State v. Bryan

• Decision Date: 20 July 1932
• Docket Number: 31761
• Citation: 143 So. 362,175 La. 422
• Court: Louisiana Supreme Court
• Parties: STATE v. BRYAN

143 So. 362

175 La. 422

STATE v. BRYAN

No. 31761

Supreme Court of Louisiana

July 20, 1932

[Copyrighted Material Omitted]

John J. Peters, Jr., A. Leonard Allen, Cas Moss, and A. A. Moss all of Winnfield, for appellant.

Percy Saint, Atty. Gen., Harry Fuller, Dist. Atty., of Winnfield V. M. Mouser, Asst. Dist. Atty., of Columbia, W. M. Wallace, of Shreveport, Earl E. Kidd, of Winnfield, and James O'Niell, Sp. Asst. to Atty. Gen., for the State.

OPINION

O'NIELL, C. J.

The appellant was prosecuted under an indictment charging that he did, while president of the Bank of Commerce, at Winnfield, La., assent to the bank's receiving a deposit of $ 610.60 from B. Sholars, tax collector, when he, the president of the bank, knew that the bank was insolvent and in failing circumstances. He was convicted and sentenced to imprisonment at hard labor for a term not less than five nor more than seven and a half years. The record contains 61 bills of exception.

Bills No. 1 to No. 6, inclusive, have reference to the overruling of a motion to recuse the district judge, and bill No. 7 has reference to the overruling of a motion to recuse the district attorney. Bill No. 1 refers to the defendant's objection to the order of Judge Wiley R. Jones, who was presiding, referring the motion to recuse him to Judge L. L. Hooe, of the Ninth district, instead of referring it to Judge F. E. Jones, who was one of the two judges of the Eighth district; the other of the two judges of that district being Judge Wiley R. Jones himself. According to articles 304, 305, and 309 of the Code of Criminal Procedure, the motion to recuse Judge Wiley R. Jones should have been referred by him to Judge F. E. Jones. In a district or parish in which there are two or more district judges, a motion to recuse one of them must be referred by him to another of them if the one to whom it is addressed declines to be recused. In a district or parish having only one district judge, a motion to recuse him must be by him referred to a district judge of an adjoining district, if the judge to whom the motion is addressed declines to be recused. Code Cr. Proc. art. 309. The reason why Judge Wiley R. Jones did not refer the motion to Judge F. E. Jones in this instance was that Judge F. E. Jones was a stockholder in the Bank of Commerce, and it was anticipated that he also would be asked to be recused. However, the referring of the motion for recusation to Judge Hooe, instead of referring it to Judge F. E. Jones, lost all importance, because, on account of the absence of another judge of Judge Hooe's district, he was unable to act for Judge Wiley R. Jones in this case, and the order, referring the motion for recusation to him, was therefore rescinded; and the motion for recusation was then referred to Judge Percy Sandel, another judge of an adjoining district. Bill of exception No. 2 was reserved to that order; but that bill also is of no importance because the order complained of was rescinded, and the motion for recusation was then referred to Judge F. E. Jones. Bill No. 3 was reserved to that order; but the bill was not well founded, because the referring of the motion for recusation to Judge F. E. Jones was in accord with the provisions of articles 304 and 309 of the Code of Criminal Procedure, and was virtually requested by defendant's counsel. Besides, Judge F. E. Jones recused himself, because of his being a stockholder in the Bank of Commerce, and no objection was made to his being recused. Thereafter Judge Wiley R. Jones signed another order referring the motion for recusation again to Judge Sandel. Bill No. 4 was reserved to that order, the objection being that Judge Sandel's judicial district, being the Fourth district, does not adjoin the parish of Winn, in which the prosecution was had, even though the Fourth district does adjoin the Eighth district in which the parish of Winn is. There is no merit in that bill. The term 'adjoining district,' used in articles 305, 308, and 309 of the Code of Criminal Procedure, means a district adjoining the one in which the prosecution or procedure is pending -- but not necessarily adjoining the parish in which the prosecution or procedure is pending. Bill of exception No. 5 was reserved to the overruling of an objection to Judge Sandel's passing upon the motion to recuse Judge Wiley R. Jones. The objection was that the order referring the motion to Judge Sandel was not served upon him by the sheriff of the parish of his residence. The fact is that the order was served upon Judge Sandel by the sheriff of Winn parish, in the courthouse in that parish, where Judge Sandel happened to be when the order was rendered and entered upon the minutes of the court. Inasmuch as Judge Sandel took notice of the order and obeyed it, the manner of service of the order upon him was not important.

