# Petition for Writ of Certiorari — Scott v. Louisiana > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA0438614_1073%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1959 - **Citation:** 361 U.S. 834 ## Text 7* . : . - ; * i V nr RP WANS } . 2 ‘ “ss Supreme Court of the United States _ . OCTOBER TERM, 1958 . @ 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 [ 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- | ae se - Livingston, Louisiana, where the system that was,con- - : — (3)... —_—— —«: o- 2 . tion. of this Court is involved: under 28 Uz S.C, Section: ae 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 : 4 - 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 ® 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- z ee 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 a h penalty by electrocution. defendant through his coun-”. 5 + . 4 ; A ° ‘DY Z a : - 8 ‘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 . 6 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 7 7 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, ¢ 8 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 im 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 é 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. 10 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- a 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. 12 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 J om 13 , 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* e & : - ~~ 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 a 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. : az 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. a 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 Na 20 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 og . 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 i wi a4 “ 29 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 e* 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 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 . 4 4 34 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 ce | “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. 36 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 : 37 — 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 oe 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: 1. That the said indictment filed herein, is insufficient, in definite and invalid and does not charge * any crime against the avove. named defendants. e a ‘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- ° 39 prudence arising under Article 42 of Louisiana Criminal . v 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- 40 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 Z$ P D °,. Filed Mar. 18, 1958 © ; 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: a 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. . e . & ° ® s e * ‘ . . ’ . - . se . 5 {a ; \ e ° ‘ wv . ° Re 9 o : ‘@ (am, « ‘ bo “Ga ° eee a . 3 e 3 * a ’ ee e : ‘ s pe e : “~ ’ . d a of . : 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 ° a. 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 ae 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. Pe 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 A *~, 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- 48 o ning on the aforementioned date of trial of ‘Monday. March af, 1958. —s— 9 “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 Y ¥ ; 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. N ~ + Deputy Clerk © . : _ Supreme Court of, Louisiana —* (SEAL) J fa - +. SUPREME COURT OF LOUISIANA No. 44,361 ~. “STATE OF LOUISIANA -" VS. ANDREW J. SCOTT pn + ae - PETITION’ FOR STAY OF EXECUTION OF | a MANDATE © . | - 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, eo 2 : , & 52 _. 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 | 5. Petitioner: further avers that he is desirous of ap- plying to the Supreme Court .of the United States, for oe 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 for, relief. © Pairs, —— 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 y Ve 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 es 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, Chief Justice © ‘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 : Ss --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA0438614_1073%3A3. Public record. Not legal advice.