State v. Hataway
| Decision Date | 02 December 1918 |
| Docket Number | 23255 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. HATAWAY |
(Syllabus by the Court.)
If a juror be removed from the panel for any cause, against the protest of the defendant, after the trial has commenced by the reading of the indictment to the jury and testimony has been heard, the discharge of the disqualified juror and the drawing of another juror in his stead is, in effect, the entering of a mistrial and the beginning of a new trial; and the defendant is then entitled to have his peremptory challenges restored to him, and to have the remaining 11 jurors retendered for acceptance or rejection, especially if the defendant's peremptory challenges were exhausted in the original drawing of the jury.
Hearsay evidence may not be received as part of the affirmative evidence for the prosecution in a criminal case, on the ground that it is designed to corroborate the statement of another witness which has been, or may be, the subject of impeachment.
At common law, which regulates criminal procedure in Louisiana save where abrogated or modified, the right to determine the credibility of a witness, testifying in a criminal prosecution, is within the province of the jury. Under the law of this state, the trial judge, in such case, is required to limit his instructions to the jury to matters of law, and is prohibited from trenching upon the facts, or from expressing any opinion thereon. When, therefore, he designates a particular witness, whether it be the defendant or another, and instructs the jury that they should consider his interest in the case in determining his credibility, he instructs them to make use of a fact with which he is prohibited from dealing, in order to determine a question which, of itself, is entirely within the province of the jury.
Blackman, Overton & Dawkins, of Alexandria, Wm. M. Wallace, of Winnfield, and C. H. McCain, of Colfax, for appellant.
A. V. Coco, Atty. gen., and T. A. Carter, Dist. Atty., and John R. Hunter, both of Alexandria, for the State.
O'NIELL, J., concurs in the decree.
Elbert Hataway was charged with the crime of arson, and was convicted as charged, without capital punishment. Several bills of exceptions were reserved, which may be disposed of together.
It appears that the 12 peremptory challenges allowed defendant by law were exhausted before the jury was completed. After the completion of the jury, the indictment was read, and one witness had been sworn, and had given his testimony in part. While the testimony was being given, one of the jurors became suddenly ill, and, over the objection of defendant's counsel, was discharged from the panel by the court.
Defendant then, through his counsel, requested the court to restore to him the challenges accorded to him by law and to tender the remaining 11 jurors for acceptance or rejection, which request was refused by the court. At the same time, counsel for defendant requested that the remaining 11 jurors be discharged, or that he be permitted to peremptorily challenge them, and that the trial begin anew, as in the case of a mistrial, and that request was overruled.
The court ordered that a new juror be called and examined; and counsel for defendant objected, and again urged that the challenges to which he was entitled by law had not been restored to him, and the remaining 11 jurors tendered on their voir dire for acceptance or rejection, and he urged before another juror should be examined that these challenges should be restored and the remaining jurors tendered for acceptance or rejection, which objection was overruled. A bill of exceptions was reserved to the ruling.
If a juror becomes incompetent after the trial has been begun by the reading of the indictment, before any other proceeding is had after the discharge of the incompetent juror, the remaining 11 jurors should be tendered to the defendant for acceptance or rejection, and his...
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