State v. Bain

• Decision Date: 29 June 1914
• Docket Number: 20682
• Citation: 66 So. 196,135 La. 776
• Court: Louisiana Supreme Court
• Parties: STATE v. BAIN

66 So. 196

135 La. 776

STATE v. BAIN

No. 20682

Supreme Court of Louisiana

June 29, 1914

SYLLABUS

(Syllabus by the Court.)

The office of jury commissioner is ipso facto vacated when the incumbent accepts another office, state, parish, or municipal; and the subsequent selections, by the members of the commission and the clerk, with the participation of the person who has thus ceased to be a commissioner, of persons to serve as jurors, are illegal, and vest in the persons selected no authority to sit, as jurors, in judgment upon questions involving the lives, liberty, and property of others.

Where a person who has ceased to be a jury commissioner has nevertheless participated in the selection of persons to serve as jurors and in the placing of names on the general venire list and in the general venire box, and thereafter upon the appointment of his successor, the jury commission, as thus completed, takes no action whatever in regard to such names, but merely leaves them as it finds them, and supplements the list and ox by the addition of the names of persons to take the places of those who have served, died, removed from the parish, or become otherwise disqualified, a grand jury, constituted in part of persons whose names were thus left and found, is illegally constituted, and an indictment brought in by it should be quashed on motion; the cause of complaint not being an 'irregularity,' within the meaning of section 15 of Act No. 135 of 1898, but being a jurisdictional matter affecting the legal composition, existence, and power of the tribunal before which the complainant is prosecuted.

S. W. Gardiner, of Ville Platte, for appellant.

R. G. Pleasant, Atty. Gen., and R. Lee Garland, Dist. Atty., of Opelousas (G. A. Gondran, of New Orleans, of counsel), for the State.

OPINION

MONROE, C. J.

Defendant, having been convicted of carnal knowledge, and duly sentenced, presents his case to this court by means of bills of exception to the overruling of his motions to quash the indictment and for new trial. The matter of which he complains arises out of the following situation, as disclosed by his motion to quash, and the evidence adduced in support of the same, made part of his bill of exception, to wit:

Louis Bacon was appointed jury commissioner of the parish of Evangeline in March, 1911, and held that position, as the legal incumbent, until May 20, 1913, when he accepted the office or offices of tax collector and street commissioner of the village of Mamou, and qualified by taking the required oath and giving bond. He continued, nevertheless, to discharge the functions of jury commissioner, and in October 1913, participated in supplementing the general venire list with 33 additional names, in selecting the names of 20 persons from whom 12 were to be, and were chosen to serve as grand jurors, for six months, and in drawing the names of 30 persons for service as petit jurors; and again in February, 1914, he participated in supplementing the general list with 91 names, and in drawing the names of persons for service on the petit juries. It appears, then, to have been discovered that he had ceased to be a jury commissioner when he accepted the other offices, and several indictments which had been brought in by the grand jury, the members of which he had participated in selecting, were quashed on that account, as was also the last panel that he had participated in drawing from the general list for service on the petit juries. Thereupon, on March 17th the trial judge formally revoked his appointment as jury commissioner, and appointed another person in his stead; and the jury commission, thus newly constituted, proceeded on March 30th to supplement the general list by the addition of some 36 names, to select, from the whole number then on the list, the names of 20 persons from whom the members of the new grand jury were to be, and were, chosen, and to draw the names of 30 persons for service on the petit juries; and on May 5th the grand jury, chosen from the members thus selected, and of whom at least 5 were persons whose names had been placed upon the general list with the participation of Louis Bacon, after he had ceased, in law, to be a member of the jury commission, brought in the indictment under which defendant was prosecuted. In the motion to quash it was alleged: That 124 names, in the selection of which Louis Bacon had thus illegally participated, had been left in the box; that the newly constituted commission had added but 36 names; that it had selected the lists for service on the grand and petit juries from the mass; that the mass and all that emanated from it were illegal; and that the court had so held in quashing the indictments and setting aside the petit jury list, previously brought in. The facts were shown to have been as alleged in the motion, but the trial judge was of opinion that the matters complained of were 'irregularities,' which, under sections 15 and 16 of Act 135 of 1898, did not vitiate the proceedings; and that it would have been an idle form for the newly constituted commission to have taken from the box the 124 names, that had been illegally put into it, only to put them back again; and the motion was accordingly overruled. The law, however, requires that persons who are to become jurors, and, as such, components of a tribunal vested with power to sit in judgment upon questions involving the lives, liberty, and property of others, shall be selected by 'five discreet citizens, good men and true,' who themselves shall be appointed by the judge, and who, together with the clerk of the court, or his deputy, shall constitute and act as a commission; and that, before entering upon the discharge of their duties, the persons thus appointed shall take an oath faithfully to discharge the duties imposed upon them. Act 135 of 1898, § 3, p. 218. The Constitution (article 170) prohibits the holding of more than one office of trust or profit (save those of justice of peace or notary public) at the same time. The act above cited declares that 'no person holding any office under the state or any parish or municipality therein shall be competent to hold the office of jury commissioner;' and this court has repeatedly held that the acceptance of an office operates ipso facto to vacate another office of which the acceptor is the incumbent (State v. Fuselier, 51 La.Ann. 1319, 26 So. 264; State v. Scott, 110 La. 369, 34 So. 479), the doctrine stated having been applied (in State v. Newhouse, 29 La.Ann. 824), to the case of a jury commissioner who accepted another office. It was also held, in the case last above cited, that where a venire is drawn from a wheel containing names, some of which were placed therein by a person who acted as jury commissioner, after he had vacated that office by the acceptance of another, other, the venire was unlawful; and, in still other cases, it has been held that when a person, not a commissioner, intrudes upon the deliberations of the commission, takes part in...