author: Bermudez, C. J. McEnery, J. Watkins, J.

text:
    No. 10,414.
    The State of Louisiana vs. Etienne Deschamps.
    A motion for a continuance, made for tlio/-r.vi time, by an attorney, assigned to defend an accused in a capital case, ought to bo allowed, when supported by his affidavit, that ho has not had sufficient time to prepare a suitable and valid defense which he believes there is m the case, less than forty-eight hours having intervened between his appointment and the calling of the case, which involves questions of fact and law, which require much study and research.
    APPEAL from the Criminal District Court for the Parish of Orleans. Man-, J.

      Walter II. Moyers,Attorney General, for the State, Appellee.

      James II. Dowling and McMahon <C- limit for Defendant and Appellant.
   The opinion of the Court was delivered, by

Bermudez, C. J.

The defendant was prosecuted for murder, tried, convicted and sentenced to death.

On appeal, he complains that the District Judge erred :

1. Tn refusing a continuance.

2. Tii hearing an incompetent witness.

3. In admitting certain testimony.

4. Tn giving an improper charge.

The record contains three bills and a motion for a new trial to the refusal of which, a bill Was taken.

The following is an extract from the statement of the trial Judge, contained in the bill taken to his refusal to grant a continuance.

“(hi the 29th April, when the accused was brought to the Bar for trial, he informed the Court that he had no counsel and asked the Court to appoint counsel for him, such as the Court might select.

“ After positive refusal bjr some half a dozen members of the Bar the appointment was made and the case was continued to 1st May.”

On that day, the counsel thus appointed made affidavit, stating “ that he is entitled to an indulgence from the Honorable Court, of a reasonable time in which to'prepare a suitable and valid defence, which counsel believes there is in this case •, that ho has not had sufficient time to do so, as less than forty-eight hours have intervened since his assignment as counsel and the calling of the accused to the Bar of‘ the Court for trial; that he has been altogether unable to prepare the case, involving, as it does, the life of a human being, embracing points of law and fact, requiring much study and research, which he has been unable to devote to it.”

"When the case was called, counsel moved for a continuance, based on the affidavit made by him, which was refused by the Court.

Por so doing, the trial judge states in the bill taken to his ruling :

“The time allowed, J considered sufficient to enable counsel to ascertain what defence, if any there was, and to obtain from the accused the names of witnesses by whom any exculpatory facts, or matters of defence could be proved, and such information might have been ground for affidavit and motion for continuance.
“The counsel for accused in answer to inquiry by the Court said, he would require about a month to prepare suitable defence.
“ As the Court will be in vacation from 1st Jnnc to 1st September, this simply meant a continuance for four months'.
“The accused never in any way intimated to the Court that he had any defence.
“ He never mentioned any fact which he expected, or desired to prove; nor did ire ever ask for delay to procure testimony, or to have ■ witnesses in his behalf, summoned.
I considered the affidavit insufficient, in that, it does not indicate any lino of defence. It does not mention any fact to be proven, nor does it ask for delay, to have witnesses summoned on behalf of the accused. On such showing, I did not consider that I would bo justified in granting a continuance.”

■ The question here presented is: Whether, under the showing made by the counsel appointed to the accused, by the Court, a continuance ought or ought not to have been granted.

When, arraigned, the accused pleaded not guilty and, when called upon to stand his trial on the 29th of April, he announced that he had no counsel and asked that one be appointed to him. The Court at once assigned counsel and continued the case to the day after the next, May 1st.

There is nothing to show when the counsel appointed, was informed or notified of his assignment and when he accepted the same, except, his appearance on the day fixed for the trial, when he made the affidavit and motion for a continuance.

Supposing, however, that he knew of the appointment and accepted it at the very moment that it was made, it is evident, that a very short time intervened between that of the appointment and that when the case was called for trial, surely less than forty-eight hours.

. Now, on that day, 1st May, the counsel, a sworn officer of the Court, in whom the Judge placed reliance, to whom the life of the accused had been entrusted, who had no personal interest to serve, nothing to gain by delaying a trial, makes affidavit, that he is entitled to the indulgence of the Court for a reasonable time, in which to prepare a suitable and valid defence, which he believes there is in the case; that he has not had sufficient time to do so, as less than forty-eight hours have intervened ; that, he has been altogether unable to prepare the case which involves questions of fact and law, which require much study and research, which he has been unable to devote to it.

The affidavit should have been taken for true and, if true, surely was sufficient authority, under the circumstances, to grant a continuance, for a reasonable time.

No Court can expect from counsel, appointed by it, to defend an accused in a capital case, that they should assume the great responsibility imposed upon them, without being allowed a reasonable time to impure into the facts and the law, — should they require it, — -and no Court should compel such counsel to proceed with the defence of such a case, under such circumstances, when the counsel, under his solemn oath, declares that he believes there is a defence to be made; but that he has not had sufficient time to prepare it, when the time intervening between the time of appointment and that of the trial is less than forty-eight hours.

We have been shown no precedent and we know of none, in which a continuance for a reasonable time, made for the first time in a capital case, under such circumstances, has not been granted

In State vs. Ferris, 16 Ann. 425, which was a murder case, the then Court said in reference to accused in criminal cases :

The law securing to them the assistance of counsel did not intend to extend a barren right, for of what avail would be the principle of counsel” * * * if, on the spur of the moment, without an opportunity of studying the case, the former should be compelled to enter upon an investigation of the cause.

In the case of State vs. Horn, 34 Ann. 100, which was a penitentiary case only, counsel appointed to the accused having made affidavit that he had not time to prepare a defence and having retired on the overruling of his motion, and the accused having made affidavit for the allowance of time to prepare, and the Court having refused a continuance, this Court considered the showing sufficient, quashed the verdict and remanded the case.

In State vs. Boyd, 37 Ann. 781, which was a capital case, the Court had appointed two members of the Bar to defend the accused, allowing them three hours for preparation. At the expiration of that time they made affidavit and a motion for further delay, as they had not had sufficient time to prepare the defence.

This Court there held that, in a capital case, under such a showing, the trial judge ought to have allowed time and that the ruling was erroneous.

In State vs. Simpson, 38 Ann. 24, which involved a penitentiary offense only, the Court said, that the right to bo heard by counsel, guaranteed by the Constitution to the accused, was not an empty formality, but an inestimable privilege and that counsel should be allowed reasonable time to prepare the defence. It ruled accordingly.

In State vs. Brooks, 39 Ann. 241, in which the penalty was no more than .hard labor, this Court, on an affidavit of the accused, fortified by that of his counsel, asking for time to prepare, reiterated the language, with approbation, found in the 16‘tli Ann. p. 424.

In all these prosecutions, the verdicts were quashed and the cases remanded.

The rulings in State vs. Wilson, 33 Ann. 261; State vs. Doyle, 36 Ann. 91; in State vs. Johnson, 36 Ann. 852; have no real bearings upon the question under consideration, as the facts are materially dissimilar.

In the Wilson case the affidavit was not made by the appointed attorney. It did not state that there was a valid defence, that the case involved questions of fact and law which required much study and research and that counsel needed a reasonable time to prepare such defence. In the instant case, the affidavit is made by the assigned counsel, who distinctly states these special causes for a continuance. The oath of the attorney was entitled to much weight, as he was the best judge of the condition of the case he ivas called on to defend, of his readiness to do so, as the prosecution was for a capital offence and the application was made for tha first time, and had not unnecessary delay for its purpose.

In the Boyle case, there was no complaint. The accused had not asked for the appointment of counsel, had not prayed for a continuance owing to the absence of his counsel, and the case had proceeded regularly without the aid of counsel.

In the case of Johnson, the accused had asked a continuance on account of the absence of his counsel, which the Court declined, assigning counsel to him, who did not make affidavit that he had not had and required time to prepare, and who invoked every technical defence which legal ingenuity could suggest.

In the instant case, the counsel appointed to defend the accused, made affidavit and asked time to prepare, -under circumstances and in a form which entitled him and the accused to a reasonable delay and charged injury to the accused in the motion for a new trial.

The reasons assigned by the district judge in justification of his refusal are lengthy. In a portion of his statement, found in the bill of exceptions and which we have not deemed necessary to transcribe, he says substantially, that several counsel appointed by him had either declined to act, or had not been accepted; that others, chosen by the accused, had refused to represent him.

All this may be true, but how does it militate against the motion for a continuance made by the attorney appointed by the court and accepted by the accused?

The reasons given by the trial judge declining the continuance, may be condensed as being:

1. The accused refused ro apeept counsel appointed to him by the court.

2. The time which had intervened between the last appointment of counsel and that of the motion for a continuance, was sufficient to ascertain the defense, If any, and tó summon witnesses.

3. The accused never intimated that he had any defense, never mentioned any fact which ho expected or desired to prove, never asked delay to procure testimony, or to summon witnesses.

4. The affidavit does not indicate any line of defense, mentions no fact to be proved, asks no time to have witnesses summoned.

5. The time asked was one month. Allowing that time would have been allowing four months.

I.

The law provides, R. S. 992, “that every person shall be allowed to make his full defense by counsel learned in the law, and the court before whom he shall be tried, shall immediately, upon his request, assign to him such counsel as he shall desire. ”

Under this provision, the accused was not bound to accept any counsel appointed to him. He had a right to refuse counsel assigned whom he thought he should not accept, and he was under no obligation to adduce reasons to justify his conduct. The law makes it the duty of the court “to assign him such counsel as he may request. ”

II.

