State v. Paterno

• Decision Date: 01 April 1891
• Docket Number: 10,832
• Citation: 43 La.Ann. 514,9 So. 442
• Court: Louisiana Supreme Court
• Parties: THE STATE OF LOUISIANA v. MANUEL PATERNO

9 So. 442

43 La.Ann. 514

THE STATE OF LOUISIANA v. MANUEL PATERNO

No. 10,832

Supreme Court of Louisiana

April 1, 1891

APPEAL from the Twenty-fifth District Court, Parish of Lafayette Mouton, J.

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

Jos. A Chargois and Crow Girard, for Defendant and Appellant.

OPINION

FENNER, J.

The defendant complains of the overruling of his plea of former jeopardy based on the fact that, under a prior indictment for the same offence, the District Attorney had entered a nolle prosequi during the impanelling of the jury and before the jury had been completed.

All authorities agree that the jeopardy of an accused does not begin until the jury is fully impanelled and sworn, and that prior thereto the State's attorney may nolle prosequi the indictment without prejudice to new proceedings for the same offence. 1 Bishop Crim. Law, Secs 1014, 1015; 1 Wharton Crim. Law, Sec. 590.

Complaint is also made of the judge's refusal to refer the above plea to the jury. The plea, on its face, was not good in law, and was clearly demurrable. It involved no matter for a jury, and the judge acted correctly in overruling it.

Error is charged in the refusal of the judge to admit evidence of the dangerous character of the prosecutor, on whom the offence was committed.

The judge's statement shows that no foundation had been laid for the admission of such evidence. He says: "Defendant was keeping an oyster saloon, and William Mainwaring went in to get oysters on credit. Defendant refused, and some hot words were exchanged, and William picked up a vinegar bottle on the counter to strike defendant with. Defendant, with an oath, ordered William out, and, leaving the bottle on the counter, the latter went out on the sidewalk in front, but when he had reached the sidewalk he told defendant that he had cursed him while in his establishment but could not do so on the outside, upon which defendant drew a revolver, pointed it at William, walked up with revolver in hand and struck the latter, at the same time holding the revolver pointed at his head. After having received the blows from the defendant, William struck him with his fist and broke away in a run, and while he was running away, defendant shot at him when at a distance of twenty-five or thirty feet. There is no evidence that William was armed, or made any overt act other than above stated."

The shooting is the...