the venire and motion for

a change of venue, and the adverse rulings on the evi-

“dence during, the hearings ‘and trial on the merits.

; :

__ A suspensive appeal to.the Lowbiana Supreme Court

was lodged before the trial Court and granted, and a

_ brief was filed in the Supreme Court of Louisiana, Case . |

No. 44,361, in which the aforesaid bills of exception based |

upon the aforesaid “ons ..tutional question were presented,

and on February 20, 1859, counsel for petitioner argued

these isstes before the Supreme Court of Louisiana.

On March 23, 1959,. the opinion of ‘the Lidia

Supreme’ Court was renderéd, affirming the ‘conviction

of petitioner and on or before April-6, 1959, application

for, rehearing based upon the aforesaid. constitutional

_questions was timely filed in behalf of petitioner, and on

-April 27, 1959, a rehearing was denied the. petitioner by

" the Louisiana Supreme Court. Thereupon on same date

of April 27, 1959, a petition, to stay the mandate of the

Louisiana Supreme Court® until such time as the United

‘States Supreme Court would be petitioned upon applica-

tion for writs of certiorari and review,-or appeal, was

filed: before the. Louisiana Supreme Court, which on the

last aforesaid date granted petitioner a stay of execution

for ninety (\90/days from April 27, 1959.

REASONS FOR GRANTING THE WRIT

‘Fora long and continuous period of time it has been

the adopted custom int the Parish of Livingston to exclude —

Negroes from all types of jury service prior to’ the selec-

tion of the Grand Jury which retufned the indictment

herein against petitioner on the date of December 6,

1957, charging petitioner with the henious capital offense

: ca

, ee

of aggravated rape, which was : alleged to have been com-.

mitted on 1 the prior date of October 19, 1957.

“And on-this grand jury panel appeared the nape of

only one member of the Negr o race, although the official

- records of the Registrar.af Voters’ for the Par}sh of.

Livingston, State of Louisiana, who keeps the

corded and official written records of any agd{t Negro

residents of that particular Parish,- and mg

larly, who ure qualified to vote, qa are a

“write and have signed their respectiys ames and made

oath that they have reached full majority and had

at least one year or par al mediate previous residence

in said parish, all ofeWick’ meets the fixed legal quali-

fications of a resident for any type of jury service in

the State of Louisiana, showed conclusively, that there

were at least four hundred and five: (405) Negroes regis-

6 to read and

tered and. qualified to ote -in the Parish on’what the’

Registrar testified was only.a partial: registration or an.

early and a “short”: - registration which had- accumulated

long before any designated election day w as approaching.

Whereas the same Livingston Parish voter registration

rolls showed a total voter registration of slightly less.

re’ particu--

than forty six hundred (4600) white registrants at ‘the :

same time as the Negro registit ants of Livingston Parish

Were tabulated and testified to, on the hédring immedi-

ately before the beginning of the ttial Of petitioner on

the merits.

The only conclusion that is’ possible to draw from

these facts is that there has been systematic, unlawful,

unconstitutional, and prejudicial exclusion of Negroes |

from the Grand Jury of Livingston Parish, conffary to.

the Constitutien of Louisiana ‘Article 1, Section 2) and

the Fifth and F. ourteenth Amendments to the, Constitu-

tion of the United States.

The question of unlawful discrimjnation in selection -

of grand juries is not novel to the jurisprudence of Lou-

isiana or of the United States. Cases are legion in which

. the United States Supreme Court has declared that con-

victions of Negroes for slaying br raping of whites can-

not be countenanced when, in~$btaining the conviction,

the Constitution has been violated. The Supreme Court

of Louisiana has followed this principle’ in some ‘cases in

‘which discrimination was. shown. State of Louisiana *

Anderson, 205 La. 710, 18 So. (2d) 33; State of Louisi-’

ana wv.

Nichols, 216 La, 622, 44 So. (2d 318.

Therefore the decree of the Louisiana Supreme:

. Court in the instant Scott case is erroneous, as ‘it is in

‘conflict with prior decisions of the State of Louisiana as

well as devisions of the ‘United States Supreme. Court:

——

" One. of-the- most famous. cases | eid With ‘the sie

ject of Negro discrimination in the selection of the Grand

- Jury, which was.ultimately decided ih the United States .

, - Supreme Court, was the case of Norris v. Alabama, 294

U.S. 587; often referred to as one of the “Scottsboro

Boys”

cases. Mr. Chief Justice Hughes, in delivering

the opinion of the Court, (294° U.S. 587, 598) cifed the

basic principle as pronounced: by the Supreme Ceurt in

Carter & Texas, 177 U.S. 442, in relation to the sys-

tematic exclusion of Reshok from kervice on *yrand

juries, which is, as follows:

“Wherever by an action of a State, Sas

through its legis lature, through its courts, or

‘through, its executive or’ administrative officers,

all persons of the African race are excluded, solely

because of their race or color, from serving as

grand jurors in the criminal prosecution of a-per-

son of the African rage, the equal protection of ©

the law is denied to him, contrary to the Four-

11.

teenth Amendment of the Constitution of the

United States.« Strauder v. West Virginia, 100

pig" 303; Neal v. Delaware, 103 U.S. 370; Gibson -

’, Mississippi, 162.U.8. 565. This statement was.

repeated in the same terms in Rogers v. Alabama,

192 U.S. 226, and atts in Martin v. Texas, 200

U. S, 316." ” . ] : i : F

_ In the anita case, the Suptuene Court. found that no

Negro had served on ahy grand jury in that. ’county

within the memory of witnesses who- had lived there all

their lives, and .that in view of there being nag ig -

Negives in the county this testimony alone made out a

prima: facie. case of the denial of equal protection which

the Constitution guarantees. Nor was’ the prima facie -

case overthrown by the fact that -the Alabama’ statutes

‘fixed a. high standard of qualifications for, jurars and

that. the jury commission. was vested with’ a wile dis-

cretion. a om t .

Within three years after the Norris decision, our

Louisiana Supreme Court decided the case of State of

Louisiana v. Pierre, 189 La. 764, 180 So. 630 arising .

_from’a capital conviction in St. John.Parish. The State

- Supreme Court at 1x9 La. 774, chose to*distinguish the

case from ‘the Norrix case by ‘showing that there were

‘few qualified Negroes in this small parish, and. denied

the defendant's plea: However, the case went to the

United States, Supreme Court on certiorari, Pierre vs.

- Louisiana, 306 U.S. 354, 59S. Ct. 536 41938), and the

¢ase was remanded upon a finding of systematic and °

unconstitutional discrimination in accordance with the

rule of Norris v. Alabama and others. Pierre was tried

and convicted a second time on an indictment by a grand

jury after. the discrimination procedures were corrected

“in accordance with the mandate -of the United States -

Supreme’ Court handed Gown: in the first Pierre case.

See State of Louisiana v. . Pierre, 198: La. 619, 3 So. (2d)

895.

The instant case is also in: violent conflict with the

case of Smith v. Texas, 311 U.S. 128; 618 S. Ct..164; 85

L. Ed.. 84 (1940), -where during 1931-1938, five‘ (5)

» Negroes actually. served on grand juries in Harris.

County, Texas; _yet-the United States Supreme Court held

that was only a token représentation which .was still

‘, tantamount: to. racial discrimination. Mr. Justice Black,

in the Smith case said: ip

' “Here, the Texas statutory aches is not in itself .

unfair; it is.capable of being Wrried out with

nq racial discrimination whatsoever.” But by the

reason: of the wide discretion permissible in the

various steps of the plan, it is equally capable of

being applied in such a manner as practically to

_ prescribe any group thought by the law’s admin-

istrators to be undésirable.” (Emphasis ours) | |

- The Court further said:

“Chance and accident ‘lone could hardly have

‘brought about the listing for grand jury service

of so few Negroes from among the thousands .

shown by the undisputed evidence to possess the —

legal qualifications for jury service.’ —

And in concluding ‘his opinion, Mr. Justice Black

- said: -

“Where jury commissioners limit those from whom .

grand juries are selected to their own_ personal

acquaintance, discrimination can arise from: com-

‘missioners who know no Negroes as well as from

' commissioners who know but eliminate them , If

there has been discrimination, whether accom-

‘ plished ingeniously or ingenuously, the conviction

* "cannot stand.” 4 Emphasis ours)

There is no doubt that the Louisiana method of

, selecting grand juries\places wide discretion in the hands |

of its judges. But, such discrétion is bound-on all sides

by the Fourteenth Amendment and must be exercised

- within its limits and ‘limitations. | \

Following the list of cases*from which counsel has

heretofore quoted. pertinent excerpts is the case of Reece

uv. Georgia, 350_U.S. 85: 76 S. Ct. 33; 100 L. Ed. 1

(1995), wherein-Mr. Justice Clark held.that “ *-* * mere

assertions of public officials that there has not been dis-

° /

crimination will not suffice * * *-”.

