(173 La. 438)

#### STATE v. DUCRE.

No. 31238.

Supreme Court of Louisiana.

June 22, 1931.

On Rehearing Nov. 3, 1931.

Maurice R. Woulfe and Paul L. Fourchy, both of New Orleans, for appellant.

Percy Saint, Atty. Gen., E. R. Schowalter, Asst. Atty. Gen. (Frank B. Ellis, of Coving-ton, of counsel), for the State.

ST. PAUL, J.'

The defendant was convicted of forgery. Of the 24 bills taken by him Nos. 16, 18, and 19 are not mentioned in brief or argument, and are therefore abandoned; moreover, they are without merit.

Bill No. 1 was taken to the refusal of the trial judge to grant a . continuance on the ground that (1) defendant had not sufficient time to prepare his defense; (2) that “certain documents” necessary for his defense were out of the jurisdiction of the court and could not be inspected; and (3) that a material .witness was absent. In his per curiam the trial judge says (1) that defendant had ample time to prepare his defense; (2) that no documents were described or reasons given why they could not be inspected, and all necessary documents were used on the trial; and (3) that the missing witness appeared and testified.

 Bill No. 2 was taken to the refusal to quash the information. We think the information was sufficient. It charged that defendant “did forge a certain instrument purporting to be the will and testament of.one Drauzin Ducre, bearing date March 13th, 1928, with the felonious intent thereby to defraud, contrary,” etc. It is in the form re*746quired by article 235 of the Code of Criminal Procedure, to wit, “A. B. forged a certain instrument, purporting to toe,” etc. It was not necessary to set forth the name of the person intended to be defrauded. State v. Gaubert, 49 La. Ann. 1692, 22 So. 930.

Bill No. 3 was to the refusal to order a bill of particulars. In our opinion, defendant was given all the particulars needed for his defense, to wit, that he forged the instrument purporting to be the will of Drauzin Ducre dated March 13, 1928.

Bill No. 4 was taken to the refusal of the trial judge to order the petit jury called by drawing^of lots, and instead thereof called them according to the order in which they came on the list drawn by lot in accordance with section 4 of Act No. 135 of 1898 (now Act No. 58 of 1904). This court has several times had occasion to consider the propriety of drawing petit juries in this manner, and has approved the same. State v. Kennedy, 11 La. Ann. 479; State v. Washington, 37 La. Ann. 828; State v. Woodson, 43 La. Ann. 905, 9 So. 903; State v. Mitchell, 119 La. 374, 44 So. 132; State v. Ashworth, 139 La. 590, 71 So. 860. But it is unnecessary to consider that point in this case, for all the jurors on the list were called, and even resort had to talis jurors. Hence it made no possible difference in what manner the jurors were called, for all were called and the defendant suffered no injury.

Bill No. 5 was taken to the refusal to order the state’s attorney to make an opening statement to the jury. The state’s attorney read the information and the statute on forgery. The trial judge thought this was enough, and, since the law does not define the nature of the opening statement of the prosecuting attorney beyond “explaining the nature of .the charge and the evidence by which he expects to establish the same” (Code Or. Proe. art. 333), we are of opinion that the scope and extent of such opening statement is within the control of the trial judge in the exercise of his own sound discretion. State v. Nahoun, 172 La. 83, 133 So. 370.

Bills Nos. 6 to 10 were taken to the refusal of the trial judge to exclude all evidence on the ground that no opening statement had been made by the district attorney. They are without merit.

 Bills Nos. 11 to 15 were taken to the refusal of the trial judge to exclude the evidence of certain witnesses on the ground that they w.ere not qualified to testify as to the handwriting of the deceased, but the trial judge properly allowed all such matters to go to the jury, as they were the proper judges of the effect to be given to all testimony touching the guilt or innocence of the accused. Several of said witnesses testified merely as to the physical condition of the deceased at the time the will was alleged to have been made.

Bills Nos. 16 to 22 were all reserved to the refusal of the trial judge to give certain special charges asked for by the defendant. But the matter contained in' said special charges were all fully covered by the general '(written) charge of the court.

Bills Nos. 23 and 24 were reserved to the refusal to grant a new trial and arrest judgment. They present nothing new except an objection to the fact that the prosecution was conducted by one of the Assistant Attorney Generals instead of by the district attorney. ■ This objection, even if well founded, comes too late after verdict. An accused cannot take his chances for a verdict of acquittal and thereafter complain that he should have been prosecuted by another prosecutor. But his objection is without merit. Under the Constitution of 1921, art. 7, § 56, the Attorney General and his assistants have supervisory jurisdiction over all district attorneys, and may institute, prosecute, or intervene in any criminal proceeding.

Decreé.

The judgment and sentence herein appealed from are therefore affirmed.

ROGERS, J., concurs in decree,

O’NIELL, C. J.

(dissenting).

My opinion is that the refusal of the district attorney to file a bill of particulars, and his refusal to make an opening statement to the jury, withheld from the defendant information which he was entitled to under the law. As to bill No. 4, I concur in the ruling on the ground that it so happened that all of the names on the list of jurors were called in the impaneling of the jury; hence the result was the same as if the slips or ballots bearing the names of the jurors had been drawn from the box.

