State v. Foster

Decision Date27 February 1922
Docket Number25083
CourtLouisiana Supreme Court
PartiesSTATE v. FOSTER

Rehearing Denied March 27, 1922

Appeal from Thirtieth Judicial District Court, Parish of La Salle F. E. Jones, Judge.

John R Foster was convicted of shooting with intent to kill, and appeals.

Affirmed.

A. D. Flowers, of Jena, and G. T. McSween, Jr., of Shreveport, for appellant.

A. V. Coco, Atty. Gen., and J. B. Thornhill, Dist. Atty., of Columbia (C. W. Flowers, of Jena, and T. S. Walmsley, of New Orleans, of counsel), for the State.

OVERTON, J. O'NIELL, J., concurs. ST. PAUL, J., concurs.

OPINION

By the WHOLE COURT.

Overton J.

The grand jury, in and for the parish of La Salle, on November 13, 1920, returned a true bill against defendant, charging him with shooting one C. F. Wray with the felonious intent to murder. Defendant was arrested on November 18, 1920, and was released on bail on the same day. The bond required that he should report in open court on the 22d of November to answer the charge. On that day he reported, was arraigned, pleaded not guilty, and his case was fixed for December 7, 1920, and later was refixed for February 8, 1921, but was not tried then. On June 15, 1921, his bond was forfeited because of his failure to appear for trial. On December 8, 1921, more than a year after his arraignment, and on the day of his trial, he moved the court for leave to withdraw his plea of not guilty, and to file a motion to quash the bill of indictment, because the proces verbal of the jury commission that selected the grand jurors, from which list the grand jury was drawn, that indicted him, was signed by only four of the jury commissioners; and because that instrument does not show that the commissioners were notified to appear and select a venire of grand jurors; and because it does not show that, in supplementing the general venire box, the names of the prospective jurors were written on separate slips and placed in that box; and because the proces verbal was not properly certified by the clerk. The court refused to grant permission to withdraw the plea of not guilty, so that the motion to quash might be filed, but permitted defendant to offer his evidence, in support of that motion, to form part of the bill of exception reserved.

While we are not impressed that the evidence thus offered shows that the indictment should be quashed, yet the matter properly comes before us on the refusal of the trial judge to permit the withdrawal of the plea of not guilty so as to afford defendant an opportunity to file the motion to quash. The withdrawal of the plea for such a purpose rests within the discretion of the trial judge, and the exercise of that discretion will not be interfered with save where it has been clearly abused. State v. Gregg, 123 La. 610, 49 So. 211; State v. Boudreaux, 137 La. 227, 68 So. 422; State v. Sandiford (No. 24545) 149 La. 933, 90 So. 261. There is no abuse of discretion in refusing to permit the withdrawal of the plea of not guilty where defendant has waited over a year, and until the day of trial, to move to withdraw it. The excuse offered by him for the delay, that he did not know of the alleged irregularities until after having called on the clerk of court several times for the original proces verbal, before he succeeded in seeing it, is not sufficient; since, if the clerk failed to show it to him timely, he had ample opportunity to take the necessary steps to require him to do so. The judge, therefore, was clearly within the law in refusing to permit the withdrawal of the plea.

While the jury was being impaneled, the defendant asked a juror, on his voir dire, the following question:

"Mr. Miles, in this case, there are a number of verdicts which may be rendered, some of which carry with them a penitentiary sentence. The nature of the offense would determine the verdict that you should render. The law makes you the sole judge of the law and the evidence, and in the event of any reasonable doubt on either the law or evidence it is your duty to give the accused the benefit of the doubt. Would you do that?"

This question was objected to by the state for the reason that it was improper, confusing, and not a correct exposition of the law. The objection was maintained.