2. Clearly, the question presented here is of the

utmost importance» at merély to this petitioner, and

-, not only to the vast numbers of Negroes, who have a

right to expect equal/ protection of the laws, but also to

every: class of person whose inalienable rights could be

breached ‘and violated by any plan, however “ingenuously

or ingeniously” devised; which could discrimifate against. .

their class. , rote

As was said by Mr. Chief Justice Stone in Hill v.

Teras, 316 U.S. 400, 62 S Ct. 1159, 86 L. Ed. 1559

(1941): mete ity

. “Equal protection of the laws is something more

_ than an abstract right. It is a command which

the State must respect, the benefits of which every

pepson may: demand. Not the least. merit of our

constitutional system is that ‘its safeguards ex-

tend to. all—the least deserving as well as the

most virtuous.” ;

A more recent case, in which the question of sys-

tematic exclusion of Negroes from grand. jury service -

_~ was passed: upon by this Honorable Court is another

Louisiana case which had its origin in the Parish of.

Orleans and City of “New Orleans, Louisiana, and which

e M

14 &

_ reached the. Honerable United States Supreme .Court on:

. writ of certiorari and. review, directed to the Honorable~

. Louisiana peapien Court is the case of Freddie Eubanks,

petitioner, vs. State.of Louisiana, (No. 550 Oct. Term, —

_ 1957) May 36, 1958, 356 U.S. Reports: 584, and Si@te of °-

Louisiana vs. Freddie Eubanks, 232 La. 289, 94 So. 2d.

jos and in. which last cited case the record discloggg

hat only one Negro had ‘been selected for grand: jury

service, within: the memory of any man, and the selec-

tion of that particular Negro was by reason of the

mistaken identity by the presiding District Judge. “And

even though it was established that in a number of ‘in-|

stances that several Negroes were drawn on ‘the respec-

‘tive grand jury panels of:seventy five names from which

the grand juries of twelve members. each were drawn for

actual grand jury service constituted eyatenpatic eX-

clusion of: members of the Negro race. :

Eecws Whereas, in the instant Scott case-the record shows

only one Negro.had been drawn. for any type or form of _

jury service in criminal eacieatien in Livingston. rar’

ish, Louisiana. :

And: it furiher appears fram. the record in the

"Eubanks case that-the names of six (6) Negroes were

actually drawn from the. general yenire list, or Jury

_ wheel, and placed on the grand jury panel list of seventy

» five names from which the presiding district Judge

‘finally selected the twelve (12) grand jurors, who of-

ficially served and returned the indictment against the

accused “Eubanks, all of ‘which: indicates: that the jury

"commissioners of Orleans Parish were placing substantial

numbers of names’ of Negroes on the general venire lists

‘and in the jury wheel, respectively, yet through custom

and tradition the respéctive District Judges of the Crimi-

nal District Court of Orleans Parish were systematically

% ;

a bu*

& : - ~~ i.

excluding the knéwn Negroes from actual: grand jury

. service for Orleans Parish, Louisiana. And ‘under this .-

. ecircumstance and traditional system the accused, Eu-

iba S,- was indicted, tried, convicted and ‘sentenced to

_death. ~The Louisiana Supreme Court. affirmed, holding

that “the record disclosed no discriminatory exclusion of

‘Negroes’ from his grand jury”, 232 La. 289, 94 So. 2d

-262, and upon which indeieint and deeree the United

States Suprem®. Court granted: certiorari, 255, U.S. 812.

-And upon final disposition of the said. writ and ruling -

_ upon the above set forth judicial system and practice in

“. a very learned and cogent opinion Mr. Justice Black in

~ — His conclusion of a very pertinent par‘ of the unanimous

opinion of. the Supr eme Court pronounced the established -’

law applicable) when Negroes have been consistently

_ barred from jury service because of their race, as fol-_

lows, to-wit: = . .

“It seems: clear to us that Negroes have been con-

- sistently barred from jury service because of their

race.

“It may. well ‘be, as gne .of the parish Judges

recently stated, that ‘the'selection of : grand juries

_in this community throughout the years has been

controlled by tradition, and the general thinking

of the community as a whole is under the. in- |

fluence of that tradition.’ But local tradition ‘can-~*

not justify failure to corply with the constitu-..

_ tional mandate. requiring equal protection. of law.

aA: ‘prisoner whose ‘conviction is reversed by this

Court need not go free if he is in fact guilty, for

(the State) may indict and try: him again by the

procedure which conforms to constitutional _re-

-. quirements. But no State is at liberty to impose BF

‘upon one charged ‘with crime a discrimination in__

» ¢ its trial procedure which the Constitution, and an

‘Act of Congress passed pursuant to the Constitu- ©

a tion, alike forbid. _ is this Court at liberty to i

eh .16 }

gtent or withhold the benefits of equal prctoction,

which the Constitution commands for all, merely

¥ we may deem the-defendant innocent or guilty.”

ill v. Texas, 316 U. S. 400, 406.: (Emphasis ours)

_ “The judgment. of the Louisiana Supreme Osart

is reversed and the cause is remtanded for. further

proceedings } not inconsistent with this opinion.

: <2, ght 8 ORDERED”

= e

_. CONCLUSION. < |

For the foregoing reasons, this petition - for a Writ

of Certiorari should be granted.

Respectfully submitted,

s/ HARRIS M. ENGLISH

: F rae, “Harris M. English,

. : Counsel for Petitioner. =.

s W. T. BENNETT eee,

WOT: Bennett, beg

Counsel for Petitioner.

oe ae

a w * en 2

&®%

~——

17.

APPENDIX: af

M+, ' °

CONSTITUTIONAL PROVISIONS INVOLVED

. Fifth Amendmenf to the Constitution of the. nited States

. |. “No person shall be held to a r a capital,

The Fourteenth Amendment to -the Constitution of the

subj

jeopa

in any criminal case to be a witness against him- -

_property. “be ‘taken for. public use, without Just

or otherwise infamous crime, unless en a present- ,

ment or indictme t of a Grand: Jury, except. in ‘"

cases. arising in the land or naval forcés, or in ~

the Militia, when in actual service in time of

War public danger; nor shall any person be:

ah the-same offence to be twice put in

y of ‘life or limb; -nor shall be compelled .

self, nor be deprived of life, liberty or property,

without due’ process:-of law; nor: shall private

compensation.”

United States ,

“SECTIONS 1. Att pérsons ies or naturalized in

the United: States, and subject to the jurisdiction -

thereof, are citizens of the United States.and of ~

the State wherein they reside. No State shall

make or enforve any law, which shall abridge the

privileges or immenities. of citizens: of. the United

States; nor shall any ‘State deprive any person of

life, liberty, or property, without due process ‘of

law; nor deny to’ any .person within its jurisdic-

‘tion the equal protection of the laws.” és

18 Stat: 336, 8 U-. ot og Section 4 44

hod

Article 1, Section 2, Constitution of Louisiana ee

“No.person shall be. deprived of life, liberty, or .

“No citizen, ,possessSing all other qualifications; a

shall be disqualified for service as Grand or Petit

-Juror.in any Court of the United States, or of

- any State. on account of -race, -_, or aasas

° S 99s

condition of ‘servitude;

property, except ‘by. due pe of law.’

18 8 ae

- - MONDAY, MAR. 23, 1959

_ SUPREME COURT OF LOUISIANA _

pa ee

No, 14.36% ; -! y

STATE OF LOUISIANA

Be We... -

ANDREW J. SCOTT

APPEAL -FROM lst JUDICIAL bier ace

FOR THE PARISH OF LIVINGSTON, STATE

» OF LOUISIANA—HONORABLE H. R.

