State v. Foster

• Decision Date: 31 October 1927
• Docket Number: 28696
• Citation: 164 La. 813,114 So. 696
• Court: Louisiana Supreme Court
• Parties: STATE v. FOSTER

114 So. 696

164 La. 813

STATE v. FOSTER

No. 28696

Supreme Court of Louisiana

October 31, 1927

[Copyrighted Material Omitted]

Appeal from Second Judicial District Court, Parish of Claiborne John S. Richardson, Judge.

S. D Foster was convicted of murder, and he appeals.

Affirmed.

Wimberly & Wallace, of Arcadia, for appellant.

Percy Saint, Atty. Gen., W. D. Goff, Dist. Atty., of Arcadia, E. R. Schowalter, Asst. Atty. Gen. (T. T. Land, of Homer, of counsel), for the State.

OPINION

BRUNOT, J.

The defendant was indicted for murder. He was arraigned, tried, found guilty as a charged without capital punishment, and was sentenced to life imprisonment, at hard labor, in the state penitentiary. From the judgment and sentence he appealed.

There are thirty-two bills of exception in the record.

Bill No. 1 was reserved to the refusal of the court to permit defendant to withdraw his plea of not guilty for the purpose of filing motions to quash the indictment. It is not necessary that the plea should be withdrawn. All that the law requires is that the motion should be filed with the permission of the court and be urged before entering upon the trial. Section 16 of Act 135 of 1898; Marr's Crim. Jurisprudence (2d Ed.) vol. 1, p. 648; State v. White, 153 La. 300, 95 So. 776; State v. Jenkins, 160 La. 757, 107 So. 564. The withdrawal of the plea of "not guilty" is a matter within the discretion of the trial judge, and his ruling will not be disturbed unless an abuse of discretion is shown. State v. Boudreaux, 137 La. 227, 68 So. 422; State v. Hadad, 142 La. 69, 76 So. 243; State v. Gunn, 147 La. 373, 85 So. 44; State v. Sandiford, 149 La. 933, 90 So. 261; State v. Foster, 150 La. 971, 91 So. 411. The judge, in his per curiam to the bill, says:

"The court overruled the motion for the reason that the defendant, though he had ample time and opportunity to have filed any motion he desired before arraignment, he waited until the day of trial to do so, and the court felt that it would have been an abuse of the discretion vested in it to have allowed the motion and thereby delay the trial. Defendant was permitted to file his motion to quash, and same was tried on its merits, and the court overruled the motion."

It is clear that the defendant was denied no legal right, and there is no merit in this bill.

Bill No. 2 was reserved to the overruling of defendant's motion to quash the indictment. The motion is a lengthy document; it alleges, in substance:

First. That the grand jury was selected by the jury commission from the names of jurors in the general venire box, after supplementing names to take the place of jurors who had become disqualified, and that the list of jurors in the general venire box, as thus supplemented, contained names of jurors who were drawn and their names placed in the general venire box, from time to time, by the jury commission, at its previous sessions, during the years 1921, 1922, 1923, 1924, 1925, and 1926.

Second. That B. H. Moore, one of the jury commissioners, participated in supplementing and revising the list of jurors in the general venire box and in the drawing of juries, at the sessions of the commission, during the years 1925 and 1926, while the said B. H. Moore was holding the office of deputy registrar of voters, and, while acting in said dual official capacity, the names of L. L. Sherman and J. M. Lindenmaier, two of the grand jurors who indicted defendant, were placed in the general venire box by the jury commission; and that D. W. Knighton, one of the jury commissioners, ipso facto vacated the office of jury commissioner, by qualifying as justice of the peace, but, thereafter participated in the acts and doings of the jury commission at the sessions of that body during the year 1924, and that the general venire list, on February 21, 1927, contained names therein that were placed in the general venire box by the jury commission at its sessions in 1924.

Third. That more than six months elapsed between the drawings of juries during each year from August 7, 1922, to February 21, 1927.

Fourth. That F. F. Meadows, clerk of court, participated as a member of the jury commission at all of its sessions, but never qualified as a member thereof by taking the prescribed oath as such.