How would the trial judge know that forty-eight hours or less were sufficient, how could he know that more than forty-eight hours was not necessary to enable counsel to prepare a defense in a case, of the nature of which he could officially then have had no knowledge ?

He is not presumed to know, before trial, the facts upon which a prosecution rests or a defense is based.

Whatever knowledge or information he may have acquired on the subject, it is his duty officially to ignore and such knowledge must necessarily before the trial be imperfect, as it is only after trial that the facts may be considered as developed.

How could he know what points of law could bo raised, either by the prosecution or by the accused, and what degree or extent of research and study was necessary for a proper vindication of the constitutional rights of the accused?

From an expression which has escaped the trial judge, it would seeih that he momentarily lost sight of the presumption of innocence in favor of an accused, before trial, for lie says, that the time allowed was sufficient to enable the counsel to ascertain what defense, if any, there was.

• An accused who has pleaded not guilty has always a defense to make and rights to vindicate, not only to repel the charges against him, but also, however guilty he may be in fact, to have himself tried in the manner and form prescribed and required by law, particularly in capital cases.

Of course, if the accused could be presumed conclusively to be guilty and was so, lie could not have established his innocence, and the assigned attorney would not have needed and could not have required any time to prepare the defense, but on the contrary, if the accused was to be presumed innocent he could have urged a defense and surely in a prosecution of such gravity, — less than forty-eight hours would have been too short a delay for the newly appointed counsel to ascertain the facts and prepare the law, the more so if such counsel be an utter stranger to the accused, whose language he did not speak, and had been recently admitted to the bar, and therefore was not experienced in the defense of capital cases.

It is worthy of notice that in the motion for a new trial, the appointed attorney reiterated that lie had not had time to prepare, that he had liad no opportunity of properly conferring with the accused, not even understanding- his language, that improper evidence had been admitted, that an important erroneous charge had been given by the court operating to the prejudice and injury of the accused.

It is palpable from all the circumstances of the case, that the complaint of the assigned counsel that he has not had and needed further time to prepare, is well founded and that 1ns motion for delay made for the first time ought to have been favorably considered.

III.

It was not necessary that the accused should intimate his defense or mention his witnesses to the judge or to any one else. It is a possibility that he may have had a defense which he intended to sot up suddenly, to the surprise and defeat of the prosecution, or that his witnesses, if any he had, would be present in court without being summoned, and that he would have had something to make, by such a course.

He is entitled for his defense to all the means which the law does not forbid, or which it allows him, and no one has a right to inquire into them unless when he intends to procure wanting evidence or testimony which ho had secured and of which circumstances would deprive him otherwise.

IV.

Neither the counsel, nor the accused, was bound to divulge a line of defense. Surely, the counsel, if so bound, could not have done so, without having had sufficient time to inquire and without having ascertained the same.

V.

It does not follow that, because counsel asked one month to prepare the defense, that the court was bound to allow that time and still less four months.

The court might have allowed less than one month, or might have allowed more if necessary. The happening of the coming vacation term to which allusion is made would not have closed the division of the court before which the accused had been for trial. The act of 1880 (No. 98, sec. 7) does not force an adjournment. It loaves it discretionary with the judges of the Criminal District Court for the Parish of Orleans to arrange between themselves, so as to suit their convenience; but in so doing, the law expects that the judges shall keep in view, due regard to a proper and speedy administration of criminal justice.

We, therefore, conclude that, as the trial judge has not exercised a just legal discretion in declining to allow further time, and as the accused was thus unduly denied an important privilege, a great right and the full justice, to which he was entitled, the bill of exception was well taken and the complaint on appeal is well found.

This view of the case dispenses us from the necessity of considering the other points, or matters to which our attention has been called by the assigned counsel.

In ruling as we have done, far has been from our mind, any intention, in the lea.st to refleojt on the character and motives of the trial judge, which are above all suspicion, as we hold him in great respect. We only rule that, in an extreme desire to vindicate the public law, he has erred in not sufficiently safeguarding the rights of the accused.

It is, therefore, ordered and decreed that the verdict of the jury be ' quashed, that the judgment and sentence thereon be annulled and reversed, and that this cause be remanded to the lower court for further proceedings according to law.

Dissenting Opinion.

McEnery, J.

The defendant was indicted ou February 18, 1889. On the 23d February, the court appointed Charles J. Tlieard to defend the accused. The accused had made an application for the appointment of an attorney. Mr. Tlieartl declined the appointment. The accused was then on the 23d February arraigned, and remanded to await farther proceedings. On the 27th February an able and experienced lawyer iu criminal trials was appointed by the court to represent the accused. He declined the services of the attorney without assigning any reasons therefor.

On the 27th February the following appears upon the minutes of the court:

The court having appointed Charles J. Tlieard, Esq., as counsel to represent the accused and the appointment having been declined the court has this day appointed H. C. Castellanos,. Esq., to represent the said accused. The appointment being accepted in person by the appointed.”

On the 18th day of April the defendant -was ordered to appear for trial on the 29th day of April. On the 20th of April this notice was served on the defendant.

On the 29th of April the accused again made application to the court for the appointment of counsel, and the court appointed James. II. Dow-ling, Esq. The case was continued on his motion until Wednesday, May 1st 1889.

On May the first, the attorney, James H. Dowling, filed a motion for a continuance. The cause assigned in the affidavit and motion for a continuance is as follows : That he is entitled to an indulgence from this Honorable Court of a reasonable time in 'which to prepare a suitable and valid defence, which counsel believes there is in this case, that ho has not had sufficient time to do so,, or less than forty-eight hours have intervened since his assignment as counsel and the calling of the accused to the bar of the court for trial, that he has been altogether unable to prepare the case, involving as it does the life of a human being embracing points of law and fact requiring much study and research, which he has been unable to devote to it.”

This motion was addressed to the sound discretion of the court, which should not be interfered with, unless there lias been an improper and unjust abuse of such discretion in his rulings. Wharton Criminal Law 3037 ; 33 Ann. 262 ; 36 Ann. 853 ; 37 Ann. 128 ; 39 Ann. 673.

The learned District Judge in giving his reasons for denying the continuance says:

On the 23d February, 1889, Etienne Deschamps was brought into court and was arraigned and pleaded not guilty. On the same day at his request and upon his affidavit of want of means to employ counsel the court appointed a member of the bar in every rvay competent, and lie, under date 26tli February, 1889, informed tlie court that lie declined the appointment. Therefore, I, the judge, put myself into communication successively with quite a number of tlie members of the bar, all of whom declined to accept- the appointment.
“ In the meantime I was informed, and it ivas generally understood, that the accused was in communication with a distinguished member of the bar who would probably be employed by the accused. On the 18th April the gentleman stated to the District Attorney, who immediately informed mo, that he would not undertake the case. Therefore on the same day I ordered that a copy of the indictment and of the jury list and notice that the trial was fixed for Monday, tlie 29th of April. I obtained the consent of one of the oldest members of the bar, a lawyer of large exiierience and of great ability in criminal cases, to undertake the defence, and notice of trial issued on the 20th April was served on him the 22d April. The accused refused to accept tlie services of this gentleman and thereupon I had the accused brought into court, the gentleman who had consented to defend him being also present in the court room. The accused there in open court refused to accept the services of this gentleman and requested the court to appoint another selected by.himself, whoso name lie gave. This gentleman, a prominent member of the bar, was sent for and he asked for time to visit the accused and determine whether or not he would accept the appointment. On the 23d April he declined to take the case, and Wednesday, 24th April, I sent tlie chief deputy sheriff to tell the accused if he would furnish the names of witnesses I would see that they were brought into court on the trial. The answer returned to me was that he had no witnesses and it- was reported in court on the day of trial that lie had no witnesses.
On the 29th April when the accused was brought to the bar for trial, he informed the court that he had no counsel and asked the court to appoint counsel for him, such as tlie court might select. After positive refusal by some half dozen members of the bar, the appointment was made and the case continued to 1st May. The time I allowed I considered sufficient to enable the counsel to ascertain what defence, if any, there was and to obtain from the accused the names of witnesses by whom any exculpating facts or matters of defence could be proved; and such information might have been grounds for continuance.
The counsel for accused in answer to inquiry by the court said he would require about a month to prepare suitable defence. As the court will be in vacation from 1st June to 1st September, this simply meant a continuance for four months.
“ Tlie accused never in any way indicated to tlie court that he had any defence. He never mentioned any fact which he expected or desired to prove, nor did he ever ask for delay to procure testimony or to have witnesses in his behalf summoned. I consider the affidavit insufficient in that it does not indicate any line' of defence. It does not mention any fact to be proven, nor does it ask for delay to have witnesses summoned in behalf of the accused. On such showing I did not consider that I would be justified in granting a continuance.”

As a general rule error does not lie to the action of the court on a motion for a continuance, which is in the discretion of the court, though when a bill of exception is taken, the decision in a sorong case may be reviewed. Wharton Criminal Law § 3037.

This court has guarded this discretion in such matters, and its expressions on the subject have been emphatic. Thus, in one case we said.- “ The legal discretion of the trial judge in a criminal case, in matters of continuance will not be interfered with, unless the ruling complained of is glaringly erroneous and manifestly unjust.” State vs. Johnson, 36 Ann. 853.

