State v. Dreher

• Decision Date: 09 April 1928
• Docket Number: 28943
• Citation: 166 La. 924,118 So. 85
• Court: Louisiana Supreme Court
• Parties: STATE v. DREHER et al

118 So. 85

166 La. 924

STATE v. DREHER et al

No. 28943

Supreme Court of Louisiana

April 9, 1928

Rehearing Denied July 2, 1928

Appeal from Sixteenth Judicial District Court, Parish of St. Mary James D. Simon, Judge.

Dr. T E. Dreher and another were convicted of murder, and they appeal.

Affirmed.

James R. Parkerson, of Baton Rouge, L. O. Pecot, of Franklin, and R. F. Walker, of Baton Rouge, and Daly & Hamlin, of New Orleans, for appellants.

Percy Saint, Atty. Gen., Emile Vuillemot, Dist. Atty., of New Iberia, E. R. Schowalter, Asst. Atty. Gen. (I. W. Gajan, of New Iberia, of counsel), for the State.

LAND J. O'NIELL, C. J., OVERTON, J., and ST. PAUL, J., dissent.

OPINION

LAND, J.

Defendants were jointly indicted, tried, and convicted of the crime of murder as charged. Each has appealed from a sentence to death.

The record presents for review 101 bills of exception. We regret that this court should be burdened with the Herculean task of considering a four-volume transcript of 1,167 pages, teeming with bills of exception of every imaginable kind, when the bills before us worthy of serious consideration are comparatively few in number.

Bill No. 1.

This bill was taken to an amendment of the indictment as to the spelling of the surname of one of the defendants, by changing "Drehr" to "Dreher." As no change was made as to the identity of the accused, the amendment was properly allowed. R. S. 1870, § 1047; State v. Lee, 127 La. 1077, 54 So. 356; State v. Evans, 135 La. 891, 66 So. 259; State v. Grimms, 143 La. 421, 78 So. 661.

When defendants were arraigned, the case was fixed for trial for July 25, 1927. Because defendants were rearraigned after amendment of the indictment, and copies of same and of jury list were ordered served upon them, it is contended that their rearraignment automatically set aside the fixing of the case for trial, and that the case stands as if it had been tried without ever having been fixed and is therefore an invalid and illegal proceeding.

This contention is not sound, as it is expressly provided in section 1047 of the Revised Statutes of 1870 that when an amendment is allowed by the court "on or before trial" in the Christian name or surname of any person named in "any indictment" for any crime or misdemeanor, "the trial shall proceed, whenever the same shall be proceeded with, in the same manner in all respects as if no such variance had occurred or amendments been made."

Neither rearraignment of defendants nor service of amended indictment was necessary. As the case had to be proceeded with as if no amendment had been made, it is clear that rearraignment and service of amended indictment, unnecessarily, did not have the effect of setting aside the fixing of the case for trial. State v. Evans, 135 La. 891, 66 So. 259; State v. Grimms, 143 La. 421, 78 So. 661.

It is true that this court held in State v. Hewitt, 131 La. 115, 59 So. 34, without the citation of any authority, that a district attorney, though he may amend an information, has no power to amend an indictment.

Section 1047 of the Revised Statutes of 1870, however, is to the contrary, and declares:

"Whenever on or before the trial of any indictment for any crime or misdemeanor, there shall appear to be any variance between the statement in the indictment and the evidence offered in proof thereof * * * in the Christian name or surname, or both Christian name and surname, or other description whatsoever, of any person whomsoever therein named or described * * * it shall be lawful for the court before which the trial shall be had, if it shall consider such variance not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defense, to order such indictment to be amended according to the proof, both in that part of the indictment where such variance occurs and in every other part of the indictment which it may become necessary to amend; the trial to be had before the same or another jury, as the court shall think reasonable; and after any such amendment the trial shall proceed, whenever the same shall be proceeded with, in the same manner in all respects as if no such variance had occurred or amendments been made," etc. (Italics ours.)

This court has permitted indictments to be amended too often by the trial judge in the particulars mentioned in section 1047 of the Revised Statutes to question at this late date the right of the state to make such amendments.

In State v. Lee, 127 La. 1077, 54 So. 356, it was held that on the day of the trial, but before trial, it was proper to permit an amendment of the indictment by changing the Christian name of the one alleged to be murdered, as such amendment is expressly authorized by Revised Statutes, § 1047.

