Judge Edward Haggerty charges the jury in the trial of Clay Shaw
"The Grand Jurors of the State of Louisiana, duly impaneled and sworn in and for the body of the Parish of Orleans, in the name and by the authority of the said State, upon their oath, PRESENT That one CLAY L. SHAW, late of the Parish of Orleans, between the 1st day of September and the 10th day of October, in the year of our Lord, One Thousand, Nine Hundred Sixty-Three, with force and arms in the Parish of Orleans aforesaid, and within the jurisdiction of the Criminal District Court for the Parish of Orleans did willfully and unlawfully conspire with DAVID W. FERRIE, herein named but not charged and LEE HARVEY OSWALD, herein named but not charged and others, not herein named, to murder JOHN F. KENNEDY, contrary to the form of Statute of the State of Louisiana in such cases made and provided and against the peace and dignity of the same."
Signed "ALVIN V. OSER, Assistant District Attorney of the Parish of Orleans.
"No. 198-059 (M-703)
"STATE OF LOUISIANA versus CLAY L. SHAW
"INDICTMENT FOR VIO R.S. 14:26 (30)
"TRUE BILL /s/ ALVERT V. LaBICHE, Foreman of Grand Jury
"New Orleans, March 22, 1967
"Returned in Open Court and recorded and filed March 22, 1967
"/s/ GEORGE W. PLATT, Minute Clerk
"Arraigned April 5, 1967 and pleaded not guilty. Granted until May 5, 1967, to file pleadings.
"/s/ HELEN SULLIVAN, Minute Clerk
"3/22/67 - Capias issued: Bond set at $10,000.00 /s/ Geo. W. Platt, M.C."
The law defines a conspiracy to be an agreement or understanding between two or more persons that they will commit an unlawful act, that is, that they will combine together to accomplish by the united action a criminal or unlawful purpose, or a purpose which is not in itself criminal or unlawful, by criminal or unlawful means, to accomplish which agreement and in furtherance thereof an overt act is committed by one or more of the parties to the agreement. In other words, a conspiracy is a criminal partnership, the design and object of which is to do an unlawful act or series of unlawful acts, or to do a lawful act or a series of lawful acts by unlawful means, accompanied by an overt act to effect the object of such agreement. Where a criminal conspiracy has been formed, each of the persons forming the same, while he is a member thereof, is liable for every act, and is bound by the acts and declarations of each and all of the conspirators, done or made in pursuance and furtherance of the said conspiracy, and continues to be so liable and bound for so long as he remains a member thereof. In contemplation of law, during the time when persons are co-conspirators, the act of one in pursuance of the common design is the act of all, and each is legally responsible for any act of a confederate that follow incidentally in the execution of the common design as one of its probable and natural consequences, even though it was not intended as a part of the original plan, and even though he was not present at the time of the commission of such act.
The formation and existence of a criminal conspiracy rarely can be shown by direct evidence, and circumstantial evidence alone may support a finding of the formation and existence of a conspiracy. In determining whether an alleged conspiracy was formed and existed, it is proper to take into consideration the relation of the accused parties and their personal and business associations with each other, if any. You may consider all facts tending to show what, if anything, occurred between the accused parties at or before the time of the alleged combination or agreement, or thereafter, in relation thereto. You may also consider evidence of the acts and declarations of said parties after the formation of the alleged combination or agreement, in respect to, and in pursuance and further and of, the alleged conspiracy.
It is not necessary in proving a conspiracy to show a meeting of the alleged conspirators or the making of an express or formal agreement. The formation and existence of a conspiracy may be inferred from all circumstances tending to show the common intent and may be proved in the same way as any other fact may be proved, either by direct testimony of the fact or by circumstantial evidence, or by both direct and circumstantial evidence. Although an essential element of a criminal conspiracy is an agreement between two or more persons, and although the proof must show the existence of such an agreement to support a conviction, the law does not require that the agreement be a formal one, or that it be in writing, or that the persons hold a meeting and expressly state the terms of a common undertaking, or that the agreement be stated in words between them as men usually express a lawful business agreement.
