State v. Harville

• Decision Date: 27 August 1930
• Docket Number: 30854
• Citation: 171 La. 256,130 So. 348
• Court: Louisiana Supreme Court
• Parties: STATE v. HARVILLE. Ex parte HARVILLE

130 So. 348

171 La. 256

STATE v. HARVILLE.

Ex parte HARVILLE

No. 30854

Supreme Court of Louisiana

August 27, 1930

Rehearing Denied October 7, 1930

Application granted.

P. L Ferguson, of Leesville, for relator.

Percy Saint, Atty. Gen., Harry Fuller, Dist. Atty., of Winnfield and E. R. Schowalter, Asst. to Atty. Gen., for the State.

OPINION

OVERTON, J.

Alfred Harville, the relator herein, was indicted for murder. He was tried and convicted of the lesser offense of manslaughter. After sentence was imposed, he appealed to this court, where the sentence imposed and the verdict of the jury were annulled and set aside because of certain instructions, given by the sheriff and his deputy to the jury without the sanction of law. State v. Harville 170 La. 991, 129 So. 612.

Upon the return of the mandate to the lower court, relator applied to the judges of the district court, having cognizance of the case, for bail on the ground that having been impliedly acquitted of murder by the verdict of manslaughter, which latter verdict was annulled, he was entitled to bail; the charge of manslaughter, which still pended against him, being a bailable offense.

Both of the district judges refused the application on the ground that, since the adoption of the Code of Criminal Procedure, which is Act No. 2 of the Regular Session of 1928, the effect of granting a new trial, whether upon motion in the trial court or upon appeal, is to reinstate the entire charge, including the greater offense, upon which a verdict of not guilty had been impliedly rendered, as well as the lesser offense, upon which a verdict of guilty had been rendered, and therefore that the charge of murder is still pending against relator.

The answer to the question as to whether relator is entitled to bail is dependent, under the issue presented, upon whether the charge of murder, in view of the annulment of the verdict of manslaughter, is still pending against relator; murder, save in exceptional instances, unnecessary to mention here, not being a bailable offense, whereas, manslaughter, without exception, is.

The jurisprudence throughout the United States is not uniform upon the question whether a conviction upon an included offense and the granting of a new trial in the case has the effect of reinstating the greater charge, upon which there was an implied acquittal, and thereby cause the latter to be a charge pending, subjecting the accused to another trial thereon, even over his protest. Trono v. U.S., 199 U.S. 521, 26 S.Ct. 121, 50 L.Ed. 292, 4 Ann. Cas. 773; Brantley v. State, 132 Ga. 573, 64 S.E. 676, 22 L.R.A. (N.S.) 959, 131 Am. St. Rep. 218, 16 Ann. Cas. 1203. Up to the time of the adoption of the Code of Criminal Procedure in this state, in the year 1928, by an unbroken line of jurisprudence it was held that, notwithstanding the annulment of the verdict of guilty of the lesser offense, the implied verdict of not guilty of the greater still remained in effect. State v. Hornsby, 8 Rob. 583, 41 Am. Dec. 314; State v. Desmond and Connor, 5 La.Ann. 398; State v. Chandler, 5 La.Ann. 489, 52 Am. Dec. 599; State v. Dennison, 31 La.Ann. 847; State v. Byrd, 31 La.Ann. 419; State v. Joseph, 40 La.Ann. 5, 3 So. 405; State v. Dunn, 41 La.Ann. 610, 6 So. 176; State v. Smith, 49 La.Ann. 1515, 22 So. 882, 62 Am. St. Rep. 680; State v. Wooten, 136 La. 560, 67 So. 366; State v. Fradella, 162 La. 1067, 111 So. 423.

The respondent judges do not question that the foregoing was the law prior to the adoption of the Code of Criminal Procedure, but their position is that the law as it then stood was changed by articles 279 and 515 of that Code, so as to make the annulment of the verdict of manslaughter also an annulment of the implied verdict acquitting relator of murder.

The respondent judges cite article 279 of the Code for the purpose of showing that, if defendant were placed upon trial again, under the indictment, upon the charge of murder, he could not, as to that offense, plead former jeopardy, and they cite article 515 of the Code to show the effect of the granting of a new trial, whether upon motion of the defendant in the trial court or upon appeal.

Article 279 reads as follows: "To constitute former jeopardy it is necessary, that the court in which the former trial took place had jurisdiction, and was legally constituted; that the former acquittal or conviction was rendered on a sufficient indictment; that the proceedings ending in the former acquittal or conviction were valid; that the former verdict rendered was responsive to some charge contained in the indictment and was of such form as to be the basis of a valid judgment; and that the offense formerly charged and that presently charged are either identical, or different grades of the same offense, or that one is necessarily included in the other."

Article 515, cited by the judges, reads as follows: "The effect of granting a new trial is to set at large everything connected with the trial, and merely to grant a retrial of the case, with as little prejudice to either party as if it had never been tried."

The respondent judges urge that, as this court found upon appeal that the proceedings had on the trial, under the indictment contained error, those proceedings, instead of being valid, as required by article 279 of the Code, were invalid, and therefore that jeopardy did not attach, and hence that relator is subject to trial again upon the charge of murder. However, we are not in accord with this interpretation of article 279 of the Code. The proceedings are deemed valid within the meaning of the article, if they are such as the accused may make binding upon him by acquiescing in them at the time and has done so, or, in other...