To the same effect is State v. Evans, 135 La. 891, 66 So. 259. In State v. Grimms, 143 La. 421, 78 So. 661, an amendment of the indictment was allowed under section 1047 of the Revised Statutes as to the name of both the victim and the person accused of murder, as no change was made as to the identity of either.

In the Grimms Case, Mr. Justice O'Niell as the organ of the court said:

"The expression in State v. Hewitt, 131 La. 118, 59 So. 35, that the district attorney has authority to amend only bills of information, not bills of indictment, was unnecessary to the decision, and, being contrary to the statute, * * * must be regarded as an inadvertent expression." Page 423 (78 So. 661).

The amendment as to the name of the defendant in this case was, therefore, properly allowed.

Bills Nos. 2, 3, 4, and 5.

These bills were reserved to the overruling of four motions to quash the general venire and the panel drawn for the trial of the defendants, for the week commencing July 25, 1927.

The ground of the first motion to quash is that defendants were deprived of the right to have a petit jury drawn from a general venire box containing 300 names, because, in supplementing these names, the jury commission duplicated four names, two of which were drawn upon the jury impaneled to try defendants. Section 4 of Act 135 of 1898 as amended by Act 58 of 1904.

Although defendants allege that the action of the jury commission in this matter resulted in great wrong, worked irreparable injury, and constituted a legal fraud against their rights, the record is barren of evidence to support such a charge.

In the recent case of State v. Phillips, 164 La. 597, 114 So. 171, we took occasion to say:

"To justify the sustaining of the motion to quash, on this ground, it should appear that some great wrong was committed, or that some fraud was practiced, in the selection of the venire. Errors of fact, causing the striking of a few names from the general venire list improperly, are not sufficient. Jury Commissions are not required to be wholly free from error in their proceedings. Section 15 of Act 135 of 1898; State v. Davis, 154 La. 295, 97 So. 449. In our view, this bill is not well founded."

The bill reserved is therefore without merit:

The grounds of the second motion of quash are that the jury commission did not meet at the office of the clerk of the district court when the general venire was selected, and that the general venire and petit jury were not drawn by the jury commission as required by section 4 of Act 135 of 1898 as amended.

Neither of these grounds is sustained by the evidence in the case. The clerk's office in the courthouse at Franklin in St. Mary parish consists of the entire right-hand wing of the building, both basement and second story. There is one large room and two small anterooms upstairs, and one large room and one small anteroom downstairs, which comprise the office of the clerk of the district court. The meeting of the jury commission was held on July 14, 1927, in the anteroom on the lower floor, a part of the clerk's office, and the customary place of assembly for the jury commission.

The manner of drawing the jury was not irregular. The two witnesses to the drawing merely made out a list of names on a sheet of paper from the registration books, at the request of the clerk of the district court, who is an ex officio member of the jury commission. Neither of these witnesses selected any of the jurors, but the clerk wrote all names on pieces of paper and placed them in the general venire box, from which they were drawn by a member of the jury commission.

The registration lists of any parish are a reasonably accurate guide as to the qualifications of jurors. State v. Jackson, 153 La. 517, 96 So. 53.

We find no error in the ruling of the trial judge.

The ground of the third motion to quash is based upon the contention that there is a hiatus existing in the Jury Act, Act 135 of 1898, and especially in section 4, as amended by Act 58 of 1904, and in section 7, as amended by Act 155 of 1906.

Defendants contend, in other words, that there is no law in this state providing for the drawing of a petit jury, and therefore that the jury convicting them was unauthorized and illegally drawn.

In State v. Roberson, 159 La. 562, 570, 105 So. 621, it is held on application for rehearing that:

"Section 14 of Act 135 of 1898 expressly provides for the impaneling of petit juries subsequent to the first petit jury drawn, in the same manner 'as hereinabove provided'; i. e. as provided in section 4. There is therefore no merit in the contention that there is no law authorizing the drawing of juries in criminal cases."

The ground of the fourth motion to quash is that no women were chosen or selected by the jury commission to serve as jurors in the case of these defendants, one of the defendants being herself a woman, although advised by defendants prior to the selection of a jury to try them that Act 19 of...