State v. Kellogg

• Decision Date: 04 February 1901
• Docket Number: 13,628
• Court: Louisiana Supreme Court
• Parties: STATE OF LOUISIANA v. J. R. KELLOGG

29 So. 285

104 La. 580

STATE OF LOUISIANA v. J. R. KELLOGG

No. 13,628

Supreme Court of Louisiana

February 4, 1901

January 1900

Rehearing refused.

APPEAL from the Eleventh Judicial District, Parish of Red River -- Porter, J.

Walter Guion, Attorney General, and W. A. Wilkinson, District Attorney (Wm. Pike Hall, Nettles & Carter and Lewis Guion, of counsel), for Plaintiff, Appellee.

Egan &amp Scheen (John D. Wilkinson, Stephen & Carter, John I. Teer and James C. Egan, Jr., of counsel), for Defendant, Appellant.

MONROE J. NICHOLS, C.J. and Breaux, J.

OPINION

MONROE, J.

Defendant having been indicted for murder, was convicted of manslaughter, and sentenced to imprisonment at hard labor. He has appealed and presents his case by means of the motions and bills of exceptions, which will now be considered.

Bills Nos. 1 and 2 were taken to the overruling of motions to quash the indictment and the venire. It appears that the judge a quo, agreeably to the provisions of Act No. 135 of 1898, had named five citizens who, with the clerk of court, were to constitute the "jury commission," and had ordered that said commission meet and draw the venire and prepare the lists from which the grand and petit jurors were to be selected. Two of the persons so named failed to qualify, by taking the required oath, but the other three were sworn, and, together with the clerk, held a meeting and drew the venire and prepared the lists, etc., without regard to the fact that the other two members of the commission had not qualified. The trial judge, being informed of what had been done, made an order annulling and setting the same aside, and directing that the "jury commission," as completed by the swearing in of the whole number of members required by law, should meet and make a new drawing and prepare new lists, which was done, accordingly, and the grand jury by which the defendant was indicted was chosen from one of the lists so prepared. The defendant's complaint, as presented in the motions to quash the indictment and the venire, is, that the general venire was legally drawn, under the first order, by the three commissioners and the clerk, constituting a majority and quorum of the jury commission; that the lists prepared therefrom were the only lists from which the grand and petit juries could, at the time defendant was indicted and tried, lawfully have been chosen for service in said District Court; and that the order of the judge, made in chambers, setting aside said venire and said lists, and ordering a new drawing and new lists, was illegal and unauthorized.

The statute, under which the judge a quo made the order appointing the jury commissioners, and instructing them as to their proceedings, provides that such orders shall be written and entered on the minutes (Secs. 3 and 4, Act 135 of 1898). The record shows that the first order, which it is said was valid, was so made and entered, and that the second order, which it is said was invalid, was made and entered in exactly the same way. In so far, then, as the second order directed what should be done, it was made in strict conformity to the statute, and in so far as it set aside what had already been done, our attention has not been called to any law prescribing any other method, and no better or more competent one suggests itself. We, therefore, conclude that, as to the mode, there is no just cause of complaint against the action of the trial judge, and we proceed to the inquiry, whether such action was, in other respects, competent and authorized.

By virtue of the general provisions of law, every court has the power that is necessary to the exercise of the jurisdiction conferred upon it (C. P. 877); and, in the matter of selection of jurors and of their service in the District Courts in this State, the statute governing the subject is made to depend for its efficient enforcement very largely upon the presiding judges, and much is, necessarily, left to the discretion of those officers. Hence, it is clearly within the authority, and is, moreover, the plain duty of a district judge to see that all the proceedings in his court, and particularly those which underlie trials by jury, involving human life, are regular and orderly. If, therefore, in the instant case, there was any irregularity in the proceedings which the judge a quo had ordered, agreeably to the provisions of the law, for the obtention of jurors, and upon which, directly or remotely, were to be based all the findings of the grand juries and all the trials before the petit juries thereafter to be presented and conducted in his court, it was his right and his duty to correct it, and it was for him to determine, as there was no one else authorized to act in the premises, whether an irregularity existed, and, if so, whether it was serious or trifling, and what remedy should be applied, since the law fails to particularize in that respect. In the exercise of his undoubted jurisdiction, the trial judge determined that there had been irregularity in the drawing of the general venire, by reason of the facts which have been stated, and that the remedy was to set the proceedings aside, and he acted accordingly.