In the case of State vs. Clark, 37 Ann. 128, we said: “ Continuances are peculiarly within the legal discretion of the trial judge in criminal cases. Refusals to grant them will not be interfered with, unless in cases of flagrant error or gross abuse of power.” State vs. Clark, 37 Ann. 128.

In a case similar to the one at bar the facts are stated in the opinion as follows:

“An attorney was appointed on the 14th to defend him and the case was fixed for the 16th following. On that day a motion was filed for a continuance on the grounds stated, viz.: that the counsel appointed by the court had not sufficient time to prepare his defence, supported by affidavit, but it was overruled. It stated no special cause for delay. The attorney does not appear to have been shocked at the ruling. He did not resign his trust, but proceeded with the trial of the case and gave the accused his able and generous assistance. After a verdict of guilty a motion was made for a new trial, but no attempt appears to have been made to show that by the refusal of the judge to continue the case the prisoner had sustained any injury, and that the judge should have granted the postponement of the case. The motion charged besides that the verdict was contrary to law and evidence.”

This case is similar in every respect to the instant case, the only difference being in those features of the latter which are less favorable to the defendant.

Iii this case we said: “It is left to the sound discretion of a district judge iu such cases to determine what time should be allowed counsel appointed by him to represent the accused in order to prepare Ms defence, 16 Ann. 125. And also to pass upon application for a continuance on the day of trial, 23 Ann. 569, as well as upon motion for a new trial. Unless it be shown that some special and sufficient reason was assigned and made good in support of an application for a continuance, and that the district judge acted arbitrarily, and was guilty of a denial of justice, his rulings in two instances, the one offering the other at difterent stages, particularly when the last was made on a motion after a verdict, will not be reversed on appeal.” State vs. Wilson, 33 Ann. 262.

In the case of the State vs. Berry Johnson, 36 Ann., p. 853, “ it appears where he (accused) was arraigned, one week previous to his trial the court offered to assign counsel for his defense. The offer was declined for the reason that ho had secured counsel of his own. On the day of trial he informed the court that his counsel had abandoned him, and he therefore prayed for a continuance on that ground. Whereupon the court having assigned him counsel who now represents him, refused the continuance, but allowed two hours’ delay to the attorney thus appointed. ”

In this casé the court said: “Our jurisprudence has iinaly settled the rule that this court will not interfere with the legal discretion of the trial judge unless gross injustice has been done to the accused. The defendant chose to rely on liis own selection of counsel and other than to accept the guidance of the court, and he must abide the consequences. ”

In the instant case the accused had ample time to prepare for his defense; to consult with counsel and communicate to him his defense, had he accepted the services of the able and experienced attorney appointed to represent him by the court. No reason is assigned for declining the services of this attorney. While the Constitution of the State guarantees to every accused party the right to be heard by counsel, and in furtherance of the provision the statute law directs the judge to appoint counsel learned in the law to represent him when he is unable to employ one, there is no law absolutely requiring him to be heard by counsel. It is his privilege to go to trial without an attorney, and to decline to accept the services of counsel tendered him, and he must abide the consequences of such refusal. The District Judge, it seems, in this case exhausted all the resources ho possessed in the interests of the accused. Nothing else, in the administration of justice and a sense of duty to society and the State could have been done.

After having declined the services of counsel appointed by the court, he was notified of the day fixed for his trial, and was requested by the judge to furnish the names of witnesses'whom he desired to have summoned on his behalf. He replied he had none. On the 29th of April an attorney was appointed by the court at the request of the accused, and on his motion the case was continued until the 1st of May, when he asked for a further continuance for the reasons alleged in the motion. In this motion it is not even suggested that the accused had any defense, or that he had any witnesses to summon. The only reason is that the attorney desired time to prepare a defence for his client. On the trial, after the State had concluded her evidence, the accused retired with his attorney for consultation, and announced on the return to the courtroom that the accused had no testimony to offer.

That this is a capital case can make no difference in the rulings of the court to distinguish it from cases of a lower grade in the list of crimes. There is no law requiring the trial judge to view with more favor application for continuance in capital cases than those made for offenses punishable at hard labor.

Under the facts in this case the action of the trial judge in refusing a continuance does not seem to have been “glaringly erroneous; manifestly unjust;” “a flagrant error or gross abuse of powers.” "On the contrary, the district judge was anxious and solicitous in the defense of the accused, and was zealous in his efforts to secure for him the services of learned and experienced counsel.

For these reasons, I respectfully dissent from the opinion of the majority of the court.

Fenner, J., concurs in this opinion.

On Application fob Richic aim no.

Watkins, J.

This application is made on the part of the Attorney General, and the gramamim of his complaint is contained in the two following extracts we have selected from his brief, viz.:

1. “ It will be very difficult in the execution of criminal justice, to meet the many devices and attempts at delay — if the facts of the present case justify the ruling just pronounced. If only forty-eight hours had been granted counsel for the accused and a longer time .refused, some rule of conduct as controlling the trial judge’s discretion might be adopted, and if the opinion of the court was unanimous as to facts, a rule of practice might be held adopted.”

2. “ If tlie facts of this case could have been considered by the whole court as fixing the time and seasonableness of the application and appointment of counsel, the matter could have rested, but I respectfully submit, that as the opinions now stand, there is so much of divergence and conflict, that I pray the court to reconsider.”

Intervening between these paragraphs the Attorney General is pleased to indulge in some animadversions upon the disparity existing between the statement of fact contained in the opinion of the court, and the statement of dissenting justices, in respect to the date of the appointment of counsel by the trial judge, to represent the accused, and he concludes them by saying :

“ It will be impossible to establish any rule, in this regard, if we are to follow this case, and its facts, as a precedent.”

In purport, the Attorney General has tendered the proposition for our consideration, that the opinion of this court does not establish “ a rule of practice,” because the court is not “ unanimous as to facts,” and because “ as the opinions now stand, there is so much divergence'and conflict,” we ought to reconsider the case. (The word “ opinions ” was italicised by us.)

There seems to be a notion prevalent that expressions of opinion by a majority of the court, constitute, in some sort, a decree in respect to the facts of a case, that carry with them the force of authority. For the information of those who entertain such a notion, it is sufficient to say that, however much consideration may be due to the views of dissenting justices, the opinion of the court, as expressed by the majority, only, is authoritative in the enunciation of facts, as well as of legal principles, in any given case. Such is the plain and emphatic meaning of that provision of the Constitution, which says, “no judgment shall be rendered by the Supreme Court, without the concurrence of three judges.”

There cannot be, in the very nature of things, two opinions of this court, unless they concur.

The substance of the motion for a rehearing is, that, because of the disagreement in reference to certain facts, the opinion, as it stands, is not a safe guide for the law officers of the State, “ in the execution of criminal justice.”

The views entertained and expressed by our predecessors, on an application for a rehearing in Folkes vs. Howis, 11 Ann. 448, strike us as being so peculiarly applicable, that we quote from them in extenso, as a fitting answer to the one on hand.

Said Merrick, Chief Justice, as the organ of the court:

“ We find in the application for a rehearing in this case the following passage: * * * We respectfully refer the majority of the court to the opinion of Judge Spofford in connection with what we hastily suggest. We will not say that that opinion is unanswerable; although, in our humble opinion, no answer suggests itself. But we submit, that the opinion should be refuted, or should control the decision of this case, in the interest of the jurisprudence of our State. '* * * *
“ The high standing of the gentlemen who have applied for a rehearing in this case, requires of us some notice of the petition for a rehearing so extraordinary in its tone. We have hitherto supposed that we liad discharged our duty when we had respectfully considered each other’s opinions, and decided each individual case, upon the reasons applicable to it. We are not aware that we owed to counsel, or the public, the duty of combatting the opinion of the judge who might be unable to concur with the majority in opinion; neither had we surmised the way, or learned precise^, how we were to be informed, and on what occasions it would be necessary and proper to vindicate any particular decision of this court. We thought that, in the ease before us, all that was required of either the minority, or the majority of the court was, that the case should be so decided, that injustice should not be done under the law, to one party or the other. * * * * * * * *
“-The minority of the court have entertained, and, with marked ability expressed different views, which are entitled to the same respect, although not decisive of the matters in controversy, as the opinion of this court, and no more. Neither the opinion of the majority nor. minority, was written to catch the approbation of this or that man (motives' unworthy of any judicial tribunal whose sole object should be to do justice in each case, according to the laws of the land.)
“Nor can it be peraiitted to any one, how respectable soever his standing- may be, so far to forget his official intercourse with this tribunal, what is due to it, as to point out, under the pretense of interest in its jurisprudence, what particular opinions are worthy of favor, and what need to be vindicated by the court. ”

Comment would add nothing to the force'of those conclusions, and we will conclude by expressing the view that was expressed by the majority of that court: “Justice has been done. ”

Rehearing refused.

Mr. Justice Fenner dissents.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 10,471.
    The State of Louisiana vs. James Holcombe.
    A verdict and sentence in a criminal case will not be disturbed when the transcript contains no motion to quash, no bill of exception, no motion in arrest, no assignment of error and the proceedings appear to have been regularly conducted.
    A motion for anew trial which chargee improper rulings by the district judge, will not be noticed, when the rulings were not objected to, at the proper time and in the proper form.
    An ai>ponl in such a case is almost trifling with the court.
    APPEAL from the Twenty-sixth District Court, Parish of St. John Baptist. Host, J.