Judge Sandel, after hearing evidence and arguments on the motion to recuse Judge Wiley R. Jones, overruled the motion; and Bill No. 6 was reserved to the overruling of the motion. It was founded upon the allegations, first, that Judge Wiley R. Jones was related to two of the depositors in the Bank of Commerce, and, second, that the judge attended the grand jury's session in which the indictment was found against this defendant, and advised the grand jurors with reference to the charge, and was personally interested therein. We agree with the ruling of Judge Sandel that the motion to recuse Judge Wiley R. Jones was not well founded. One of the depositors in the bank, to whom Judge Jones was related, was an uncle, having $ 40.33 in the bank, and the other was a brother-in-law of the judge, and had $ 14.65 in the bank. It is contended by counsel for appellant that Judge Junes' relation to these depositors was a cause for his recusation, under the provision in article 303 of the Code of Criminal Procedure that the judge's being related within the fourth degree to the party injured, or his being the brother-in-law, etc., of the party injured, is a cause for the judge's being recused in a criminal prosecution. But the only depositor who was an 'injured party' in consequence of the crime charged in this case, if the crime was in fact committed, was the depositor named in the indictment, whose deposit of $ 610.60 is alleged to have been received when the defendant, as president of the bank, knew that it was insolvent and in failing circumstances. The other depositors, who were already depositors, may have been benefited, but were not injured, by any deposit received after the bank had become insolvent or was in a failing condition. It is argued that all of the depositors were injured by the failure of the bank; but the answer to that is that the defendant in this case was not charged with causing or contributing to the failure of the bank. The second ground for the motion to recuse, that is to say, that the judge went into the grand jury session and advised the grand jurors upon this case, was not sustained by the evidence on the subject. The judge was invited into the grand jury room by the grand jury and was consulted only with regard to a matter concerning the care and maintenance of the prisoners in the parish jail. The judge did not display or have any personal interest in this case. The ruling of Judge Sandel on the motion to recuse Judge Wiley R. Jones was correct.

The motion to recuse the district attorney was overruled by Judge Wiley R. Jones, after the motion to recuse him was overruled by Judge Sandel; and to the overruling of the motion to recuse the district attorney bill of exception No. 7 was reserved. The motion was based, first, upon the fact that the district attorney had a deposit of $ 126 in the Bank of Commerce, and, second, upon the fact that, after the bank commissioner took charge of the defunct bank and appointed a liquidating agent, the district attorney was designated as special counsel for the bank commissioner and the liquidating agent. The objection that the district attorney was a depositor in the bank has been disposed of by our ruling on bill No. 6. His being special counsel for the bank commissioner and for the liquidating agent in the liquidation of the affairs of the bank is not within any of the causes for recusation listed in the Code of Criminal Procedure, and is not elsewhere declared to be a cause for recusation of a district attorney. One of the three causes stated in article 310 of the Code of Criminal Procedure, for recusing a district attorney, is if he has a personal interest adverse to the prosecution of the case; but the district attorney's being special counsel for the bank commissioner and the liquidating agent does not give the district attorney an interest opposed to the prosecution of the president of the bank for assenting to the bank's receiving a deposit when he knew that the bank was insolvent and in failing circumstances. In fact, the liquidating of the affairs of the bank is a matter entirely apart from the prosecution of the president of the bank. There was no cause, therefore, for the district attorney in this case to be recused.

Bills of exception No. 8 and No. 9 have reference to the overruling of a motion to quash the indictment. The first ground for the motion was that the order of court ordering the jury commission to convene was issued on the same day on which a new jury commission was appointed, and before the newly appointed members had taken the oath. It is contended that the order to convene was, necessarily, addressed to the outgoing members of the jury commission because they remained in office until their successors were qualified by the taking of the oath, and hence that there was no order addressed to the newly appointed jury commissioners to convene. A sufficient answer to the argument is that...