State v. French

• Decision Date: 02 May 1898
• Docket Number: 12,810
• Citation: 23 So. 606,50 La.Ann. 461
• Court: Louisiana Supreme Court
• Parties: STATE OF LOUISIANA v. A. B. FRENCH

23 So. 606

50 La.Ann. 461

STATE OF LOUISIANA v. A. B. FRENCH

No. 12,810

Supreme Court of Louisiana

May 2, 1898

Argued April 23, 1898.

APPEAL from the Criminal District Court for the Parish of Orleans Moise, J.

M. J Cunningham, Attorney General, and R. H. Marr, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff Appellant.

Farrar & Lemle and H. N. Gautier, for Defendant, Appellee.

OPINION

BREAUX, J.

The State in this case appealed from an order sustaining a motion in arrest of judgment.

The defendant was prosecuted upon an information containing two counts. In one count he was charged with having stabbed with intent to murder. In the other count with having wilfully and maliciously with a dangerous weapon inflicted a wound less than mayhem.

The verdict found was "Guilty of wounding less than mayhem."

In due time the defendant applied for the arrest of the judgment on the ground that the verdict was not responsive to any of the offences charged or counts contained in the information which, as before stated, the trial court sustained.

MOTION TO DISMISS THE APPEAL.

The defendant in this count moved to dismiss the appeal for the reason that the court's ruling, sustaining defendant's motion in arrest of judgment was not a final judgment.

The judgment or ruling in our judgment operated prejudicially to the State, if the position of the prosecution be correct; and, in addition as related to the verdict returned by the jury, it finally disposed of the question involved.

There remained nothing save the sentence. If an error of law has been committed by the trial judge in a matter purely of law, it would, in our view, be prejudicial to the proper administration of justice to let it remain unreversed.

The question is not res nova. It received the attention of this court in the case of State vs. Brabston, 38 An. 144.

The defendant concedes that this decision is not favorable to his motion to dismiss the appeal. That decision does not, in our view, stand alone. The question was considered in State vs. Cason, 20 An. 48, in which it was held that the right of appeal on questions of law, in criminal cases, is not so restricted as to warrant the denial of an appeal to the State from a ruling sustaining a motion in arrest of judgment.

The same question arose in the case of State vs. Robinson, 37 An. 675. The court in the last cited case reconsidered the decisions and reaffirmed the right, citing State vs. Ellis, 12 An. 390; State vs. Ross, 14 An. 364; State vs. Taylor, 34 An. 978.

There is no question here of an acquittal by the jury. It was a matter in which the judge alone acted. This distinction has been observed in a number of cases holding that the province of the jury is not infringed upon by the orders and judgment of the court of the first instance, not connected with the facts showing the guilt or innocence of the accused.

The defectiveness vel non of the jury's verdict, presents questions of law, and as such they are reviewable when they come up, as in this case, on a motion in arrest of judgment, setting aside the verdict of a jury.

The judge is without authority to annul a legal verdict by arresting the judgment.

The State, in case it be attempted, is not without remedy on appeal.

The appeal is, therefore, not dismissed.

ON THE MERITS.

The defendant avers that the verdict "Guilty of Wounding less than Mayhem" is not responsive to the offences charged in the information.

In the first place, it is evident that the verdict was not a general verdict, but one that the jury found without special reference to the offence charged in either count of the information. It was a verdict of their own selection. They had been instructed by the court regarding the form of the verdict, as follows:

You may render one of five verdicts.

1. "You may find the prisoner at the bar 'Guilty as charged in the first count of the information.'

2. "You may find him 'Guilty of stabbing with a dangerous weapon with intent to kill,' as charged in the first count.

3. "You may find him 'Guilty, as charged in the second count.'

4. "You may find him (Not guilty,' or

5. "You may find him 'Not guilty, on the ground of insanity.'

"If you find the defendant was insane at the time of the commission of the act, you should qualify your verdict of 'Not guilty' by the addition of the phrase 'on the ground of insanity.'"

The jury did not follow the instruction. It was within their power to find a particular verdict in language of their own, and if it had covered an offence denounced by the statute, or an offence of a lower degree, included under the terms and conditions of the offence charged, it would have been a sufficient verdict.

Taking an example of the most ordinary sort, the charge being murder, the jury may find the defendant guilty of manslaughter; or, the charge being burglary, if larceny only be proven, the accused may be found guilty of larceny; so in all cases of offence of less degree of the same class.

But the finding of the jury in such cases must be of an offence complete in itself. The offence must be completely stated. No valid judgment can be pronounced upon the partial verdict which fails to find the ingredients essential to constitute the crime.

To illustrate by another example of a familiar kind: if a jury were to return in court that an accused was guilty of taking the goods of another without any intimation as to the asportation...