      Walter If. Royers, Attorney General, for the State, Appellee.
    i\ .Edrinyton■ for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant was prosecuted for murder, tried, convicted and sentenced to death.

He has appealed from the verdict and judgment.

The record is perfectly barren of any motion to quash, bill of excejition, motion in arrest or assignment of error and shows that all the essential forms required by law, in such cases, have been observed.

There is, however, amotion for a new trial; hut it states no matter which this court can review.

If it he true, that the district judge ruled incorrectly on certain points, which it is claimed he has, counsel ought to have objected at the time, in the mode pointed out by law.

In this qourt not even a manuscript brief has been filed in support of the appeal.

Complaining of a verdict and sentence, under such circumstances, is almost trifling with the court, besides inflicting, unnecessarily, heavy costs on the parish. State vs. Adams, 40 Ann. 213.

It is, therefore, ordered that the judgment herein he affirmed.


text:
    No. 10,428.
    The State of Louisiana vs. Louis Claire and John Gibson.
    The possible error of a trial judge who excuses a juror who has staled that he had a prejudice in favor of the .accused, and refuses the accused to cross-examine him, on his voir dire, affords of itself no legal ground of complaint to the accused, on appeal.
    The refusal of a trial judge to permit a witness to answer a question, the purport of which was, whether wounds received by an accused had been inflicted in a particular way — will not be interfered with, where the witness liad previously stated that he did not know how the wounds had been inflicted and that he was not an expert.
    A witness who has testified in a particular manner, in his first examination and who is sought to be contradicted by the defense, can be heard in rebuttal to testify as to a new matter brought out, in the attempt to contradict or impeach him, where the witness had not testified on that subject when examinod in chief.
    At any rate, the objection would go, if the testimony was cumulative only, and thus superfluous to the effect and not to the admissibility.
    APPEAL from the Criminal District Court for the Parish of Orleans. Marr, J.

      Walter II. Rogers, Attorney General, for the State, Appellee.

      J. II. Ferguson and Jas. O. Walker for defendants and Appellants.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendants were prosecuted for murder, tried, convicted without capital punishment and sentenced to hard labor for life.

The record contains three bills of exceptions and a motion for a new trial.

I.

The first bill is taken to the refusal of the trial j udge, to allow to the accused to cross-examine a juror on his voir dire.

It appears that, on direct examination by the State, the juror having' declared that he had a prejudice in favor of the accused, the Attorney General moved that he be rejected and the court did so, declaring him incompetent.

After the ruling, “the attorney for the defense sought to cross-examine the juror as to grounds he had for his opinion formed and expressed and his bias and prejudice for the accused. The counsel for the State objected to this form of procedure and the court sustained the objection.”

The accused reserved a bill and insists that it is well taken.

The accused does not charge that he has sustained' any injury by the ruling, or that he will derive any benefit by the remanding of the case.

It is quite likely, that the trial judge should have allowed counsel for the accused to cross-examine the juror and that he erred in declining that privilege; but how can the accused be benefitted by the commission of the error 9

If it be true, on the one hand, that, had the counsel been permitted to cross-examine, the juror would have answered so as to show that the prejudice on his mind was not such as to prevent him, on proper proof, to find a verdict against the accused, it is equally so, that he might-have testified to the reverse.

In either ease, the district judge could have ruled that the juror was incompetent and rejected him, to be sure improperly in the first, properly in the second, instance.

Of what useful purpose would it be for the accused to complain here of the improper rejection of the juror 9

In State vs. Shields, 33 Ann. 1410, we said :

“ Exception is taken to the action of the court in excusing a juryman for a cause which the defendant contends was not sufficient, under the law. Admitting the cause was not sufficient, the judge exercised his discretion in determining- the question and his error in such matter, would afford no ground for relief.”

In support, many authorities are there quoted.

In the more recent case of State vs. Creech, 38 Ann. 480, this court said:

It is no longer an open question, iu criminal jurisprudence, that the rejecting of a juror by the trial judge, even if erroneous, affords of itself no legal ground of complaint to the accused.”

The ruling in 33 Ann. 1410 was thus formally affirmed.

Surely, we could not remand the case to have it put iu siatu, quo, so as to have the juror brought forward and cross-examined, particularly as there is no certainty that by his answers, he would certainly be admitted as a juror iu the case.

II.

The second bill is to the refusal of the trial judge to allow a witness, on the stand, to be asked -. Whether or not, certain wounds on the face and person of Claire (one of-the accused), could have been inflicted by the use of an oyster shell, in the hands of a third party, beating him therewith.”

Tlie putting and answering of tlie question, was on objection by tlie State, refused by the court.

The accused contend that to be an expert, it is not necessary to have graduated as a physician and surgeon, and that, as it was proved that the witness had had nine years’ experience in the treatment of wounds and braises, ho may rightly be termed an expert.

The court had permitted the witness to answer fully and minutely, as to all the wounds and bruises he examined and saw and to so describe them.]

It excluded the question, on tlie ground, that the witness had already sworn, he could not tell how the wounds were caused and shown, by his testimony, that he was not an expert.

Surely after such statement by the witness, the court was right in not permitting him to be subject to further examination.

HL

Tlie third bill of exception relates to the ruling of the trial judge, permitting a State witness, whom the accused had undertaken to contradict, to be heard in rebuttal.

It appears that the witness had stated when first examined, that the first shot was fired behind the lunch counter,” and that a witness for the accused and one of the accused, undertook to contradict him by stating, that the first shot was fired from the front of the street, towards St. ■Charles street, and not fired at Mealey; further, that afterwards, the State witness was asked, whether it was true that the first shot was fired as just stated.

Tlie district judge says, that the matter testified to by Claire was direct and new matter, and the State witness, although he had been examined as to the facts of the case, as a witness for the State, was after a statement of the particular fact testified to by Claire, called in rebuttal and asked only as to said particular matter. The court annulled the objection and the witness answered “no, and stated where the first shot was fired.

There is nothing to show that the witness, in his first examination, had testified in the way he did, when called back. He could, therefore, be brought again to the stand to testify as to a new matter, in contradiction ot what might have been .said counter, or in explanation of his owii previous declaration.

At any rate, even his second testimony was merely cumulative, it could only be considered as superfluous. The objection went more to the effect than to the admissibility.

IV.

It is hardly necessary to notice the motion for a new trial, further than by saying that it relates to matters within the province of the jury and not that of this court.

The [accused themselves say nothing about it and they dispense the court from further remark.

Judgment affirmed.


author: Poché, J.

text:
    No. 10,420.
    The State of Louisiana vs. Nicholas Laque.
    In a trial for murder, threats made by a brothor of Iho accused against the deceased, are not admissible in evidence, if it appears that the brother has not been indicted for the offence, and that no testimony has been introduced tending to show a conspiracy between the brothers for the perpetration of the crime charged to the accused.
    In such a case the brother is a third person, whose acts and words spoken can have no possible bearing on the guilt or innocence of the accused.
    The testimony of a witness taken at a preliminary examination in a murder case is not admissible as evidence at the final trial, unless it is shown that the witness has left the State, or cannot be found, or having been summoned was taken sick on the way. The showing that tho witness has removed to an adjoining parish, is not sufficient to justify the introduction of his testimony taken at the preliminary trial, and to thus deprive the accused of his constitutional right to be confronted with tire witnesses againát him. 14. S. 1870, sec. 1030.
    APPEAL from the T ivonty-sixth District Court, Parish of St. Charles. Host, J.

      Walter IT. Boyers, Attorney General, for the State, Appellee.

      7<\ 13. Earhart for Defendant and Appellant.
   Tho opinion of the Court was delivered by

Poché, J.

This is an appeal from a conviction of murder without capital punishment, and the defendant urges numerous errors to his prejudice on the trial which resulted in his conviction.

1. He complains of the ruling of the trial judge in admitting testimony of threats made by his brother against the deceased. It appears from tiie indictment thatthe brother had not been implicated in the charge, and the bill of exception fails to suggest that any evidence had been offered to show any conspiracy between the two brothers for tho purpose of perpetrating the crime charged to tho accused.

The only reason given in the bill by the trial judge in support of his ruling is that .defendant’s objection went only to the effect; and not to the admissibility of the proffered testimony.

But in this he seems to have entirely misunderstood the scope of (lie objection. Fpr all purposes of the trial of the guilt or innocence of the accused, and particularly of the relevancy of the proffered testimony, the brother was a third person; and his acts or words, under the showing made, could have no possible bearing or effect on the only question at issue, which was the guilt or innocence of the accused of the charge propounded against him.

