Opinion
No. 53555.
January 14, 1974.
APPEAL FROM CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, STATE OF LOUISIANA, HONORABLE JEROME M. WINSBERG, J.
J. David McNeill, New Orleans, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
These defendants, Walter Quinn and Earl Batteau, were indicted by the Grand Jury for the Parish of Orleans for the crime of rape. They were jointly tried, convicted and sentenced to death. An appeal was taken to this Court, and, although several bills of exceptions were reserved during the trial, none of these bills so reserved were perfected.
Our review is thus limited to errors discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence. Article 920 Code of Criminal Procedure; State v. Lucas McCurady, 286 So.2d 638 on the docket of this Court handed down on December 3, 1973, and the cases therein cited.
One such error is patent on the face of the record. The sentence herein was imposed on the same date the motion for a new trial was denied. No waiver of the mandatory statutory delay provided for in Article 873 Code of Criminal Procedure is to be found in the minutes of court. This patent error requires a remand. State v. Hampton, 274 So.2d 383 (La. 1973); State v. Augustine, 263 La. 977, 270 So.2d 118 (1972); State v. Douglas, 250 La. 480, 196 So.2d 799 (1967).
We also take note of the fact that the death penalty imposed upon these defendants must be set aside. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L. Ed.2d 346 (1972). The imposition of a sentence, other than death, is required. See State v. Franklin, 263 La. 344, 268 So.2d 249 (1972).
Accordingly, for the reasons assigned, the conviction of the defendants is affirmed, but the death sentence so imposed is annulled and set aside, and the case is remanded to the Criminal District Court, Parish of Orleans, Section "C", with instructions to the trial judge to sentence the defendants, Walter Quinn and Earl Batteau, to life imprisonment.