State v. Thornton
| Decision Date | 14 June 1897 |
| Docket Number | 12,536 |
| Citation | 49 La.Ann. 1007,22 So. 315 |
| Court | Louisiana Supreme Court |
| Parties | STATE OF LOUISIANA v. ELIJAH THORNTON |
Submitted June 5, 1897
APPEAL from the Fifth Judicial District Court for the Parish of Ouachita. Potts, J.
M. J Cunningham, Attorney General, and J. P. Madison, District Attorney, for Plaintiff, Appellee.
C Newton, Frank Vaughan and Percy Sandel, for Defendant Appellant.
Defendant was indicted for the forgery and uttering of a check for twelve dollars. The jury that tried him rendered this verdict:
"We, the jury, find the accused guilty of forgery; we do not find him guilty of uttering the forged instrument, and ask for him the extreme mercy of the court."
From a sentence of two years at hard labor he appeals.
Three bills of exception assigning errors appear in the record.
It seems that the accused was tried twice at the same term of court, each time for a different case of forgery. This appeal is from the result of the second trial. The first case was tried on the 22d of April last (1897), and second case on the 28th of April.
The accused caused a subpoena to issue in the first case on the 16th of April for a witness named Jeff. Williams, whom he averred, in his affidavit for the issuance of the subpoena, to be a resident of Winn parish.
On the 19th of April the sheriff of Winn parish made his return on the subpoena to the effect that the witness was no longer in Winn parish, and that he had removed to Union parish.
What the result of the trial of the first case was we are not informed.
The indictment in the second case was filed April 24. On Monday, the 26th, the accused was brought into court from prison, was arraigned and pleaded to the indictment. His case was then set for trial for Wednesday, the 28th. On the 27th, the day previous to the trial, he made application, with affidavit, for subpoenas to the same witness, Williams, and one other whom it is not necessary further to refer to, since no sworn averment of the materiality of his testimony was made when the case was called for trial and who does not figure in the bills of exception.
The prisoner himself was a resident of Winn parish, and in his affidavit accompanying the application for subpoena for Williams, he alleged the latter to be a resident of Winn.
He ignored the return of the sheriff of Winn parish made on the 19th of April, in the first case, that Williams had removed from Winn to Union parish.
There was no application to subpoena Williams in Union parish.
The judge granted the application made on the 27th for subpoena for the witness Williams, "a resident of Winn parish," and it issued.
The sheriff of Winn, happening to be in Ouachita parish and at the court house, at once made the same return on the subpoenas in the second case that he had made on the 19th, in the first case, viz.: that Williams had removed from Winn parish to Union parish.
On the 28th the case was called for trial as per previous assignment. Defendant's counsel first asked for time to have the subpoenas served upon his witnesses, Winn parish being some eighty miles away and the subpoenas having issued the day before. This was denied and the denial forms the subject of the first bill of exceptions. The judge gives as his reason for so ruling the fact that the witness Williams had been summoned upon the former trial of the accused, in a different case, and the accused had been apprised by the sheriff's return in that case that the witness was not in Winn parish, but had removed to Union parish, and that he should have sent his last subpoena to the latter parish.
This ruling of the court was not erroneous. The accused's application for a subpoena to Williams should have named the parish where he then was, instead of the parish where he formerly resided. It would be otherwise did it appear that he was not aware of the removal of the witness to Union parish. But he did not know this fact -- had been officially apprised of it by the sheriff's return in the former case. State vs. Williams, 36 An. 854.
Defendant's counsel then filed a motion to continue the case on account of the absence of the witness Williams, making affidavit to the...
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State v. Jackson
...that the question of venue could be raised successfully in a motion for a new trial, or even in a motion in arrest of judgment. In State v. Thornton, supra, the defendant did not plead to jurisdiction of the trial court. He merely urged, on appeal, the objection that the evidence adduced on......
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Osborn v. People
... ... Section 7121, C. L., provides: ... 'Whenever ... any person, indicted in a court of the state of Colorado, ... shall make affidavit setting forth that there are witnesses ... whose evidence is material to his defense; that he cannot ... called for trial. Pittman v. State, 51 Fla. 94, 41 So. 385, 8 ... L.R.A. (N. S.) 509. See, also, State v. Thornton, 49 La. Ann ... 1007, 22 So. 315. In the present case, the defendants made no ... application whatever until several months after their arrest, ... ...
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State v. Moore
...evidence on the trial that the crime was committed in the parish in which the defendant was prosecuted and convicted. In State v. Thornton, 49 La.Ann. 1007, 22 So. 315 1897), it was again held that the question where the crime occurred was one of fact for the jury to decide. The court went ......
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State v. Mills
...§§ 6, 20, 23, 27 & 29; 58 Am.Jur. 30, Section 14; State v. Boitreaux, 31 La.Ann. 188; State v. Briggs, 34 La.Ann. 69; State v. Thornton, 49 La.Ann. 1007, 22 So. 315; State ex rel. Alverson v. Sommerville, 105 La. 273, 29 So. 705; State v. Stewart, 117 La. 476, 41 So. 798; State v. Black, 23......