State v. Scott
| Decision Date | 11 May 1903 |
| Docket Number | 14,757 |
| Citation | 34 So. 479,110 La. 369 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. SCOTT |
Appeal from Twenty-Seventh Judicial District Court, Parish of Assumption; Paul Leche, Judge.
Will Scott was convicted of murder, and appeals. Reversed.
Abner A. Folse (Marks & Wortham, of counsel), for appellant.
Walter Guion, Atty. Gen., and G. Adolph Gondran, Dist. Atty. (Lewis Guion, of counsel), for the State.
The defendant appeals from a death sentence on a prosecution for murder.
A motion to quash the indictment because returned by an illegal grand jury, and another to quash the venire of the petit jury, were made on the ground that R. A. Munson, who acted as one of the jury commissioners, was disqualified to hold such office; that his presence on the jury commission, as member thereof, on the day of the drawing of the jury was necessary to make a quorum of that body; that his disqualification resulted from the fact that he was also, at the time he acted as jury commissioner, commissioner of a drainage district in the parish where the indictment was laid; and that no person holding any other office under the parish was or is competent to hold the office of jury commissioner.
The trial judge overruled the motion to quash and an exception to this ruling was taken.
Evidence adduced on the trial of the motion shows that when Drainage District No. One was created by the Police Jury of Assumption Parish in October, 1897, Munson was appointed as one of the commissioners thereof and has served as such ever since and is still serving as such.
It further shows that in 1900 he was appointed a jury commissioner for the parish, accepted the appointment qualified thereunder, and has served ever since as jury commissioner and as such participated in the drawing of the jury in question. In other words, Mr. Munson, as he himself testifies, is filling actively both positions -- that of drainage commissioner and that of jury commissioner, and he has done so ever since his appointment to those positions respectively, and is still doing so without question from any source until now.
Section 3, p. 218, of Act No. 135 of 1898 authorizes the District Judge to select and appoint five citizens, who with the clerk of the court, shall constitute the jury commission for the parish; and the statute then goes on to declare that no person holding any office under the State, or any parish, or municipality therein, shall be competent to hold the office of jury commissioner.
We entertain no doubt that when the police jury of Assumption Parish created Drainage District No. One and appointed Munson as one of the commissioners thereof, it was an appointment to an office under the parish within the meaning of the statute referred to.
We furthermore, entertain no doubt that under the terms of the statute, the offices of drainage commissioner and jury commissioner are incompatible in the sense that the same man may not be a jury commissioner and a drainage commissioner at the same time.
When, therefore, Munson accepted the office of jury commissioner in 1900 he ipso facto vacated the office of drainage commissioner. Thereafter he was jury commissioner, but not drainage commissioner. State v. Fuselier, 51 La.Ann. 1317, 26 So. 264; State v. Arata, 32 La.Ann. 193; State v. Dellwood, 33 La.Ann. 1229.
Having vacated the office of drainage commissioner by qualifying as a jury commissioner, he was competent to serve in the latter capacity, and, hence, there is no error in the ruling of the trial court holding that the jury was properly drawn.
The fact that Munson continues to act as drainage commissioner does not alter the situation. That concerns the drainage commission, the police jury that appointed the commission, and those interested in the proceedings and actions of the commission, but does not concern the courts in the administration of the criminal law.
Munson is both de jure and de facto jury commissioner. As such his acts are valid.
What effect his continuing to act as drainage commissioner may or may not have on the work of that body, its proceedings and doings, we are not called upon here to decide.
But the State encounters a more serious difficulty in the bill of exception taken to the action of the trial court ruling defendant to trial before the sheriff of Caddo had made return on a subpoena issued by the defense for a witness named Bully (or Fuller) who was reported to have gone to that parish, and before the sheriff of Ascension had made return on a subpoena issued by the defense for a witness named Jackson, alleged to be in the town of Donaldsonville in that parish.
The facts were these: --
The accused was charged to have murdered Luther Chase on January 10, 1903.
Indictment was returned against him on January 20, 1903.
Motion to quash indictment and jury venire was filed January 26, 1903, and overruled the next day.
Accused was arraigned January 27, 1903, and immediately thereafter on motion of the State the case was assigned for trial February 3, 1903. The State asked for subpoenas for certain witnesses named and the accused for certain witnesses named.
On January 28, 1903, counsel, who had, up to that time, represented the accused, withdrew for good and sufficient reasons from the case.
On January 29, 1903, the accused appears to have secured other counsel, and this other counsel, when the case was called for trial on February 3rd, applied for a continuance on the ground that the witnesses ordered subpoenaed on the accused's behalf were not present in court.
The motion recited what was expected to be proven by the absent witnesses, etc. It set forth the accused was penniless and in jail, that he had no means to fee counsel, that counsel who then appeared for him had been secured without compensation after the case had been assigned for trial, that he (the counsel) had not had sufficient time to prepare for the trial, had been unable to examine into the case, talk to the witnesses, etc.
The motion asked for continuance of the case until the next term of the court. A continuance was granted only for three days, or from the 3rd to the 6th of February. On the same day, February 3rd, the accused asked for subpoenas for four witnesses who were named, and gave the place where three of them could be found as New Orleans and the fourth as Shreveport.
It seems that when the case was first set for trial these witnesses had been subpoenaed as being in the Parish of Ascension, but the deputy sheriff of that parish had made return that they were not residents there.
On the refixing of the case for February 6th, they were ordered re-summoned and New Orleans and Shreveport were given as the places where they would be found.
The accused, as well as his witnesses, are colored people, and the man killed was also colored.
The witnesses appear to have had no fixed place of residence, were moving about seeking work. The contention of the defense is they were in Assumption parish on the day of the killing, but moving about as they were it was impossible for the accused, confined in jail as he was, to keep up with them. Hence, the necessity to change the directions as to where they could or might be found, failing to find and serve them under the subpoenas which first issued.
The further contention of the defense is that the accused himself,...
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