State v. Howard

• Decision Date: 09 May 1910
• Docket Number: 18,153
• Court: Louisiana Supreme Court
• Parties: STATE v. HOWARD

52 So. 539

126 La. 353

STATE v. HOWARD

No. 18,153

Supreme Court of Louisiana

May 9, 1910

Rehearing Denied June 6, 1910.

Appeal from Twentieth Judicial District Court, Parish of Lafourche W. P. Martin, Judge.

James Howard was indicted for murder, and from an order referring the case to the juvenile court, the State appeals. Reversed.

Walter Guion, Atty. Gen., and H. M. Bourg, Dist. Atty. (R. G Pleasant, of counsel), for the State.

Taylor Beattie, for appellee.

OPINION

NICHOLLS J.

Statement of the Case.

Defendant was indicted by the grand jury for the parish of Lafourche for murder. When he was arraigned before the district court he pleaded "not guilty," but subsequently withdrew his plea. The indictment against him still stands in that court unacted upon. When the case was attempted to be fixed for trial in that court in session as for cases generally, his counsel objected to this being done. The objection was sustained, and the case was referred to the "juvenile court," to be therein tried under Act No. 83 of 1908, p. 96.

The state has appealed, calling attention to State v. Ragan, 125 La. 121, 51 So. 89.

Opinion.

The accused party in this case is a boy under 17 years of age. No claim has been made that he should not be made to answer for the crime of murder under an "indictment" against him, returned by a grand jury. In order that he should be called to answer for that crime, it was necessary, under article 9 of the Bill of Rights, that the accusation against him should emanate from that body in the form of a presentment or indictment. The same article of the Bill of Rights declares that, "in all criminal prosecutions, the accused shall have the right to a public speedy trial by an impartial jury," and provides that "cases in which the penalty is not necessarily imprisonment at hard labor, or death, shall be tried by the court without a jury or by a jury less than twelve."

The present case is one in which the penalty is necessarily imprisonment at hard labor or death, and the accused is entitled to demand a trial by jury of not less than 12, and that right the accused is not permitted to waive. State v. Thompson, 104 La. 168, 28 So. 882.

If the Legislature, in enacting Act No. 83 referred to, had contemplated that children less than 17 years of age, charged with the crime of murder by indictment, should be tried before the juvenile court, the statute would certainly have provided for such trials therein; but the act fails to do so. Cases in which...