The first and second grounds of defendant's motion are interrelated, in the sense that one is dependent upon the other. Defendant relies upon section 3 of Act 135 of 1898 and the following cases: State v. Bain, 135 La. 776, 66 So. 196; State v. Scott, 110 La. 369, 34 So. 479; State v. Newhouse, 29 La.Ann. 824; State v. Lewis, 135 La. 781, 66 So. 199; State v. Arata, 32 La.Ann. 193; State v. West, 33 La.Ann. 1261; State v. Beaird, 34 La.Ann. 104; State v. Nockum, 41 La.Ann. 689, 6 So. 729; State v. Riley, 41 La.Ann. 693, 6 So. 730; State v. Hall, 44 La.Ann. 976, 11 So. 574; State v. Taylor, 44 La.Ann. 783, 11 So. 132. It is useless to review the cited cases; for this court, in later decisions, has held that, where a jury commissioner, appointed under the provisions of section 3 of Act 135 of 1898, has qualified by taking the oath prescribed by law, and is in actual possession of the office under color of right, he is a jury commissioner de facto if not de jure, and the title to his office and his acts as such officer cannot be inquired into collaterally. State v. White, 153 La. 300, 95 So. 776; State v. Smith, 153 La. 577, 96 So. 127; State v. Mitchell, 153 La. 585, 96 So. 130; State v. Moreau, 153 La. 671, 96 So. 527; State v. White, 156 La. 770, 101 So. 136; Williams v. Police Jury, 160 La. 325, 107 So. 126.

The third ground of defendant's motion would have been tenable under the rigid provisions of section 6 of Act 135 of 1898, but the rigid provisions of that act were repealed by Act 23 of 1908, and the pertinent section of the later act is as follows:

"Section 1. Be it enacted by the General Assembly of the state of Louisiana, that the judges of the district courts, the parish of Orleans excepted, are hereby authorized and directed to fix the times at which grand juries shall be impaneled in the parishes composing their respective districts, provided that pursuant to article 117 of the Constitution there shall be impaneled a grand jury in each parish twice in each year to remain in office until a succeeding grand jury is impaneled; and provided further that no grand jury shall be impaneled for more than eight months, nor less than four months; except in the parish of Cameron, in which at least one grand jury shall be impaneled in each year."

In this case the court's orders for the drawing of grand juries were entered at intervals of about six months, and the juries were drawn a few days thereafter. In no instance was a grand jury drawn for less than six months, and in every instance their successors were impaneled within a few days after they had served six months.

The fourth ground of defendant's motion attacks the capacity of the clerk of court to serve as a jury commissioner before taking the prescribed oath as such. This ground is disposed of by the cases of State v. Starr, 52 La.Ann. 610, 26 So. 998, and State v. Bradley, 120 La. 248, 45 So. 120, which holds that the clerk of court is ex officio a jury commissioner and is not required to take a special oath as such.

Bill No. 3 was reserved to the overruling of a motion to quash the venire of petit jurors. The grounds for this motion are the same as those we have just passed upon in our consideration of bill No. 2, except that the names of two petit jurors, C. H. Acklen and M. E. Foust, appear on the venire list as C. H. Acklin and M. E. Faust. The erroneous substitution of an improper letter in the spelling of a proper name that does not change the sound thereof is merely idem sonans. In the case of State v. Restiva, 149 La. 683, 90 So. 23, this court said:

"The word 'malice,' in an indictment for murder, is equivalent to the word 'malace,' under the rule of idem sonans, and absolute accuracy in spelling is not required in legal documents or proceedings, if the name as spelled sounds the same to the ear."

Bill No. 4 was reserved to the overruling of a challenge for cause of juror M. B. Kilgore. We need not review the answers of this juror to the questions propounded to him on his voir dire, for the juror was peremptorily challenged, and the minute entry (page 8 of the transcript) shows that, when the jury was completed, defendant had not exhausted the peremptory challenges he was legally entitled to, and therefore, if we thought the court erred, the bill is without merit, for the defendant could not have been prejudiced by the ruling. State v. Sweeney, 135 La. 566, 65 So. 743.

Bill No. 5 was reserved to a ruling of the court sustaining a challenge for cause of juror Prentiss J. Tanner. In the impanelling of a petit jury, the defendant's right is one of rejection rather than of selection. He may exclude from the panel, for cause, a biased, prejudiced, or incompetent juror; and, in cases such as this, he may peremptorily challenge twelve jurors. The rejection of a juror, whose competency is questioned, cannot prejudice the defendant, and, if the judge errs in sustaining the challenge of such juror, for cause, the error is merely one of judgment in the exercise of judicial discretion, and is harmless in its consequences. The books are full of cases holding that a defendant will not be heard to complain of a ruling of the trial judge which does not affect him injuriously. State v. Sweeney, 135 La. 566, 65 So. 743; State v. Kennon, 45 La.Ann. 1192, 14 So. 187; State v. Mansfield, 52 La.Ann. 1355, 27 So. 887; State v. Miller, 125 La. 254, 51 So. 189; State v. Britton, 131 La. 877, 60 So. 379.

Bill No. 6 was reserved to the overruling of defen...