108 La. 479 | La. | 1902
The opinion of the court was delivered by
The defendant, having been convicted of murder and sentenced to death, has appealed to this court, and .presents his case by means of the following motions and bills of exception:
I.
A motion to quash the indictment, for duplicity, in that it charges six offenses in one count.
The indictment charges that the defendant, “* * * did feloniously, maliciously, and of his malice aforethought, kill and murder L.
Our law does not require that the manner of the killing shall be set forth, but that “it shall be sufficient in every indictment for murder to .charge that the defendant did, feloniously, willfully, and of his malice .aforethought, kill and murder the deceased.” (R. S. 1048.) The charge, as made, is, therefore, in strict accordance with the statute, and there is nothing upon its face to indicate that the persons named were not killed at the same instant and by the same act. It is true, in general, that a single count charging two or more substantive offenses is bad for duplicity, and that a substantive offense is one that is complete in itself and is not dependent upon another. And, from this, it is argued that the murder of one person being a substantive, or complete, offense, an indictment, charging, in one count, the murder of six persons, is, necessarily, bad. There are, however, but few rules •which >are without exceptions, inherent in, or predicated upon the same reasons or necessity, as, the rules themselves. Thus, charges of greater crimes include those that are less in degree. Every indictment for murder and every trial for murder includes a substantive charge of, and trial for, manslaughter, the reason for this being that, whereas the uniting in one charge, or count, of offenses differing in character and resulting from distinct acts, committed at different times, is calculated to confuse ihe issues and to embarrass both the prosecution and the defense, such consequences do not flow where the offenses charged result from the same act -and merely differ in degree; but, on the contrary, in such cases, it is to the interest of the accused and of the orderly administration of justice that the legal consequences of the one act should be determined by one trial. Whilst, therefore, the view suggested by the learned and zealous counsel who, by appointment of the court, have defended the accused, is not without support, the weight of authority, and of reason, sustains the proposition that though a criminal act may operate upon more than one person, or thing, nevertheless, so long as it is one act, consummated at one time, it may be charged as one offense. Bishop New Cr. Pr., See. 437; Hughes Or. Law & Pr., Sec. 2720; A. & E. Ency. of Law (2nd Ed.), Vol. 9, p. 641; Ency. Pl. Pr., Vol. 10, p. 454; Gordon vs. State, 46 Ohio St. 626; People vs. Adams, 17 Wend. 475; Rucker vs. State, 7 Texas Appeal 549; Chiva
If, however, the testimony shows that the killing of two persons was-not by -one act, the defendant has the right to compel the State to elect-upon which .charge it will proceed. Forest vs. State, 13 Lea (Tenn.) 104; Lang vs. State, 56 Ind. 102; Ency. Pl. & Pr., Vol. 10, p. 534. In the instant case it does not appear that the State was called on to make-such an election, and as the motion which we are now considering was-predicated upon the face of the indictment, is was properly overruled.
II.
A motion to quash the venire on the grounds: “First, that the general venire box * * * did not contain the names of 300 competent,, good and true men, as provided by law, <at the time that the jurors were-drawn. Second, that the said general venire box did not, at any time, contain the names of 300 competent, good and true men, whose names-had been written on separate slips by the clerk of thfe court.”
The following provisions of law applicable to the questions presented' are to be found in Act No. 135 of 1898: Section 3 of that act provides, in substance, that the judge of the district court shall appoint five good' citizens who arfe able to read and write the English language, and who. with the clerk of the court, or, in case of his disability, his deputy, shall constitute a jury commission, and that the commissioners shall be-sworn faithfully to discharge their duties; and it contains other provisions which require no special notice >at this time.
“Section 4. * * * That, within thirty days after their appointment, or sooner, if so ordered -by the district judge, the members of theeommission, or a majority of them, shall meet at the office of the clerk * * *, and, in the presence of two or more competent and disinterested witnesses, of lawful age, competent to read and write the English language, and residents of the parish, who shall be summoned by the-clerk for that purpose, select, from the persons qualified under this act to serve as jurors * * *, the names of three hundred competent, good and true men, a list of whom shall be made out by the cleTk,.
It is further provided that the clerk shall keep a record of the drawings, with a list -of the names, which, latter, is to be delivered to the-sheriff and published, or posted; and that * * * whenever the-judge shall deem proper * * * to direct the commission to draw-additional jurors for service during any session of the court, or during-, a continuous session, no publication of the list shall be necessary,” etc.