The question was properly excluded. Its purpose was to ascertain whether the juror would give the accused the benefit of a reasonable doubt as to his guilt. The question is preceded by much information which is irrelevant to it, and which, when considered in connection with it, would likely have confused the juror, had it been permitted. Beyond the confusing tendency of the question, because of the irrelevant matter it contains, the question itself was not permissible. The defendant has no right to ask a juror whether he will give him the benefit of a reasonable doubt, at least in the absence of evidence tending to show bias on the part of the juror, and even then, when it is desired to ask the question to test the existence of the supposed bias, the question should be asked only after the judge, or counsel, with the consent of the judge, has explained to the juror his duty in the premises, and what is meant by a reasonable doubt. The question is one of law, and a defendant, as a general rule, has no right to question a juror as to the law, or as to what he will do under the law. In State v. Perioux, 107 La. 601, 31 So. 1016, it was ruled that it was objectionable to ask a juror whether, if accepted on the jury, he would give the accused the benefit of any doubt created in his mind by the evidence and acquit him; the court saying:

"The law requires the trial judge, at the end of the trial, to charge the jury that if a reasonable doubt find lodgment in their minds as to the guilt of the accused, they must give the latter the benefit of the same and acquit, and it is not to be supposed, in advance, that the jury will decline to heed the charge so to be given, or that a juror will refuse to be instructed by the court."

In the absence of evidence tending to show bias on the part of a juror, there is no reason to believe that he will refuse to follow the instructions of the court in such a matter, and therefore the question is unnecessary, and serves no other purpose than to consume time. It is true that it is proper to ask a juror whether he will convict on circumstantial evidence, or whether he has conscientious scruples against inflicting the death penalty, but this is because of a known antipathy by many to do either, and therefore these questions are proper. Moreover, the question was not correctly put, because the juror was asked whether he would give the accused the benefit of a reasonable doubt in respect to either the law or the evidence, whereas the question should have been, had it been proper to ask it, whether the juror would give the accused the benefit of a reasonable doubt arising from the evidence, or from the lack of evidence. It is the duty of the juror to accept the law, as given him by the court, and of the court to charge it with clearness and certainty, and the juror should not be impressed with the idea that he has the right to entertain a reasonable doubt concerning the law as thus given.

While the defendant was on the witness stand in his own behalf, his counsel asked him to repeat a conversation that took place between him and his wife on the morning that the prosecuting witness, Wray, was shot. The purpose of the question was to show that defendant received information for the first time, in that conversation, of an alleged insult offered by Wray to defendant's wife, in a dispute over the weight of some ice, purchased by her from Wray. The state objected to the question on the ground that the evidence sought to be elicited was hearsay, irrelevant, and immaterial. Counsel for the defendant then immediately declared that the purpose of the evidence was to show that the shooting was not done with malice aforethought, but in a sudden heat of passion, and hence that the shooting was not done with the felonious intent to murder. The trial judge maintained the objection, as he considered the evidence hearsay. He states, however, in the per curiam attached to the bill, that defendant's wife, while a witness in her husband's behalf, later testified fully as to the conversation, and without objection from the state.

Granting for the purposes of this decision that the court erred in excluding the conversation, when the husband was asked to state it, still the error proved harmless, for the only purpose for which the evidence was offered, and the only purpose for which it could have been admitted legally, if admissible at all, that of showing the absence of malice aforethought, was accomplished without it, for it appears from the verdict that the jury found that the defendant shot Wray without malice, for it convicted him, not of shooting with intent to murder, but of shooting with intent to kill. Hence the error of the court, if there were error, was cured by the verdict. State v. Sandiford, cited supra.

When the wife of defendant was on the stand testifying in behalf of her husband, she was asked, on her examination in chief, the following question:

"Mrs. Foster, what, if anything, did you tell your husband on Monday morning immediately preceding the difficulty at the icehouse?"

In answer to this question the witness detailed the statement made to her husband on the morning of the shooting, which consisted of the entire conversation between her and Wray. The witness was then consigned for cross-examination, when she was asked the following question by the state:

"Mrs Foster, is the statement you made to your husband on this Monday morning a correct statement of what took place at...

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