State v. Blue

• Decision Date: 02 February 1914
• Docket Number: 20,381
• Citation: 64 So. 411,134 La. 561
• Court: Louisiana Supreme Court
• Parties: STATE v. BLUE

64 So. 411

134 La. 561

STATE v. BLUE

No. 20,381

Supreme Court of Louisiana

February 2, 1914

SYLLABUS

(Syllabus by the Court.)

The Supreme Court will not interfere with the order in which cases are set for trial in the district courts where it is not shown that some law has been violated.

Act No 135 of 1898, p. 216, gives to the district judges discretion to decide upon the competency of jurors in particular cases, and this discretion will not be interfered with by the Supreme Court. State v. Kennedy, 133 La. 945, 63 So. 476; State v. Thompson, 116 La. 829, 41 So. 107; State v. Hobgood, 46 La.Ann. 855, 15 So. 406.

The refusal of the trial judge to specially charge the jury on the matter of self-defense will not be reviewed where the per curiam of the judge shows that the evidence disclosed a case of willful murder, and self-defense was not involved.

A verdict of a jury may be oral or in writing, and, if in writing, it need not be signed by the foreman, or by any one else. It must be recorded by the clerk, and read to the jury as recorded, who are then asked if that is their verdict, and, if the answer is 'yea,' the finding, rendering and recording is complete. Faulty spelling and surplus words in a verdict are not causes for setting it aside when the intent and meaning are clear. Marr's Crim. Juris. s 467, p. 108.

Failure to object to a defective verdict when it is rendered waives the right to move for a venire de novo. State v. Jeanisse, 126 La. 360, 51 So. 290; 12 Cyc. 701.

W. T. Holland, of Greensburg, and Ponder & Ponder, of Amite, for appellant.

R. G. Pleasant, Atty. Gen., and W. H. McClendon, Dist. Atty., of Amite (G. A. Gondran, of Donaldsonville, of counsel), for the State.

PROVOSTY, J., being absent on account of illness, takes no part.

OPINION

SOMMERVILLE, J.

Defendant was charged with murder, and was found guilty of manslaughter.

The record contains 14 bills of exceptions, 4 of which have been abandoned.

Bill of exceptions No. 1:

'Be it remembered that on the trial of this case, counsel for A. L. Mulkey, together with the defendant, Mulkey, present in open court, having asked for immediate assignment and trial on a charge of perjury, wherefore counsel for Ivy Blue filed a motion to set aside the fixing herein, for the reasons set forth in the motion, with the attached publications.'

The motion to set aside the assignment for the trial of this case was based on the allegation that on a former trial of Blue, wherein a mistrial was entered, that one of the jurors, A. L. Mulkey, had been indicted for perjury while serving as a juror in that case (State v. Blue), and that he (Mulkey) was ready and willing to go to trial on the charge against him. Defendant, Blue, further alleged that the charge against Mulkey greatly prejudiced and injured his (Blue's) case. There is no merit in the complaint. The Supreme Court will not interfere with the order of trial of cases in the district courts of the state where no law is violated.

Bills of exceptions Nos. 2, 3, and 4: These bills are taken to the rulings of the court in excusing three jurors who were challenged by the state for cause. Act No. 135, 1898, p. 216, § 1, gives to the district judges the right to decide upon the competency of jurors to serve in cases before them, and their action will not be disturbed, or set aside, by this court. State v. Kennedy, 133 La. 945, 63 So. 476; State v. Thompson, 116 La. 829, 41 So. 107; State v. Hobgood, 46 La.Ann. 855, 15 So. 406.

Bills of exceptions Nos. 5 and 7: These bills relate to a question asked the prosecuting witness on cross-examination, which objection by the state was sustained. The question objected to was as follows:

'Did you not see Singleton [the deceased] have trouble with everybody that he had a settlement with?'

Defendant contends that this question was asked for the purpose of, first, corroborating the defendant that he was without fault in the matter; second, of corroborating defendant's contention that the deceased was the aggressor, and that defendant did not bring on the difficulty. The objection of the state was that the testimony was irrelevant, and the objection was properly sustained. The per curiam of the court shows that there had been a settlement between the defendant and the deceased on the Monday previous to the killing, which took place on the following Wednesday, and that the killing took place when defendant demanded the payment of a fixed balance of the account between him and the deceased of $ 2.65, acknowledged by the deceased to be due the defendant, and which he had agreed to pay on the following Saturday, and that it had been shown that defendant provoked the difficulty on Wednesday, and was the aggressor, and assaulted the deceased with a shotgun, demanding to be paid this balance; and, further, that the deceased had left the defendant, after having given him all the money he had in his pocket, while under the cover of the gun in defendant's hands; that the deceased and defendant had separated, going in different directions, when the deceased cursed defendant, and defendant shot the deceased with the shotgun which he was carrying; that some few of the shots entered directly behind the shoulder of the deceased, and some 50-odd struck him in the side of the face, temple, and head.

Bill of exceptions No. 6: Defendant offered to show that the wife of the deceased, Mrs. Singleton, who was dead at the time of the second trial, had not been summoned as a witness on the former trial of this defendant. Objection was made by the state on the ground of irrelevancy, and the objection was properly sustained. It does not appear in the record that Mrs. Singleton had been a witness to the killing, and no object whatever is stated by the defendant for offering this testimony.

Bill of exceptions No. 10: This bill is taken to the refusal of the judge to give a special charge to the jury referring to self-defense, in the language requested. The charge was given, but with some modification. The per curiam of the court shows that the special charge should not have been given, even in a modified form. The evidence is not before us, and the charge of the court is not in the record. But the reference hereinbefore made to the judge's per curiam, attached to several bills of exceptions, shows that:

'It was a case of willful murder.'

A judge should decline to charge the law of self-defense altogether, where there is no evidence to sustain the plea, and where the evidence shows that the deceased was walking away from the defendant when he was shot and killed. State v. Guidor, 113 La. 727, 37 So. 622; State v. Erwin, 133 La. 550, 63 So. 167.

Bills of exceptions Nos. 11 and 12: These bills are based upon the motions in arrest of judgment and for a new trial, which involve the form and sufficiency of the verdict in the case. The verdict is in the following words:

'We, the jurors, find the acues gilty of manslater.

G. W. Venables,

'As Forman.'

Faulty spelling and the misuse of several words which are surplusage are not sufficient causes for setting aside a verdict which is clear and certain as to its meaning and intent.

Besides, 'failure to object to a defective verdict when it is rendered waives the right to move for a venire de novo.' 12 Cyc. 701; State v. Jeanisse, 125 La. 360, 51 So. 290.

The word 'verdict' is derived from...