The agreement of criminal conspiracy may come into being through a tacit, mutual understanding, and the willful, intentional and knowing adoption by two or more persons of a common design, if the other necessary elements of such a conspiracy are present. Any member of a conspiracy may withdraw from, and thereafter cease to be a party to, the unlawful confederacy and may thus terminate his liability as to all future acts of the conspiracy, but to accomplish that effect he must not only cease participation in the conspiracy, but must give notice of his withdrawal to all other members of the conspiracy of whom he has knowledge. Such as withdrawal does not erase his previous participation in the conspiracy nor relieve him of responsibility for the acts of the conspiracy committed while he was a member.
A person who, by conspiring with others, advises and encourages the commission of an unlawful act cannot escape responsibility by quietly withdrawing from the operations of the conspiracy. The influence and effect of his advice and encouragement continue until he actually renounces the common purpose and makes it plain to all other conspirators of whom he has knowledge that he has done so and that he does not intend to participate further in any act of the conspiracy. If he does so withdraw, he is not liable for any subsequent acts of the conspirators, but the withdrawal does not erase his previous participation in the conspiracy nor relieve him of responsibility for the acts of the conspiracy committed while he was a member.
Gentlemen, the law of Louisiana is covered in Article 338 which reads as follows:
"338. Cases requiring jury of twelve -- Number required to concur.
"Whenever the indictment does not charge a capital offense, but does charge a felony necessarily punishable with imprisonment at hard labor, the trial shall be by a jury of twelve, nine of whom must concur for the finding of any verdict."
Therefore, you are hereby advised and instructed that you do not have to be unanimous, that only nine out of twelve is necessary to reach a legal verdict in this case. When you have at any time reached the nine votes on one decision, you do not have to remain and deliberate until you make it unanimous.
The Deputy Sheriff at my request has placed paper and pencils in your room for your use in the event you case secret ballots.
You are permitted by law to review any exhibits offered into evidence either by the State or by the Defense prior to your leaving the court to deliberate in this matter. However, once you have left, you cannot come down and read and inspect such exhibits. The law does not of recent date permit a re-reading of any testimony by any witness, so you must rely on our memory as to what was said during the course of this trial.
I am required by the law of Louisiana to give you a written list of the verdicts responsive, and this is covered, which I will now read to you, by Articles 809 and 810 of the Code of Criminal Procedure of the State of Louisiana:
"Art. 809. Judge to give jury written list of responsive verdicts.
"After charging the jury, the judge shall give the jury a written list
[page missing from transcript]
formal requirement as to the language of the verdict except that it shall clearly convey the intention of the jury.
"The foreman of the jury shall deliver the verdict to the judge in open court."
If a situation arises where there is a difference of opinion among the jurors and they wish that I repeat or re-read any part or all of my instructions, let them notify the Deputy Sheriff and I will gladly grant your request. If the jury would like a further explanation of a particular point of law, I will be happy to orally give such explanation to the jury. I repeat, nine out of twelve of you must vote in order to bring a legal verdict in this matter. The possible responsive verdicts in this case are guilty or not guilty. The form on which you shall write your verdict is this: You will write "New Orleans, Louisiana" and then the date, whether it be February 28 or possibly March 1 -- and it is now March 1 -- as the case may be, 1969. And the form of your verdict should be written on the reverse of the paper that I am handing you which spells out for you the responsive verdicts. Your verdict should be in the form, "We, the Jury, find the Defendant" whatever your verdict may be. And the foreman signs his name and writes under his name, "Foreman."
Now, gentlemen, before you retire, just a moment and let me ask the State and the Defense a question or two. Even though I have been requested to give a written charge, and have given said written charge to the jury, is there any request on the part of the State or Defense counsel for any additional instructions, additional charges, or is there any particular objection to the charge as given to the jury?
Now in connection with the special charges given to me, let me rule on them and then I will see if you have any requests of me.
I have granted for the Defense Special Charge No. 8, No. 11 and No. 12. The others I refused because they have been covered in my general charge under Article 807 of the Code of Criminal Procedure. So the Defense may wish to take a bill.
MR. DYMOND: In connection with that ruling, the Defense would like to object and reserve a bill to the refusal of granting Special Charges 1, 2, 3, 4, 5, 6, 7, 9, 10, 13, 14, 15, 16, and 17, reserving a separate bill on each charge, making the entire record, the special charge submitted, the court's general charge, and all testimony part of the bill.
THE COURT: Now with respect to the special charges presented to me by the State, Special Charges 1, 2, and 3, I have refused to give them because I feel I have covered them in my general charge with respect to Article 807 of the Code of Criminal Procedure.
