State v. Cavanah , 233 La. 565 ( 1957 )

McCALEB, Justice.

Appellant was charged with the violation of R.S. 14:89, relative to crime against nature, in that he had unnatural carnal copulation with a ten year old boy and, after a trial, was found guilty of attempted crime against nature. Following imposition of a sentence to serve two years and six months at hard larbor in the State Penitentiary, this appeal was taken, in which appellant relies on three bills of exceptions taken during the proceedings for a reversal of his conviction.

Bill No. 1 was reserved to the alleged failure of the judge to charge the jury wholly in writing, as required by Article 389 of the Code of Criminal Procedure, R.S. 15:389. In compliance with that Article, appellant requested, prior to the swearing of the first witness, that the judge deliver his charge in writing. The request was granted and the judge prepared in writing his general charge which he delivered to the jury at the close of the case. However, prior to the giving of this written charge, the judge, taking note of arguments of defense counsel imploring the jury not to consign defendant to the penitentiary, made an oral statement to the jury,¹ the substance of which is that it was the function of the jury to determine the guilt or innocence of the accused and that it should not be concerned with the penalty which the court might impose in event of a verdict of guilty.

Upon completion of the judge’s written charge to the jury, counsel reserved this bill of exceptions in which it is contended that the court violated the provisions of R.S. 15:389 in that his entire charge was not in writing. The rulings in State v. Rini, 151 La. 163, 91 So. 664 and State v. Wilson, 169 La. 684, 125 So. 854, are said to sustain this position.

In the cited cases, this Court held that the provision of law requiring the judge to deliver his charge in writing, when requested so to do, is mandatory and that, if any part of the charge is orally given, it constitutes reversible error even though the remarks are reported by the court stenographer.

Counsel for the State recognize the force of these pronouncements and they admit that, if the court’s oral remarks in this case are properly characterized as part of the charge or a special charge, the remarks should have been reduced to writing before being read to the jury. However, they maintain that the remarks in question cannot be classified as a charge to the jury and that, since our law does not require that statements by the court which are not charges to the jury be first written, they could properly be given extemporaneously. In support of this contention, authorities from other jurisdictions with similar statutes are cited from which a general rule has been evolved. That rule is tersely stated in 23 C.J.S. Criminal Law § 1301, p. 886, as follows:

“The charge or instruction required by law to be reduced to writing is only that which the court may have to say to the jury in regard to the principles of law applicable to the case and to the evidence; and hence an oral statement or communication by the court to the jury, which is rather in the nature of a cautionary direction, and not fairly and strictly a direction or instruction on some question or rule of law involved in or applicable to the trial, need not be in writing.”

Thus, the issue for decision here is whether the oral statement of the judge to the jury was properly a part of his general charge. In determining this' question, examination should first be made of the applicable provisions of our law with respect to the essential ingredients of the judge’s charge. The provisions will be found in the first six articles, preceding Article 389 (Articles 383-388) of Chapter IX of the Code of Criminal Procedure entitled “Charging the Jury”.

Articles 383 and 384 relate to the province of the judge and the jury and provide that the jury are the judges of the law and the facts on the question of guilt or innocence; that it is the function of the jury to determine the weight and credibility of the evidence and that the judge has the right to instruct the jury on the law.

Article 385 deals with the scope of the charge and provides that the judge shall charge the jury on the law applicable to the case.

Article 386 relates entirely to charges on responsive verdicts.

Articles 387 and 388 deal with the general charges of the judge to the jury, setting forth that it is essential for the judge to charge that the accused is presumed to be innocent; that it is his duty to give the defendant the benefit of every reasonable doubt and that it should not convict unless convinced of his guilt beyond a reasonable doubt.

