State v. Fruge

Decision Date01 January 1901
Docket Number14,130
CourtLouisiana Supreme Court
PartiesSTATE OF LOUISIANA v. JOSEPH FRUGE

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

OPINION

MONROE J.

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." 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 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 "Where an accusation of crime includes an offense of an inferior degree, the jury may discharge the defendant of the higher crime and convict of the less atrocious." This rule was adopted in Louisiana nearly a century ago and is deeply embedded in the jurisprudence of the State, as well as in that of all other States of the Union and of all countries where criminal prosecutions are regulated by the common law, and we are not aware that it has, at any time, proved unsatisfactory, either here, or elsewhere. Upon the other hand, it is a fact, of which the court takes judicial cognizance, that, prior to the adoption of the present Constitution, without fault properly imputable to the prosecuting officers or the courts, there was much complaint in this State of the expense and delay in the matter of criminal prosecutions and trials. Grand juries were required by law to be composed of sixteen members, who, with the petit jurors, were entitled to their mileage, and per diem, and, from various causes, the different parishes throughout the State were subjected to great expense for the custody and maintenance of persons accused of crime and awaiting trial; and we entertain no doubt that it was that condition of affairs which led to the incorporation in the Constitution of the provisions now under consideration, the purpose of which, as we believe, is to remedy the evils complained of rather than to abrogate, or change, a long established rule, of which no complaint has ever been made. It will be observed that, by the article in question, the number of members required to constitute a grand jury is reduced from sixteen to twelve, and that, viewed in the light in which we are considering...

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15 cases
  • Gremillion v. Louisiana Public Service Commission
    • United States
    • Louisiana Supreme Court
    • January 4, 1937
    ...to the other points raised in the case. "In construing a statute, the object is to ascertain the legislative intent. State v. Fruge, 106 La. 694 [31 So. 323]; Succession of Carbajal, 154 La. 1060 [98 So. 666, 30 A.L.R. 1231]; State v. Dudley, 159 La. 872 [106 So. 364]; Houghton v. Hall, 177......
  • State v. Lewis
    • United States
    • Louisiana Supreme Court
    • December 11, 1911
    ... ... abrogate or change the rule that, when an accusation of crime ... includes an offense of inferior degree, [129 La. 803] the ... jury may discharge the defendant of the higher crime and ... convict him of the less atrocious. State v. Fruge, ... 106 La. 694, 31 So. 323. In a later case the defendant was ... charged, in separate counts: (1) With breaking and entering a ... dwelling house, in the daytime, with intent to steal; and (2) ... with larceny, committed at the same time and place. And, ... having been found guilty on both ... ...
  • State v. Jones
    • United States
    • South Carolina Supreme Court
    • November 10, 1925
    ...to instruct as to the lower grades of crime involved, when there is no evidence on which to base such instruction." State v. Fruge, 106 La. 694, 31 So. 323. In State v. Kirkland, 14 Rich. 230, it is said: "If there was no evidence in this cause which, if believed, would have warranted the j......
  • State v. Hataway
    • United States
    • Louisiana Supreme Court
    • April 2, 1923
    ... ... or information, that of a lower offense, as to prevent the ... tribunal having jurisdiction of such higher offenses from ... convicting of such lower offense so included or ... joined , and that the opinions upon that question ... heretofore handed down in the cases of State v ... Fruge, 106 La. 694, 31 So. 323, and State v ... Perry, 116 La. 231, 40 So. 686, should be ... affirmed." (Italics mine.) ... It ... therefore appears that the court decided the question ... submitted to it as to whether the jury of 12 had jurisdiction ... to return a verdict on the ... ...
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