State v. Carmouche

• Decision Date: 16 April 1917
• Docket Number: 22296
• Court: Louisiana Supreme Court
• Parties: STATE v. CARMOUCHE et al

75 So. 68

141 La. 325

STATE v. CARMOUCHE et al

No. 22296

Supreme Court of Louisiana

April 16, 1917

SYLLABUS

(Syllabus by the Court.)

If a juror becomes physically disabled after the jury has been impaneled and sworn in a criminal case, the trial judge has authority to discharge the disqualified or disabled juror and immediately order another juror drawn in his stead.

If the discharge or removal of a disqualified juror who was impaneled and sworn for the trial of a criminal case be made before the indictment is read to the jury, the defendant is not entitled to have his peremptory challenges restored to him or to have the remaining 11 jurors retendered for acceptance or rejection, even though the defendant had exhausted his peremptory challenges when the disqualified juror was discharged.

If a juror be removed from the panel for any cause, against the protest of the defendant, after the trial has commenced by the reading of the indictment to the jury, the discharge of the disqualified juror and the drawing of another juror in his stead is, in effect, the entering of a mistrial and the beginning of a new trial; and the defendant is then entitled to have his peremptory challenges restored to him, and to have the remaining 11 jurors retendered for acceptance or rejection, especially if the defendant's peremptory challenges were exhausted in the original drawing of the jury. But if the defendant, instead of requiring that the 12 peremptory challenges be restored to him and that the remaining 11 jurors be retendered for acceptance or rejection, accepts them, he is not entitled to another or thirteenth challenge.

If the defendant, appealing from a conviction in a criminal prosecution, fails to avail himself of the privilege accorded him by Act No. 113 of 1896, of having the evidence on a question of fact on which an adverse ruling of the trial judge was based reduced to writing and embodied in the transcript of appeal, the Supreme Court will accept as correct the statement made or approved by the trial judge in the bill of exceptions.

Bouanchaud & Kearney and William C. Carruth, all of New Roads, for appellants.

A. V. Coco, Atty. Gen., and J. H. Morrison, Dist. Atty., of New Roads (Vernon A. Coco, of Marksville, of counsel), for the State.

OPINION

O'NIELL, J.

The defendants have appealed from a verdict convicting them of cattle stealing, and from a sentence of imprisonment in the penitentiary.

Two bills of exception were taken to the rulings of the trial judge ordering a juror discharged and another impaneled in his stead, after 12 jurors had been impaneled and sworn and the bill of indictment or information had been read to them.

The facts set forth in the two bills of exception were as follows: When the impaneling of the jury was completed, each of the defendants had used all of his 12 peremptory challenges, and the state had used 10 of its 12 peremptory challenges. The oath was administered to each of the 12 jurors impaneled to try the case, and the district attorney read to them the bill of information. It being then late in the evening, the court adjourned until the next morning. During the night, a juror named Beatty, who had been impaneled, and to whom the oath had been administered and the bill of information read, met with an accident, and was, in the opinion of the trial judge, physically unable to serve on the jury. When court convened on the following morning, the judge announced that, on account of the physical disability of the juror, Beatty, it would be necessary to discharge him from the jury and select another juror from the talesmen who had been drawn and called the day before. The defendants' attorneys requested that the trial of the case be postponed, to allow the disabled juror time to recover and serve on the jury. In the alternative, the defendants' attorneys requested that if the court should insist upon removing Mr. Beatty from the jury and the immediate drawing of another juror in his stead then that each of the defendants should be allowed one more peremptory challenge because the state had yet two peremptory challenges, and, in using and exhausting their 24 peremptory challenges, the defendants had anticipated and believed that only 12 jurors would be impaneled whereas the discharge of Mr. Beatty and the drawing of another juror in his stead would amount to the impaneling of 13 jurors. The court ordered that the trial should be proceeded with immediately, by the discharge of the disabled juror, Beatty, and the drawing of another juror in his stead, and ruled that the defendants would not be allowed another peremptory challenge in the drawing of a juror to take the place or Mr. Beatty. It appears that Beatty was the sixth juror impaneled, and that when the state and the defendants accepted him as a juror the state had used 2 peremptory challenges, the defendant Chust had used 7, and the defendant Carmouche had used 5. To the rulings stated above, the defendants' attorneys reserved bills of exception, and announced that they would take part in the selection of another juror only under protest.

The remaining tales jurors who had been drawn and called on the day previous were then called on their voir dire, and, the list of talesmen being exhausted, the court ordered other talesmen drawn and called. The district attorney was permitted to exercise his right to...