State v. Sisemore

• Decision Date: 15 May 1922
• Docket Number: 24644
• Court: Louisiana Supreme Court
• Parties: STATE v. SISEMORE et al

92 So. 274

151 La. 675

STATE v. SISEMORE et al

No. 24644

Supreme Court of Louisiana

May 15, 1922

151 La. 675 at 679.

Original Opinion of January 2, 1922, Reported at 151 La. 675.

OPINION

On the Merits.

PROVOSTY C. J.

On an indictment formurder the two accused were convicted of manslaughter, and were sentenced to not less than 12 and not more than 15 years at hard labor, and have appealed.

Accused moved for a continuance on the following grounds:

"1. That no special session of this honorable court has been called and advertised according to law at which they may be legally tried.

"That their attorney has not been notified of the calling of a special term of the court; has not been supplied with a list of the jurors drawn to serve at this term and was not aware who composed the jury until a few minutes before the filing of this motion and has not had time therefore, to investigate the jurors as to their residence and other qualifications.

"2. That they are strangers in this community and have been in jail since their indictment and are, therefore, not in a position to give their attorney the necessary information upon which to make their defense."

No special term needed to be called, and still less advertised since under the Constitution the district courts in the country parishes are required to be in session continuously for ten months of the year, and this case was tried during such a session.

No law requires attorneys for accused persons to be notified that a special venire is to be drawn.

The list of jurors was duly served on the two accused as required by law.

The fact that the accused were strangers and in jail was no ground for continuance.

As a matter of fact the judge notified the attorney for accused on February 3d, the day on which the grand jury met to investigate the homicide, that, if an indictment was found, a special venire would be called.

The deceased died within a few hours after having been shot with a pistol by accused. A physician who attended him testified that his death was caused by internal hemorrhage from the wound. At the time of the shooting he was in good health, hauling cordwood with a wagon. Accused sought to offer testimony to the effect that the decedent had once before been wounded. The court refused to allow this matter of a previous wounding to be gone into, for the reason that if there had ever been another wound the decedent had recovered from it and was in good health; so that this previous wounding was irrelevant. This ruling was correct.

The decedent was on the roadside, some 60 feet from the road, loading cordwood on his wagon, when, the two accused coming along the road, the homicide occurred. The deceased had on his person a .45-caliber pistol. The accused sought to show, as part of their defense, that the deceased was there to waylay them. In rebuttal of this, the judge allowed testimony to the effect that the deceased had left his home just a few minutes previously to get a load of cordwood, and that he habitually carried this pistol for defense against persons other than accused by whom he feared he might be attacked. This evidence was directly in rebuttal; and therefore proper.

The accused testified to a difficulty one of them, J. R. Sisemore, had had with a brother of the decedent; and in rebuttal this brother was allowed to give his version of the matter. The evidence, being in rebuttal, was proper.

This same brother was asked: "Why did you stop your car?" To which he answered:

"Because of previous difficulties before. He had cursed me in the presence of my wife on Saturday before because I drove up behind him when the road was in perfect condition and asked him gently to give me room to pass that I might catch a train. He began cursing me when I asked him to let mehave the road."

The bill of exception as prepared by accused says that this evidence was given over...