State v. Lonigan , 263 La. 926 ( 1972 )

PER CURIAM.

■Defendant, William Vernon Lonigan, appeals from the conviction of murder without capital punishment for which he was sentenced to life imprisonment in the State Penitentiary, La.R.S. 14:30. During his trial, the defendant reserved twenty-nine bills of exceptions. On this appeal he expressly waived nine of the bills, and has apparently abandoned sixteen others in view of his failure to argue them in his brief. Consequently, the defendant relies upon the remaining bills of exceptions, Nos. 26, 27, 28 and 29, to obtain a reversal of his conviction and sentence.

Bill of Exceptions No. 26 was reserved to the refusal of the trial judge to charge the jury with reference to self defense; Bill of Exceptions No. 27 was reserved to-the refusal of the trial judge to grant the requested charge relative to intoxication as a defense. Bill of Exceptions No. 28 was taken to the charges given by the court “in so far as they were in conflict with the special charges requested by the defense.” Bill of. Exceptions No. 29 was taken to the. refusal to grant a new trial. The motion for new trial complained of the failure of the trial court to grant the requests for special charges on self defense and intoxication, and contended that the trial court-commented upon the evidence, contrary to C.Cr.P. 806¹ in denying the requested charges.

Defendants requested charges No. 9 and No. 10 were not read aloud in the presence of the jury. Defendant’s requested charges were considered by the trial judge arid discussed with the attorneys involved in chambers. In the process of charging the jury, the trial judge made his rulings on the defendant’s requested jury instructions. The requested instructions numbered 9 and 10 were not read aloud in the presence of the jury. The trial judge ruled in the following words which could have been heard by the jury: “Request for special charge No. 9, relative to self defense, is denied on the basis that the evidence does not support such a charge.” In denying special charge No. 10, the trial judge stated within the hearing of the jury:- “Request for special charge No. 10, relative-to intoxication, is denied on the basis that the evidence does not support such a charge.”

Defense attorney reserved bills “to the denial” of' the special charges, and “the ruling of the court, which ruling of the court is clearly a comment on the evidence in the presence of the jury.”²

Several times this court has considered questions almost exactly like the one here presented. In State v. Iverson, 136 La. 982, 68 So. 98, it was held to be reversible error for the judge to say in the hearing of the jury, “ T find no evidence in the case to justify such a charge.’ ” The defense counsel had requested a charge on “accidental homicide” at the conclusion of the judge’s instructions to the jury.

The Iverson case followed State v. Langford, 133 La. 120, 62 So. 597. There the judge charged the jury, then called for any special charges the defense counsel wished to request. The defense counsel requested that the judge “‘charge the law of self-defense,’ ” whereupon the judge stated, “ ‘ “I do not think the request is applicable in the case.” ’ ” The court held that this was in effect informing the jury that, in the judge’s opinion, the defendant was guilty, because the defendant had not attempted to set up any other defense.

The long-standing jurisprudence has been codified in Louisiana. The Code of Criminal Procedure of 1928 prohibited, in article 384, the judge’s instructing the jury upon the facts of the case. The Code of Criminal Procedure of 1966, in articles 772 and 806, could hardly be more specific in prohibiting judicial comment upon the facts and the evidence. The holding in State v. Green, supra, has been criticized. See 18 La.L.Rev. 135. In spite of the criticism, the official revision comment concerning Code of Criminal Procedure article 772 states:

“(a) This article was considered by the Advisory Committee, by the Council, and also at the 1963 general meeting of the Louisiana State Law Institute. The Advisory Committee unanimously adopted the article, favoring a strict rule against comment on the facts by trial judges. At the general meeting also, there was strong opposition to allowing judges to comment on the facts.”

Consequently, we conclude that the judge’s statement that the requested charges were denied “on the basis that the evidence does not support such a charge” was a prohibited comment upon the facts or the evidence. The conviction and sentence are annulled and set aside and the case is remanded for a new trial.

1 . “The court shall not charge the jury concerning the facts of the case and shall not comment upon the facts of the caso, either by commenting upon or recapitulating the evidence, repeating the testi- ' mony of any witness, or giving an opinion as to what has been prove!, not proved, or refuted.”

See also C.Cr.P. 772:

“The judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, x-epeating the testimony of any witness, ox- giving an opinion, as to what has been proved, not proved, or refixted.”

2 . The record is not clear that the defendant- objected to the statements of the judge at the time of his ruling on the ground that they constituted comments upon the facts or upon the evidence. The formal bills of exceptions contain the de- . fendant’s complaint that the judge’s remarks constituted a px-ohibited comment upon the facts ox- the evidence. When an objection is made, the gx-ounds for the objection should be stated, to give the judge an opportunity to x-ule correctly and to correct any error that can be corrected. However, we held in State v. Green, 231 La. 1058, 93 So.2d 657, that if an inference can be drawn from a judicial comment on the facts that the court expresses or implies an opinion as to the 'guilt of the accused, the error cannot be cure<3 by an instx-uction to the jurors that the remarks be disregarded.