There is no intimation in the bill, or in the whole record, that there was the slightest suspicion, supported by any testimony, that the brother had any connection with any difficulty or trouble existing between the deceased and the accused; or that the alleged threats were in any way part of the res gestae. The question is completely covered by the ruling of this court in the case of Perry, 16 Ann. 444, in which the rule was formulated thus:

“ The threats of a third person must not be allowed to militate against a prisoner, and when tliej^ do not constitute part 'of the res gesltr, are inadmissible in evidence to criminate the prisoner, and more especially ■in cases of murder, to prove on his part premeditated malice. ”

In that case the court quoted with approval the following language of a writer on criminal jurisprudence :

The existence of a-conspiracy being proved, the act of any one man engaged in such conspiracy, though not on his trial, is evidence to criminate those with whom he co-operated. But the declarations of a person unconnected with the defendant on trial, except as he may at particular occasions, be in his company, cannot in any case be received in evidence. ”

It is easy to conceive that such testimony must have liada very injurious effect against the accused, in the minds of tlio jury, in creating the impression that bad blood existed between the deceased and the family of the defendant. The ruling complained of is manifestly erroneous, and is sufficient of itself to vitiate the trial. Wharton’s Criminal Evidence, 9th edition, sec. 225, and authorities cited in the note.

But another bill of exception taken by the accused presents an incident which may recur on a second trial, and hence it justifies our attention to the subject in this opinion:

2. The complaint is that the judge erred in admitting in evidence, over the objection of the accused, the testimony of a witness absent from the trial, which had been taken and reduced to writing at a preliminary trial of the case.

The ground of the judge’s ruling is that the witness who lived in the parish at the time that the preliminary examination had been made, had since removed from, and could no longer be found, in the parish in which the crime had been committed and in which the court was holding the trial.

But the bill shows that it appeared from the sheriff’s return on the summons, that he had ascertained from inquiries made in the neigliborhoodthat the witness had removed from that parish, St. Charles, to the Parish of Jefferson. Now we must take judicial cognizance of the two facts: that the Parish of Jefferson adjoins the Parish of St. Charles, and that they are both included in the same judicial district. Hence it is apparent that the showing made was not sufficient to deprive the accused of his constitutional right to be confronted with the witnesses against him, ” and to justify the introduction of testimony of an absent witness, taken at the preliminary examination made in his case.

Such testimony is admissible only under a showing that the witness had either left the State, or that, after diligent search, he could not be found, or that he had been summoned, but that ho had been taken sick on the way. State vs. Harvey, 28 Ann. 105; State vs. Douglass, 34 Ann. 523; State vs. Condier, 36 Ann. 291; State vs. Allen & Carter, 37 Ann. 685.

It appears to our entire satisfaction from this record that the witness was not out of the State, but that, on the contrary, he was within easy reach of the process of the court, and hence that the State had not proven due diligence in the effort to procure his 'attendance. Bevised Statutes 1870, sec. 1036.

We, therefore, hold that there was error in the ruling which admitted in evidence the testimony given by that witness at the preliminary examination of the case.

The record contains several other complaints of the accused, but as the causes on which they are predicated are not likely to recur on the new trial which we propose to order in the case, we must decline to prolong the discussion.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, and that the verdict of the jury be quashed and set aside; and that this case be remanded to the District Court for further proceedings according to law and to the views herein expressed.


text:
    No. 10,484.
    The State of Louisiana vs. Britton Mitchell and John Dunn.
    In t.lie absence of proof, in a trial for murder, of an assault or hostile demonstration on the part of the accused at the time of the killing, towards his slayer, evidence of his bad character or violent disposition is inadmissible.
    Tf it appears from bills of exception taken by the accused himself, that the deceased was fleeing from his slayer at the time of killing, the trial judge cannot be required to instruct the jury on the law of self-defence, as it would be entirely inapplicable to such a state of facts.
    In instructing tho jury that if they believe that certain .facts have been proved on the trial, they should find a stated verdict, the trial judge does not trench on the province of the jury as the exclusive judges of the facts, or violate the rule of law which forbids him from commenting on the facts.
    APPEAL from tlie Ninth District Court, Parish of Concordia; Young, J.

      Walter IT. Hogers, Attorney General, for the State, Appellee.

      Luee c6 Lemle, for Defendants and Appellants.
   The opinion of the Court was delivered by

Poché, J.

Under an indictment for murder the defendants were tried separately, and this appeal is taken by John Dunn from a conviction of manslaughter.

It presents for review four bills of exception, which are all four predicated on certain facts recited in the first bill, which are as follows :

1. It appears from the bill that the homicide had been committed by Britton Mitchell, .the deed having been accomplished with a knife handed to him during the affray by the appellant, John Dunn.

At a game of cards, an altercation had occurred between the deceased, Theodore Gury and the defendant Mitchell, during which the knife was handed to the latter by Dunn. At that juncture the deceased fled from the combat into an adjoining house, to which he was pursued by tho defendants, who stopped at the door steps. In a few minutes the deceased who had attempted to procure an ax, but without success, came out of the house, carrying a small stick in his hand, but being confronted by Mitchell who stood on the steps, the deceased jumped off the side of tho gallery and started to run to another house, in a row of plantation quarters. He was then pursued, overtaken, and stabbed in the back by Mitchell with the knife previously handed to liinr by the appellant Dunn, who, however, had besought him to stop during the second pursuit.

The ME is taken to the ruling of the judge who allowed the recital of the two scenes of the drama to go to the jury, the contention being that the first conflict which had ended with the first flight of the deceased, was not part of the res gesta), with which Dunn had had any participation. It would indeed have been very convenient to Dunn to eliminate, from the recital, the acts which had connected him with the homicide; but such a course would have defeated the ends of justice, as it would have restricted the investigation to that part of the drama in which he had not participated, and which was the inseparable outgrowth of the first part of the difficulty.

There were two scenes to the act, but it was nevertheless one continuous drama, beginning in a quarrel and an altercation with blows, followed by a flight of the deceased, who' took refuge in a house to which he was pursued, from which he came out and whence he was again pursued and hunted down to his death.

Under those circumstances it was manifestly impossible to iflace the jury in possession of the facts necessary to an intelligent verdict without a recital of all that had transpired from the beginning, at the game of cards, to the infliction of the fatal blow. As contended by counsel for appellant, he could be found guilty only of such crime as could be proved against Mitchell, whom he had abetted and assisted by means of the loan of his knife. But as he was being tried alone, it was competent for the State to prove on his trial, all the facts characterizing the acts of Mitchell.. I-Ience it follows that the State, to show the animus of the latter in the second pursuit of the deceased, had the undoubted right to explain the circumstances in which he had procured the knife with which he dealt the fatal blow.

All evidence affecting Mitchell was good against Dunn, and hence the trial judge committed no error in allowing a full recital of the whole continuous difficulty to be given to the jury.

2. The refusal to admit evidence of the violent, desperate and dangerous disposition of the deceased is the ground of the second bill. The recital of facts contained in the first bill is the best justification of the judge’s ruling on this point. The evidence was far from even suggesting an attack or any hostile demonstration towards the accused on the part of the deceased, who was all through the difficulty seeking to save his life by flight. It is a very wise rule of law that no one has the right to kill another simply because the latter is a bad man. Wharton on Homicide, § 482, 606 ; State vs. Ford, 37 Ann. 460.

The idea, as contended for by counsel for appellant, that the dangerous character for violence of a party, may be considered by the jury, as a circumstance tending to show that the perpetrator of a homicide, who twice pursued his victim, even unto death, may have been prompted by the belief that his own life may then and there have been in danger, cannot receive judicial sanction.

3. -What has just been said is in a measure sufficient to uphold the judge in his refusal to charge the jury on the law of self-defence, as shown in the third bill.

It must be noted that the facts disclosed and brought to our consideration in the first bill discussed in this opinion, are submitted at the instance of the accused himself, as the main basis of the rulings which he solicited from the trial judge, and we are therefore at a loss to appreciate or to understand the grounds on which his counsel could rest any hope to obtain a charge on the law of self defence on such a showing. It is vain for him to invoke the ruling of this Court in the case of Tucker, 38 Ann. 536 and 791.

Ip that case it was shown that the functions of the judge in his instructions on the law of the case to the jury are different from those involved in rulings on the admissibility of testimony, when he is entitled to weigh the testimony as to proof of necessary foundation, as a matter involving the exercise of his own discretion.”

And it was there held that when the bill recites that evidence had gone to the jury with a tendency to sustain the application of a rule of law invoked by counsel for the accused, the judge could not justify his refusal to charge the jury as requested on the ground that he did not believe the evidence, or could not admit the deduction drawn therefrom by counsel for the accused.

But surely there is no room for the application of the rule in a case where it appears from bills of the accused that the deceased met with his death after two hot pursuits by Ms slayer, and that under that very showing the accused requests a charge on the law of self defence. The contention of appellant’s counsel on this ground of the discussion would have the tendency, if not the inevitable effect, to destroy all lines of demarkation in trials for murder touching the charges to be given to the jury.

4. The fourth bill embodies the complaint that the judge in his charge to the jury commented on the facts proved in the case, in violation of section 1963 of the Revised Statutes.

By that statute the judge is cautioned to abstain from stating or recapitulating the evidence so as to influence the decision of the jury, on the facts, or from stating or repeating to them the testimony of any witness, or from giving any opinion as to what facts have been proved ór disproved. In Ms charge to the jury in this case the trial judge instructed them that if they believed from the evidence, the facts substantially as enumerated in the first bill discussed in this opinion, they should find Dunn guilty of the same offence as they would have found Britton Mitchell, if he had been on his trial.

He not only avoided to recite any fact or facts proven or disproved, but he guardedly informed the jury that they were the exclusive judges of the facts. In the cases quoted by appellant’s counsel, the trial judge had directly referred to certain facts as proved, or to others as of ma terial importance, thus violating the letter as well as the spirit of the inhibition contained in the statute now under consideration. State vs. Washington, 30 Ann. 49; State vs. Swazze, 30 Ann. 1323; State vs. Alphonse, 34 Ann. 9.

