State v. Aspara

• Decision Date: 19 December 1904
• Docket Number: 15,267
• Citation: 37 So. 883,113 La. 940
• Court: Louisiana Supreme Court
• Parties: STATE v. ASPARA

37 So. 883

113 La. 940

STATE v. ASPARA

No. 15,267

Supreme Court of Louisiana

December 19, 1904

Rehearing denied January 30, 1905.

Appeal from Criminal District Court, Parish of Orleans; Frank D Chretien, Judge.

Sam Aspara was convicted of murder, and appeals. Affirmed.

Henriques & Dunn, for appellant.

Walter Guion, Atty. Gen., Chandler Clement Luzenberg, Dist. Atty and St. Clair Adams, Asst. Dist. Atty., for the State.

OPINION

MONROE, J.

Defendant has appealed from a conviction of murder and sentence therefor, and presents his case to this court by means of 12 bills of exception and an assignment of errors.

Bill 1 was taken to the refusal of the court to grant a motion and application, which reads:

"On motion, Henriques & Dunn, attorneys for the defendant herein, make this their application for an order to issue by this honorable court on the jury commissioners of the parish of Orleans that the said Henriques & Dunn be permitted to examine the books and records of said jury commissioners."

The reasons assigned by the court for refusing the application are thus stated:

"The above motion does not state what facts are intended to be established by the examination of the books and records of the jury commissioners, and the court cannot give an order so sweeping in its effects as would permit an inquiry into an office, the usefulness of which depends to a large extent upon its secrecy, without any specification having been made as to the purpose of the examination. If the law has been complied with, there must be in the wheel at present one thousand names of persons qualified to serve as jurors, which names, in the course of time, will have to be drawn for jury service. The administration of justice demands that these names shall not be disclosed until drawn for jury service, unless there shall arise an imperative demand that they should. Whatever information may be necessary for the trial of the above case can be obtained otherwise. Under the above motion, the court does not think that the order should be granted, and it is refused."

Counsel for defendant invoke the authority of the law which requires the jury commissioners to select the names of no less than a thousand persons competent for jury service, and of the particular provision (in section 2, Act No. 170, p. 212, of 1894) which reads:

"A list of these names shall be prepared, certified to by the commissioners, and kept as part of the records of their office, subject to the order of the judge of the criminal district court of said parish."

We find nothing in this law which deprives the judges mentioned of all discretion in the matter of making orders concerning the list in question, or from which it can be inferred that the "books and records" of the commissioners shall be open to the inspection of members of the bar or others, who, without assigning any reason therefor, may demand it. The reasons given by the trial judge for refusing to comply with the demand in the present case are conclusive, and his ruling is affirmed.

Bill 2 was taken to the overruling of a challenge to the array of petit jurors, as follows, to wit: (1) That the jury wheel did not, at the time the jurors required for service were drawn, contain 1,000 names of persons selected at large and impartially by the jury commissioners from the citizens of New Orleans; (2) that the drawing was not by the proper officers, in that the criminal sheriff was absent; (3 and 7) that the drawing was illegal, for the further reason that it was not made 12 days before the expiration of the December session of the court, (4 and 5) and because unauthorized persons were present and assisted therein; (6) that the panel was composed of 69 jurors, instead of 75, as required by law; (8) that the statute (No. 170, p. 211, of 1894) under which the drawing was made is unconstitutional, in that it vests the commissioners with judicial power, i. e., the power to determine as to who are and who are not persons of good moral character.