- . REID, JUDGE. ”

| McCALEB, Justice, . are

On October 19, 1957, at about 2:00 p.m., appellant,

a 20-year old negro, accosted Mrs. Larcey Blount Gra;

ham, a white woman, at her residege. located in A_rural

area of Livingston, ‘Parish. At the time he made his

presence known, appellant. was wearing -a cloth mask

and; when Mrs. Grahanf screamed, he’ struck her and

her two children, aged seven and four, who were on the |

scene. After threatening Mrs. Graham and ‘her children

with an iron chisel he dragged her into a bedroom, where

he raped her. Later in the day, appellant was .appfe-—

. hended for the crime and, on Décember 6, 1957, he -was:

indicted for aggravated rape.- A trial resulted in a ver-

diet of guilty and, following the pronouncement of a

death sentence, this appeal: was prosecuted, in which ap-

e pellant is relying on 1] bills -of exception for a reversal gs

of his conviction. °

The first bil’ was reversed to the overruling: of. a

ee /

motion to quash the indictment. This motion, Ww while-predi-

cated on several grounds, was primarily levelled at the

‘alleged insufficiency of the indictment to inform appel-.

| -lant ofy the nature of the charge against him.

The indictment is couched in the short form pro-

vided by Article 235 of the Code of Criminal Procedure

(R.S. 15:235) and charges that, on the 19th: day of °

October, 1957, appellant ‘Did .commit aggravated ‘rape

upon Mrs. Larecy Blunt Graham at her residence about

six miles north of fers Louisiana in violation of ‘Ar-

ticle 42 of the Louifiana: Criminal Code.”

: Fhe short form for aggravated rape was tested

and approved in State vs. Chanet, 209 La. 410, 24 So.

(2d) 670. Hence, it would serve no useful purpose to

further discuss the question, particularly since counsel

for appellant quotes the Chanet case ini full in his brief

_ and. seemingly relies on it in support of his’ argument.

_ This argument appears to be based on the premise that, :

although the use of the short foryn is not objectionable,

appellant wascentitled to a bill of particulars,-which the

judge ordered the State to furnish, and that, since the

State did not fully comply with the judge’s order, the

indictment is vulnerable and should be quashed. Stated

' in another way, counsel is apparently contending that,

since appellant is entitled under the Chanet. and other

cases to a bill of particulars as a matter of right when

the charge is drawn under a shart form, the failure of

the State. to. supply. all of the particulars requested by

‘him has the ‘effect. of ee the indictme - invalid

‘There is no merit in this propositiong The failure

om the State to furnish the particulars Tequested by a

defendant, w ho is charged under a short form, does not -

affect the validity of the indictment, as it is now well

settled that.a bill of particulars does not amend an in-

dictment nor can it cure or aid its insufficiency in law.

See State vs, Dabbs, 228 La. 960, 84 So. (2d) 602; State

vs. Straughan, 229 La. 1036, 87 So. (2d) 523 and State

vs. McQueen, 230 La. 55, 37 So. (2d) 727. ‘If the par-

-ticulars furnished by the State do not give the accused

all. the information to which he is entitled and the judge

will not require the district attorney to supply them, the

remedy of the accused is to except to the judge’s ruling

SO — it may be reviewed on appeal: |

Before. terminating our discussion of the sisted to

quash, we note that that appellant has also assailed the

indictment on the ground that there has been a system-

atic exclusion of members of the negro race in the ‘selec-

tion of the general venire = the jury commission.

This charge, which is ; made’ the subject of another

bill of exceptions, cannot be considered on a motion to

-quash the indictment. Articles 202 and 203 of the Code

of Criminal Procedure (R.S. 15:202 and 203) point out

the procedure or making objections to an array or venire —

.and the fime when such objections are to be pleaded.

Denial of. equal protectiag of the law cannot be raised

on a motion to quash an indictment, which addresses

itself to the legal sufficiency of the pleading on its face.

and not to disqualification of the personnel bringing the

charge, which can only: be ‘ascertained by proof.

Bill of Exceptions No. 2 was taken to the failure

of the State to comply with appellant’s motion for a

‘bill of particulars. In this motion, appell4nt sought in-

formation (1) as to the exact hour and time of the com- ~

mission of the offense. charged in the indictment; (2) ‘the

place and locality of the offense and (3) the circum-

stances and facts surrounding the commission of the

. offense and whether or.not it took place inside a room

‘or other part of a residence or at some definite location

outside. On the same day the motion was filed, the judge

ordered the district attorney to furnish the particulars

requested thérein by Tuesday, March llth and fixed

Thursday, March 13th for the disposition thereof. In

compliance with this order, the district attorney timely

filed his bill of particulars in which he set forth the in-—

‘formation requested in paragraphs (1) and (2) of ap-°

pellant’s motion by stating the locality of the offense

and the approximate time (2:00. p.m.) of its commission

but refused to furnish the details demanded in paragraph

3 of the motion on the ground that this would ae

him to disclose his evidence.

‘According to the per curiam attached to this bill,

by which we are bound, the judge sets forth that counsel

_for appellant telephoned him on the night of March 12th

and advised that he was not going to make any contest

on the bill of particulars and that, in view of this, he

ruled that this was a waiver by appellant of any ob

jection he may have had to the particulars furnished by

the State.

It appears that, on March 17th (the date set for

the trial’, counsel for appellant stated “Merely for the 7

purpose of the record I wish to except to the ruling if ,

the Court and reverse a bill and attach the motion fo

and. answer to the bill of particulars”. Yet, in this Cour

counsel argues, for the first tire, that the judge to thd

_ have required the. State to furnish particulars as to th

way the rape was committed.

R.S. 14:42 ‘provides that the offense of aggravated

rape is committed under any one or more of the follow-

ing circumstances: (1) where the female’s resistence

22 ,

is overcome by force; (2) where she is prevented from

resisting by threats of great and immediate bodily harm —

accompanied by the apparent power of exegution and

(3) where she is under thé age of 12 years., If the motion

for the bill of particulars filed by appellant had specific-.

ally requested this information, there is no doubt that

the judge would have been obliged to order the State to.

furnish it, in view of our decision in State vs. Holmes,

223 La. 397, 65 So. (2d) 890, where it was held that, in

a.prosecution under the short form for a crime which

may *be committed in several designated ways, the ac-

cused is entitled, upon his request, to be informed of the

specific way or ways retied on by*the State. But an ex-

amination of appellant’s motion for particulars reveals

that he was attempting to require the State to furnish

him with the details of its evidence, to which.he was not

entitled. ‘State vs, Poe, 214 La. 606, 38 So. 12d). 359.

and State vs. Michel, 225 La: 1040, 74 So. (2d). 207.

And, while the motion 1s unquestionably. of such broad

import as to include information respecting the way .in

which the rape occurred, such information was neither

specifically requested nor was,any such demand’ ever

directed: to the attention. of the trial judge. On the

contrary, as “stated” by the judge; counsel for appellant

_abandoned any challenge upon the sufficiency of the~an-

-swer of the State to the motion for a bill of particulars.

In-these circumstances, the complaint, raised for the first

~ time in this Court, comes too late. ae

Bill of exceptions No.3 was reversed to the over-

ruling of appellant's motion for a,change of venue, which

was based’ mainly on the grounds that appellant was a

young negro, a resident of Baton Rouge, who was with-

out friends or acquaintances in Liyingston Parish,

charged. with the aggravated rape of a well-known white

woman of that Parish, w ho had many friends and rela-

: Qn

@’

23 ©

tives therein, some of whom had already been draw n on

the general venire, and that, due to the rotor iety of the

case through newspaper reports-and word of mouth, there’

Was so much prejudice created against him throughout.

the -Parish, particularly because of his race, it would

be impossible to secdre’ an: unbiased and unprejudicial

jury = would give him a fair and impartial trial.

In fis: per curiam to this bill of exceptions, the judge

asserts that. appellant failed to “prove that he° could not

get a fair trial in Livingston Parish; that, most of thé’

witnesses summoned by him’ testified to the contrary

and that,-in addition thereto, many’ prominent citizens of

the parish called by the prosecution stated without equiv-

- ocation that there had been no widespread antagonism

against negroes generally, no mob demonstrations against’

appellant and that they knew of no reason why he could

hot obtain a fair trial ih the Parish. ‘

The burden of establishing that-an appellant cannot -

obtain a. fair trial in the parish. where the crime was.

committed rests ‘with him. The test is “whether there

can be secured with reasonable certainty from the citi-

zens of the parish a jury whose members will be able

to try the case on the law of. evidence, uninfluenced by

what they may have heard of the matter and who will

give the ‘accused full benefit of any. reasonable doubt

arising either from the evidence or the lack of it State

vs. Rini, 153 La. 57; 95 So. .400 and State vs. Fadéiane,

233 -La. 102e, 99 So. (2d) 333 and saithavities ‘there

cited. The power to grant a change of venue rests in

the sound discretion | of the trial judge, whose ruling

will not be disturbed in the absence of a showing of

clear abuse thereof. State vs, Johnson, 226 La. 30, 74 So:

; State vs. Swails, 226 La. 441, 76 So. 12d) 523

» and StatArg/Faciane, supra. A ‘review of the evidence.

