State v. White
| Decision Date | 20 June 1924 |
| Docket Number | 26382 |
| Citation | 101 So. 136,156 La. 770 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. WHITE |
Original Opinion of March 8, 1924, Reported at 156 La. 770.
OPINION
On the Merits.
This case was remanded temporarily, for the purpose of having the minutes of court show whether or not the accused was present during his trial, and to show more clearly than they did whether he was present when the verdict was rendered. After the decree of the court was handed down, remanding the case temporarily for the foregoing purposes, the state of Louisiana, through the district attorney, filed a motion contradictorily with the defendant to have the minutes of court corrected, so as to make them conform to the facts, by showing that defendant was present throughout his trial and when the jury returned their verdict in the case.
Defendant interposed several objections to the trial of the foregoing motion. These objections may be summarized as follows: (1) That the mandate of this court, remanding this case temporarily, had not reached the trial court, and that the trial court could not act until the mandate reached it; (2) that the motion to correct the minutes was filed and was made returnable before the expiration of the legal delay for applying for a rehearing, for the purpose of testing the correctness of the decree of this court, remanding the case, and that to hear the motion before the expiration of such delay would result in depriving defendant of his right to a rehearing with respect to said decree; (3) that the motion filed by the state is a collateral attack upon the minutes of the trial court; (4) that the state was attempting to correct the minutes at a civil instead of a criminal term, when the rules of court divided the terms into criminal and civil.
The foregoing objections were overruled by the judge a quo. Defendant excepted to the ruling made, but presented no bill of exceptions to the trial judge for signature.
In our view, if defendant desired to insist upon his objections on appeal, he should have had the trial judge sign a bill of exceptions, showing the objections urged by him, and the rulings of the court thereon, with such other matter as it was necessary or proper to show. This, as we have seen, defendant did not do. However, aside from his failure in this respect, we are of the opinion that, had such a bill been signed, it would have had no merit. We are of the opinion that it would have possessed no merit, because defendant had no right to apply for a rehearing, as contended for by him, with respect to the decree remanding this case. That decree is not a definitive judgment, and it is only when a definitive judgment is rendered that a motion for a rehearing lies. Rule XIV, § 5, 136 La. xii; State v. Fowler, 42 La.Ann. 144, 7 So. 180; Gagneaux v. Desonier, 109 La. 460, 33 So. 561; Succession of Edwards, 34 La.Ann. 216. As the decree is an interlocutory one, it became effective the moment it was rendered, although it remained subject to change at any time, by this court, before the rendition of final judgment. State ex rel. Leche v. Fowler, 42 La.Ann. 144, 7 So. 180. Hence there was no reason why the court below should not have proceeded with the trial of the motion, in so far as the delays for a rehearing are concerned, for there were no such delays. We are also of the opinion that, had such a bill been signed, it would have possessed no merit, for the reason that the court below was not dependent upon a decree of this court to correct the minutes, although an appeal was pending, but had the right to proceed without such a decree, to correct them. State v. Perry, 51 La.Ann. 1074, 25 So. 944; State v Howard, 34 La.Ann. 369; State v. Tessier, 32 La.Ann. 1227; State v. Revells, 31 La.Ann. 387. Hence, defendant's position that the court a qua had to await the arrival of the mandate of this court is not tenable. We are also of the opinion that, had such a bill been signed, it would have possessed no merit, in so far as concerns the additional objection that the proceeding to correct the minutes amounted to a collateral attack upon them. The proceeding was not a collateral attack upon the minutes, but was one to correct them, conducted contradictorily with defendant. Nor do we think that, had a bill been signed incorporating the last objection urged -- that is, that the minutes were corrected at a civil, instead of a criminal, term of court -- the bill would have been tenable, for it was immaterial whether the term of court at which the correction was made was a civil or a criminal term, notwithstanding the fact that the rules of court divided the terms into civil and criminal.
Upon the trial of the motion to correct the minutes, the state offered evidence to show that defendant was present throughout his trial, including the time when the jury returned into court and rendered their verdict. This evidence is uncontradicted. It shows abundantly that defendant was present, as contended by the state. The judge a quo accordingly had the minutes corrected, so as to show affirmatively that defendant was present throughout his trial, including the rendition of the verdict. The defendant has no cause to complain. We therefore pass to what in reality is the first bill of exceptions.
It appears that defendant was indicted for the murder of Gladys White. He was tried, convicted, and sentenced to death. On appeal to this court, the verdict rendered and the sentence imposed were annulled, and defendant was granted a new trial. State v. White, 153 La. 300, 95 So. 776. After the case was remanded, another bill of indictment was returned against defendant, charging him with the identical offense preferred against him in the first bill. He was again arraigned, tried, found guilty, and sentenced to death. From this second sentence he prosecutes this appeal. The first bill, properly speaking, reserved by him, is one to the arraignment on the second bill of indictment.
This court held in the cases of State v. Smith, 153 La. 577, 96 So. 127, State v. Mitchell, 153 La. 585, 96 So. 130, State v. Moreau, 153 La. 671, 96 So. 527, and State v. White, 153 La. 300, 95 So. 776, that the title of a jury commissioner who is in the actual possession of his office under color of right, and is therefore a jury commissioner de facto, cannot be inquired into collaterally for the purpose of annulling his official acts, or the acts of the commission of which he is a member. Defendant reached the conclusion that J. W. Woodard, a member of the jury commission that selected the venire from which was drawn the grand jury that returned the bill of indictment against him in this case, did not possess all of the qualifications required for a jury commissioner, in that at the time he was appointed to his office, and at the time he participated in the selection of the venire, he was not an elector, duly and properly registered, and hence, that the acts of the commission in which he participated are null and void, which acts include the selection of the venire from which was drawn the grand jury that returned the bill of indictment herein, and that said grand jury was therefore an illegal one, and that the indictment returned by it is therefore null and void. Having reached that conclusion, and feeling bound by the decisions above cited, defendant instituted a suit, after the return of the indictment herein, to remove Woodard from office, on the ground that he (Woodard) was not an elector, duly and properly registered, and was unable to properly register, and for the purpose of having his acts as jury commissioner, and those of the commission of which he was a member, declared null and void. When defendant was called for arraignment, he filed a motion to postpone the arraignment until the suit against Woodard should be finally determined, and made the petition in that suit a part of this motion. His object, in then objecting to arraignment, was to obtain time in which to press the suit for removal to a final determination, and, in the event of success in that suit, then to file a motion to quash the indictment returned against him, on the ground that Woodard had been ousted from office, and his acts, and those of the commission of which he was a member, had been declared null and void in a direct action. Such a motion -- that is, a motion to quash an indictment -- must be filed before arraignment, and hence it was that defendant desired time within which to lay a foundation for quashing the indictment, and objected to arraignment until such time should be granted him, for he wished to preserve his rights, if any he had, to quash the indictment. The trial court thought that the motion to postpone the arraignment was not well founded, and therefore overruled it, and defendant reserved this bill to the ruling made.
In our view, the trial judge was correct in overruling the motion to postpone the arraignment. To begin with, the suit to remove Woodard from office was instituted by defendant personally. As a jury commissioner is an officer, a suit to remove one must be instituted in the name of the state by the proper official. See Hayes v. Thompson, 21 La.Ann. 655. As the suit was instituted by defendant personally, the error was so fundamental that the suit amounted, virtually, to no suit at all, and the trial court had the right to notice the error, and to refuse to postpone the arraignment, as the suit could not have reasonably resulted in the removal of Woodard. Let us assume, however, that the suit was properly instituted, and see what the result would have been, had the postponement been granted. The petition to remove Woodard and to declare his acts, and the...
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