State v. Jackson, 50854

• Court: Supreme Court of Louisiana
• Citation: 247 So.2d 558,258 La. 632
• Docket Number: No. 50854,50854
• Parties: STATE of Louisiana v. James Henry JACKSON.
• Decision Date: 04 May 1971

Page 558

247 So.2d 558 258 La. 632 STATE of Louisiana
v.
James Henry JACKSON. No. 50854. Supreme Court of Louisiana. May 4, 1971.

[258 La. 636]

Page 559

Hazen W. Cole, James M. Barton, Shreveport, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., Harry H. Howard, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Fred C. Sexton, Jr., Asst. Dist. Atty., for plaintiff-appellee.

BARHAM, Justice.

The defendant was charged with forgery (R.S. 14:72), tried, and found guilty of attempted forgery. After conviction and before sentence a bill of information was filed charging him as a fourth felony offender. After a hearing the court ruled the defendant to be a fourth felony offender as defined by R.S. 15:529.1 and sentenced him to the state penitentiary for 20 years. He has appealed.

Bill of Exception No. 1.

Bill of Exception No. 1 was reserved when the court denied the defendant's motion for a preliminary examination. The motion for preliminary hearing was filed after the filing of the information and after bail had been fixed, and made no allegation[258 La. 637] of special circumstances requiring the hearing. Under Code of Criminal Procedure Article 292 it is discretionary with the trial judge to grant or refuse a motion for preliminary examination filed after the filing of the bill of information. From the per curiam of the judge we find no abuse of discretion. Moreover, the denial of this pretrial motion was not prejudicial on the question of the defendant's guilt or innocence since the motion is limited in scope to a determination of probable cause to charge for an offense and fixing of bail. State v. McCoy, this day decided, 258 La. 645, 247 So.2d 562; State v. Pesson, 256 La. 201, 235 So.2d 568 (1970); State v. Hudson, 253 La. 992, 221 So.2d 484 (1969).

Bill of Exception No. 2.

This bill was taken when the court denied the defendant's written motion for a continuance on the basis of the absence

Page 560

of a material witness. The colloquy of the court, the district attorney, and defense counsel is made a part of the bill. Defense counsel and the State were not able to agree upon what the testimony of the absent witness would be. The case had previously been set for trial on May 18, 1970, at which time the requested witness was also absent. The case finally came on for trial on June 10, 1970. Although represnted by counsel, the defendant, who had been in jail since November 28, 1969, had filed in proper person numerous motions[258 La. 638] for a speedy trial during his incarceration. It was stated that the desired witness was a fugitive with an outstanding warrant against him in the trial court's jurisdiction. Since the matter had been continued once to obtain the witness, since no showing was made that the witness would ever be available, and since there was no showing of defendant's diligence in attempting to obtain the witness, the trial court concluded that a continuance would be of no benefit to the defendant, that delay could possibly prejudice him, and that the continuance was not warranted under the showing. Under the circumstances reflected by the record, we believe the trial court exercised the proper discretion in overruling the motion for continuance.

Bill of Exception No. 3.

This bill was reserved when the trial court denied the defendant's oral motion for trial by a jury of 12 instead of a jury of five. The defendant contends that his right to trial by jury under the United States Constitution, Sixth Amendment, is a right to trial by a 12-man jury. This question, however, was put at rest in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), which held that a Florida statute requiring a six-man jury in all except capital cases (similar to our Code of Criminal Procedural Article 782 which provides for a five-man jury in [258 La. 639] cases in which punishment may or may not be imprisonment at hard labor) was not in violation of Sixth Amendment rights.

Bill of Exception No. 4.

The defendant's forgery is alleged to have occurred when he attempted to cash a check which he had made falsely and which was imprinted with 'Ouachita Finance Company, Inc., 3958 Southern Avenue, Shreveport, Louisiana 71106'. Ouachita Finance is a subsidiary of Sales Finance Company which is located at that address. When the State attempted...