—_

on ithe motion A change of venue reveals that the judge

did not acs in discretion in denying the motion; —

In connection with the motio- for change of venue,

we note that appellant attempted, to show shat. there was.

_a-systemati¢ exclusion of. negroes from jury, service in

the. Parish of Livingston. This matter will be considered

under appellant's Bill No.4 which was taken to the

overruling of a motion .to quash the venire on this ground

for, if the motion to quash is well-founded, there would

be no point in discussing whether the venue, should be

changed. oe

We pass on, then, to a consideration of Bill No. 4, :

which, as aforesaid, was taken to the overruling of the

motion to quash the general venire on the ground that

‘there has been a systematic exclusion of negroes from

jury service in Livingston Parish. The testimony of the

jury commissioners is to the effect that the registration

roll.of the parish is generally used in selecting persons

for jury duty, there being 405 negroes out of a total

registration of approximately 5,000 persons and_ that

’ there has never been any attempt to, exclude negroes

because. of.. their. race. There was one negro on the

- grand jury panel which indféttd appellant but no negroes

on the petit jury panel. There is no showing whatever

‘by appellant. that there. was a practice in the past of

including a token number of. negroes on the venire-and,

-indeed, nothing from which the ‘conclusion could, be

drawn of a planned exclusion, the testimony being that

all jurors: are selected for service without any discrimi-

nation ds to their race or color.. The motion was, there-

fore, properly overruled. Eubanks vs. State of Louisiana,

356-U.S. 584, 78 S. Ct. 970, 2 L. Ed: 12d) 991; State vs.

Fletcher, 236 La: 40, 106 So, (2d) 709 and State vs.

“Coleman, | La. , 108 So. 42d) 534. {

Bill No. 6 was taken to the overruling of. a motion

in arrest of judgment. This motion was bioed in part |

“oh the allegation that. the indictment is defective and

insufficient, which we _ already disposed of in our

_consideration of . Bill No, 1. It «also reiterates the propo-—

sitiogs arg@ed under a tie ~2—respecting” the court’s

ruling in holding that appellant. had waived: any objec-.

tion he ‘might have had to the. bill o ’ particulars fur-

nished by the State, which We bene covered in our dis-~

_ cussion of Bill No. 2.

} ¢

In addition, the motion in arrest: “alleges. that the

general charge of the jucge to the jury Was faulty in

_ that he stated, in giving the mandatory list of responsive

"verdicts to the charge of aggravated rape; that it could

find appellant “guilty or guilty. as charged”, which

meant the same thing. Appellant’s. complaint is that,

since Article 386 of the Code of Criminal Procedure

ARS. 153386) lists only five responsive verdicts for ag-

~ ravated rape' and does not include “guilty” but only

“guilty as charged”, the judgment should - arrested

and appellant discharged.

This claim is without -any substance.. The jury

_. found appellant “guilty as charged”, which is a respon-

sive verdict under R.S. 15:386. It is’ difficult to see how

appellant was prejudiced by the .judge instructing the

- jury that one of the five responsive verdicts: was guilty

or guilty as charged”: If counsel had thought so, he

should have perfected a bill of exceptions to the general

charge. ;

: Bills of Exceptions Nos. 7 and & were taken at the

| hearing of a motion for a new trial to the refusal of the

judge to receive evidence as. sailing the credibility of the

»>

t Guilty as ea guilty without capital punishment; guilty of

attempted aggravated rape; ay of simple rape and not suilty.

" 26

* witness: Joe Sharp, ‘who -testified for the State as an

expert on the handling of bloodhounds. Appellant sought

__ to introduce the criminal record of Joe Sharp, which re-

- vealed that he had been convicted six times for various

offenses. In addition, he tendered the testimony of two

_ witnesses, who it is alleged would state that Sharp told

them after the trial that the bloodhounds ,could not be_

relied on as completely as he had made it appear in his

evidence, and also that he had not found certain objects

along-the bloodhound trail as he had stated to the jury.

There is no merit in ts bills. RS. 15:511 sets

forth the conditions under which a new trial may be

granted for newly. discovered evidence; declaring that it

must affirmatively appear that, notwithstanding the ex-

ercise of reasonable diligence; the evidence was not known

before or during the trial and_that, among other things,

“ * *.* it does not merely corroborate or ‘impeach. the

credibility or testimony of’ any witness examined at the

trial; that it is also material that it ought to produce

a different result than the verdict reached, and that it is

admissible.” .

At best, ‘since the trial judge found that the evidence

of Sharp was merely corroborative, it is doubtful that —

the testimony impeaching his statement would have pro- -—

duced a different result if it had been heard by the jury.

See State vs, Richard, 223 La. 674, 66 So. (2d) 589.

Bill No. 9 was’ reserved to ‘the wenden of appel-

lant’s shinction te. Joe Sharp testifying as an expert in

the handling of Meedhounds. There is no. testimony at-

ched to this bill with respect to the qualifications of.

Sharp but the trial judge states in his per curiam that it: ,

was shown that Sharp had been handling Bloodhounds for

many years and that, during the last few years, he had

handled bloodhounds for th@ Sheriff's office in East

‘Baton Rouge Parish and also for other sheriffs in the

State.

In these circumstances, we-cannot say that the judge :

-. erred in concluding that Sharp was an expert handler of

bloodhounds, as presumably appellant’ s counsel was given

a full opportunity to cross-examine the witness as to | his

"qualifications.

Bill No. 9 eontains a se¢ond portion which is levelled

at the refusal of the Court to allow defense counsel the

opportunity t% cross-examine Deputy Sheriff C> A. Gram-

bling concerning his personal knowledge: of whether .

Sharp -had_ served time in the State Penitentiary for

cattle theft. mae

We find no error in the ruling of the judge. Im- .

peachment of a witness by evidénce of conviction cannot

bé done in this manner. Before proof: of conviction can

be adduced from any other source, it is prerequisite that

the witness sought to. be impeached be questioned on cross-

examination as to his conviction and. have failed ee:

to admit the same. R: S. 15:495.

During the course of the trial, the. State called to -

the stand Dr. Robert Louis Fernberg, who had made an

examination of the genital organs of the -prosecutrix

shortly after 9:0Q p.m. on the day she was raped. .He

testified that he found male sperm in her vagina. Since

counsel for appellant was contending, | under ‘the plea of -

* not guilty, that appellant was infected with gonorrhea

at the time of the offense and that, if he had intercourse:

with the’ prosecutrix, the germs. of this disease would

have been present or that she would have become preg-

nant, Dr. Fernberg was questioned as to this phase of

. ie examination. He testified that he did not find any

~ gonorrhea: germs in the sexual organs of the victim at —

the time of his examination and that this was. under- -

standable, tn view of her statement. to him= that _ had

’ taken a douche. before her viet. :

Counsel for defendant ptiniienie cross-examined

Dr. Fernberg | on his* findings, endeavoring to show that —

the witness had no way of knowing whether or not the°

victim had sexual intercoyrse with another person after |

she was raped. When the district attorney objected to:

\ this evidence, the Court ‘stated “That has no bearing on

“this case so far as I can see. You are going too much

in detail,” But the judge thereafter told counsel that

he was not trying to curtail his cross-examination with

respect to relevant. evidence. Continuing on, defense

counsel questioned the doctor about a disease called ure-

thritis, ‘described by him as an infected process of the

urethral canal, which is’ part of the penis. After the

witness had answered several questions. touching on this ©

disease, the judge sustained an objection of the district

attorney. as to further testimony on the urethra,. ‘re-

marking “I think .you have gone into that in every detail ,

possible. It all means the same thing.” Despite the rul-

ing; counsel-continued to question the witness on this.

subject. the’ district attSrney again objecting and the.

; judge sustaining’ the objection. Following colloquy be-

tw een the court and defense counsel, the.latter remarked —

“) wish to elicit atid introduce this t testimony in the rec-

ie in order to establish that a female alleged to have

claimed to have been raped by a male who had gonorrhea

‘—the medical examination of her should have shown the

presence. of gonorrhea germs along with the male sperm

deposited in her: female organs, as heretofore testified _

by this witness as her Medical Exa niner.” The district

attorney ey objected to this statement and the

“

judge then sa‘l “That has: not been proved’ and there

-is no evidence here to say it.” Defense counsel then

said “I am offering that later” and the judge remarked —

ae can't see where any further testimony concerning; this

type of testimony in this case is needed.” At this: point,

defense counsel reserved: Bill No. 10 and he claims in

this Court that the comments of the- “judge weregcomments -

on the facts of the case, | Ww hich are prohibited by our law

and entitles wppellant to’ a new trial.

