State v. Houck
| Decision Date | 02 February 1942 |
| Docket Number | 36476. |
| Court | Louisiana Supreme Court |
| Parties | STATE v. HOUCK. |
Eugene Stanley, Atty. Gen., Niels F. Hertz, Asst Atty. Gen., J. Vernon Sims, Dist. Atty., of Oak Grove, and Harry N. Anders, Asst. Dist. Atty., of Winnsboro, for the State, plaintiff and appellee.
Warren Hunt, of Rayville, and S. R. Holstein, of Winnsboro, for defendant and appellant.
O'NIELL Chief Justice.
The appellant was convicted of the crime of assault with intent to commit rape, and was sentenced to imprisonment in the penitentiary for ten years.
The district attorney in his argument to the jury expressed his opinion as to what the law was on a certain issue in the case, and one of the attorneys for the defendant objected that that was not the law on the subject. The judge instructed the jury that the attorneys on either side had the right to argue the law of the case, but that the jurors should accept as the law the instruction which the judge would give in his charge to the jury, and not the opinion expressed by any attorney in his argument. The attorneys for the defendant made no further objection; and one of them, in his testimony on the trial of a motion for a new trial admitted that he acquiesced in the instruction given by the judge to the jury. There is therefore nothing in the exception to the district attorney's remark to the jury.
After the defendant was convicted he filed a motion for a new trial the motion being founded upon five complaints, namely, (1) that the verdict was contrary to the law and the evidence, (2) that one of the jurors who served on the trial of the case, namely, Taz Clack, was related to the prosecuting witness, notwithstanding, on his voir dire examination, he declared that he was not related to her either by blood or marriage, (3) that the State's witnesses, who were ordered to remain out of the court room during the trial, and who were assembled in an adjoining room, opened the door in order to listen while the witnesses were testifying, (4) that one, McAllister, who was not summoned as a witness, was allowed to go into the room with the State's witnesses during the trial. The fifth complaint was merely a repetition of the exception taken to the remark made by the district attorney in his argument to the jury.
The complaint that the verdict was contrary to the law and the evidence is a matter over which this court has not jurisdiction.
The complaint that there was a family relationship between the juror, Taz Clack, and the prosecuting witness is founded upon two very remote family ties. One of them was that the father of Taz Clack's wife and the grandmother of the prosecuting witness were first cousins. The other relationship was that Taz Clack's wife and the wife of an uncle of the prosecuting witness were first cousins. On the trial of the motion for a new trial Taz Clack admitted that he had denied, on his voir dire examination, that there was any family connection between him and the prosecuting witness. He testified that he did not know at the time of the trial that his wife's father and the grandmother of the prosecuting witness were first cousins; that he learned of that relationship after the trial, and after one of the attorneys for the defendant asked him if there was such a relationship between the two families. Clack admitted, in his testimony on the trial of the motion for a new trial, that he knew, at the time when he was examined on his voir dire, that his wife and the wife of an uncle of the prosecuting witness were first cousins. He said that the reason why he did not mention that fact when he was asked on his voir dire examination whether there was any relationship between him and the prosecuting witness was that he 'did not think that that had any bearing whatever on the part of' the father of the prosecuting witness. A brother of the father of the prosecuting witness was the one whose wife was a first cousin of Taz Clack's wife. It is probable that these family ties between Taz Clack's wife and the family of the prosecuting witness in this case would not have been deemed close enough to disqualify Taz Clack for service as a juror if the relationship had been made known by Clack on his voir dire examination, and if therefore he had been challenged for cause. It is provided in article 351 of the Code of Criminal Procedure that a prospective juror may be challenged successfully for cause if there is a relation either by blood or marriage, or employment, or of friendship or enmity, between the prospective juror and the party accused, or between the prospective juror and the person injured, and if the relation is such that it must be reasonably believed that it would influence the juror in coming to a verdict. But it appears that the prosecuting witness in this case was under the age of twelve years. Hence the crime of which the defendant was accused was, in its very nature, apt to arouse such...
To continue reading
Request your trial