The authority to set aside a venire, in a proper case, is not questioned (State vs. Nash & Barnett, 46 Ann. 194), but it is said that this was not a proper case, because a majority of the "jury commission" was authorized to act and did act, though the other members of said commission had never qualified. And we are referred to the cases of State vs. Hornsby and State vs. Wells, 33 Ann. 1110 and 1407.

In those cases, this court construed Act 44 of 1877 which, though similar in many respects to the act now under consideration, differs from it in this; that the Act of 1877 contains the provision that "three members of said commission shall be a sufficient number to perform the duties imposed by this act," whereas, what may be called the corresponding paragraph in Act 135 of 1898 has superadded the following language, to-wit: "provided all the members shall have been duly notified by the clerk of the District Court of the time and place designated by him for the meeting of said commission," etc. This difference is not the result of accident, but signifies the intention on the part of the law-makers that the six persons who, under the statute, are to constitute the body known as the "jury commission," shall be placed in a position to participate at one and the same time in the work of that commission, even though, when that is accomplished, four our of the six may constitute a quorum with authority to prosecute that work.

But, if there had been no difference in the statutes, we should, nevertheless, hold that the motion to quash was properly overruled, for the reasons:

That, even though the drawing of the venire and the preparation of the lists (from which the grand and petit juries were to be chosen), by persons claiming to be a quorum of a body, which, under the law, was to be composed of six persons, when only four of such persons had ever qualified, should be held not, under all circumstances, to vitiate the subsequent action of the jurors so chosen, nevertheless, such a proceeding is irregular, to say the least of it, and it was the part of prudence and the exercise of a wise and competent discretion for the judge a quo to eliminate the irregularity.

That the complaint which the defendant makes, could, if sustained, lead only to the submission of his case to another grand jury, and yet any other grand jury which might be chosen would be obnoxious to the same objection which he makes to the grand jury by which he was indicted, to-wit: that it was not chosen from the venire drawn in June, 1900, and set aside by order of the court.

That there is no charge that the alleged defect in the proceedings, whereby the jurors, by whom the defendant was indicted and tried, were chosen, had in it any element of fraud, or that it worked any specific injury to the defendant; and it is textual law and settled jurisprudence that it must so appear in order to justify the setting aside of a venire. Act 135 of 1898, Section 15; State vs. Rector, 35 Ann. 98; State vs. Sandox, 37 Ann. 377; State vs. Gonsoulin, 38 Ann. 459; State vs. Green, 43 Ann. 402; State vs. Simmons, 43 Ann. 991; State vs. Saintes, 46 Ann. 547.

Bill No. 3 -- to the overruling of defendant's objections to an order directing the sheriff to summon tales jurors from the west side of Red River, exclusively. The grounds of objection, as stated in the bill, are, "that, under the law, the prisoner is entitled to be tried by a jury of the vicinage; and on the further ground that he is a resident on the east side, or hill side, of Red River, on which side a majority of the white people of said parish reside, and there exists antagonism and prejudice between the two sides of Red River." The judge returns that he acted under the authority of Section 11 of the Act No. 135 of 1898, which authorizes him to direct that tales jurors be selected from a locality remote from the scene of the crime. The statements in the bill, as to antagonism between the two sides of Red River and as to the white population, do not tend to show that any prejudice resulted to the defendant from the drawing of the jurors from the west side of the river, since it does not appear that the persons summoned were different in color from himself, or that the defendant and the deceased were from different sides of the river, or were of different colors, or that the antagonism referred to is personal to the defendant, or that it is of such a character as to prevent any citizen from the west side of the river from according him a fair trial. State vs. Nash & Barnett, 46 Ann. 194.

Bill No. 4 -- to the...