State v. Clary

Decision Date08 February 1915
Docket Number20870
Citation136 La. 589,67 So. 376
CourtLouisiana Supreme Court
PartiesSTATE v. CLARY et al

PROVOSTY, J., holds that when opportunity to communicate secretly with the jurors, so as to exercise an improper influence upon them if desired, is shown, the burden is shifted to the state to show that the opportunity was not availed of, and that this burden is not discharged by calling the jury up and asking them whether they have been improperly influenced. The influenced juror would , of course, never confess to the fact.O'NIELL, J., dissents.

OPINION On Rehearing.

LAND J.

The defendants were indicted for murder and convicted of manslaughter.

Counsel for the defendants admitted in his argument on rehearing that the jury was composed of intelligent and high-minded men, and that there was no separation of the jury.

The facts stated in the second paragraph of our original opinion in this case show that the verdict of manslaughter was favorable to the accused.

The third paragraph of the opinion states in general terms the defendants' numerous objections to the conduct of the jury and the bailiffs who had them in charge.

The jurors were lodged and boarded at the Monroe Hotel, and were compelled to walk to and from the courthouse situated in the next square, and were always in charge of two or more bailiffs. They took their meals in a small room connected with the main dining room by an arched doorway. Their conversations with the waitresses had nothing to do with the case on trial, and the same may be said of all greetings and remarks between the jurors and other persons. During the long trial of eight days in the midst of July, the jurors were taken twice to picture shows with the permission of the judge below. No objection was made by defendants to the allowance of such recreation to the jurors. At neither of the shows was any communication shown to have taken place between outsiders and the jurors, except on one occasion, when the young daughter of Juror Speed told him how sorry she and her mother were for him, meaning his detention on the jury. As to packages and valises sent to certain jurors, each of them testified positively that they contained nothing but wearing apparel. A few notes sent to members of the jury were shown not to relate to the case on trial.

In State v. Oteri, 128 La. 939, 55 So. 582, Ann. Cas. 1912C, 878, this court held that a verdict and sentence would not be reversed because the court permitted the jury to attend a theatrical exhibition in charge of a bailiff, where the facts affirmatively established the absence of misconduct and prejudice.

The judge a quo in his per curiam carefully reviewed the evidence and found that the irregularities complained of in the motion for a new trial worked no injury or prejudice to the defendants.

The verdict of manslaughter tends to support the conclusion that the jury was not swayed by the alleged hostile public sentiment against the accused.

There was no separation of the jury, and in such a case, 'as a general rule, a new trial will not be granted where it clearly appears that the defendant has not been injured or prejudiced by the misconduct.' See State v. Oteri, supra, 128 La. 947, 55 So. 585, Ann. Cas 1912C, 878, citing State v. Kennedy, 8 Rob. 590, where the court said that the presumption of misconduct does not arise where...

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