State v. Moncla

• Decision Date: 01 July 1887
• Docket Number: 1287
• Court: Louisiana Supreme Court
• Parties: THE STATE OF LOUISIANA v. VICTOR MONCLA

2 So. 814

39 La.Ann. 868

THE STATE OF LOUISIANA v. VICTOR MONCLA

No. 1287

Supreme Court of Louisiana

July 1, 1887

APPEAL from the Twelfth District Court, Parish of Avoyelles. Overton, J.

John N Ogden, District Attorney, for the State, Appellee.

Cullom & Barbin, Joffrion & Bordelon, A. V. Coco and J. H. Ducote for Defendant and Appellant.

OPINION

FENNER J.

Defendant, convicted of larceny, and sentenced to one year's imprisonment in the penitentiary, assigns the following errors:

1. While the empaneling of the jury was in progress, and before the regular venire had been exhausted, the judge, at the request of the State's attorney, ordered the sheriff to summon twenty-five tales jurors, to be ready for service if required. To this order the defendant objected, on the ground that "no talesmen could be ordered under the law, before the regular panel was exhausted."

The judge assigns the following reasons for his action: "There were in attendance upon the court a large number of witnesses from every portion of the parish, summoned by the defendant to testify in the matter of the motion of the State for a change of venue, which motion had just been disposed of. This case had already undergone two trials, had been much discussed, and great difficulty would have been experienced in getting tales jurors from the neighborhood. Feeling confident that the regular panel would be exhausted, and to save time and delay, I ordered the sheriff to summon twenty-five tales jurors, to serve as necessity might require."

The complaint of accused is not that jurymen de talibus were imposed on him before the regular panel was exhausted, but simply that the order for their summoning was issued before the panel was exhausted.

Had the jury been completed from the regular panel, the order would have been of no effect. As the panel was exhausted, the order simply served to secure the presence of by-standers, from whom the jury was lawfully completed.

We think the action of the court was proper under the circumstances, and fail to perceive any injury or abridgment of his legal rights resulting to defendant.

2. The next bill of exceptions recites that: "After the twelve jurors had been selected and empaneled to try the above cause, one of said jurors, viz: Christophe F. Bordelon, announced that he was sick. The judge ordered the discharge of the juror and caused the sheriff to call an additional juror to fill his place. Defendant's twelve challenges having been exhausted, defendant, through his attorney, objected to the discharge of the juror, and also to the order to fill his place, for the reason that the proceeding was irregular and not authorized by law." This took place immediately after the jury had been completed, and before the indictment had been read or any other proceeding had before the jury. It appears further, from the judge's statement, that the juror was only excused after being first sworn as to his illness and then examined by a physician, who confirmed his statement.

Defendant relies upon the following passage from Mr. Bishop's work on criminal procedure: "Where, during the trial, a juror is taken too sick to proceed, this is a visitation of God which shows the prisoner never to have been in jeopardy, and he cannot claim to be discharged, though the hearing is here broken off. Still it is competent for the court to add another juryman returned in the panel; but the prisoner should be offered his challenges over again as to the eleven; the eleven should be sworn de novo, and the trial begin again. Bishop' Cr. Proc., § 809.

We have not, at this place, access to the English authorities referred to by Mr. Bishop, but, from his own language, it appears to refer to cases where the sickness intervenes after the hearing has begun, and that in using the words "during the trial" he refers to proceedings before the jury after it has been impaneled and sworn."

This appears from the words: "Though the hearing is here broken off," and from the concluding phrase that the jury "should be sworn de novo and the trial begin again," showing that the trial referred to is something...