State v. Ussery
| Decision Date | 02 January 1934 |
| Docket Number | 32573 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. USSERY |
Appeal from Eighth Judicial District Court, Parish of Grant; Wiley R. Jones, Judge.
Pete Ussery was convicted of manslaughter, and he appeals.
Affirmed.
John R Hunter, of Alexandria, S. R. Holstein, of Winnsboro, and J W. Ethridge, of Colfax, for appellant.
Gaston L. Porterie, Atty. Gen., James O'Connor, Asst. Atty Gen., Harry Fuller, Dist. Atty., of Winnfield, and V. M. Mouser, Asst. Dist. Atty., of Columbia (C. H. McCain, of Colfax, and James O'Niell, Sp. Asst. to Atty. Gen., of counsel), for the State.
O'NIELL, Chief Justice.
The appellant was indicated and tried for murder and convicted of manslaughter. The record contains eleven bills of exception, two of which are abandoned.
The first bill was reserved to the overruling of a motion for a continuance, based upon the absence of an alleged important witness. The reason why the judge overruled the motion was that the district attorney admitted that the witness, if present, would testify as stated in the motion. Article 325 of the Code of Criminal Procedure provides that, when either the district attorney or the defendant makes such an admission to avoid a continuance, the judge shall not grant the continuance. It is argued that the continuance should have been granted in this instance, notwithstanding the district attorney's admission, because the absent witness was the only witness to the homicide not related to either the defendant or the man who was killed. But the statute makes no exception in that respect, and we see no good reason for a departure from the rule. So long as a defendant is not denied his constitutional right to compulsory process to obtain the attendance of his witnesses, the judge is right in refusing to grant a continuance or postponement of the trial because of the absence of a witness when the district attorney admits that, if the witness were present, he would testify as stated in the defendant's motion for a continuance. In this case a subpoena was issued for the witness, and the sheriff made two trips into that part of the parish where the witness was last seen, and, after a diligent inquiry in the neighborhood, the witness could not be located. There is no assurance or showing that the attendance of the witness could have been obtained if more time had been allowed.
The second bill has reference to the method of examination by the district attorney in the impaneling of the jury. The objection made by the defendant's counsel, and overruled by the judge, was the same objection that was held to be not well founded in State v. Wells, 171 La. 795, 132 So. 349. The district attorney, having examined a prospective juror on his voir dire, tendered him to the defendant's attorneys for examination; whereupon they objected to being called upon to examine the prospective juror until the district attorney announced that he accepted the juror. The district attorney then announced that he accepted the juror tentatively, meaning that the acceptance was provisional, being subject to the provisions of articles 358 and 359 of the Code of Criminal Procedure. Article 358 provides that the jurors shall be tendered first to the prosecution for examination on their voir dire, and, if accepted, then tendered to the defense; and that, after a juror has been accepted by both sides, neither side shall have the right to challenge him peremptorily, but that it shall be then absolutely within the discretion of the judge either to allow or to deny a peremptory challenge up to the time the jury is impaneled. And article 359 provides that, after a juror has been accepted by both sides, he may yet be challenged for cause, or be excused by consent of both sides, up to the beginning of the taking of evidence. It is plain, therefore, that the tendering of a juror to the defendant's counsel, by the district attorney, after he has examined the juror on his voir dire, is in itself an acceptance of the juror by the district attorney, subject, of course, to the rights which are accorded to both sides under articles 358 and 359 of the Code of Criminal Procedure. The only way that a cause for complaint on the part of the defendant could arise in such a proceeding would be for the district attorney to attempt to withdraw his acceptance of the juror, or to proceed in a way not consistent with his acceptance of the juror, after tendering him to the defendant's counsel for examination.
The third bill of exception makes the complaint that, after the district attorney had examined several jurors on their voir dire and had asked each one whether he had any conscientious or religious scruples against capital punishment, and after the district attorney had challenged successfully several jurors because of their being conscientiously or religiously opposed to capital punishment the district attorney examined and accepted a juror without asking whether he had any scruples against capital punishment. The defendant's counsel asked the judge to require the district attorney to ask either every juror or none of them to state his attitude towards capital punishment, and asked the judge...
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Phenizee v. State
... ... Phenizee was convicted of murder, and he appeals. Affirmed ... Affirmed ... Wm. P ... Stribling, of Columbus, for appellant ... We ... submit that under the authorities, Fugitt v. State, ... 37 So. 557; Roney v. State, 142 So. 475; State ... v. Ussery, 152 So. 302, all considered unerringly point ... to one conclusion that is most fundamentally violated in ... organizing a jury to try this man for his life, to-wit: the ... examination must be scrupulously conducted with fairness to ... the defendant on trial for his life ... The ... ...
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State v. Swindell
...and it is conceivable that abuse of the optional right might unfairly prejudice the defendant's right to a fair trial. State v. Ussery, 178 La. 593, 152 So. 302. But here, in view of the instruction and the court's limitation upon the questioning after the state's counsel waived the claim o......
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State v. Boone
... ... without having first accepted or rejected the juror. This ... objection by agreement of counsel was made general to all ... succeeding jurors ... This ... court had this identical issue under consideration in the ... case of State v. Ussery, 178 La. 593, 152 So. 302, ... 303, and, in disposing of the issue adversely to ... defendant's contention, said: ‘ * * * the tendering ... of a juror to the defendant's counsel, by the district ... attorney, after he has examined the juror on his voir dire, ... is in itself an acceptanct of ... ...
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State v. Sims
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