It appears from the foregoing that there is no specific requirement for the judge to instruct the jury concerning the penalty which may be imposed in the event of conviction. This being so, it would seem to follow that a statement of the judge concerning the imposition of penalties which is given for the purpose of clarifying sympathetic appeals made by defense counsel to the jury, such as in this case, cannot be regarded as essential to the general charge and, therefore, need not be delivered in writing. This is the rule in ether jurisdictions where it has specifically been held under statutes similar to our own that a statement by the judge to the jury, defining the penalty for the offense charged, or the eligibility of the accused to parole following conviction, does not constitute part of the charge and need not be in writing. State v. Jensen, 114 Wash. 401, 195 P. 238; State v. Smith, 132 Iowa 645, 109 N.W. 115; State v. Skinner, 101 W.Va. 632, 133 S.E. 371, reversed on other grounds; State v. Carroll, 52 Wyo. 29, 69 P.2d 542; State v. Kennedy, 82 Mont. 165, 266 P. 386; State v. Lammers, 171 Kan. 668, 237 P.2d 410.

We hold that Bill No. 1 is untenable.

Bill of Exceptions No. 2 was reserved when the judge refused to give a special charge on general reputation and good character. The Court ruled the requested charge obj ectionable since it was not wholly pertinent and wholly correct, which is requisite under Article 390 of the Code of Criminal Procedure (R.S. 15:390). The first paragraph of said special charge reads as follows:

“The general reputation of an accused for honesty, peace and quiet, and good morality, is competent evidence, and is to be considered by the jury together with all other facts and circumstances of the case.”

In his per curiam, the judge points out that he had already given a complete charge on the general reputation and character of appellant as to “sexual morality” and he deduced that the request for a charge as to appellant’s “honesty, peace and quiet” was not applicable to the case.

The ruling was correct. Under Article 480 of the Code of Criminal Procedure (R.S. 15:480), the evidence in this case was restricted to a showing of good character as to such moral qualities having pertinence to the crime with which appellant was charged, that is, his general reputation for sexual morality. See State v. Bessa, 115 La. 259, 38 So. 985; State v. Griggsby, 117 La. 1046, 42 So. 497 and State v. Banks, 138 La. 1090, 71 So. 194. Accordingly, the requested special charge, which included an instruction respecting honesty, peace and quiet, was not wholly correct and wholly pertinent. In other respects, the special requested charge was fully covered by the general charge.

Bill No. 3 was taken to the overruling of appellant’s motion for a new trial. Except for the allegation that the verdict is contrary to the law and the evidence, which presents nothing for review, the motion contains only a renewal of the contentions made in the first two bills of exceptions, which we have already discussed.

The judgment and sentence are affirmed.

PONDER, J., dissents. HAWTHORNE, J., absent.

1 . The statement was taken down by the Court reporter and transcribed; it reads as follows:

“Under our system of law and the administration of public justice, the Jury has its particular place. The Jury finds the question of guilt or innocence, and that only. The Court imposes the sentence if the Jury should find the defendant guilty.

“The Legislature, the representatives of the people fixes the penalty, both the minimum and maximum and character of penalty that the Court in its wisdom might impose. Your function is simply to return a verdict of guilt or innocence without regard to the question of punishment. You have no right to acquit a guilty man, whom you believe guilty, because of the severity of the penalty as you might consider; nor should you convict a man whom you should have reasonable doubt about his guilt because the penalty might be relatively small.

“In view of the fact, however, that one counsel has used the word ‘penitentiary’ and the other ‘prison’ as to the possible punishment which could be visited upon the defendant, you should be acquainted with the law and the law says; insofar as punishment;

“ ‘Whoever commits a crime against nature shall be fined not more than $2,-000.00 or imprisoned with or without hard labor for not more than five years or both.’

“Therefore, if you should find the defendant is guilty, it is within my judgment and discretion to fine him one dollar or two thousand dollars, and no jail sentence, and/or as an alternative, if he didn’t pay the dollar or two 'thousand dollars, I could place him in the Parish Prison for as much as five years, or give him a jail sentence and a fine or give him a two thousand dollar fine and five years at hard labor at the Louisiana State Penitentiary.

“There is no such thing as a necessary jail sentence of any kind or character anywhere in this case. That is a matter that doesn’t concern you at all, if you should find that the State has proved the defendant guilty beyond all reasonable doubt.”