A reference to these authorities affords an easy answer to the present contention of appellant’s counsel. We fail to see in what manner or particulars the judge transgressed legal limitations in the charge complained of.

In instructing the jury 'that the party then on trial could only be guilty of such crime as had been proved against Britton Mitchell, he embodied the very theory which underliod the whole line of defence invoiced by counsel for the accused, and the complaint is therefore without the slightest foundation.

Judgment affirmed.


author: Fenner, J.

text:
    No. 10,485.
    The State of Louisiana vs. Richard Johnson.
    1. Act 74 of 188G authorizing the court to appoint attorney to represent tlae State when the district attorney is recused, sick or necessarily absent, does not violate Art 124 of the Constitution.
    2. Refusal of the judge to retire the jury while talcing evidence as to foundation for admission of a dying declaration objected to on the ground that, if the declaration were excluded, the evidence touching it should not be heard by the jury, loses all significance when the declaration is admitted.
    3. While this Court has determined its jurisdiction to examine the evidence taken on issues of this kind and to review the findings of the district judge thereon, yet it will give great weight to such findings and will not disturb them unless manifestly inconsistent with the evidence.
    4. While the appointment of a foreman to the%)ctit jury by the judge is unnecessary and perhaps irregular, it is' a matter too trivial to serve as a basis for relief in this Court.
    5. When the witness of the accused has been questioned as to the physical power and prowess of the deceased, questions by the State on cross-examination relative to like qualities of the accused are germane and responsive to the subject-matter of the examination in chief.

      APPEAL from the Twenty-first District Court, Parish of Iberia. Mou ton, J.

      Walter 11. Boyers, Attorney General, for the State, Appellee.

      A. cC G. Foutelieu and Foster <& Broussard for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

Appellant, on motion to quash and motion in arrest, complains that the indictment and proceeding's against him. were unlawfully signed and conducted by an attorney appointed by the court to act in the necessary absence of the district attorney.

The evidence shows that the district attorney was absent under a leave for sixty days granted by the Governor on the ground of ill health.

This is a case of necessary absence within the meaning of Act 71 of 1886, which authorizes the court “ to appoint a competent attorney to represent the State in criminal and civil matters, when, from any cause, the district attorney is recused, necessarily absent, or sick.”

The above act does not violate Art. 121 of the Constitution, which provides:

“That there shall be a district attorney for each judicial district * * * who shall be elected by the qualified electors of the district. Any vacancy shall he filled by appointment by the Governor for the unexpired term. There shall be no parish attorney or district attorney pro tempore.”

The meaning of this provision is transparent, that there shall be no such office created by the Legislature as that of “ district attorney pro tempore,” meaning thereby a permanent officer, such as existed under anterior legislation, to assist the district attorney by acting in his stead when he is otherwise engaged.

It does not mean that the necessary business of the State must rest in inaction whenever the district attorney is sick or necessarily absent. In such case the public interest requires that the machinery of justice shall move on, and if the regular engineer is disabled a substitute must be found to act till he is restored to his duty.

II.

Another exception was taken to the refusal of the judge to order the jury to retire while evidence was being taken, to lay the foundation for the admission of a dying declaration. The ground of objection was that the evidence was for the court and that, if the declaration had been excluded, the jury might have heard testimony in relation to its contents' which should have been excluded from them. But, as the court admitted the declaration, this objection, in this case, falls by its own weight.

III.

The evidence on the question of admissibility is brought up under a bill, and it is claimed that it does not lay a sufficient foundation for the admission of a dying declaration. While this Court has determined in Seeley’s case, 41st Ann.) that it may examine the evidence taken on such issues and review the findings thereon of the' judge a quo, yet great weight must be given to the conclusions reached by the judge, and they will be disturbed only when manifestly inconsistent with the evidence. Such is not the case here.

IV.

The judge did not err in excluding the certificate or the evidence of a physician to the effect that, some days after the declaration, he (the physician) thought the deceased might recover.

This was manifestly irrelevant to the question of the state of deceased’s mind when the declaration was taken.

V.

The exception in the matter of the juror, under the light of the judge’s statement, is too frivolous for notice.

VI.

The judge, at the conclusion of his charge to the jury, appointed one of them to act as foreman. No objection was taken at the time, but after the jury had retired, counsel for defendant excepted to this action. The exception came too late, and is, moreover, without merit.

The appointment of a foreman by the court, whilst unnecessary and even irregular, is too trivial a matter to base relief upon. A foreman is unnecessary either under appointment of the judge or by selection of the jury; and the appointment or absence of a foreman neither adds to, nor detracts from, the validity of the verdict. State vs. Smith, 33 Ann. 1414; State vs. Daniel, 31 Ann. 91; State vs. Faulk, 30. Ann. 831; State vs. Nolan, 8 Rob. 513.

VII.

Tlie last exception is taken to tlie ruling of the court in permitting tlie State to ask a witness of defendant on cross-examination: “What kind of aman was Rickard Joknson? Was he a powerful man, a bad man? Would he make a pretty good fight?” The objection was that the questions related to matter not referred to in the examination in chief, and had for object to prove the reputation and character of accused without previous evidence on that point. '

Tlie judge justifies his ruling by saying that the witness and previous witnesses of defendant had testified as to' the physical strength and prowess of deceased and as to his being capable of executing any threats lie made, and the judge thought that testimony as to like qualities in the accused was germane to the subject-matter and responsive to the evidence in chief. We think lie did not err.

Judgment affirmed.


text:
    No. 10,435.
    The State of Louisiana vs. Minnie Mack.
    1. The police or recorders’ court of the City of ETew Orleans are vested with jurisdiction “to try, sentence and punish all persons who violate any logal or valid city ordinance.” Act 20 of 1882, sec. 49.
    2. Section 8 of the same act delegates to the city the power to exclude houses of prostitution and assignation from certain limits and to ckne the same and to authorize the Mayor to close them.
    3. To require the occupants or keepers of such houses to remove from the same is a proper and practical method of closing such houses, and the imposition of fine and imprisonment for refusing to remove is a competent sanction of such requirement.
    4. The fact that the keeper of an assignation house is tlie owner of the same does not exempt her from obedience to such ordinances, which are an exercise of the police power subject to which all rights of property are held.
    5. The ordinance does not deprive defendant of her property, but only prevents her from using it in a manner inconsistent with public order and morals.
    6. Even this qualified deprivation is not operated without “due process of law; ” since the penalties are enforced by a competent tribunal after contradictory hearing and on proof that defendant was making the prohibited use of her property and had disobeyed the order to remove.
    7. In this class of cases evidence of the common reputation of the house and its keeper is ad. missible.
    8. Under Act 29 of 1886, conviction of infamous crime is no longer a disqualification of a witness in criminal cases.
    APPEAL from the First Recorder’s Court of the City of New Orleans. Murphy, J.

      T. MoG. Hyman, Assistant City Attorney, for Plaintiff aqd Appellee.

      P. O. Iiassalle for Defendant and Appellant.
   Tlie opinion of tlie Court was delivered by

Fenner, J.

Defendant was prosecuted for violation of tlie following municipal ordinance:

“Be it ordained, That wherever a house of prostitution or of assignation may become dangerous to public morals, either from the manner in which it is conducted or tlie character of the neighborhood in which it is situated, the Mayor may, on such facts coming to his knowledge, order the occupants of such house, building or room to remove therefrom within a delay of five days, by service of notice on such occupants, iu person, or by posting the notice on the door of such house, building or room, to remove therefrom within a delay of five days, and upon such occupants failing so to do, each shall be fined in the sum of twenty-five dollars, and in case of failure or refusal to pay said fine, each occupant shall be imprisoned for a time not exceeding thirty days.
“Be it further ordained, That in the event that the occupants of said house, building or room do not remove therefrom, after infliction of the penalty, the Mayor is authorized to give a notice to such occupants to remove therefrom within twelve hours, and upon said occupants failing- so to do, each shall be fined in the sum of twenty-five dollars, and in case of failure or refusal to pay said fine, each occupant shall be imprisoned for a time not exceeding thirty days.. ”

The defendant filed in the court below two exceptions, one to the jurisdiction of the court, the other arraigning the legality and constitutionality of the ordinance.

1. The exception to the jurisdiction has no merit. Article 136 of the Constitution authorizes the General Assembly to provide for police or magistrates’ courts and to vest them with jurisdiction for “ the enforcement of municipal ordinances. ” The charter of the city, Act 20 of 1882 creates such magistrates and expressly confers upon them jurisdiction “to enforce all city ordinances and to try, sentence and punish all persons who violate any legal or valid city ordinance.” Sec. 49.

2. In considering the question of the legality and constitutionality of the ordinance, we confine ourselves to the grounds. presented in the lower court. The exception is to the effect that the ordinance and the notice by the Mayor provided therein violate Article 6 of tlie Constitution, which declares that no person “shall be deprived of life, liberty or property without due process of law. ” She complains that she is owner of the house occupied by her, and that in being compelled to remove tlierofrom on order of the Mayor, or, in case of disobedience, to be fined or imprisoned for failure to remove, she suffers a deprivation of her property in violation of the article.

