State v. Pointdexter
| Decision Date | 19 June 1906 |
| Docket Number | 16,138 |
| Citation | 117 La. 380,41 So. 688 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. POINTDEXTER et al |
Rehearing Denied June 30, 1906.
Appeal from Twenty-First Judicial District Court, Parish of Iberville; Calvin Kendrick Schwing, Judge.
Robert Pointdexter, alias Bull Dafney, and others, were convicted of murder, and appeal. Affirmed.
Alex. Hebert and William Joseph Gahan, for appellants.
Walter Guion, Atty. Gen., and Albin Provosty, Dist. Atty. (Lewis Guion, of counsel), for appellee.
The grand jury of the parish of Iberville found an indictment against Diamond Rigley, alias "Black Diamond," and Robert Pointdexter, alias "Bull Dafney," charging them with having killed and murdered Frank Buento and Vincent Buento in this parish, on the 26th day of February, 1906.
The accused were found guilty as charged.
The indorsement on the indictment shows that it was an indictment for murder. The names of witnesses, also, are written thereon; that of the district attorney and the name of the deputy clerk with date of the filing of the indictment.
The minutes show that the accused were arraigned and pleaded to the indictment, and the case was assigned for Thursday, April 19, 1906, and on the motion of the district attorney, it was ordered that the copy of the indictment be served on the accused.
The sheriff's return sets forth that a copy of the indictment was served on April 6, 1906.
On the 18th of the same month, through counsel appointed by the court on that day, defendant applied for a change of venue in which they stated that there was, against them, prejudice, ill feeling, and dislike, which proof of their innocence would not overcome.
The motion for a change of venue was overruled.
A bill of exception was taken to the refusal of the court to grant the motion.
This bill of exception brings up before us the first ground of defense presented for our consideration.
The grounds are not sustained by the testimony to such an extent as would justify the court in setting aside the verdict.
There was indignation expressed at the time against the crime committed, and against the accused, as the asserted perpetrators. It appears to a limited extent that it was assumed that they were the guilty parties. The feeling against them was not general. The testimony, on the motion for a change of venue, does not give rise to the impression that the feeling was general, and that a jury could not be found that would be free of all bias and prejudice.
The witnesses questioned touching bias all testified that an impartial jury could, without difficulty, be impaneled. The presiding judge was of that impression. The record does not disclose that either the witnesses or the judge were in error.
A bill of exception was taken to the overruling of a motion to quash, and it presents the second ground of defense.
The grounds of this bill of exceptions are that the finding of the grand jury was not indorsed on the bill of indictment; that the names of both defendants are not indorsed on the indictment; that the name of Diamond Rigby, one of the defendants, is not written in the indictment.
There is little merit in this contention, based on the fact that as to names indorsed on the indictment, those of Robert Pointdexter, alias Bull Dafney, et al., do not, as defendants urge, mean the accused.
Both the crime charged and the names of the defendants are indorsed to an extent reasonably sufficient, particularly in view of the fact that this court has repeatedly held: That indorsement only is not a part of the indictment; that the indorsement of the offense for which a true bill is found is not essential to the validity of the indictment. State v. Smith, 5 La.Ann. 341; State v. Rohfrischt, 12 La.Ann. 382; State v. McGinnis, Id. 743; State v. Mason, 32 La.Ann. 1018; State v. Russell, 33 La.Ann. 135.
It is sufficient to set forth title of suit on the back of the indictment, and the nature of the offense. This was done. But the indorsement is not essential to the validity of an indictment. State v. Aucoin, 50 La.Ann. 49, 23 So. 104.
The other ground set forth by defendant in this bill of exception is that the name of the accused (Rigby) is not contained in the indictment.
The name in the copy of the indictment before us may be taken either for "Rigley" or "Rigby." It remains that either name, with the alias, is identification of the person. Both accused were arraigned and pleaded to the names as written in the indictment.
No good reason suggests itself to hold that the name, as written, is "Rigley." But if it should be, although all the circumstances are to the contrary, the rule idem sonans would justify holding that the name was sufficiently set forth.
In that case on the authority of State v. Turner & Reed, 25 La.Ann. 575, and State v. Johnson et al., 116 La. 856, 41 So. 117, the ruling of the trial judge is sustained. But really the name, it seems to us, is "Rigby," as written.
One of the defendants severed in one of his grounds of defense, and in a separate motion to quash, renewed in the main, the grounds upon which we have just passed; that is:
"That the so-called indictment brought against him is no indictment at all, for it does not contain his name to its body, nor on its back, nor to, nor on, any part of it."
We have already decided this ground of defense. It would serve no useful purpose to go over that ground again. It has no merit.
This brings us to the defense that counsel for the accused did not have time to prepare themselves to properly present the grounds relied upon by the accused.
Defendants recite in the bill of exceptions:
We have already stated the date on which the accused were arraigned, and counsel appointed by the court to represent them. Attorneys were appointed to represent them. One of the attorneys asked to be relieved of the appointment. Other attorneys represented them during the 13 intervening days between the date of their arraignment and the day fixed for trial.
The per curiam shows the following:
Counsel appointed by the court, four in number, had ample opportunity, and did fully prepare the defense. No legal cause was shown for a continuance. The district attorney admitted that all of the absent witnesses, if present, would testify, as stated by counsel in this motion for a continuance, and no bill was reserved.
It is stated that a change had been made at the last moment by order of court in the attorneys appointed to represent the accused.
We have already referred to the change which had been made touching one of the attorneys who asked to be relieved. There is nothing about the circumstances which shows that the accused had been prejudiced by the change.
They were represented by at least two attorneys from the date of the arraignment.
The Attorney General states in the brief that the accused were represented by four attorneys during the whole of that time; i. e., from the arraignment to the present time. This is not denied by defendant's counsel. Four members of the bar appeared on this appeal as their attorneys.
It does not appear that defendant was not amply represented, and that attorneys had not sufficient time to prepare their defense. It is not shown that any of defendants' witnesses were absent.
Continuance is largely left to the discretion of the trial court. It does not appear that the court abused its discretion. State v. Brette, 6 La.Ann. 658; State v. Vigoreux, 13 La.Ann. 309; State v. King, 31 La.Ann. 179; State v. Finn, Id., 408; Rogers v. Goldthwaite, 32 La.Ann. 1049; State v. Wilson, 33 La.Ann. 261; State v. Fulford, 33 La.Ann. 679; State v. Hornsby, 33 La.Ann. 1110; State v. Chevallier, 36 La.Ann. 81; State v. Kane, 36 La.Ann. 153; State v. Johnson, 36 La.Ann. 852; State v. Foster, 36 La.Ann. 877; State v. Clark, 37 La.Ann. 128; State v. Redmond, 37 La.Ann. 774; State v. George, 37 La.Ann. 786; State v. Duffy, 39 La.Ann. 419, 2 So. 184; State v. Primeaux, 39 La. Ann, 673, 2 So. 423.
Another defense brought up by a bill of exception is that no copy of the indictment was served, nor a list of the venire.
The per curiam of the court shows: "A true copy of the indictment was served as required by law." The sheriff's return sets forth that he served copy of both the indictment and venire for the term.
It only remains for us to state that there was no merit in the objection, and pass on to a consideration of the next ground which relates to the removal of a juror from the...
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