State v. Tibbs

• Decision Date: 01 June 1896
• Docket Number: 12,103
• Citation: 48 La.Ann. 1278,20 So. 735
• Court: Louisiana Supreme Court
• Parties: STATE OF LOUISIANA v. UPSEY TIBBS ET AL

20 So. 735

48 La.Ann. 1278

STATE OF LOUISIANA v. UPSEY TIBBS ET AL

No. 12,103

Supreme Court of Louisiana

June 1, 1896

Argued May 23, 1896

Rehearing refused June 30, 1896.

APPEAL from the Nineteenth Judicial District Court for the Parish of Iberia. Voorhies, J..

M. J Cunningham, Attorney General, R. F. Broussard, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff Appellee.

Todd &amp Todd, for Defendants, Appellants.

OPINION

NICHOLLS, C. J.

Upsey Tibbs, Ike King and Almond Wilkerson were indicted for robbery, tried, found guilty and sentenced to three years' imprisonment in the penitentiary.

They have appealed, relying upon three bills of exception.

In the first bill it is stated that on the trial of the case, while the petit jury was being empanelled, the sheriff drew from the box a slip of paper with the name of A. G. Bernard upon it; that on calling this name and no one answering to it, it was found that one A. G. Barrow was in the court house and had been regularly selected by the jury commissioners, and being summoned on the venire for the week previous to the trial, A. G. Barrow answered to his name when the venire was called in court. That thereupon the judge presiding allowed A. G. Barrow to be sworn on his voir dire as competent to serve, contrary to the objections of defendant, and, that subsequently, Upsey Tibbs had to peremptorily challenge said A. G. Barrow; that said Tibbs subsequently exhausted his peremptory challenges before the completion of the jury; that to said ruling admitting the said Barrow to be so called and sworn on his voir dire, defendants excepted and tendered their bill of exceptions to be signed.

The second bill states that on the trial defendants had offered two witnesses who had testified to their good character in the community, whereupon the judge charged the jury as follows on the point of character: "Evidence of the character, that is to say of the reputation, the accused has in the community is always competent, and it often occurs that it proves to be a great benefit to him. It tends, under many important phases of a case, to create a doubt which but for such evidence would not have existed in favor of the party charged with crime. Evidence of character should therefore be looked upon by the jury as part and parcel of the whole evidence submitted to their consideration. But however satisfactory or precise it may be it must not be allowed to destroy the tangible effect of direct evidence, or of the uncontradicted statement of witnesses, and still less must it outweigh in the scale of justice and do away with, or annul, any conclusive evidence of actual guilt. Evidence of character is entitled to the serious and honest consideration of the jury, not less but not more than any other legal evidence adduced on the trial. It is from that evidence, as well as from all other before them, that the jury are expected to form their final conclusions." That defendants excepted to said charge, as it was calculated to do them injury, and they reserved a bill.

The third bill states that on trial of this cause, in which an affray between negroes and Italians was shown, and after the District Attorney in addressing the jury on the case spoke of the disturbance of what might be termed (since six persons were engaged in the transaction) as a riot, the following charge was asked by the defendants:

"If several persons engage in a riot and an offence is committed by one of them, which offence is not in pursuance of the common object of the rioters, and foreign to the same, that each of the persons engaging in said riot should not by reason of their presence there be held guilty of such offense;" which charge was refused as not applicable to the facts of this case, because accused were charged with robbery, and not with creating a riot and disturbance. To which ruling defendants excepted and tendered their bill for signature.

In defendants' brief, referring to the first bill of exceptions, it is said: "This bill presents the question as to whether any one whose name is not served on the accused before trial can be forced upon the accused as a juror. The list of jurors served on the accused contained a name -- A G. Bernard. When the jury was empaneled A. G. Bernard was called, and, as the bill recites, no one answered to the name. There was one A. G. Barrow in the court house, and he was instructed to come forward as a juror. He was objected to, on the ground that there was no authority for calling him as a juror. The defendant Tibbs was finally compelled to challenge this juror peremptorily. Tibbs subsequently exhausted his peremptory challenges. We submit that the ruling allowing...