State v. Whitesides

• Decision Date: 01 February 1897
• Docket Number: 12,393
• Citation: 21 So. 540,49 La.Ann. 352
• Court: Louisiana Supreme Court
• Parties: STATE OF LOUISIANA v. JAMES WHITESIDES

21 So. 540

49 La.Ann. 352

STATE OF LOUISIANA v. JAMES WHITESIDES

No. 12,393

Supreme Court of Louisiana

February 1, 1897

Argued January 23, 1897

Rehearing Refused March 1, 1897.

APPEAL from the Twenty-first Judicial District Court for the Parish of Jefferson. Rost, J.

M. J Cunningham, Attorney General, and Robert J. Perkins, District Attorney, for Plaintiff, Appellee.

William L. Thompson and Thomas F. Maher, for Defendant, Appellant.

OPINION

MCENERY J.

The defendant by information was charged with an attempt to commit the crime of arson. He was convicted and sentenced to hard labor for five years. He made application for the assignment of counsel, but managed his own case challenged jurors, examined witnesses and made an argument in his own behalf before the jury. The record shows no error in the trial of the case.

After his conviction the accused employed counsel to take charge of his case. His counsel presented the following motion for a new trial, which the judge could, on its face, have instantly overruled with propriety:

"On motion of William L. Thompson, attorney, and Thos. F. Maher of counsel for the accused, and upon suggesting to this Honorable Court that the conviction and jury verdict of guilty as rendered against the accused in the above entitled and numbered cause is contrary to the law and the evidence, and that the trial of the case was conducted with grave irregularity, which prevented him from getting the benefit of substantial justice.

"That the verdict is contrary to the law in this, to-wit: That the jury did not give the proper consideration to the charge of the court as to the weight, application and effect of circumstantial evidence, and the legal construction and difference between circumstantial and positive evidence.

"That the jury disregarded and did not intelligently understand the charge of the court as to what is known in the law as the reasonable doubt, and that the jury did not follow the instructions of the court, and give to the accused the benefit of the reasonable doubt.

"That the composition of the jury which found the accused guilty was not the character of jurors having the capacity to serve as grand and petit jurors as provided by Art. 116 of the Constitution of this State and the jury laws passed in conformity therewith, and it was only after the trial and verdict that he made this discovery, and that he could not have made this discovery before or during the examination of the tales jurors, while being examined upon their voir dire, by the exercise of due diligence, as he was not represented by counsel before, at or during his trial.

"That a majority of the jurors impaneled and sworn to try the accused, and did try the accused, expressed a pronounced opinion as to the guilt of the accused previous to their being selected to try him, and being unrepresented by counsel before and at the time the jury was being impaneled and sworn he could not interpose the proper legal objection to the jurors while on their voir dire, and he did not waive any of his legal right to a fair and impartial trial, as this state of facts could not have been discovered by the accused by the use of due diligence and was only discovered since his trial and conviction.

"That the Constitution of this State gives the accused the right to have the assistance of counsel to defend him, and the laws of this State provide and make it the duty of the court to appoint counsel to defend him.

"That the accused was charged with the commission of a felony, and under the laws of this State it was made the duty of the court to appoint counsel learned in the law, to represent him so as to secure his legal as well as constitutional rights guaranteed to him by the Constitution and laws of this State, and that the accused was not represented by counsel.

"That the accused was unable to employ counsel learned in the law at the trial of this case, and owing to his inability to employ counsel and being unrepresented by counsel he was not allowed to make his full defence.

"That since the trial of the case the accused has discovered evidence which he could not produce at the former trial of the case by the exercise of any degree of diligence on his part. That the newly discovered evidence is material, and not merely collateral, or cumulative, or corroborative or impeaching, and the said evidence will produce a different result on the merits on another trial. That the said newly discovered evidence will go to the merits and not rest on merely a technical defence.

"That the court erred in permitting the District Attorney to comment on other charges of arson charged against this defendant. That said argument appealed to the passions and prejudices of the jury, and was illegal, and should have been so charged by the court.

"That the court erred in allowing testimony of two bottles of coal oil to go to the jury as evidence, without first connecting defendant with said coal oil, and some attempt to use the same on a dwelling house.

"That the evidence was not responsive to the charge of attempting to set fire to a dwelling house in the parish of Jefferson.

"That in character the newly discovered evidence will prove that the police authorities of this parish on the night of the arrest of the accused, and at the time of the offence, and at the place where the alleged...