State v. Vial

Decision Date02 April 1923
Docket Number25809
Citation153 La. 883,96 So. 796
CourtLouisiana Supreme Court
PartiesSTATE v. VIAL

Rehearing Denied April 30, 1923

Appeal from Twenty-Sixth Judicial District Court, Parish of St Tammany; Prentiss B. Carter, Judge.

Emile Vial was convicted of manslaughter, and he appeals.

Affirmed.

C Sidney Fredericks, of Covington, and Ponder & Ponder, of Franklinton, for appellant.

A. V. Coco, Atty. Gen., J. Vol Brock, Dist. Atty., of Franklinton, T. S. Walmsley, of New Orleans, and Miller & Miller, of Covington, for the State.

LAND J. O'NIELL, C. J., dissents. DAWKINS, J., concurs.

OPINION

LAND, J.

Under an indictment charging defendant with murder, he was convicted of manslaughter, and sentenced to be imprisoned in the penitentiary at hard labor for not less than 15, nor more than 20, years. Defendant has appealed, relying upon numerous bills of exceptions for the reversal of the conviction and sentence against him.

Bill of Exceptions No. 1.

Defendant filed a motion to quash the indictment upon the following grounds, alleging:

(1) That two members of the grand jury had joined 24 other citizens in making affidavit against him, charging him with murder, and that said grand jurors, notwithstanding their interest and activities in the matter, participated in the proceedings of the grand jury that found the true bill in this case.

(2) That the district court was in vacation at the time said indictment was found and returned, and that said grand jury was without right, power, or authority to assemble and report true bills.

(3) That the district court was in vacation, and no judge present to receive bills of indictment at the time the indictment was reported herein, and that no provision of law authorizes sealed bills.

The motion was properly overruled. The mere fact that a member of a grand jury has made an affidavit against a citizen for the violation of a criminal statute does not disqualify such member and render him incompetent to deliberate upon the case and to vote for the return of a true bill against such offender. The finding of a grand jury is not a verdict or judgment; it amounts, at most, to an accusation, and there is no law which fixes the nature or the quantum of evidence on which the grand jury must rest their conclusions. State v. Lewis, 38 La.Ann. 680.

It is the legal duty of every member of a grand jury to inform his fellows of any crime or misdemeanor committed within the parish since the sitting of the last grand jury, which may have come to his personal knowledge, or of which he may have been informed, and a violation of this duty is made a criminal offense by section 2140 of the Revised Statutes of 1870, punishable by severe penalties. This section of the Revised Statutes makes it plain that even personal knowledge of the commission of a crime does not disqualify a grand juror. He may therefore be a witness in the case, and still be competent to serve as a member of the inquisitorial body. Hence, the making of an affidavit in a criminal case is not a legal cause for the disqualification of a grand juror.

A grand jury may return a valid indictment into court based on knowledge of the facts by its members, and without having witnesses summoned before that body. State v. Richard, 50 La.Ann. 210, 23 So. 331; State v. Britton et al., 131 La. 877, 60 So. 379. This disposes of the first ground of the motion to quash.

The second ground of this motion is predicated upon the proposition that the grand jury is without legal authority to convene, investigate criminal cases, and report true bills while the court is in vacation. We take judicial cognizance of the fact that the Twenty-Sixth judicial district is composed of more than one parish, and in such cases section 9 of Act 135 of 1898 provides that the judge may impanel the grand jury in advance of the time fixed for the next session of the court. Said section also provides that:

"Any report or finding by the grand jury by indictment or otherwise, if the court be not in session, shall be delivered by the foreman to the clerk of the court who shall file the same, provided, the judge may instruct the grand jury in any case, in returning an indictment, to deliver the same to the clerk of the court * * * in a sealed envelope, or to make their presentment in open court without mentioning orally the name of the person accused."

As to the third ground of the motion that no judge was present to receive bills of indictment at the time the bill was reported in this case, because the court was in vacation, it is admitted that:

"The judge was not present in Covington at that time, but he was at his domicile in Washington parish. That the indictment was sealed and delivered to the court in open court and opened on the 5th day of October, as marked on the envelope and as being filed in open court at that time."

