32 La. Ann. 193 | La. | 1880
Lead Opinion
The opinion of the court was delivered by
Thomas Arata was indicted and tried for manslaughter, found guilty and sentenced to imprisonment at hard labor for the term of five years, and to pay a fine of five dollars and the costs of the -prosecution.
He appealed; his case was submitted without argument, and his counsel allowed — to file a brief in his behalf — the delay which he asked. That delay has elapsed, and the promised brief has not been filed.
We have carefully examined the record, and ascertained that Arata’s .defence is based on two grounds, the first of which is “ that the panel from which was drawn the jurors called to pass upon his trial, was not selected by a quorum of the commissioners ” — this is a question of fact-
Admitting that the regularity of an officer’s appointment can be collaterally inquired into — upon which, in this instance, it is useless to express any opinion — the second ground, to which alone our jurisdiction extends, cannot — for a self-evident reason — avail defendant. That reason is that two of the three members who compose the board of jury commissioners, did select the panel, and the statute expressly provides that. “ the acts of two of them shall be as valid and binding as if performed by all.”
Act No. 24 of 1878, sect. 2, p. 281.
It is, therefore, ordered, adjudged and decreed that the judgment-appealed from is affirmed.
Rehearing
On Application eoe Beheaking.
In the brief which accompanies his application for a. rehearing of this cause, defendant’s counsel have elaborately discussed the two questions raised by them in their challenge to the array of the petit jury, the first of which is “ that the panel from which was drawn the juror called to pass upon his trial, was not selected by a quorum of the commissioners.”
That is — the counsel contend — “ a pure and exclusive question of law,” and — on this point — we are referred to several decisions, in which this court held — in substance and correctly — that, as a necessity, it must consider the facts from which arises a question of law. It can do so, however, not for the purpose of reviewing, amending or reversing the ruling of the judge a quo, as' to the existence or non-existence of those facts, but to determine whether — when in that judge’s opinion, those facts have been either established or disproved, he has properly construed the law applicable to this case. 22 A. 9 ; 23 A. 149 ; 25 A. 418 j 26 A. 383.
In this instance, and as to the charge “ that the panel was not selected by a quorum of the commissioners,” what had the judge to ascertain ? A naked fact, and it was whether the panel had been selected by less than two of the three commissioners. If this can, in any way, be considered as a pure and exclusive question of law, it undoubtedly remains to be discovered what can be a question of fact.
If — though the panel had been selected but by one of the commissioners, or — as in “ State vs. Newhouse ” — from a list furnished by one who had no authority to prepare it — the judge had held that such a selection was a compliance with the statute, a question of law based on
If — as we are invited to do — we could legally consider the evidence taken to establish the alleged fact that the panel was not selected by a quorum of the commissioners, we would have to conclude that two of the three commissioners were present at the selection — that, occasionally, pne went to the yard for a moment, but that — while he was absent — no name was drawn from the jury wheel. That was testified to and stands uncontradipted.
The second point urged by counsel is that one of the commissioners, when appointed as such, was discharging the duties of another office of profit and trust. This point does present a mixed question of facts and law. The facts are that — in April 1877 — the party referred to was appointed as a member of the Board of Health,’ and — in April 1878 — a jury commissioner. If those offices be incompatible, said party — by accepting that of jury commissioner — ceased tobe a member of the Board of Health, and — consequently—was not holding or exercising, at the same time, in violation of the State constitution, more than one office of trust or profit.
29 A. 826; 2d. Hill, 93.
Besides, two of the three members who compose the board of jury commissioners, did select the panel, and the statute expressly provides that “ the acts of two of them shall be as valid and binding as if performed by all.”
The rehearing is refused.