State v. Duvall
| Decision Date | 30 March 1914 |
| Docket Number | 20405 |
| Citation | 135 La. 710,65 So. 904 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. DUVALL et al |
On Rehearing, June 29, 1914
(Syllabus by the Court.)
Act No 135 of 1898, §§ 1, 11, pp. 216, 222, confer upon district judges authority and power over juries which are to serve in their courts, and the Supreme Court will not interfere with the judges in the discharge of their duties unless some violation of the law is shown, and it is properly excepted to at the proper time. State v. Hobgood, 46 La.Ann. 855, 15 So. 406; State v. Thompson, 116 La. 829, 41 So. 107; State v. Kennedy, 133 La. 945, 63 So. 476; State v. Blue, 134 La. 561, 64 So. 411.
All objectionable remarks made before the jury by the prosecuting officer are not sufficient grounds for the reversal of the verdict and judgment in a case, especially where there was no objection made by counsel for the defense at the time.
Where the judge, sheriff, jury, the accused, and the attorneys for the state and for the defense, repair to the bedside of a sick witness, and take his testimony, the defense is not entitled to have the testimony of said witness stricken from the record on the ground that his counsel was not able to make a thorough and exhaustive cross-examination of the witness.
Where no bill of exceptions is reserved to a particular part of the charge of the trial judge to the jury, objection cannot be subsequently made thereto in the Supreme Court.
The trial court may discharge a juror in a capital case, without the consent of the prisoner, whenever, in its opinion, there is a manifest necessity for such discharge. State v. Robinson, 46 La.Ann. 764, 15 So. 146; State v. Richie, 3 La.Ann. 715; State v. Brown, 8 ob. 566; U. S. v. Perez, 9 Wheat. 579, 6 L.Ed. 165; U. S. v. Gibert, 2 Sumn. 19, Fed. Cas. No. 15,204; U. S. v. Coolidge, 2 Gall. 364, Fed. Cas. No. 14,858; U. S. v. Shoemaker, 2 McLean, 114, Fed. Cas. No. 16,279; U. S. v. Morris, 1 Curt. 23, Fed. Cas. No. 15,815; Stone v. People, 2 Scam. (Ill.) 326; State v. Bell, 81 N.C. 591; Watkins v. State, 60 Ga. 601; Commonwealth v. McCormick, 130 Mass. 61, 39 Am. Rep. 423; Commonwealth v. Sholes, 13 Allen (Mass.) 554; People v. Goodwin, 18 Johns, (N. Y.) 187, 9 Am. Dec. 203; People v. Olcott, 2 Johns. Cas. (N. Y.) 301; People v. Damon, 13 Wend. 352.
The constitutional provision, 'Nor shall any person be twice put in jeopardy of life or liberty for the same offense, except on his own application for a new trial, or where there is a mistrial, or a motion in arrest of judgment is sustained' (Const. 1913, art. 9), is a recognition of an old maxim of the common law, and therefore resort will be had to the common law to ascertain its true meaning. State v. Robinson, 46 La.Ann. 769, 15 So. 146.
Though neither party has a right of challenge after a juror is sworn, it is in the discretion of the court to protect the administration of justice, by investigating at any stage of the trial, an objection of impartiality of a juror, and by withdrawing the case from the jury, if any juror is found unfit to sit thereon. U. S. v. Morris, 1 Curt. 23, Fed. Cas. No. 15,815.
The necessity of doing justice arising from the duty of a court to guard its administration against all fraudulent practices is an exception to the rule that a jury sworn in a capital case cannot be discharged without the prisoner's consent until they have given a verdict. Therefore, where the jury was sworn and impaneled in a trial for murder, and the court ordered a mistrial on the ground that one of the jury had fraudulently procured himself to be selected at the instance of the prisoner to secure an acquittal, there was no jeopardy. State v. Bell, 81 N.C. 591.
Philip S. Pugh, Percy T. Ogden, Taylor & Varnado, and Lawrence H. Pugh, all of Crowley, for appellants.
R. G. Pleasant, Atty. Gen., and C. B. De Bellevue, Dist. Atty., of Crowley (L. O. Pecot, of Franklin, M. T. Gordy, Jr., of Abbeville, W. C. Baker, of Franklin, Medlenka & Bruner, of Crowley, and G. A. Gondran, of New Orleans, of counsel), for the State.