The delivery by the foreman of the indictment to the clerk, inclosed in a sealed envelope, was a sufficient compliance with the statute. Its subsequent presentation in open court by the grand jury was unnecessary.

Bill of Exceptions No. 2.

This bill was reserved to the overruling of a motion for continuance based on the absence at the trial of R. A. Snow, a resident of the city of New Orleans, and alleged to be an important and material witness on behalf of defendant. The district attorney admitted that the absent witness, if present, would swear to the facts as alleged in the motion for a continuance. The trial judge states also that when the name of the witness was called, announcement was made in open court by a by-stander by the name of Snow, presumably a relative of the witness, that R. A. Snow was then in Cuba, and that no information was given as to the date of his probable return, or that he would ever return.

Under Act 84 of 1894, the district attorney having admitted that if the absent witness were present he would testify as stated in the motion made under oath for a continuance, the state was entitled to an immediate trial. State v. O'Neal, 136 La. 558, 67 So. 365 Aside from the lack of probability of securing the attendance of this witness at the next term of court, the continuance was properly overruled, as defendant's motion for continuance shows upon its face that he knew that the witness resided in another parish; and the record fails to disclose that defendant made the affidavit and obtained the order required by section 1036 of the Revised Statutes of 1870. State v. Lee, 130 La. 477, 58 So. 155; State v. Romero, 117 La. 1003, 42 So. 482; State v. Nix, 111 La. 812, 35 So. 917.

Bill of Exceptions No. 3.

Before the jury was called, the district attorney abandoned the charge of murder, and announced his intention to prosecute defendant under the indictment for manslaughter. An objection was made to this procedure by counsel for defendant on the following grounds:

(1) That this action on the part of the state's attorney was in effect a nolle prosequi and the filing of a bill of information, and that the change in the indictment was material.

(2) That the only proper course for the district attorney to pursue was to formally enter a nolle prosequi as to the indictment returned by the grand jury, and file a bill of information.

(3) That to so suddenly change the form of the charge, after the ruling by the court on the question of motion for continuance had been made, was detrimental to defendant.

(4) That if this change was permitted by the court after the first juror had been called to the box, it would show on its face an effort on the part of the state to try to convict defendant on the concurrence of nine jurors.

The judge a quo overruled these objections, declined to permit the prosecuting officer to strike from the indictment the words "of malice aforethought did kill and murder" and substitute the word "slay," but permitted the state's attorney to abandon the charge of murder against the accused. The trial judge stated as the reasons for his ruling that on the first trial for murder the jury disagreed, standing 9 to 3, and were discharged, and that he would explain to the jury, when he charged them on the law, that the accused was then on trial for manslaughter, and that nine jurors could acquit or convict on this charge. The ruling of the judge a quo is correct.

Murder is a felonious homicide committed with malice aforethought. Manslaughter is a felonious homicide committed, without malice aforethought, in the heat of passion and upon adequate provocation. Manslaughter is included in the charge of murder, and, by express statute on the subject, it is provided that on all trials for murder the jury may find the prisoner guilty of manslaughter. R. S. 1870, § 785; McClain, Cr. Law, vol. 1, § 338.

Malice aforethought is an essential element of the crime of murder. It is the aggravating element which raises a felonious homicide to the higher grade of murder. When this element is wanting, the homicide, if unlawful, is still felonious, but is reduced to the lower grade of manslaughter. In the case of State v. Fontenot, 131 La. 60, 58 So. 1033, we said:

"The state had the right to abandon the charge of murder and try the accused for manslaughter. Why should the accused complain of being relieved of all chance of conviction of the greater offense?"

In State v. Vaughn, 145 La. 31, 81 So. 745, the district attorney abandoned the charge of murder, after the jury had been impaneled, and proceeded with a prosecution for manslaughter under the indictment. This court held:

"It is well settled that the state may, at any time during a prosecution for a crime in the nature of which are included all the elements of a less serious offense, abandon the prosecution for the graver crime and proceed with the...

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