State v. O'Connor

• Decision Date: 27 May 1907
• Docket Number: 16,624
• Citation: 119 La. 464,44 So. 265
• Parties: STATE v. O'CONNOR
• Court: Louisiana Supreme Court

44 So. 265

119 La. 464

STATE v. O'CONNOR

No. 16,624

Supreme Court of Louisiana

May 27, 1907

Rehearing Denied June 28, 1907.

Appeal from Criminal District Court, Parish of Orleans; Joshua G Baker, Judge.

James O'Connor was convicted of assault by shooting, and appeals. Affirmed.

James O'Connor, for appellant.

Walter Guion, Atty. Gen., James Porter Parker, Dist. Atty., and Samuel Alexander Montgomery, Asst. Dist. Atty. (Joseph Edward Generelly, of counsel), for the State.

OPINION

MONROE J.

Defendant, having been convicted of assaulting by "shooting at" one Daniel Wilcox, moved for a new trial, on the grounds (1) that the judge failed to charge the jury that they might convict him of an offense of a lower grade than that charged; (2) that having been prosecuted, on separate affidavits, for "assaulting, beating and wounding," and for "assaulting, by willfully shooting at," and the same testimony having been heard in support of both charges, and having been acquitted of the charge first mentioned, such acquittal operated as a bar to his prosecution on the charge last mentioned; (3) of newly discovered evidence. The objection to the charge of the judge should have been made when the charge was delivered. It came too late on the motion for new trial. It is only in prosecutions for murder that the judge is required, of his own motion, to instruct the jury as to verdicts for offenses of lower grades than that for which the accused is prosecuted. In other cases such instruction should not be given, even though requested, unless called for by the evidence adduced. State v. Wright, 104 La. 44, 28 So. 909; State v. Thomas, 50 La.Ann. 154, 23 So. 250; State v. Fruge, 106 La. 694, 31 So. 323; State v. Johnson, 116 La. 30, 40 So. 521; Marr's Cr. Jur. p. 779; Rev. St. § 785.

The defense of autrefois acquit must be specially pleaded before verdict, and cannot be set up by way of motion for new trial or in arrest of judgment. Bishop's New Cr. Pr. §§ 799, 803; State v. Washington, 28 La.Ann. 129; State v. Bates, 38 La.Ann. 491. It is true, as counsel for defendant says, that the Constitution provides that no one shall be "twice put in jeopardy of life or liberty for the same offense, except on his application for a new trial, or when there is a mistrial, or a motion in arrest of judgment is sustained"; but from the languages thus used, and from other provisions of the Constitution, it appears to be...