1. It appears from the evidence taken on the issue thus presented that, upon October 20, 1903, the wheel from which the names of all jurors required for service in the parish of Orleans are drawn was emptied by order of the judges of the criminal district court, and that upon the same day the names of 1,041 persons, whom for the present we assume to have been competent to serve as jurors, were placed therein. Subsequently names were drawn from the wheel and others were put in, until on December 22d there were 1,087 or 1,089 names in the wheel, from which number the jurors were drawn to constitute the January panel in Section B of the criminal district court, in which section the defendant was to be, and was, tried. Of the names put in the wheel between the dates mentioned, 165 put in on November 5th, and 333 put in on November 24th, were names which had shortly before been drawn, but the bearers of which had not served, either because they had been excused by the courts, had been returned by the sheriff "out of the city" or "not found," had not answered to their names when called, or, being tales jurors, had not been accepted or needed, or for some other reason; and, deducting their names, the number in the wheel on December 22d would have been reduced below that required by law. There is nothing in law, however, from which it can be inferred that a person otherwise competent becomes disqualified from serving as a juror because, his name having been drawn, he fails or is unable, for one reason or another, to serve at the time he is assigned to duty, and there is no reason, nor is the contrary suggested, why his name should not at once be returned to the wheel. But the law requires the commissioners to prepare and keep a list which shall "be a correct and perfect record of the names in the jury wheel" (Act No. 170, p. 212, of 1894, § 2), and this necessarily means that they must keep an account of the names drawn out, as well as of those put in, from which, it follows that, when names are checked off or stricken from the list as having been drawn out, and are thereafter returned to the wheel, they should either be relisted, or in some way restored to the original list, since it would otherwise very soon appear on the face of the record that more names had been drawn out of the wheel than had been put in, and the list which the commissioners are required to keep would cease to be "a correct and perfect record of the names in the jury wheel," a result likely to bring discredit upon proceedings which it is of the highest importance should be above suspicion.

In this instance the commissioners did not relist the names returned to the wheel, but, in the absence of any evidence to the contrary, we must assume that they complied with the law requiring them to keep a "perfect record," etc., by correcting the original list. In dealing with a similar condition arising under the act of 1880 (page 124, No. 98), this court, in referring to the apparent discrepancy resulting from the failure of the commissioners either to relist names returned to the wheel or to correct their original list, said:

"That discrepancy was explained by showing, as stated, that the names of drawn jurors who had not been found or who had otherwise failed to serve had been placed back in the wheel, and that their names had not been relisted, for the reason that such names had been entered on some previous list. This is certainly an irregularity, and its inevitable result was the discrepancy between the number of jurors drawn and the various lists in the hands of the clerk [the latter being then the custodian of the lists]. It is the clear and unequivocal intent of the law that these two statements must tally, and hence the names of drawn jurors which are replaced in the wheel by the commissioners should be included in the new and supplemental lists as often as they are replaced in the wheel. But the point presented, beyond that discovery, shows no consequence that could invalidate the trial of the accused. It is not every irregularity which operates injury. The defendant has failed to allege, and a fortiori to prove, that the irregularity which he has shown was the result of any fraud, and was such a great wrong as would or did work him an irreparable injury. This was an indispensable requirement, under the provisions of section 10 of Act No. 44, p. 58, of 1877. State v. Smith, 33 La.Ann. 1414; State v. Harris, 34 La.Ann. 118; State v. Rector, 35 La.Ann. 1098. Our only object in giving so much time to the discussion of this point is to secure a precise compliance with all the requirements of the law in the administration of justice in criminal cases. State v. Egan. 37 La.Ann. 369."

The conclusion thus reached is applicable in the instant case, the only difference between the two cases being that the defendant now before the court has alleged that the course pursued by the commissioners with respect to the matters complained of was a fraud upon his right and would cause him irreparable injury, but he has made no effort to sustain his allegations by proof, and we are satisfied from the evidence before us that no fraud was intended and no actual injury sustained. Concluding upon this point, we find it extraordinary that after the admonition contained in the foregoing excerpt the commissioners should have continued, or have returned to, the practice which was thus made the subject of criticism.

2. It is true that the criminal sheriff was absent when the names of the jurors required for the January session of Section B of the court were drawn from the wheel, but as his participation in the drawing is a ministerial function, and as the law does not require that he shall be present in person, he was...