1A manites that the first two above quéted state-.

ments ‘of the judge cannot be characterized as.comments

-on tne facts.’ The record -shows that. counsel. had heen

allowed to go far afield in his cross-examination. Dr.

Fernberg had testified fully on the condition .in which

‘he found: the female organs of the prosecutrix at the

_timfe he examined her. and. had answered all questions

_7 having any bearing on the case. Hence, counsel's con-

‘tinued prodding of the witness on the same subject and .

his attempts: to elicit obviously imniaterial- evidence be-

came amenable to judicial interference. Article 369 of |

the Code of Criminal Procedure .( RS. 15:369) vests the

trial judge with the sound discretion to stop prolonged, —

unnecessary and irrelevant examination of a. witness

even: though” no objection be’ urged by opposing counsel.

_The expression of the judge that: this evidence had .no

bearing on the case was not a comment on the facts and,

= the same category, Was his statement that counsel had

‘gone into every possible detail—which was assigned as

his reason= for stopping counsel in his irrelevant cross- .

| examination about urethritis.

“The same may be said of the final statement of the

- judge, in which he told counsel that he was unable to

' discern that there was a.need for any further evidence

as to thé doctor’s findings on the condition of the ‘victim's

30 ee

~ arias te 9 ‘ By ri

sexual.organs. ‘Indeed, the only ome of the above quoted

_ remarks of the judge which may be characterized as a

comment on the evidence in his statement, in reply’ to

defense counsel, that the latter's claim that - gonorrhea

germs should have been present along with the male |

sperm in the victim's female organs “ * * * has not

been proved and there is no evidence here. to say it”. e

It is Beneraily ‘understood under our law that a_

trix] judge in a “criminal case may not comment on the

facts.in the. presence of the jury. This rule is found

. throughout our criminal jurisprudence which’ gives effect .

-to an implied prohibition contained in Section 9 of

- Article 19 of our Constitution<- There is also statutory

law on the subject but it seem$ to be’ confined to the pro-

‘vince of the. judge’ in instructing the jury. R.S. 15:384

statés that: the judge shall charge the jury on the law

*- but not on the facts; that he shall not state or recapitu-

late the > evidence ; repeat the testimony of a witness, nor

given an opinion as to-the facts that’ have beengproved

_ or refuted, : a

But ‘there isa clearly’ defined’ exception to this rule,

which we think governs the case at bar. It is well settled —

that’ it is not improper for the Court to make statements

which may pertain io the facts in the presence of the

jury “* * * while ruling on the admissibility and effect °

of evidence and the validity of objections there}o * * *

provided they are not unfair ‘and prejudicia the ac-

cused.” See 23 C.J.S: Section 992.° Also, 53 Am. Jur.—

_ Trial—Section 79.. This exception has been repeatedly

- recognized and applied by. :this Court. See State vs.

> Watker, 50 La. Ann. 420, 23 So. 967; State Us. Hoffman,

; 2 That Section. doit in part: “The jury in all nite cases

shall be the judges of the law and of the facts on the question of guilt

er innocence, -having been charged as to the wate applicable to the case

by the presiding ice cn :

120, La. 949, 45 So. 951: State es. Weathers, 127 La. ,

930, 54°So0-290; State vs: Dreher, 166 La. 924, 118 So.

‘85; State vs, Childe? rs, wf ~ 954, 199 So. 640; State rs.

Vernon, 197 -La. 867, -2 (2d) 629; State vs. W eihde

204 La. 523, 15-So. | ty 814 and State us, Nicolosi, 228,

La. 65, 81 So. (2d) 771." P

In State vs. Childers, ue where the ‘judge, in

overruling an objection to a quéstion propounded to a -

Witness as to theecontents of a will, stated that the wit-

ness had testified that .the-will he read was in the hands

of ‘the defendant, .the Court quoted with approval the °

trial judge’s per curiam to the bill in which complaint

; had been made, that this was a comment on the ev idence,

as follows:

eee

No reversible error. was committed by the c ourt

for the reason that it was not a comment on the’

facts, but was the basis of the Court’s overruling

‘the objection made as to. secondary evidence. The

ruling as made did not conyey to the jury any

impression of the trial Court’s opinion as to the

. guilt of either defendant. State vs. Dreher, 166

La. 924, page 967 (118 So. 85, page 101) ‘bill 369.”

“*It is mot improper for the Court to make re-

marks in the presence of the jury, giving its rea-

sons for admitting or excluding evidence, or to

stdte the purpose for which evidence is offered or

admitted, ete.” 16 C.J. 832-Crimina!l Law See.

2101”. sed. me

In State vs, Walker, 204 La. 523, 15 So. (2d) 874,

F ‘The cases cited by Bence counsel donot take into account thé

exception to the general tle concerning comments on the facts. . More-

over, none of these cases involved remarks —_ while ruling on the

’ admissibility of evidence. In Sfate vs. Ieerson, 136 La. 982, 68° So. 9x,

the vcomment on the facts was made by the judge in refusing a reqaested

charge. In State ‘es, Davis, 140 ‘La. 925, 74 So. 201, the objectionable

remark oteurred while the’ judge was refusing to order the jury te

disregard a statement made in argument. by the district attorney. And +

in State ox. Ballod, 140 La. TOS6, 74 So. 562, the’ judge made a yratui-

tous: prejudicial remark-as to the credibility of a defense witness.

. : , f “i - he e~s 32

ine the trial judge, in explaining his, ruling tio de-

fense counsel that the - testimony sought to .be elicited

formed part of the res gestae, remark@ “That it all

took place in two or.three minutés”, the Court found

that the comment was not of such a nature as to require

the reversal of the conviction and recognized and applied

the above stated. exception-to the general rule as to com-.

_Ments on the evidence. After citation of thé pertinent _

authorities in support, of its ruling, the Court said:

. “The remarks made by the trial judge were not

such as’ would influence the jury in reaching a -

verdict, nor could they be construed as expressing

an. opinion as ‘to the guilt or innocence of the

wccused.”

So we say in this case that the remark of the judge,

that .counsel’s: statement in the’ presence’ of the jury

(that, if the victim had been: raped by a male who had.

gonorrhea, the medica] examination should have shown

the ptesence of. gonorrhea germs along with the male

_. sperm in her female organs) had not been proved and

that there was no evidence to show it, was not such a

comment as would have influenced, the jury in reaching

a verdict and did not in anywise, constitute an expression

of an enna as to the diet or innocence eof appellant.

Under these conditions, the comment ‘doe not afford

yood ground for ordering ‘a new trial. In our most recent

decision on this-subject, State’ vs. Nicolosi, supra, -Wwhere

it was found that the judge committed error in repeating

the testimony of a witness in violation of R.S. 15:384,

we nevertheless refused-to grant a new trial. There, we

applied the’ injunction contairied ‘Nf Article. 557 of the |

Code of Criminal Procedure .(which we think is clearly ©

controlling under the state of- facts presented here! that

“no new trial shall be given in a criminal case as to any

«33

error of any matter of pleading or procedure unless it

appears to the appellate court, after an examination of

the entire record, “ * * * that the error complained of

has probably resulted in a miscarriage of justice, is

_ prejudicial to the substantial rights .of the accused, or ;

_ constitutes a substantial violation of a constitutional or

statutory’ right.”

When: appellant was called for sentence, his counset

made. objection thereto on the ground. that the verdict

of the jury was contrary to the law and the evidence.

‘This objection was ‘overruled and thereupon counsel re-

~ served Bill No: 11 and attached thereto. all of his other

bills, his motion in arrest of judgment and for a new

trial, the court’s written charge to the jury and the re-

mainder of the entire record.

This is novel procedure under our. law. It is too

well settled to require the citation of authority that a

motion for a new ‘trial based onthe ground that the

verdict is contrary to the law and the evidence, presents -

nothing for review in this Court as our appellate juris-

diction extends only to questions of daw and not of fact.

Furthermore, we could not review the revidence in this

case as all of it is not in the record. ™ |

a .

Finally,.we eonsider Bill No. 5, whidh> was taken

to the overruling of appellant's moti n for a new trial.

