66 So. 196 | La. | 1914
Defendant, having been convicted of carnal knowledge, and duly sentenced, presents his case to this court by means of bills of exception to the overruling of his motions to quash the indictment and for new trial. The matter of which lié complains arises out of the following situation, as disclosed by his motion to quash, and the evidence adduced in support of the same, made part of his bill of exception, to wit:
There can be no doubt, then, that when the jury commission, as completed, or newly constituted, by the appointment of Louis Bacon’s successor, entered upon the discharge of its functions, the names which Bacon had participated in putting on the general venire list and in the general venire box were there illegally, and that the illegality of their presence was not cured by the mere appointment of a new member of the commission. We shall not go so far as to say that, as thus completed, the commission might not have canvassed those names, and, determining, upon such consideration, that the bearers were competent, good, and true men, have replaced or left them where they found them, though in one of the cases cited, where it appeared that the commissioners, in order to lighten their labors, had requested a third person to furnish them a list of several hundred names, and had accepted and used a list so furnished, it was said that to hold such action to be a substantial compliance with the law would be equivalent to holding that the commissioners could act by proxy, but that it was the intent of the law that competent and responsible men—
“under the appointment of the Governor, and under the sanction of an oath, select froip all the voters of the parish a list of persons to serve as jurors; that they should inspect and select from the names of all the voters, and not simply inspect and approve, what might be ‘a cut and dried’ list of 200 or 300 names.” State v. Newhouse, supra.
According, however, to its procSs verbal, the completed or newly constituted commission took no action whatever in regard to the names that it found on the general list and in the general venire box, but left them as it found them, and merely added 36 names to supply the places of those the bearers of which had died, or removed from the parish, or become otherwise disqualified; and absolutely nothing, so far as we can discover, was done which can be said to have cured the illegality in the original selection of the 124 names by incompetent and unauthorized persons.
“Be it remembered that on this 30th * * * March, * * * 1914, we, * * * .jury commissioners, * * * clerk, * * * in the presence of * * * witnesses, * * * proceeded to examine the general venire box and to strike from the list thereof and remove therefrom the names of 30 persons who were drawn to serve as petit jurors * * * from the general venire list last supplemented; and we thereupon proceeded to supplement the general venire box and -the general venire list to its requisite quantum of 300 names, * * * being the following.”
And then follows a list of names and a recital of the fact that the commission adjourned until the following day, when they again assembled, and selected, from the “general venire of 300 names,” the names 'of 20 persons,. from whom . the grand jury was to be drawn, and the names of 30 persons, for service on the petit juries.
It is accordingly ordered that the conviction and sentence herein be set aside and that this case be remanded, to be proceeded with according to law.