I will now read the special charges that I will grant.
"Special Charge No. 8.
"The defense of alibi is not applicable in a case involving the charge of conspiracy to the same extent that it wold be applicable in other types of cases.
"The reason for this is that if the defendant has been a party to a conspiratorial agreement or combination, his presence at the scene of the commission of an overt act need not be proven in order to warrant a conviction, provided he has not withdrawn from the conspiracy and the conspiracy has not yet terminated.
"Alibi could be an element of the defense in the conspiracy case in this sense. However, if the State contends that a defendant was present and a party to a conspiratorial meeting, alibi would be relevant to show the untruth of this contention. Likewise, if the State contends that a defendant committed an overt act at a certain time and place, alibi likewise would be relevant to prove the untruth of such contention. Alibi is evidence of the act that defendant was not at a particular location at the time that the State contends that he was there, and the jury need not be fully satisfied with the truth of such an alibi, but the evidence in support of it should be considered in connection with all the other evidence in the case in determining whether there is reasonable doubt as to the guilt of the accused."
"Special Charge No. 11.
"The general reputation of an accused for honesty, truthfulness, peace and quiet."
I have changed my mind. I am going to refuse this charge. I refuse this because I rule that it is not pertinent under Article 807. You may take a bill.
MR. DYMOND: We will not reserve a bill on that, Judge.
THE COURT: I am going to grant No. 12.
"The verdict of a jury represents the collective opinions of the members of that jury. It is the duty of each juror to listen carefully and intently to the verbal evidence, closely examine the physical evidence, accept the law as given by the Court in its charge to the jury, and, applying that law to the evidence, from his opinion as to the guilt or innocence and then cast his vote accordingly.
"Once a juror has decided upon a proper position as to guilt or innocence, the law does not say he cannot change his position. In fact, it is the duty of a juror to change his position as to guilt or innocence should he be actually convinced by a reconsideration of the evidence, discussion and analysis of the evidence with his fellow jurors, or otherwise that his previous position was an incorrect one under the law and the evidence, and that the position to which he has changed it is a correct one under the law and the evidence.
"The only way in which a juror can properly change his position as to guilt or innocence is if he is convinced he is changing to a proper position. It would be a violation of the law and a violation in your oaths as jurors to change your position and your vote as to guilt or innocence merely for the reason that your original position was adhered to by a minority of the voters. It would likewise be improper for a juror to change his position for the purpose of speeding up the termination of his service as a juror on the case, or for any other reason which would cause his vote not to reflect his honest opinion as to guilt or innocence under the law and the evidence."
Gentlemen of the Jury, I will now hand you the responsive verdicts, and you will cast your vote.
MR. DYMOND: If the Court please, we would like an opportunity to object to a particular part of this charge before you do that.
THE COURT: All right. You may proceed.
MR. DYMOND: First of all, on the bottom of page 5 of the charge --
THE COURT: I have it.
MR. DYMOND: -- we object to the statement that the prosecution must establish guilt by legal and sufficient evidence beyond a reasonable doubt, but the rule does not go further and require a preponderance of testimony. This objection is based upon the fact --
THE COURT: I tell you what. That sentence is not necessary. I will advise the jury, but the rule does not -- I will ask them to disregard that sentence:
"...but the rule does not go further and require a preponderance of testimony." Gentlemen, disregard that (part of the) sentence. "The prosecution (the State) must establish guilt by legal and sufficient evidence beyond a reasonable doubt" -- period -- and I will strike the rest of that sentence.
MR. DYMOND: Your Honor, the only other objection is on the nine-out-of-twelve verdict to which we object. We have a special charge submitted on that.
THE COURT: All right. (Handing document to Sheriff) Here you are, Sheriff.
MR. DYMOND: The objections on due process -- I would like to reserve a bill.
THE COURT: Do any of the jurors wish to view any of the exhibits before retiring?
THE COURT: All right. The twelve gentlemen seated will go up. When you get upstairs safely, then I will be able to excuse the two alternates.
(Whereupon, the jury retired.)
THE COURT: The two alternates here with us are now excused from the case. Thank you very much for your service.
Court will be in recess awaiting the verdict.
(Whereupon, a recess was taken at 12:10 o'clock a.m.)
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