This motion reiterates all of the complaints tendered in

the other bills of exceptions, which have been heretofore

discussed and rejected and also assigns several other

reasons for the granting of a new trial. One discussion

will be confined to these additional reasons. |

Paragraph _ No. 5 of the motion si a new trial was

directed against the acmneeren | in evidence, over objection

a a .

of defense counsel, of a shirt and’a mask identified by

_ Joe Sharp as being worn by appellant on the day of the

crime. This complaint, dealing with the admission of

evidence, is not properly presented for the first time on

‘a motion for a new trial and counsel's: failure to take

and perfect a bill_gf exceptions ordinarily would ‘preclude .- -

a review of the alleged error by this Court. - However,

the district’ judge declares in his per curiam that the

shirt and mask were received in evidence -for the sole ,

purpose of rebutting the testimony of two defense wit-

nesses Who stated that the articles did not belong to ap-

pellant. We find no error in the ruling.

‘Paragraph No. 6 of the motion is‘ in the same cate-

_ gory as complaint No. 5 and refers. to the rebuttal testi-

' mony of two deputy. sheriffs who said that, during their.

‘investigation of the crime, the two witnesses above re-

‘ferred to had told them that the particular shirt offered

in evidence did belong to appellant. We see no substance ©

in the complaint:

Allegations Nos. 12 ~e 13 declare that no proper

identification was made of appellant in view of the fact

that there was no fingerprint evidence taken nor: was

appellant ever placed'in a “line up” and that the verdict

is contrary to the law and the evidence because there

was some conflict in the testimony as to the time of the

attack. ‘Suffice it to say_thas these arguments pertain

onlt to questions of fye*Which ure not within the scope

of our jurisdiction.

Paragraph Noj 14 alleges that the trial judge com-

mitted error in refusing to sequester three deputy sher-

iffs of the parish, two of,whom. were called as witnesses,

The trial court ‘refused to sequester the deputies because

the: sheriff advised him that’ it was necessary for the

| “s ~~

deputies to remain in. the courtroom to maintain -order.

While bill of exceptions was reseryed to the judge's’

ruling on this point it was not perfected by counsel. But,

aside from this, there is no showing that the judge

abused his discretion in ‘refusing to order the sequestra-

tion of the deputy sheriffs. -It is well settled that the

ordering of-or refusing to order sequestration of wit-

nesses is within the sound ‘discretion of the trial court

and its action will not be disturbed unless shown to be

arbitrary, unre: asonable and prejudicial. State es. Palace,

227 La. 691, 80 So. (2d) 374. | |

Paragraph’ No. 15 ofthe motion for a new trial

alleges that the prosecutrix left the courtroom on many

occasions and conversed with other witnesses who were

sequestered under the rule of court. The trial judge

says in; his per curiam that, as: soon as defense counsel

directed his attention to the fact that the prosecutrix

was leaving the courtroom, he immediately instructed

her not to do so while court was in sessien., There is no

showing whatever as to whom she c «tacted while she

~~ Was out of the courtroom and, in the absence of any

evidence that she tried to divulge information to the

‘witnesses under sequestration or to otherwise influence

their testimony so as to prejudice ‘appellant. the come

plaint made in the motion for a new trial is without

substance.

The conviction and sentence are affirmed.

STATE OF LOUISIANA, PARISH OF LIVINGSTON

Twenty-First Judicial District Court :

The Grand Jurors of the State of Louisiana, duly

impanelled and sworn, in and for the body of the Parish

of Livingston, in the name and by the authority of the

said State upon their oath find and present: ¢

That one, Andrew d.. “Scott

late of. the Parish of Livingston, on the 19th _ of

Oétober, in the year. of our Lord One Thousand Nine~

Hundred and Fifty-seven, with force and arms, in the

Parish of Livingston, aforesaid, and within the. Juris- -

diction- of the Twenty-First Judicial District Court of

Louisiana, for the Parish of Livingston,

Did commit aggravated‘ rape upon Mrs. Larecy

Blount Graham at her ‘residence about six miles

north of Corbin, Louisiana in violation of Ar-

ticle 42 of the Louisiana Criminal Code.

Contrary ‘to the form of the statutes of the State of

Louisiana, in such cases made and. provided and against

the peace and dignity of same.

Ss William: M. Dawkins

: Assistant District. Attorney for

the 21st Judicial District of

Louisiana :

— Noz 6537 |

. - State of Louisiana . 9

Versus ;

A t oa

Andrew J. Scott

| INDICTMENT FOR

Aggravated Rape

ORES:

A TRUE BILL -

V.R. Miller, Jr..

Foreman of the Grand Jury.

FILED Dee. 6, 1958. |

Bea Lea.

Dy. Clerk

March 26, 1958

Guilty as Charged

N. R. Ninchen

“Foreman

Filed Mar. 7, 1959

~ Bea Lea Dy Clerk |

21ST JUDICIAL DISTRICT COURT

PARISH OF LIVINGSTON

STATE OF LOUISIANA

os 6537

STATE OF LOUISIANA -

a ants VS.

ANDREW J. SCOTT

MOTION TO QUASH | |

And now into this Honorable Court comes Andrew J.

Scott, made Defendant herein and having heard the in-

dictment read and protesting that he is not guilty of the:

offense set out therein, moves to quash thé said indict-

ment, filed herein, for the following reasons, to-wit:

That the said indictment filed herein, is insufficient, in

definite and invalid and does not charge * any crime

against the avove. named defendants. e

‘That the said indictment fails to apprize or inform de-

fendant of any crime against him in any manner suf-

ficient to allow him to offer any defense or to advise

him as to just what crime he is accused of having com-

mitted “in violation of, Article 42 of: the Louisiana

~ Criminal Code” since he is a layman, unedueated and is

in no wise familiar with the language er any juris-

prudence arising under Article 42 of Louisiana Criminal .

Code.

That furthermore, this said indictment avers that mover |

Aas: Soaoiges: ' :

acted “in’violation of Article No. 42 on. the 19th day of

October, 1957; which covers the full- period of twenty

four hours (24 hrs.' during which time mover was de--

livering automobile tires and ofher aute accessories from

- B._ F. Goodrich Service. Station and retail sales depart-

ment of Baton Rouge, Louisiana, over a vreat part of

Livingston. and East Baton Rouge Parish. and. it would ,

be practically impossible and extremely .impractical to

furnish witnesses or other evidence as to his whereabouts

and actions during every hour or fraction tke reof, dur-

ing the entire 24 hours of this date of Oct. 19, 1957, even

though he does -have alibi witnesses and. could get them,

for any particular hour or fraction of an-hour: ~ r

41— ace

~* Furthermore, the Indictment avers that, this alleged \iv-

lation took place “about six miles north of Corbin, Lou-

isiana’’, which is indeed indefinite and confusing: in sev-

eral particulars, both vs to directions and many respective

distances, as no-me htion or designation of * any street,

public highway, country ‘read or other named, or. num-

bered thoroughfare as leading up to or even leading ‘along

nearby, or anywhere near to the alleged residence of the

alleged complainant. And -the alleged location -of” the

said alleged act “in violation of Article 42 of the Lou-

isiand Criminal Code In Indictrfent is vet. made more

indefinite. and, confusing by failure of the indictment: in

. any manner, to set forth definitely what part or point.

of location in Corbin, Louisixna, from which the direction

is to be fixed and from which the approximate -measure-

ment is to be made or taken. And whether or not. the

exact direction is: to be measured directly north. along a

perfectly straight line extending due north and south or, |

north by slightly northwest or ‘north by slightly north-

east. Any slight varation of the above mentioned direc-

tions or distances would make a tremendous difference

as to location of the alleged scene of: the alleged offense

“in violation of Article 42 of the Louisiana Criminal .

-. Code.”

5—

~ That by the systematic exclusion of. a reasonable pro-

portion of names of qualified members of the Negro race,

who are qualified legal residents of the Parish of Liv-

ingston, from the Jury list deposited in the Jury Box, the

Jury Commission of this said Parish has completely de-

prived this Negro defendant of having members of. his’

: rave ‘serve on the Livingston Parish Grand Jury which

found and returned this insufficient, indefinite and in-

. Valid Indictment against him on, or about, December 6,

1957, Which systematic exclusion of a fair and reason-

_ albe proportion of names of qualified. Negroes is in vio- —

lation. of iecis Constitutional rights + this Negro De- Fa

fendant.

WHEREFORE: the said : jee J. Seott, prays that

this Motion. to Quash be filed and‘maintained and that

the said Indictment, as to him, and as far as he is, con-

cerned, be declared null and void and ordered’ quashed.

_ And that said Defendant be discharged therefrom.

: ANDREW J. SCOTT

DEFE SNDANT

HARRY. M. ENGLISH |

ATTORNEY FOR ‘DEFENDANT

\ “h ; ety i 7 41 a ra

i AFFIDAVIT.