On Rehearing.

LAND, J.

 A rehearing was granted in this case, without limitation, but, on further review and reconsideration of our original opinion, we find it necessary to reverse our former rulings only as to bill of exceptions No. 5, relating to the opening statement which the district attorney is required to make, under article 333 of the Code of Criminal Procedure of this state.

In our original opinion it is said: “Bill No. 5 was taken to the refusal to order the state’s attorney to make an opening statement to the jury. The state’s attorney *read the information and the ■ statute on forgery.*The trial judge thought *this was enough,*and sinhe the law does not define the nature of *the opening statement*of the prosecuting attorney beyond *747‘explaining the nature of the charge and the evidence by which he expects to establish the same.’ (Code Cr. Proc. art. 333). We are of opinion that the scope and extent of such opening statement is within the control of the trial judge in the exercise of his own sound discretion. State v. Nahoun, 172 La. 83, 133 So. 370.” (Italics ours.)

The error committed by us in our original opinion was in reaching the conclusion that the reading by the district attorney of the information and the statute on forgery constituted an opening statement by that officer.

Such is not the ease, as clearly appears from the language of article 333 of the Code of Criminal Procedure, which reads as follows: ‘‘The jury having been empanelled *and the indictment read,*the trial *shall*proceed in the following order: The reading of the plea to‘ the jury; *the opening statement*of the district attorney explaining the nature of the charge and the evidence by which he expects to establish the same; *the opening statement*by counsel for the defendant *at his option*explaining the defense and the evidence by which he expects to prove the same,” etc.

The information or indictment and the'plea of defendant-are read to the jury *before the opening statement*of the district attorney is made. In making this opening statement, the district attorney is required to explain the nature of the charge and state the evidence by which he expects to establish the charge.. This the district attorney did not do at all, and the trial judge refused to compel him to do so, when so requested by counsel for defendant.

In our opinion, the refusal of the trial judge to instruct the district attorney to comply with article 333 of the Code, by making an opening statement as therein directed, is reversible error.

The language of article 333 is *mandatory.*“The trial *shall*proceed in the following order.”

While the scope and extent of the opening statement of the district attorney may be within the control of the trial judge in the exercise of a sound discretion, it is not within his discretion to dispense with the opening statement of the district attorney entirely, since it is the mandatory duty of that officer-to make such statement.

The framers of the Code of Criminal Procedure clearly intended that the making of the opening statement by the district attorney should be deemed sacramental, since article 333 leaves it to *the mere option*of the counsel for defendant as to whether- he shall make any opening statement at all as to the defense and the evidence in support of same.

Judging from its phraseology, the purpose of the article in question must be to make the district attorney show his hand as to the state’s evidence, as a matter of fairness to the accused, as well as to advise the jury concerning the questions of fact involved.

To affirm the verdict in this case, in which no opening statement at all has been made by the district attorney, would be for this court to read out of the Code of Criminal Procedure article 333, prescribing the order of procedure in the trial of criminal cases in this state, and to substitute its own views on the subject.

That human life or liberty should be subjected to a vacillating procedure, before the bar of public justice, is too grave a matter for courts to countenance or tolerate: We have in the Code the order of trial clearly prescribed in criminal cases, and, manifestly, it was intended by the framers of that instrument that the procedure therein adopted should be followed by both the state and the accused in all trials.

The argument on behalf of the state that no prejudice to the substantial rights of the accused has been shown by the ruling of the trial judge, in refusing to instruct the district attorney to make an opening statement, can be of no avail in a ease like this, in which it is made the *mandatory*duty of that officer to make such statement.

Under Revised Statutes, § 28, and Code of Criminal Procedure, art. 389, requirement that the judge shall deliver his charge m *writing,*whenever requested to do so by prosecution or defense, prior to the swearing of the first witness, is *mandatory.*

*.*In State v. Wilson, 169 La. 689, 690,125 So. 854, 856, it is said: “It was contended by the trial judge in the Rini Case [151 La. 163, 91 So. 664] that the portion of the charge taken down by the stenographer would have been Ae same if he had embodied it in a written charge. The argument that the accused suffered no injury was made in the Rini Case, as in the present case, but was without avail,” etc.

Considerations of public policy may well have induced the framers of the Code of Crim-. inal Procedure to make it the mandatory duty of the district attorney to explain “the nature of the charge *and the evidence*by which he expects to establish the same.” .Article 333.

If any part of the state’s evidence should - spring from prejudice, or from a perjured source, the defendant would have a most vital interest in knowing this fact in advance, so that he might defend himself timely and properly.

A fair and impartial trial is the perpetual guaranty of the fundamental law of this state to every person charged with crime.

It is inconceivable how the violation of a solemn mandatory duty by a prosecuting officer can be viewed in any other light than prejudicial to an accused, since the imposition *748of a duty so imperative cannot be logically considered as a mere matter of form, or of caprice, or of frivolity upon the part of the lawmakers.

It is therefore ordered that our former judgment, affirming the conviction and .sentence in this ease, be annulled and set aside, that the conviction and sentence appealed from be annulled and reversed, and that this ease be'remanded to the court below for a new trial according to law.