State v. Larue
| Decision Date | 08 December 1975 |
| Docket Number | No. 56637,56637 |
| Citation | 324 So.2d 384 |
| Parties | STATE of Louisiana v. James LARUE. |
| Court | Louisiana Supreme Court |
Samuel P. Love, Jr., Love, Rigby, Dehan & Love, Shreveport, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., E. L. Edwards, Jr., Asst. Dist. Atty., for plaintiff-appellee.
Defendant was convicted of the crime of aggravated battery in violation of La.R.S. 14:34. He was sentenced to ten years' imprisonment. Defendant appeals, arguing seven assignments of error. We affirm.
This prosecution arose out of an altercation which took place at a bar in Sabine Parish, Louisiana. On the evening of November 21, 1974, defendant entered the bar and ordered two beers. The victim was present in the bar and he and defendant introduced themselves. Thereafter the defendant and the victim exited the bar but the victim reentered almost immediately. Shortly thereafter, defendant also returned to the bar, asking the victim why he had followed him from the bar. A discussion ensued and defendant soon struck the victim on the head. The victim attempted to hit defendant with a bar stool. It was not established whether the stool actually struck the defendant. If he was hit by the stool, defendant quickly recovered because he admitted he then administered a serious beating to the victim. The blow required extensive suturing of the victim's head and face and he was hospitalized for four days.
When arrested shortly after the incident defendant was wearing steel-toed boots. He was charged with having committed a battery with a dangerous weapon 'to-wit: a boot.'
On the day of trial defendant filed a motion for continuance, alleging a delay was necessary because a witness whom he had subpoenaed was not present. The trial judge denied the motion, which ruling formed the basis of the first assignment.
Defendant concedes in brief the witness whose attendance he sought was not a resident of the parish where the trial was held. He likewise admits no application for the issuance of a subpoena was made in conformity with La.C.Cr.P. art. 740. All counsel admit the continuance was refused because of this non-compliance. Nevertheless, defendant argues, the continuance should have been granted because it was customary for the Clerk of Court of Sabine Parish to issue subpoenaes for out-of-parish witnesses without a formal order from the judge. He likewise avers the witness whose attendance was sought had actual knowledge of the request for, and the existence of, the subpoena. Assuming for the sake of argument such a custom would be relevant to this issue, there is no support in the record for defendant's assertions. Nor does the record show there was knowledge on the part of the witness that she was aware of the subpoena and simply failed to come to court.
The trial court did not err in refusing to grant a continuance.
This assignment is levelled at the trial court's refusal to quash the general and petit jury venires. The alleged basis for the motion to quash was that the venire lists were drawn on a selective basis, whereby certain persons and groups were arbitrarily, capriciously or knowingly excluded. The selection process used is alleged to have denied defendant his right to a jury representative of a fair cross-section of the community. Defendant focuses his attack on the alleged exclusion of persons between the ages of 18 and 21 and systematic exclusion of persons granted personal exemptions.
At the hearing on the motion the testimony of the clerk of court, an ex-officio member of the Jury Commission, revealed the parish-wide voter registration list being used by the Commission was for the year 1970. However, he testified more up-to-date lists received from political candidates had been used. Testimony reflects the Commission members also used the telephone directory as well as their personal knowledge of residents of the parish in selecting the general venire. While the testimony of the clerk of court reflects the Jury Commission had excluded some persons who are entitled to exemptions under Rule XXV (), he likewise testified there were persons who were members of designated groups entitled to exemptions who had been included.
We find defendant has failed to establish fraud or that irreparable injury was caused by the method of selecting jury venires in Sabine Parish in this and related cases. Such proof is required in order to set aside a general or petit jury venire. La.C.Cr.P. art. 419. We also hold defendant has failed to establish he was deprived of his constitutional right of a general or petit jury venire representative of a fair cross-section of the community in which he was tried.
This assignment of error has no merit.
During direct examination of a deputy sheriff the State asked the witness to tell what he observed when he arrived at the bar where the altercation occurred. The witness' reply concluded with the observation that '* * * (t)he man had obviously been dragged around in circles all over the bar room floor and chairs and tables.' The defense objected to this testimony, stating, The trial court immediately sustained the objection. The prosecutor commented, and the testimony of the witness proceeded without further defense objection. Defense counsel did not request the judge to admonish the jury nor did he ask for a mistrial. Defendant contends the trial judge should have taken cognizance of the extreme prejudice engendered by the witness' remark and Ex proprio motu declared a mistrial. This contention is not well founded. In State v. Johnson, 261...
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State v. Jenkins
... ... The Procell case was denied under La.Const. Art. I, § 16, Art. V, § 33 (1974) and La. Supreme Court Rule XXV after an effort to ease the Sabine Parish jury commission's transition from an unlawful to a lawful system of venire selection had proven fruitless. Cf. State v. Larue, 324 So.2d 384 (La.1976); State v. Lynch, 323 So.2d 781 (La.1975). The instant case was tried under the 1921 constitution, before the adoption of our court rule and recent more stringent policy toward jury commission improprieties ... Accordingly, when we apply the standards ... ...
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State v. Lee
... ... This court has consistently held that the trial court commits no error in failing to admonish the prosecutor if there has been no request for an admonition. 5 State v. Larue, 324 So.2d 384, 387 (La.1975); State v. Knight, 323 So.2d 765, 768--769 (La.1975); State v. Sonnier, 317 So.2d 190, 195 (La.1975); State v. Johnson, 261 La. 620, 641, 260 So.2d 645, 652 (1972). In the instant case, the defendant did not request an admonition ... Page 187 ... nor did he move ... ...
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State v. Bennett
... ... (3) Facts showing due diligence used in an effort to procure attendance of the witness.' ... Generally, the 'due diligence' requirement of article 709 is not satisfied when defense counsel fails to have the potential witness subpoenaed. State v. Larue, 324 So.2d 384 (La.1975); State v. Elias, 230 La. 498, 89 So.2d 51 (1956) and cases cited therein. In this case, the defendant argues that notwithstanding his failure to subpoena the witness, he had exercised due diligence in an effort to procure his attendance. Defense counsel testified that he ... ...
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State v. Brown
... ... Under La.Code Crim.P. art. 419 a general venire shall not be set aside for any reason unless fraud has been practiced or some great wrong committed that would work irreparable injury to the defendant. State v. LaRue, 324 So.2d 384 (La.1976). Defendant makes no attempt to establish fraud had been practiced or irreparable injury had been caused by the method of jury selection in Allen Parish. Rather, he appears to have based his motion to quash merely on what he perceives as a technical irregularity. In State ... ...