STATE OF LOUISIANA

> PARISH. OF. LIVINGSTON

BEFO ORE ME, .the undersigned authority, personally

came and appeared : Andrew J. Scott who after being

duly’ swork, by m,e did depose and say; that he is the -

Defendant in the above and foregoing Motion to Quash,

that he has: read same,.in full, and all the allegations

contained therein are true and correct, to the best of his

knowledge, information and belief.

“ANDREW J..SCOTT

AFFIANT

Sworn to and subscribed before me this 7th day of March,

1958 at, Livingston, Louisiana.

= James MS Cudd _

NOTARY PUBLIC

P D °,.

; Bea Lea-Dy Clerk

21ST JUDICIAL” DISTRICT COURT

: ~PARISH OF .LIVINGSTON

. STATE OF LOUISIANA °

a ae . ei

STATE OF LOUISIANA

eee i a |

ANDREW J, SCOTT

MOTION TO QUASH VENIRE

Now into Court comes Andrew J. Scott, made, defendant

herein, and on suggesting to this Honorable Court ‘that

your defendant is charged with the crime of Aggravated

‘Rape by viture of an Indictment, returned by the Grand

’ Jury of Livingston Parish and fixed for trial this day,

and moves that this, Honorable Court quash the regular

- Venire, drawn and selected for service during this cur-

rent week of Criminal Jury term,. for the following

“reasons, to-wit:

First, for the reasons heretofore set forth, and. support-

ing evidence introdyeéd’ and’ taken on the trial of

op Motion for a Change of Venue, and

whigh said toeti6n was. hezra and overruled on yesterday”

by this Honor able Court. saree 5

setls

That moreover, the eividence adduced we tuk@ on ‘the

aforesaid trial or hearing ‘of the Motion for Change of °°

Wenue and both of which-are attached hereto, and’-made-_

a part hereof shows and establishes conclusively, that, all -

‘the thirty (30: names drawn. and listed on said Regular,

‘Jury Venire are members of the white race and defendant

mover has no representation, whatsoever, from his’ race,

* the Negro or colored race, drawn to serve on this said

‘Jury Venire. a ’

; 3 pee

“That defendant has offered and fled this, his ‘motion ‘to

Quash said Venire,- prior to the beginning of his trial. -,

WHEREFORE: MNefendant-Mover prays that his motion. |.

to Quash the Venire be duly filed and heard: and after

all due, legal proceedings had, that the Jury Venire,

herein ¢ be duly quashed and all remaining “unexcused

veniremen drawn thereon be discharged a¢ provided by. -

law. , ee

Defendant-Mover further prays for ‘all general orders in

the premises; for such judgment .as the nature of the

case may require and for all general relief.’

Harris M. English

Attorney for Defendant-Mover

: . AFFIDAYIT.

_ STATE OF LOUISIANA

PARISH: OF LIVINGSTON

Before me, the undersigned authority, saxeiiealty came

_ and appeared Andrew J. Scott who after being first duly

sworn, by me, did depose and say he is, the defendant-

's)

i”

faa

* &

~, 2 ) _

& }

op6ver in the aboveesand: foreytng ‘Motion to Quash

Venire, that he has read same, in. full, and all the aille-

" gations, Cgitained therein are true and correct.

é ; es

& ‘s :

ed e , ANDREW: J: SCOTT.

eS a

Sworn to and subscribed, before me this, 18 ~~ of March,

L95Ne~ oak , bas \ ¢

eo oe ae chee

_NOTARY PUBLIC ~

. e

» °

2 ° e

‘ >

. & ° ® s

e * ‘ .

’ .

- .

. 5 {a ;

\ e

‘ wv . ° Re

9 o : ‘@ (am,

« ‘ bo “Ga °

eee a .

3 e

3 *

a ’

ee e

: ‘ s

pe e

: “~

’

. d

: provider by law, for the following reasons; to-wit:

. iniertie + Filed Mar. 13, 1958

ah. ee ae 7 Bea Lea Dy C lerk

$- 2ST upielak DISTRICT COURT

PARISH OF. LIVINGS STON

STATE OF LOUISIANA

« STATE.OF LOUISIANA

ye he és,

ANDREW J. SCOTT

» *

° wo

: MOTION FOR: CHANGE OF VENUE

On motion of hn teale 5 Scott, defendant herein, sad on

suggesting to this Honorable Court that your defendant °

is charged with having committed the crime of Aggra-

‘vated Rape, by viture of an ‘Indictment returned by the

Grand Jury of this Parish, and moves ‘that this Honor-

able Court do grant fim a change of venue and removal

of thir cause to another Parish, ig the manner and from

Your. Mover avers that he has good reason . to’ believe,

angl so’ beligving, alleges that.by reason of prejudice exist-

jy i in the public mind against him, gowing out of articles

and.items of, néws published in the ‘general press of the

Baton Rouge newspapers, and inflamed and_ biased

rumors against him conveying such a-strong impression

of guilt that, the citizens of the Parish ‘of Livingston

have become so inflamed and prejudiced against your

de nt that it-will be impossible to secure an unbiased"

jury, and it’will be impossible for your defendant to se-

/ cure a fair and impartial trial as is guaranteed him -by

, 46

the Constitution and laws of the State of Louisiana, and

of the United States of Americal. | 3

Tear eeae oor are ne

+. .

-« That mover is a young*Negro man and is charged. with

the serious and heinous crime of Aggravated Rape of :

Banus well known white lady of the Parish of Livingston w hich

has by the very ‘nature of the charge created ,a tremend- :

ous degree of prejudice against this accused throughout

the entire Parish. : Pare “s

Ae _ Skit casein

: Pp ee ? . j — bait . j & . .

That furthermore, the white lady complainant, is held in

high, regard by her many fries and acquaintances

throughout the Parish of Isivingston.

span eae

That the complainant is closely related, either by blood

or marriage, to a large number of influential | White citi-

zens tliroughout: this: Parish.

That ‘mover has been informed and verily believes that >

the Jury Commission has drawn and placed in the Jury.

a. Box of. this Parish a-substantial number of names by lot

or chance, of :the aforementioned friends and relatives of

both complainant-and her husband, who is also.a mémber

of a large and influential ,white family of this Parish.

And that the regular Jury Venire already selected for.

the Criminal Term of: this Honorable Court beginning

Monday, March 17, 1958, the date the defendant is al-

ready assigned for trial likewise has the names of a sub-

stantial number of these aforementioned relatives, friends -

and acquajptances, who have been inflamed ‘prejudiced

*~, AT

and instilled with much teins through newspaper and

otherazeports. | -

ee Sen me

Tha mover is a colored non-resident of the parish of

-Livingston, and is now, and has been for the grater part -

of his life. a resident of the City of. Baton. Rouge, “East,

Baton Rouge Parish, Louisiana, and has an, extremely

limited acquainti ince in. Livingston Parish, with either

. the white citizens, or those of his own colored race.

And his sis reliably informed, and verily believes, from

all the information, he is able: to obtain, that he is con-

‘sidered and looked upon as a despicalbe intruder into*the

Parish of Livingston by the-vast majority of all citizens:

of thix said Parish w ho now knew him or have read uny

news paper account or heard “any. discussion, by “word Of

‘mouth, concerning the alleged serious offense of. “Aggra- -

vated Rape” of a white ladle who is held in high regard.

by her numerous friends and acquaintances together with

a large. number of devoted relatives, by blood or manrnde.

—T--

That moyer has reason to believe, and does so believe,

that ‘by the systematic, exclusion of a reasonable. number

of names of qualified residents of the Negro race he has

been deprived of his legal rights to havea reasonable

number of qualified Negroes called. for Jury Service on

the regular venire panel, or an any necessary tales list.

which may be drawn fer the Criminal Term of. this

Honorable: Court beginning on the following Monday,

March 17, 1958. And from which regular panel and

tales jists of prospective jurors the selection of a Petit

Jury which would serve on the trial of defendant mover

Would necessarily have to be made and effected,. begin-

| That your Mover°makes this application as ‘soon as he.

‘o-

ning on the aforementioned date of trial of ‘Monday.

March af, 1958.

—s—

“had discovered the existence of such prejudice, and. as

soon as he had discovered the fact that it will be: im-:

possible for your defendant to secure a fair and impartial

trial inthe Parish of Livingston, and that this applica-

tion is made, not for the purpose of delaying the trial of

your deféndant, but for the purpose of securing a fair

and -impartial trial. . And your Mover avers that’ he has

been duly rearraigned on “the said charge, and has again

‘ish of the State of Louisiana, as provided by law. there

pleaded » “Not Guilty” upon said re-arraignemtn. >

as ‘

Ry @ anf.

