State v. Morgan
| Decision Date | 28 January 1918 |
| Docket Number | 22648 |
| Citation | 77 So. 588,142 La. 755 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. MORGAN |
O'NIELL, J., adhering to the views expressed in the original opinion rendered in this case, dissents from the ruling on bills of exception C, D and E, and from the decree annulling the verdict and sentence.
The contested issues on rehearing are confined mainly to the legality of the rulings of the trial judge (1) in refusing to permit the filing of or to entertain a motion by defendant to recuse him, the judge; (2) in refusing, on the trial of the state's motion for a change of venue, to permit defendant to show that he could not obtain a fair trial in the parish of Jackson, to which parish the state had prayed to change the venue from the parish of Winn; and (3) in permitting the witness Elzie Jennings to testify as to a conversation had by him with the deceased (Howell) a few hours previous to the homicide.
Although the action of the trial judge on defendant's motion to have him recused received most thorough consideration in our original opinion, the importance of that ruling, considering that it is based upon an apparently conflicting jurisprudence, was one of the causes which induced us to grant the present rehearing. The whole matter was again fully discussed and most elaborately argued by learned counsel. Still believing, however, that the conclusions heretofore reached by us, and fully stated in our original opinion, are sound and correct, it is sufficient to say that we adhere to them.
The second question, which has been much pressed upon our attention in the present rehearing, involves the correctness of the trial judge's rulings on the motion made by the state for a change of venue from Winn to Jackson parish.
The pertinent facts are that defendant was indicted for murder in the parish of Winn on November 24, 1916; his trial was begun on December 11, and concluded with a mistrial on December 21, 1916. On February 23, 1917, he moved for a change of venue from Winn parish to a parish in some adjoining district to be selected by the judge. This motion was overruled. Defendant was then again tried in the parish of Winn on February 26, 1917, and that trial, which was concluded on March 10th, also resulted in a mistrial. On the same day, March 10, 1917, the district attorney then moved for a change of venue, and prayed that the case be transferred for trial to the parish of Jackson. Defendant resisted this motion; he pleaded the authority of the thing adjudged, and, in the alternative, in case the state's motion should be granted, he prayed that the venue be changed to some other parish than the parish of Jackson, for the reason, alleged by him, that public feeling and prejudice against him in said parish of Jackson, would render it impossible for him to secure a fair and impartial trial in that parish.
During the trial of this motion, the judge, on objection made by the state, excluded evidence going to show public feeling or prejudice against defendant in the parish of Jackson, which evidence was offered with a view, we assume, of having the trial transferred, in case the venue was changed, from Winn parish to some other parish than the parish of Jackson. These rulings are brought up by bills of exception C and D. The court finally granted the application of the state for a change of venue, and the case was transferred for trial, as requested by the district attorney, to the parish of Jackson. Whereupon defendant then reserved his bill of exception marked E.
In argument on rehearing, while defendant does not abandon entirely his bill of exception marked E, his main complaint is to the rulings of the judge brought up by bills C and D.
Section 1021, R. S., reads as follows:
'Whenever it shall be established, in any criminal prosecution, by legal and sufficient evidence, that a fair and impartial trial cannot be had in the parish where the case is pending, the judge of any court having jurisdiction of the case may, upon application of the Attorney General or district attorney, for a change of venue, grant such application: Provided, that said case be transferred to any parish or judicial district adjoining the one in which the case is pending.'
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