State v. Marcantel

388 So. 2d 383 (1980)

STATE of Louisiana v. Steve MARCANTEL and Delouis Guillory.

No. 66985.

Supreme Court of Louisiana.

September 10, 1980.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William Pucheu, Dist. Atty., A. Bruce Rozas and Richard W. Vidrine, Asst. Dist. Attys., for plaintiff-appellee.

Guy O. Mitchell, Ville Platte, for Steve Marcantel, defendant-appellant.

John Saunders, Ville Platte, for Delouis Guillory, defendant-appellant.

PER CURIAM.

Defendants Steve Marcantel and Delouis Guillory were charged by bill of information with the crimes of simple burglary, La.R.S. 14:62, and theft, La.R.S. 14:67, committed on November 6, 1978. Thereafter, they were tried before a twelve person jury, which found them guilty as charged. The trial court sentenced each defendant to serve ten years at hard labor on the burglary charge and six years at hard labor on the theft charge, the sentences to run consecutively. Defendants now appeal, relying upon eight assignments of error. Because we find merit to assignment of error number four, relative to the improper composition of the jury, we pretermit consideration of the remainder.

Article I, Section 17 of the 1974 Louisiana Constitution provides that "[a] case in *384 which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons ..." See also, La.C.Cr.P. Art. 782.

Both crimes with which these defendants were charged were punishable with or without hard labor, La.R.S. 14:62 and La.R.S. 14:67; consequently by constitutional mandate, they were triable before a six person jury. For the reasons assigned in State v. Smith, 367 So. 2d 857 (La.1979), defendants' convictions and sentences are reversed, and the case is remanded to the district court for a new trial.

REVERSED.

DENNIS and LEMMON, JJ., dissent. See State v. Nedds, 364 So. 2d 588 (La.) (Dissenting opinion).