P “i ; e eis “

Mover shows that: he has served notice, as required, by

law on the.Honorable Duncan Kemp, District--Attorney -

of the 21st Judicial District, advising] him of your Movers’

intention ‘to apply for a. Change of Venue. ~

WHEREFORE, your- Defenadant prays th&t he bee? al-

lowed to file this motion for a change of venue, and, that

this motion be assigned for trial and that. he be given

/an opportunity to summon witnesses in support of this

motion, and that after due and legal proceedings had,

that he be granted _ag@pange of. venue to some other Par-

to be duly tried. Defendant further prays for all natal

orders in thepremises, for such judgment as equity and’

the nature of this case may require and for all general

relief.

& ANDREW J. SCOTT

“HARRIS -M. ENGLISH

“ATTORNEY FOR DEFENANT- MOVER,

my”

> 49

AFFIDAVIT

STATE OF LOUISIANA y

«PARISH OF TANGIPAHOA

BEFORE ME, the: undersigned authority, personally

came and appeared: Andrew .J. Scott. who on oath de-

poses. and sada i

That the fact sini allegations ° in the foregoing applica

tion for a change of venue. have been read tg him and :

: that said facts and allegations are true and. correct.

Andrew + Scott

SWORN TO AND SUBSCRIBED BEFORE ME THIS

12 eay of March, 1958.

“DAV IS F. REID,

NOTARY PUBLIC

eT ae

ORDER

Considering the foregoing Motion, it is ordered by the:

Court that Duncan Kemp, District Attorney for the Par-

- ish of Livindeton, and the 21st. Judicial District Court

of the State of Louisiana, vin ok cause, ‘in Open Court on

the 17th day of March, 1958. ‘at 9:30 a.m, why a change

of venue in this case should not be granted. Thus done,

signed and issued, at Amite, Louisiana on the 12th day ~

of March, Fae. mi

H. R. Reid

Judge 21st Judicial District

Court, State of Lotisiana

| Os . ane .

UNITED STATES OF AMERICA |

| STATE, OF LOUISIANA

“SUPREME COURT OF THE STATE OF LOUISIANA

¥ ;

New Orleans, Monday, April 27, 1959

Court was duly opened; pursuant. to adjournment.

Present Their Honors: John B. Fournet, Chief Justice,

Amos Lee Ponder, Joe B. Hamiter, Frank W. Hawthorne,

E. Howard: McCaleb, James D. Simon and: Walter B. |

Hamifn, Associate Justices. . eats

| ACTION BY THE, COURT ON APPLICA’ ATIONS

FOR: REHEARING ~ .

_* Seer pee . +

_Rehearings werevrefused it the following cases’:

- a . * ee

— F4,36T ~~ State of Louisiana v. Andrew J. Scott

ae * * * ‘* a 5

I, Harold A. Moise, Jr, Deputy Clerk, Supreme

. Court of Louisiana, do hereby. certify ‘the above to be 2

te and correct rat from the. minutes - ‘this court.

IN ‘WITNE ESS WHEREOF, y hereunto

* sign: my name and affix the seal of the.

——-— court aforesaid, at the Citysof New Or--

- leans, this the 23rd day of July, A.D.,

1954. | a.

ee” fe

=: HAROLD A. MOISE, JR.

Harold A. Moise, Jr.

: _ Supreme Court of, Louisiana —*

(SEAL)

- +. SUPREME COURT OF LOUISIANA

No. 44,361 ~.

“STATE OF LOUISIANA

-" VS.

ANDREW J. SCOTT

+ ae

- PETITION’ FOR STAY OF EXECUTION OF |

To The Honorable Chief Justice And Associate Justices

Of The Honorable a heron Court Of The State Of Louisi-

ana,. : Be te

ee on le petition of ANDREW J: SCOTT, ore ‘in

-the above numbered and entitled cause, with respect,

represents : | ate (

vw That the deeree of this Honorable Court -affirming

the veri lict and -sentence of the Criminal District Court

for the Parish of Livingston, ton, Division “B". is “finalthis——

Court having-refused- an ‘application for a rehearing on

| the 27th day of. the month of April, 1959.

20 :

Petitioner avers that the opinion and devin of this:

“Honorable Court deprives him of his rights guaranteed .

him under Article 1, Section 2 of the Constitution ofthe .

State $f Louisiana and by. the 14th Amendment of the .

United States Constitution, and$also by Act of ‘Congress,

2 : ,

_. 18 ‘statute’ 336, 8 U.S.C. 44, and that the was tried and

» convicted, over his protest, without due proces of law,

to-wit: That the petitioner is admittedly a member of the

colored of Negro race, that there was no proper ‘repre-

sentation of the Negro race. ifi the jury box or general

venire list of names from which were drawn to con-

stitute the Grand Jury, the petit. jury and tales jurors |

list, which respectively: -indicted and tried &fendant-

petitioner, and which denied him his equal rights under

the State Constitution and Federal C onstitutign and

“Statutes to the equal protection of the lays. : :

; . é " 7 3. : "ie . ; .

eh at : ah z . ‘ j

“Petitioner further avers: that: he was denied his:com-

~-mon law rights and his rights under the laws of this

State to have his motion to quash the indictment sus- ~~

tained. on his arraignment or. his motion:-to quash the

array, or, regular petit jury vertire, before his. trial

began. And that the trial and proceedings had in Divi-

‘sion “B” of. the 21st Judicial District. Court of .Louisiana.

was therefore without due process of law under the

Constitution of the State of Louisiana, the 14th Amend- —

_ ment of the U.S.. Constitution and the Act of Congress,

‘18th Statute 336, 8 U.S.C. 44. ce:

: A. .

Petitioner avers that he timely raised the said ques-_

tions in the lower Court: prior ‘to the time of his arraign-

ment and prior to the beginning of trial respectively and

after his conviction in.a motion for a new trial and in —

this Court by his Bills of Exception and his brief in

suppert thereof... — eer |

Petitioner: further avers that he is desirous of ap-

plying to the Supreme Court .of the United States, for

a writ of certiorari and rev iew,. or appeal, to review the

decision of this ‘Honorable Court upon the issues hgrein-—

above raised and?as shown ‘by the -record in this case;

“and that petitioner desires that he be given a stay %r—

delay. in which to apife to said Court; and that the de-

cree or mandate of this Honorable Court be stayed so

that petitioner will have. an opportunity to -so present

his application® to.the Supreme Court of the U nited, States” as

——

Wherefore; -péitioner prays that: waiver due. considera-

tion that this Honerable Court grant him .a reasonable

stay of execution and that he be permitted a “delay of

90 days“in which to prepare and file in the ‘Supreme,

Court of the’ United States his application for a writ

of certiorari-.or appeal to review the. decision of this oe

Honorable Court and that the mandate and decree af

this Honorable Court be withheld accordingly. /

And for all general and equitable relief. — SL

ee M BY. ATTORNEY: ne Wy

3’ HARRIS M: ENGLISH#”

Harry M. English” /

_ ATTORNEY FOR, PETITIONAR.

—-» Counsel for petitioner, AN DREW J. SE OTT, cache

certifies that the foregoing An and application: is

made in. good faith and counse} further certifies that he

. verily believes “that, petitione is‘ entitled in law to the

rélief: sought. = pe a

nea ‘ *

; s HARRIS M. ENGLISH, .

hieieteilabinlsiasaiig —s — - ?

; Harry M. English

are ATTORNEY FOR PETITIONER.

. . * Andrew J. Scott.

= 54

Let ‘petitioner be’ granted” a stay of execution of the: §

_ decree of this. Honorable Court for a period sc 90 days.

| THIS DONE, SIGNED AND ISSUED at New Or- -

leans, a on the 27th day of April, 1959. :

_/s/, INO? B. FORNET,

‘A TRUE COPY. Lees

Clerk’s Office, New Orleans, April 27th, 1959.

/s/- HUGH ST. PAUL:

Dy. Clerk, | : a

ae: Supreme Court of Louisiana. _=

— (SEAL)

- CERTIFICATE _4

I certify that I have served a copy of. ng ‘motion

and petition upon oe counsel OY ail, — 27,

| _—

nae aa - HARRIS’ M.. ENGLISH. |

ne for. Petitioner -

CERTIFICATE anit

I hereby certify that a copy of the foregoing petition

and appendix has been omnes on opposing counsel for

State of Louisiana.

New Orleans, Louisiana, July 24,.1959.

\ 7

s HARRIS M.- ENGLISH

‘Counsel fo* Petitioner :

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