State v. Marqueze
| Decision Date | 01 January 1893 |
| Docket Number | 11,138 |
| Court | Louisiana Supreme Court |
| Parties | THE STATE OF LOUISIANA v. ESTEVE MARQUEZE |
APPEAL from the Twenty-first District Court, Parish of St. John the Baptist. Rost, J.
M. J Cunningham, Attorney General, and Gervais Leche, District Attorney, and J. L. Gaudet, for the State, Appellee.
H. N Gautier, for Defendant and Appellant.
The accused appeals from a sentence of ten years at hard labor on a verdict of guilty of shooting with intent to murder.
He was not represented by counsel before the jury.
After sentence the accused employed counsel and moved for a new trial upon several grounds, only one of which is argued before this court.
The recital of the trial judge in the bill taken shows, that in his charge to the jury, (to which no bill of exceptions was reserved at the time,) he read to them Sec. 791 of the Revised Statutes, with reference to whomsoever shall shoot stab or thrust any person with a dangerous weapon, with intent to commit murder, under any other circumstances than those mentioned in Sec. 290 of the Revised Statutes under the amendment, being Act 43 of 1890, which reads: "Whoever shall shoot, stab, cut, strike or thrust any person with a dangerous weapon with intent to commit murder, under any other circumstances than those mentioned in the preceding section, shall, on conviction, suffer imprisonment at hard labor or otherwise for not less than one nor more than twenty-one years."
The accused did not object to the charge and made no request for special instruction to the jury.
The court states: "Under the state of facts and in the absence of any request for a special charge the court did not charge that the accused could be convicted under Act 44 of 1890." The counsel for the accused moved for a new trial, and in his bill to the court's refusal to grant the new trial on said ground, recital was made as just stated.
The counsel for the accused argues that Acts 43 and 44 of 1890 describe offences of the same generic class, with this difference, that in the first the intent must be to murder; in the second, the intent must be to kill; that the crime denounced in the information under Act 43 included necessarily a prosecution of the lesser offence "with intent to kill," under Act 44 of 1890, and that without special request it devolved upon the judge to specially instruct the jury that they were authorized, should the state of facts justify, to find a verdict of guilty of shooting with intent to kill, under Act 44.
In support of this argument counsel refers us to State vs. Stouderman, 6 An. 286.
In that case the trial judge was requested to instruct the jury that the prisoner being charged under section of the Act of 4th May, 1805, which denounces an assault with intent to commit murder, it was necessary that the circumstances which would amount to murder in law, except the death, should exist in order to authorize conviction. The court charged that the jury might find the accused guilty of assault with intent to kill, should the jury be satisfied that he was guilty of that offence.
The court affirmed the judgment of the trial court.
It is at once manifest that the case referred to is not parallel to the case at bar.
In the second case referred to by counsel in his brief, State vs. Jessie, 30 An. 1171, the court charged that the prisoner might be found guilty of the lesser offence; and complied with counsel's request in that respect.
In State vs. Louis Gilkie, the request received attention and the jury was instructed as to the less offence. State vs. Delany, 28 An. 434, supports the proposition that a verdict must be responsive to the indictment.
The judge in the case of the State vs. Brown, 40 An. 727, had been entirely silent throughout the whole charge on the subject of manslaughter.
The accused was prosecuted for conspiracy and murder. Counsel for the defence requested the trial judge to instruct the jury that on trials for murder the jury may...
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State v. Craddock
...So.2d 381 (1962); State v. Bickham, Supra; State v. Stracner, 190 La. 457, 182 So. 571 (1938); State v. Daleo, Supra; State v. Marqueze, 45 La.Ann. 41, 12 So. 128 (1893); and comment e to La.C.Cr.P. Art. State v. Daleo explained 'it is not considered proper that the defendant should be perm......
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State v. Braxton
... ... commit murder, the defendant waives his right to complain if ... he does not, before a verdict is rendered, request the judge ... to charge the jury that a conviction of shooting with intent ... to kill would be a responsive verdict. See State v ... Marqueze, 45 La.Ann. 41, 12 So. 128, and State v ... Wright, 104 La. 44, 28 So. 909. The opinion rendered in ... the Marqueze Case is not at all persuasive; and, in the ... Wright Case, the court intimated that the decision would not ... be followed as a precedent; viz: ... "We ... deem ... ...
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...773; Thurman v. State, 32 Neb. 224, 49 N.W. 338; Barr v. State, 45 Neb. 458, 63 N.W. 856; McClary v. State, 75 Ind. 260; State v. Marqueze, 45 La. Ann. 41, 12 So. 128; People v. Ezzo, 104 Mich. 341, 62 N.W. 407; v. McNutt, 93 Cal. 658, 29 P. 243. OPINION DAVIS, J. The appellant, John R. War......
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