State v. Menard

• Decision Date: 26 June 1903
• Docket Number: 14,871
• Citation: 35 So. 360,110 La. 1098
• Court: Louisiana Supreme Court
• Parties: STATE v. MENARD

35 So. 360

110 La. 1098

STATE v. MENARD

No. 14,871

Supreme Court of Louisiana

June 26, 1903

Rehearing denied November 30, 1903.

Appeal from Seventeenth District Court, Parish of Vermilion; Minos T. Gordy, Jr., Judge.

Philbert Menard was convicted of crime, and appeals. Reversed.

Story &amp Pugh, for appellant.

Walter Guion, Atty. Gen., and J. Nelson Greene, Dist. Atty. (Lewis Guion, of counsel), for appellee.

PROVOSTY J. NICHOLLS, C.J., and BREAUX, J., concur in the decree.

OPINION

PROVOSTY J.

The defendant was sentenced to five years in the penitentiary after conviction under the following statute:

"If any person over the age of eighteen years shall have carnal knowledge of any unmarried female between the ages of twelve and sixteen years with her consent, he shall be deemed guilty of a felony, and, upon conviction thereof, shall be punished by imprisonment with or without hard labor not exceeding five years, provided nothing in this act shall affect the crime of incest." Act 115 of 1896.

Defendant contends that this statute is unconstitutional because it does not fix a lower limit, but fixes only an upper limit to the penalty that may be imposed. This contention, carried to its logical conclusion, denies to the Legislature the authority to determine what shall be the penalty for crime. There is nothing in it. It is not contended, nor could be, that the constitutional requirement for the grading of misdemeanors and minor offenses applies to felonies, nor is it denied that the offense under this statute is a felony. It is made so by the express terms of the statute.

Another contention is that the court stopped counsel when he was proceeding to argue to the jury that a verbal agreement on the part of the accused and his victim to take each other for husband and wife, or to consider themselves as married constitutes marriage in this state. The court was right. In the first place, taking the statement of the judge, as we must do, and not that of counsel, in the bill of exception, there was no evidence of the parties having made any such agreement, and consequently the action of the judge, if unauthorized, could do no harm, and is not reversible error, on the same principle that to refuse to give a charge inapplicable to the facts is not reversible error; and, in the second place, a judge is not bound to sit quiescent while such bald legal heresy is being poured into the ears of the jury. There was no great harm in arguing the point before the Supreme Court -- it was merely a loss of time -- but in arguing it to the jury there was the danger of a miscarriage of justice, which it is the duty of the presiding judge to prevent. The jury are made by the Constitution the judges of the law, but only subsidiarily to the court; that is to say, they are bound under their oath to take the law as given them by the court. State v. Tisdale, 41 La.Ann. 338, 6 So. 579; State v. Cole, 38 La.Ann. 843; State v. Matthews, 38 La.Ann. 795; State v. Desforges, 47 La.Ann. 1167, 17 So. 811; State v. Ford, 37 La.Ann. 443; State v. Vinson, 37 La.Ann. 792; State v. Hannibal, 37 La.Ann. 619. This does not go to say that counsel in their argument to the jury must confine themselves to the facts and cannot touch upon the law. The jury are the judges of the law, and therefore it is not only proper, but very useful that counsel should expound the law to them; but this must be done under the supervision of the court. The situation is not as if the jury were the absolute judges of the law. In some states they are, but in this state they are judges of the law only subject to the charge of the court; and, as just stated, this has been interpreted by this court to mean that they are bound under their oath to accept the law as given by the court. It may in particular cases be a nice point to determine when the judge may stop counsel without trenching upon the...