State v. Fruge, 14,130

• Court: Louisiana Supreme Court
• Writing for the Court: MONROE, J.
• Citation: 106 La. 694,31 So. 323
• Docket Number: 14,130
• Decision Date: 01 January 1901
• Parties: STATE OF LOUISIANA v. JOSEPH FRUGE

31 So. 323

106 La. 694

STATE OF LOUISIANA
v.
JOSEPH FRUGE

No. 14,130

Supreme Court of Louisiana

January 1, 1901

Rehearing refused.

APPEAL from the Sixteenth Judicial District, Parish of St. Landry. -- Lewis, J.

Walter Guion, Attorney General, and R. Lee Garland, District Attorney (Lewis Guion, of Counsel), for Plaintiff, Appellee.

Ogden & Sandoz (John N. Ogden, of Counsel), for Defendant, Appellant.

OPINION

MONROE, J.

[106 La. 695] STATEMENT.

The defendant in this case appeals from a conviction and sentence of imprisonment at hard labor for "horse stealing," and brings his case before this court upon a bill of exceptions to the refusal of the trial judge to charge the jury "that, if they were not satisfied with the evidence adduced being sufficient to convict under the charge of horse stealing, that they, the jury, could find the prisoner guilty of 'horse riding,' under Act No. 30 of 1892."

The information upon which the defendant was prosecuted charges that "he feloniously did steal, take and carry away, one horse," etc., a felony, punishable by imprisonment at hard labor for not less than one year nor more than five years. R. S. 814. The Act No. 30, of 1892, referred to in the bill, is an act entitled "An act to define and punish the offense of riding, driving, or working, any horse, mule, ox, or oxen, the property of another, without the consent of the owner." [31 So. 324] The text reads as follows, to-wit:

"Be it enacted; * * * That whoever shall, unlawfully, or maliciously, take and ride, drive, or otherwise work, any horse, mule, ox, or oxen, the property of another, without the consent of the owner, shall be guilty of a misdemeanor, and, upon conviction, shall be fined in a sum not exceeding fifty dollars, or imprisonment not exceeding sixty days, or both, at the discretion of the court."

Article 116 of the Constitution reads, "The General Assembly shall provide for the selection of competent and intelligent jurors. All cases in which the punishment may not be at hard labor shall, until otherwise provided by law, which shall not be prior to 1904, be tried by the judge, without a jury. Cases in which the punishment may be at hard labor shall be tried by a jury of five, all of whom must concur to render a verdict; cases in which the punishment is, necessarily, at hard labor, by a jury of twelve, nine of whom, concurring, may render a verdict; cases in which the punishment may be capital, by a jury of twelve, all of whom must concur to render a verdict."

The trial judge incorporates in the bill of exceptions relied on, the following reasons for refusing the charge requested, to-wit: "The offense denounced by Act No. 30 of 1892 is triable by the court, and [106 La. 696] not by the jury. Constitution of 1898, Article 116. The offense, therefore, is not included in the charge of horse stealing, that is to say, the jury having no constitutional right to convict of the crime denounced by Act 30, of 1892, the requested charge was properly refused. The offense created by Act 30 of 1892 is not, necessarily, included in the crime of horse stealing. A horse may be stolen and never ridden."

It is not suggested in the bill of exceptions, nor does it otherwise appear, that there was any evidence offered upon the trial going to show that the defendant had ridden, driven, or otherwise worked, the horse which he is charged with having stolen.

OPINION.

The first question presented is, whether the redistribution of jurisdiction, as provided by the Constitution, was intended to operate a change in the general rule of the common law, that ...