State v. Sturgeon
| Decision Date | 28 November 1910 |
| Docket Number | 18,515 |
| Citation | 53 So. 703,127 La. 459 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. STURGEON |
Appeal from Eighth Judicial District Court, Parish of Franklin; D N. Thompson, Judge.
Leslie Sturgeon was convicted of forgery and of uttering and publishing forged instruments as true, and he appeals. Affirmed.
M. C. & W. H. Thompson, for appellant.
Walter Guion, Atty. Gen., and Riley J. Wilson, Dist. Atty. (R. G Pleasant, of counsel), for the State.
The defendant was prosecuted for forgery and uttering and publishing the forged instrument as true. Found guilty as charged by the jury, he was sentenced to serve two years in the penitentiary.
From the verdict and judgment, he appeals.
In a motion to quash and set aside the indictment, defendant alleged, in substance, that the grand jury which had found and presented the indictment against him was an illegal body by reason of the fact that the jury commission in drawing the grand and petit jury selected the 20 jurors (12 of whom constituted the grand jury by whom the indictment was found) from the general venire box, contrary to law.
The statute requires that, immediately after having completed the general venire list, the commission shall select the names of 20 citizens possessing the qualifications required. Section 4 of Act No. 135 of 1898, p. 218.
The record before us discloses how the grand jury was selected.
One of the jury commissioners, in the presence of the others and the witnesses, selected from the general venire box, after the same had been supplemented and revised as required by law, the names of 20 jurors to serve as grand jurors at the ensuing term of the district court beginning the first Monday in September, 1910, all as the law requires.
The law was in substance followed.
If the commission "selected" the 20, as we have every reason to infer they did, there is no difference whether the selection was made from the names in the box instead of from the list.
Of course, the statute should have been closely followed. We none the less find no fatal error in the selection as made.
We will say in conclusion upon this point that we infer that the commission deliberated over the names and properly selected the 20. In other words, that they acted in common, and nothing was left undone that was essential.
The petit jurors were drawn as required. We found no fatal variance from the requirement of the statute.
There was not the least prejudicial error committed in that regard. The names were drawn in a manner sufficiently regular from the body of citizens to pass upon the case of an accused.
His main right to complain arises when something has been done to his prejudice.
In this instance, we have found nothing of the kind.
It must be borne in mind, where there is substantial compliance with the statute, unless there is fraud practiced or wrong inflicted, irregularities are not fatal to the legality of the general venire or the indictment. State v. Sheppard, 115 La. 942, 40 So. 363.
The next plea of the defendant is that the proces verbal of the jury commission fails to state that the absent members were notified; that they received no notice of the meeting, of the time, nor of the place.
As relates to the proces verbal of the commissioners, and the asserted necessity of noting therein that the commissioners have all been notified, we know of no provision of the statute which justifies the conclusion, if the clerk fails to mention the fact that all the jurors have been notified and to state all that it may be deemed advisable to say in that connection, the consequence will be that all the proceedings of the commission will be fatally irregular and illegal.
The statute does not in words impose upon the clerk the necessity of stating that the commissioners have been notified; therefore such a failure cannot be fatal.
There must be a record of the acts of the commissioners as a body. Such a record was made.
Among other objections, the proces verbal of the acts of the commissioners is criticized on the ground that it does not state the names of jurors taken from the box; the number of dead, and other similar statements which might and really should have been made.
The statement in the proces verbal is that the commission revised the general venire box by first taking therefrom the ballots containing the names of such persons as had died or moved away since the last drawing; the said jury, therefore, proceeded to supplement the general venire box.
This is prima facie correct. If it were not, if an error had been committed prejudicial to the defendant, it devolved upon him to prove it.
The record contains a list of names of the 20 grand jurors.
Now, as to the petit jurors, the jury commissioners, it appears, drew from the general venire box the names of 30 jurors to serve as petit jurors.
The 20 names of persons to serve on the grand jury should be selected from the list of 300 names. In accordance with an impulse, which led to the commission of an error, instead of drawing from the jury list, the commissioners selected the 20 from the names placed in the general venire box.
It was an oversight, growing out of a failure, doubtless, to carefully read the statute.
In our opinion, it was not a fatal error provided the commission exercised the judgment required in order to select good, competent jurors.
As relates to the duties of the clerk, they are not necessarily included as part of the acts of that body.
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State v. Marks
...compliance and the absence of fraud or irreparable injury, the court in Clifton refused to quash the indictment. In State v. Sturgeon, 127 La. 459, 53 So. 703, 704 (1910), the court 'It must be borne in mind, where there is Substantial compliance with the statute, unless there is fraud prac......
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State v. Davis
...129 La. 591, 56 So. 519; State v. Batson, 108 La. 479, 486, 32 So. 478; State v. Sheppard, 115 La. 942, 40 So. 363; State v. Sturgeon, 127 La. 459, 53 So. 703. is neither suggestion nor proof of fraud or injury in connection with these alleged irregularities on the part of the jury commissi......
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State v. Stell
...So. 849, it was held that it was sufficient to make reasonable effort to notify a commissioner who could not be found. In State v. Sturgeon, 127 La. 459, 53 So. 703, was held sufficient to mail the notice to the commissioner's proper address, even though he did not receive it. In State v. W......
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State v. Brantley
...v. Claxton, 129 La. 591, 56 So. 519; State v. Baston, 108 La. 486, 32 So. 478; State v. Sheppard, 115 La. 942, 40 So. 363; State v. Sturgeon, 127 La. 459, 53 So. 703. See, also, State v. Dreher, 166 La. 941, 118 So. State v. Phillips, 164 La. 597, 114 So. 171; State v. Smothers, 168 La. 109......