State v. Fuselier

• Decision Date: 12 June 1899
• Docket Number: 13,210
• Citation: 51 La.Ann. 1317,26 So. 264
• Court: Louisiana Supreme Court
• Parties: STATE OF LOUISIANA v. JAMES FUSELIER

26 So. 264

51 La.Ann. 1317

STATE OF LOUISIANA v. JAMES FUSELIER

No. 13,210

Supreme Court of Louisiana

June 12, 1899

Submitted June 3, 1899

ON APPEAL from the Nineteenth Judicial District Court for the Parish of St. Martin. Voorhies, J.

M. J Cunningham, Attorney General, and James Simon, District Attorney, for Plaintiff and Appellee.

J. E Mouton, for Defendant and Appellant.

OPINION

BREAUX J.

The defendant, Fuselier, was charged with having murdered Felix John, on the 17th day of January, 1899 and was tried and found guilty of manslaughter.

From the sentence of the court to hard labor, he prosecutes this appeal.

Here, he invokes the grounds alleged by him in his motion to quash the indictment on the grounds set forth by him in his application for a new trial.

The case comes to us on appeal on three bills of exception, in the manner presented by the defence, and as met by the prosecution. We directly take up the questions reserved in the bill of exceptions taken to the overruling, by the court, of a motion to quash the general and special venire. One of the grounds taken in the bill was not argued in appellant's brief, for the reason, doubtless, we think, that it was of no importance. The bill, in our judgment, brings up only one serious ground before the court. This ground was taken up by counsel and thoroughly and clearly argued in behalf of his client. None the less, we gave consideration to the other ground taken, though not argued, and found that it was absolutely without merit. We pass it without comment.

1st. Now, with reference to the complaint argued and set forth in the bill of exceptions, as before stated; that two of the jury commissioners were, at the time of their appointment as members of the jury commission, members of the school board.

Counsel argues that the statute is absolutely prohibitive, and no one, in view of the prohibition, can be appointed jury commissioner and act in that capacity, who holds another office.

We have carefully reviewed the decisions upon the subject, and found that these decisions have not, heretofore, treated a statute as prohibitory, which directs that "no person holding any office under the State, or any parish or municipality therein, shall be competent to hold the office of jury commissioner," (Act 99 of 1896, Section 3;) at any rate, not to the extent of deciding that one holding an office was absolutely incompetent even to accept the office, and if accepted by him, to render him incompetent by vitiating his acts as commissioner. The act from which we quote will not bear that interpretation. To the words "shall not be competent," the scope and importance has never been given for which defendant contends.

In State vs. Newhouse, 29 Ann., 826, under similar laws, the Supreme Court held, that one who accepts an office ceased to be a jury commissioner. It follows that his acts in the new office were not a nullity.

In State vs. Arata, 32nd Ann., 193, the Supreme Court held that a public officer accepting an office incompatible with that held by him at the time of his appointment, vacated the former.

State vs. Dellwood, 33 Ann., 1229, is quite a similar case to the one before us. The grounds were that two jury commissioners were office holders at the time of their appointment. The court said:

"Conceding for the sake of argument * * * that the office of jury commissioner in the country parishes, and, also, the other offices alleged to have been held by the parties here, were all 'offices' incapable of being simultaneously held by the same person -- we yet find one reason assigned by the judge a quo * * * which must prevail, viz.: 'If the offices are inconsistent, the parties, by qualifying as commissioners, vacated their former offices.'"

In State vs. West, 33 Ann., 1261, it was held: "A public officer vacates the office held by him by accepting another office incompatible with the former."

The same principle was sustained in State vs. Beaird et al., 34th Ann., 104; State vs. Nockum, 41 Ann., 689; State vs. Riley, 41 Ann., 698; State vs. Hall, 44th Ann., 976; State vs. Taylor, 44 Ann., 783.

In view of the foregoing, we sustain the ruling of the District Court.

2nd. We pass...