State v. Mckee
Decision Date | 05 May 1930 |
Docket Number | 30538 |
Citation | 170 La. 630,128 So. 658 |
Court | Louisiana Supreme Court |
Parties | STATE v. McKEE et al |
Appeal from Criminal District Court, Parish of Orleans; Alex C O'Donnell, Judge.
Robert McKee and Robert Altmeyer were convicted of robbery, and they appeal.
Affirmed.
Warren Doyle, of New Orleans, for appellant McKee.
Percy Saint, Atty. Gen., E. R. Schowalter, Asst. to Atty. Gen., and Eugene Stanley, Dist. Atty., Conrad Meyer, Jr., Asst. Dist Atty., and J. Bernard Cocke, Asst. Dist. Atty., all of New Orleans, for the State.
Robert Altmeyer, Robert McKee, also known as Robert Horn, and William Wollfarth were arraigned in section B of the criminal district court of the parish of Orleans, upon an information charging them with the crime of robbery. On the date of the trial, the court, upon the motion of the prosecuting officer, ordered a severance as to William Woolfarth. Altmeyer and McKee were tried, convicted, and sentenced to serve a term in the Louisiana state penitentiary. The state invoked, and the court imposed, the double penalty provided by law for second offenders, upon Altmeyer, and both defendants appealed. After the appeals were lodged in this court, Robert Altmeyer withdrew his appeal and is now serving the sentence imposed upon him.
During the trial the defendants reserved three bills of exception, which are now urged by Robert McKee, the only remaining appellant.
This bill is based upon the fact that defendant was not served with a copy of the regular venire of section D of the criminal district court 48 hours before said jurors were called into section B of the court, as tales jurors, to complete the jury panel for the trial of this case. The overruling of defendant's objection to proceeding with the trial, for the reason stated, is the only question the bill presents. The crime of robbery is necessarily punishable by imprisonment in the state penitentiary, and may exceed seven years. Rev. St. § 992, provides that where the term of imprisonment may be seven years or more the defendant must be served with a copy of the information or indictment and the jury venire two full days before the trial of the case. This court has repeatedly held that section 992, Rev. St., does not apply to tales jurors. State v. Washington, 108 La. 226, 32 So. 396; State v. Bordelon, 113 La. 690, 37 So. 603; State v. Thompson, 116 La. 829, 41 So. 107; State v. Laborde, 120 La. 136, 45 So. 38. For cases in point in other jurisdictions, see 31 Cent. Dig. Jury, § 598.
There is no law which requires that tales jurors shall be drawn or summoned prior to the trial. That is a matter within the discretion of the judge. Nor is there any law requiring that the progress of the trial shall be halted in order that an accused might be served with the list of talesmen summoned to complete the panel after the regular venire had been exhausted. The contention of counsel for defendant is that regular venires for all sections of the criminal court were drawn at the same time, and as the judge of section B called in the regular venire drawn to serve in section D to complete the panel for the trial of this case, the defendant should have been served with a list of said jurors 48 hours before the trial. The judge followed the letter and spirit of article 201 of the Code of Criminal Procedure. The article is as follows:
It is seen that the quoted article of the Code of Criminal Procedure provides two methods, for the parish of Orleans, for completing the jury, after the regular venire has been exhausted; one, by the regular drawing of talesmen from the tales jury box, and the other by calling, as talesmen, the regular venire drawn to serve in other sections of the criminal district court of that parish. The judge adopted the latter course in this case, and as he is authorized by Article 201 of the Code of Criminal Procedure to do so, and as the constitutionality of this article of the Code of Criminal Procedure is not questioned, we see no merit in this bill.
This bill is based upon three objections unsuccessfully urged by counsel for defendant, viz.: An objection to a statement made by the prosecuting officer in his opening argument to the jury; an objection to the refusal of the court to order a mistrial of the case; and an objection to a remark made by the judge in the presence of the jury.
When the jury had been completed, the assistant district attorney in compliance with article 333 of the Code of Criminal Procedure, announced to the jury the names of the witnesses for the state and summarized the testimony he expected each state witness to give. He named, among other state witnesses, Ferdinand Lafont, Sr., Ferdinand Lafont, Jr., and Le Blanc. He stated that these witnesses would testify that the accused spent the night before the robbery at the elder Lafont's camp near Little Woods; that said witnesses left the accused at the camp at 7:30 a. m. the morning of the robbery, and upon their return to the camp at noon of that day they found the accused there. He stated that he expected to prove by Ferdinand Lafont, Jr., that about dusk on the day of the robbery, Robert Altmeyer, one of the accused, caused him to put on a bathing suit, and, with a scoop net, go into the waters of Lake Pontchartrain,...
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