In considering the question of the validity of the ordinance ^ve are bound to give it a reasonable construction, and, in case of ambiguity, to give that construction which consists with the Constitution and the law. Dillon Mun. Corp., sections 413, 420.

The ordinance deals exclusively with occupants of “ houses of prostitution or of assignation ; ” it authorizes the Mayor to give notice only to occupants of such houses, and the penalties are inflicted only on such occupants. It is not to be construed as authorizing fines or imprisonment simply for disobeying an order of the Mayor. Those penalties could only be imposed on proof of three facts:

1. That the defendant was occupying “ a house of prostitution or assignation ; ”

2. The o.der of the Mayor.

3. The disobedience thereto.

Accordingly the affidavit in this case charges defendant with “ failing to remove from said No. 55 First street oceujñed by her as an assignation house; ” and the transcript abundantly shows that the defendant was heard and the court tried aud determined the question of fact as to whether or not the defendant occupied and kept her house as an assignation house.

So construed and enforced, and confining ourselves exclusively to the first section of the ordinance which is the only one involved, the question is, whether the enforcement thereof operates a deprivation of property “ without due process of law.”

We think not. The charter of the city expressly delegates the power to “ regulate houses of prostitution and assignation ” and “ to exclude such houses from certain limits” and “to close the same,” and “to authorize the Mayor to close such places.” Act 20 of 1882, sec. 8, par. 11.

The ordinance is passed in the exercise of this power.

To require prostitutes and keepers of assignation houses to remove from houses situated in localities where they are forbidden, is a proper, and the only, practical, method of “ closing ” such houses and of “ excluding ” them from such limits; and the power granted to the corporation to “ close ” and to “ exclude ” houses of prostitution and of assignation, includes and implies the power to adopt the proper means to accomplish this end. Dillon Mun. Corp., sec. 376.

It is the clearest possibleuexample of a police regulation, the exercise of the police power of the State — that power reserved to every State, as essential to social order and comfort, which subjects the most absolute rights of properly to the condition that they shall be so used as not to infringe the rights of others. Defendant’s ownership of the property cannnot avail to protect her in its occupancy, when perverted to a prohibited use of it as a house of assignation.

The ordinance under consideration does not deprive defendant of her property; it simply prevents its use by her for purposes inconsistent with public order and morals.

Even this qualified deprivation is not operated without due process of law; ” it is enforced by a competent tribunal, only after contradictory hearing and on proof that the offence charged has been committed.

Therefore, the constitutional provisions invoked, is not violated.

3. Complaints is made that the magistrate received evidence of common reputation of the house and of defendant as for the purposes for which the house was used. The bill of exception does not show that this was the only evidence received; and, moreover, there is good authority supporting the admissibility of such evidence in this class of cases. 2 Wharton Cr. L., sec. 2395 (b); 1 Dillon Mun. Corp., sec. 376, Note 1.

4. The objection to the competency of a witness, on the ground that he had been convicted and sentenced for grand larceny, has no force since Act 29 of 1886, which provides that “the competent witness in all criminal matters shall be a person of proper understanding,” with certain exceptions not germane to this point. This is the first statute passed on this subject in this State. Prior thereto the case was governed by the rules of the English common law as existing in 1805, which excluded convicted and sentenced felons. State vs. Mullen, 33 Ann. 159; State vs. Benoit, 16 Ann. 273.

But since the matter has now been regulated .by statute, no 'disqualifications can be recognized outside thereof.

Judgment affirmed.


author: Watkins, J.

text:
    No. 10,441.
    The State of Louisiana vs. Isaiah Dent et als.
    1. The allowance of a change of venue is largely within the sound legal discretion of the trial judge, and his ruling will not be disturbed unless it is manifest that his discretion has been abused.
    2. An objection to the want of competency of a juror, based on the ground that he was not sufficiently acquainted with the English language, and did not understand such terms as “ bias,” “prejudice,” and “ verdict,” must be received and construed reasonably.

      Tlie law does not require a juror to "be a scholar, or that he should have an education. It only requires that he should comprehend ordinary discourse in the TSnglisli language.
    3. The expression of an opinion which disqualifies a juror, is a fixed, deliberate and determined one, which does not yield to ovidence.
    APPEAL from the Sixteenth District Court, Parish of East Feliciana. Brame, J.

      J. Henriy Shepherd, District Attorney, for the State, Appellee.

      J. tí. Kilhourne and H. T. Merrick, Jr., for Defendants and Appellants.
   The opinion of the court was delivered by

Watkins, J.

Isaiah Dent and Charles Dent appeal from an unqualified conviction of murder and sentence of death; and Frank Cooler appeals from a qualified verdict and a sentence to life imprisonment.

During- the progress of the trial, quite a number of bills of exception were taken by the defendant’s counsel to the refusal of the trial judge to grant them a change of venue, and his refusal to sustain various challenges for cause which were tendered by them, to different persons who were called, either as regular jurors or as talesmen. We will discuss only those bills which are argued in counsel’s brief.

I.

The application for a change of venue on the part of defendants rests upon their averments “that by reason of prejudice on the public mind * * engendered by newspaper reports and articles, and other causes, they cannot obtain a fair and impartial trial in the parish where the charge agiiinst them is now pending; and that said prejudice exists in all the parishes adjoining- judicial districts.”

This application is sworn to by the defendants, Charles and Isaiah Dent, only.

The defendant’s bill of exceptions No. 1, and the certificate of the judge appended thereto, contain all the evidence appertaining to the existence of “ prejudice in the public mind,” against the accused. The bill states “ that, at the time they were captured and brought back to the town of Clinton, a body of some forty or more men appeared at the jail and demanded the prisoners for the purpose of lynching them; that it was only by the nerve and quickness of a few leading citizens that the accused were passed out of the jail and, surreptitiously, conveyed to New Orleans; that the train on which the prisoners were carried to New Orleans was boarded by a body of men, who threatened to lynch the prisoners, but who were unable to find them, as they were in the baggage car; that there was much excitement, at the time, and ill-feeling against the prisoners.”

On this score the trial judge states that “ after hearing six witnesses on the part of the defendants, and fifteen on the part of the State, some of whom were residents of each and every ward and neighborhood of this parish, and the most of whom were from the best and most influential citizens of the parish, and each and every -witness having sworn positively that there was no such state of prejudice or ill-feeling in the parish against defendants, as would prevent them from having a fair and impartial trial,” he overruled the motion.

Under the circumstances, we are of opinion that the judge’s ruling was'correct.

The motion for change of venue is largely within the sound legal discretion of the trial judge. State vs. Gonsoulin, 38 Ann. 460; State vs. White, 30 Ann. 365; State vs. Burger, 11 Ann. 607; State vs. Daniel, 31 Ann. 92; State vs. Ford, 37 Ann. 443.

We are satisfied that the judge’s discretion was not erroneously exercised.

II.

Defendants’ sixth bill was reserved to the judge’s refusal to sustain a challenge for cause which they tendered to the juror, E. A. White. This bill was imperfectly transcribed into the transcript, and does not cover the ground taken in counsel’s brief, altogether. But 'enough appears to fully justify the judge’s ruling. It states -that “the court ■was of opinion that said juror was competent * * because, in answer to questions by the court, he stated that his opinion was formed from rumor and not from conversation with any of the witnesses; that he had no bias or prejudice against the parties accused, and that he would be governed entirely by the evidence on the trial, in making up his verdict.”

We think the juror was competent.

III.

The seventh bill -was retained to the judge's refusal to sustain defend ants’ peremptory challenge of the tcdis juror, Carl Hogie, on the ground that he confessed on his voir dire that he did not understand the words “ bias,” “prejudice ” and “verdict,” and was, therefore, incompetent to sit as a juror.

The court held that he was competent and qualified, for the reason “that the juror — a young German — was naturally bright and intelligent, and, while he talks English brokenly, is about as intelligent, and understands the English language about as well as the average American citizen, and said he could understand what the lawyers and witnesses said in court.”

What was said on this subject by our predecessors in State vs. Tazewell, 30 Ann. 884, is quite apppropriate to this case. “The law certainly does not require “ that jurors must be scholars, or even that they have an education; but it does require that they comprehend ordinary discourse in the English language, and wisely gives the judge power to determine this important fact, and we have no authority to review his decision thereon. * * The judge had the jurors before him, and enjoyed a better opportunity of knowing this matter than we have, and, even if we had the power to review, we have no reason to believe that he abused the discretion the law vested in him.”

In that case the cause assigned was, that the juror confessed, on his voir dire, that he did not know what a verdict meant.

The cause assigned by the defendants is not good for a like reason.

IV.

The eighth, ninth and tenth bills were, severally, taken to the judge’s refusal to entertain defendants’ challenges of Brasher, Benton and Irwin, for causes assigned, same being that the jurors had previously formed, and expressed, fixed and deliberate opinions relative to the guilt or innocence of accused.

The reasons assigned by the judge for refusing same being quite similar, they may be considered together.

With regard to the first he said:

“This juror said that he had a fixed opinion, and when asked by the counsel for defendants, what he meant by a fixed opinion, said that he meant that his mind was satisfied one way; that he had heard enough to satisfy his mind one way; but that his opinion could be changed by evidence; that the opinion he had formed was entirely from rumor; that he had no bias or prejudice against the accused, and that if taken on the jury he would be governed entirely by the evidence adduced on the trial in making up his verdict, and that he was able to render a fair and impartial verdict according to the law and the evidence, without being influenced in any way by what he had heard.”