Defendants were charged with murder. James Duvall appeals from a verdict of guilty, without capital punishment; and Dora Murff appeals from a verdict of guilty of manslaughter. Allie Murff was acquitted.
The record contains forty bills of exceptions, a motion for a new trial, a motion in arrest of judgment, and an assignment of errors on the face of the record. Arguments, oral and written, were also submitted on some points not covered by bills.
After the jury had been sworn, and the indictment had been read, the court, upon further examination, declared one of the jurors to be legally incapable and morally unfit to sit on the jury, because he had formed and expressed a determination not to find defendants guilty of the crime charged; which fact was concealed by the juror from the court and district attorney at the time that he was accepted as a juror to sit on the case; and the court discharged him; and ordered the sheriff to resummon eight detalibus jurors who had been discharged, together with seventeen other persons, to serve as tales jurors, so as to make the number twenty-five; from which number the twelfth juror was selected, to take the place of the disqualified juror, on the panel. The new juror sat with the other eleven jurors on the trial of the case. The defendants objected to the removal of the juror who had been selected and sworn, they objected to the selection of another juror to take the place of the one removed by the court, and they specially pleaded that they could not be placed in jeopardy twice for the same offense; arguing that the trial had been commenced by the reading of the indictment before the jury first selected, and that they had been thus placed in jeopardy; and that a trial before the newly formed jury was placing them twice in jeopardy, contrary to the constitutional guaranty with reference to that matter.
We have recently passed upon the extent of the power and authority of district judges over petit juries, and it becomes unnecessary to repeat the rulings. Act 135, 1898, §§ 1 and 11, pages 216 and 222; State v. Hobgood, 46 La.Ann. 855, 15 So. 406; State v. Thompson, 116 La. 829, 41 So. 107; State v. Kennedy, 133 La. 945, 63 So. 476; State v. Blue, 134 La. 561, 64 So. 411.
The twelfth juror was not chosen from among the eight detalibus jurors who were resummoned after their discharge by the judge. Besides, defendants had not exhausted their challenges, so they were not in any manner prejudiced by the rulings of the court on these matters.
A bill of exceptions was reserved to a remark made by the district attorney during the examination of a witness for the defendants, as follows:
'Your are an unnatural human being.'
The trial judge explains that the remark was made as a simple comment on the conduct of the witness at the time of the killing. He had testified that when the shooting took place he was within a few yards, and in sight, of the tragedy, but that he stood where he was, and did not go to the place where the deceased was lying, until 15 of 20 minutes after the occurrence. We are of the opinion that the remark was not calculated to be prejudicial to the defendants.
Another bill was reserved to a remark made by one of the counsel for the state while addressing the jury, to the effect that:
'We might as well turn our parish over to assassins if these accused are not found guilty.'
It appears from the statement of the judge attached to the bill that no objection was made at the time the remark was made, and that the court was not asked to instruct the jury with reference to it. The objection comes too late, if the remark could be construed as erroneous.
Other bills were taken to the admission of the testimony of a woman who was sick in bed, on the ground that defendants could not subject her to a rigid cross-examination. The record shows that the examination of the witness was entirely closed. Defendant's counsel had thoroughly cross-examined the witness and had tendered her back to the state for redirect examination. After the state had closed its redirect examination, counsel for defendants asked the witness if she was able to undergo further rigid cross-examination, when she replied that she did not think so. The record shows that defendants had fully availed themselves of the cross-examination of the witness, and the refusal of the trial judge to reject the testimony was proper.
Another bill was taken to the ruling of the judge in excluding certain testimony of the defendant Dora Murff; but the bill is without merit, for the reason that Dora Murff subsequently testified in full on the point involved.
The assignment of errors filed in this court has reference to a certain portion of the charge of the judge which was not objected to at the time the charge was given, when the court might have amplified, explained, or withdrawn the portion of the charge complained of. It will not be further noticed here.
We come now to consider the only serious point in the case. Defendants plead that they have been twice put in jeopardy for the same offense, contrary to the guaranty of the Constitution of the United States and the Constitution of this state.
The fifth amendment to the Constitution of the United States provides:
'Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.'
The state Constitution of 1864 contains a similar provision, to the effect that:
'He shall not be twice put in jeopardy for the same offense.' Article 105.
The Constitution of 1868 altered the language so as to read:
'He shall not be tried twice for the same offense.' Article 6.
The Constitution of 1879...
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