With regard to the second, he said:

“ This juror said that he had no bias or prejudice for or against the accused; that he had a fixed opinion- — -pretty well fixed — but that it was entirely from rumor and newspaper reports, but that it could be changed by evidence — very strong evidence — either positive or circumstantial, but if circumstantial it must be properly connected; that he would be governed entirely by the evidence in making up his verdict, and that he was able to render a fair and impartial verdict, according to the law and the evidence adduced on the trial, without being influenced in any way by what he had heard, or the opinion he had formed.”

With regard to the third lie said:

“ This juror said that he had formed, from rumor and newspaper' reports, somewhat of an opinion, and that it would require evidence to remove that opinion ; that it might be changed by circumstantial evi dence — that is, it would require pretty strong circumstantial evidence to change it; that it was not a fixed opinion. That he had no bias or prejudice against the accused, and that he would be governed entirely by the evidence in making up his verdict, without being in any way influenced by his opinion or wdiat he had heard.”

When taken altogether there is no substantial variation between the counsel’s statement and that of the judge, with regard to the^purport of the three j uror’s evidence on then; voir dire.

In State vs. Farar, 35 Ann. 315, we had occasion to say that “ the expression of an opinion which disqualifies a juror, is a fixed, deliberate and determined one, which cannot be changed,” and in State vs. Dorsey, 40 Ann. 740, that precept was repeated and we further observe that “ the juror in question may be said to have a fixed, or decided opinion, but not an unyielding and determined one.”

In the former case we also said that “the record does not show that the prisoner had exhausted his peremptory challenges before the jury was fully made up, aud that he did not obtain an entire panel of his own choice. As was substantially well said on a similar occasion, it does not follow that because the party might have been received as a juror, his rejection is error, for which the Court will reverse the judgment. The great object of the constitution and the law, is that an impartial jury may be obtained in every case. The rejection of the juror had no tendency to jírevent the attainment of that end, for the prisoner had not exhausted his challenges before the jury was fully made up, and consequently he had obtained an entire panel of his own choice,” and, in'the latter, we quoted that opinion with favor, aud said:

“ Furthermore, it does not appear that the particular juror in question sat upon the jury of trial.”

Those opinions are in perfect accord with prior and subsequent authority on the subject, anti must control our decision in this case; nor do we understand the opinion in State vs. Ricks, 32 Ann. 1101, as expressing a contrary view. They are in perfect accord with the majority opinion of the Court in State vs. Brenger, Vide, p. 466 of 14th of Annuals.

Judgment affirmed.


author: McEnery, J.

text:
    No. 10,486.
    The State of Louisiana vs. John Montgomery.
    The appointment of ail attorney to act iu place of the district attorney, under Act 74 of 1880, covers all the duties required of the district attorney.
    The attorney so appointed is not restricted in his duties to cases already on ñle, but he has to discharge all the duties imposed by law upon the district attorney. He is not required to take an oath in each case.
    APPEAL from-the Twenty-first District Court, Parish of Iberia. Monton, J.

      Walter II. Bogers, Attorney General, for the State, Appellee.

      Edward, Simon, A. & O. Fontelieu and Foster & Broussard, forDefendants and Appellants.
   The opinion of the Court was delivered by

McEnery, J.

The accused was indicted for murder and convicted of manslaughter and sentenced to imprisonment at hard labor for twenty years, from which sentence lie has appealed.

The grounds of defense are that the attorney appointed by the. court in the absence of the district attorney has no authority to sign, frame, or file an indictment or information under Act 74 of 1886. That his authority extends only to “pending cases.”

In the case of the State vs. Richard Johnson, recently decided, the constitutionality of Act 14 of 1886 was affirmed.

Counsel for the accused, however, urge that the attorney appointed by the coixrt, under said act, has authority to act only in pending cases, which he contends to mean cases in which indictments or information have already been presented and filed. The attorney appointed by the court in this case signed the indictment. The case was not on the docket at the time of his appointment.

The act evidently intended to cover not only all cases on the docket of tlie court, but all business of a criminal nature which should be brought before it. The intention of the Legislature in enacting the law and the plain meaning of the act is that there should be no interruption of criminal business on account of the absence of the district attorney.

It is also alleged in the motion in arrest of judgment that the attorney appointed by the court should have taken the oath of office in each case which he prosecuted. The reason for this is not apparent. One oath covering his official duties is sufficient.

There can be no more reason for the attorney appointed in pursuance of said act taking an oath in each case than for the regular district attorney doing the same. The attorney thus appointed has all the duties to perform and discharge that are imposed upon the district attorney, and the oath of office taken by him on entering upon the discharge of his duties is sufficient.

Judgment affirmed.


text:
    No. 10,488.
    The State of Louisiana vs. Horace Thomas.
    Tlie ruling of a trial judge excusing a juror for cause, oven 'when not specified, is not revisable by this Court on appeal.
    A question, the objectrof which is to prove that a witness expected to meet a person at a certain place, is not one intended to establish an opinion, but a fact and is properly allowed to be put and answered.
    In such case, the accused has tlie undoubted right to cross examine, so as to disprove the fact of the expectation and cannot complain when it does not appear that he was not allowed that privilege.
    APPEAL from the Fifth District Court for tlie Parish of Ouachita. Riehwrdson, J.

      Walter IT. Rogers, Attorney General, for the State, Appellee.

      Soatner & Lamblcin, for Defendant and Appellant.
   The opinion of the court was delivered by

Bermudez, C. J.

This defendant was indicted for shooting, while lying in wait, with intent to murder, after trial and conviction, he was sentenced to hard labor for life.

On appeal, lie complains that the trial judge illegally excused a qualified juror and, allowed an improper and prejudicial question to be answered.

I.

Counsel for the accused urges that a competent juror, while under examination on his voir clire, was challenged by the State, on the ground that there was a pending indictment against him for trespass and that he was excused on that ground by the judge.

The bill of exception taken to the ruling contains a statement from the judge to the effect that, “ the court did not excuse the juror for the cause stated; hut did excuse Mm as a juror in the case upon suggestion of the District Attorney that, in the exercise of a sound discretion, the judge had the legal right to reject the juror, under the law and he was so rejected for reasons that, in the opinion of the judge, justified his action under the jury act of 1877. The defendants did not exhaust their peremptory challenges.”

There is in the record a formal admission that neither the State, nor the defence exhausted their peremptory challenges on the trial.

While there exists an affirmance on the part of the accused, there is a denial by the judge that the juror was discharged because of a pending indictment against him.

If it were necessary to act upon the sufficiency of the cause of the excuse, there being a contradiction between the counsel and the judge, the Court would prefer to adopt the statement of the disinterested and unbiased official, as to the true reason on which he relied to excuse the juror; but it is immaterial what the motive was, which influenced the judge in the course which he pursued, as his ruling on such a point is not revisahle on appeal.

It is true, that, in excusing jurors, a trial judge is hound to exercise a legal and not an arbitrary discretion and that when lie does excuse a juror for cause, it is advisable for him to state Ms reasons for so doing; hut it does not follow when he fails to do so, that the accused who may have wished the juror to sit on his trial, is entitled to complain, so as to have, in case of his conviction, the verdict quashed, the sentence reversed and the case remanded for a new trial.

Tt may occur that the trial judge, who stands between the State and the, accused, may have good reasons not to make his motives publicly known and may take upon himself the responsibility of simply stating, in justification,,that he excused the juror, in the exercise of a legal discretion for sufficient, valid cause. Such reticence would not in itself, be censurable here.

The right to challenge must be exercised to reject, but not to select jurors.

The error, if any was committed, is not revisable on appeal. State vs. Shields, 33 Ann. 1410; State vs. Farrer, 35 Ann. 317; State vs. Creech, 38 Ann. 480; State vs. Claire and Gibson, 41 Ann. 1067.

II.

Counsel for accused further complains that the trial judge allowed a witness to answer a question, the purpose of which was to obtain his opinion, when no fact had been previously detailed on which his impression or opinion could be founded.

Leaving aside another discrepancy which the bill shows to have existed between the counsel and the judge, and conceding that the question put to the witness was designed as contended, to establish by the witness, that he expected to meet a certain person, at an assignation made in an anonymous note claimed to have been received by him, and that it had not been previously proved that the hand writing of the note was that of such person, or that no other fact had been established from which the witness could have knowledge as to the person who had solicited the meeting, — it is manifest, that the State did not propose to elicit any opinion or inrpression from the witness, but intended to show affirmatively the fact that he expected to meet the person at the appointed place.

The expectation of the witness was not an opinion, but a fact and it could have been ascertained or drawn out as such fact.

Besides, had the question had for object to obtain an opinion, it is clear that the expression of such opinion would have been entitled to no legal effect, even coming from an expert, unless accompanied by a statement of the fact or circumstances from which derived, and it is not shown that the accused was deprived of the right of examining the witness so as to show that he did not expect to meet the person.

It may be that he endeavored to do so and failed, for it is stated by his counsel, that the evidence elicited thereby was very prejudicial to him, because this was the only evidence to show a probable motive in the accused for the alleged commission of the offence for which he was under prosecution.

Judgment affirmed.