“Section 6. * * * That not less than twice in each year, or once-in every six months, the jury commission shall meet at the clerk’s office,, and, after being furnished by the clerk with a list of grand jurors and' those who have served as regular jurors since the previous drawing of* the general venire, shall, in the presence of said witnesses, examine the-original venire list and strike therefrom the names of those who have served, as well as the names of others on the list who are known to have died, removed from the parish, become exempt, or disqualified to serve-as jurors, since their names were entered thereon; and the names of
“Section 10. * * * That in districts composed of more than one parish, the jurors drawn for the first week of the session shall constitute the petit jury for that week and those drawn for the second shall serve for the time they are drawn; provided, that, if the jury drawn for any week of the session do not serve as jurors during that week, they may be required to serve during a subsequent week of any session of the court until a second venire shall have been drawn by the commission, unless sooner discharged by the district judge,” etc.
“Section 11. * * * That, whenever the district judge thinks proper, he shall require the jury commission to select additional jurors, or talesmen, pursuant to the formalities prescribed in section 4 of this act, except as to the publication of the list of jurors so drawn, which shall not be necessary, * * * but nothing herein contained shall be so construed as to limit the right of the judge, in criminal cases, after the list of jurors or talesmen drawn by the commission is exhausted, after the trial commenced, to order the summoning of tales-men from among the bystanders, or persons in the proximity of the courthouse, or from any portion of the parish, remote from the scene of the crime, which the judge may designate.”
“Section 15. * * * That it shall not be sufficient 'cause to challenge the general venire for any session of the court, or portion thereof, or, for any service, at any time, in any parish or district of the State, or set aside the venire, because some of the jurors on the list are not qualified to act, nor because of any other defect or irregularity in
It appears from the evidence, taken on the hearing of the motion now under consideration, that the jury commissioners were appointed July 5th, 1900, and that they held a meeting on the 28th of the same month at which they selected three hundred jurors and caused a list to be made and the names, after selecting those required for the grand jury, to be written on separate slips and placed in the general venire box. It is objected on behalf of the defense that the selection thus made was not original, but that the commissioners merely supplemented a selection, which had been previously made, of jurors whose names were already in the box, so as to bring the number up to that required by the act of 1898. Assuming this to be true, though the evidence makes it probable, rather than certain, the objection is not well founded, there being neither allegation nor proof that the names in the box were not those of competent, good and true men, qualified under the act of 1898 to serve as jurors and the mere fact that their names were in the box not disqualifying them or affording any reason why they should not be selected.
Whether all of .the names were, at that time, written on slips, hy the clerh, or, whether some of them were written by that officer and some by the jury commissioners, is not altogether clear, but it is quite certain that, upon subsequent occasions, when the names were supplemented, the latter course was pursued; that is to say, some of the names were written on the slips by the clerk and some by the jury commissioners. The allegation, in the motion, “that the said general venire box did not, at any time, contain the names of three hundred competent, good and true men, whose names had heen written on separate slips hy the clerh of the court" is, therefore, true, to the extent that the names had not been written by the clerk when the box was filled upon the occasion last preceding the trial, and it is probably true as .made. The names were, however, written, either by the clerk or by the
In the ease of State vs. Love, 106 La. 658, to which we are referred, there was an allegation of legal fraud and great injury, and it was shown that the jury commissioners, in undertaking to supplement the general venire, added only eight names, when they should have added a much greater'number. This was held to be so gross a disregard of the mandates of the law as to amount to an injury, with respect to which the accused was entitled to relief, but the ruling thus made cannot, reasonably, be applied to the facts here presented.
m.
John W. Downs, a witness for the State, was asked, by' counsel for defendant, on cross-examination, “Did Mrv Gauthier within the last ten days or two weeks, approach you and ask you what day Batson was here, and you told him February 14th, Mr. Gauthier then pulled out a memorandum hook, on one page of which was April 14th, he then turned that page over and wrote down February 14th, and Gauthier then asked you if it was morning or evening ?” To which the counsel for the State objected, for the reason that the question indicated that it was asked for the purpose of contradicting and impeaching the testimony of Gauthier, already given as a witness for the State, and no proper foundation had been laid. This objection was sustained, reserving to defendant the right to put Gauthier on the stand in order to lay a foundation. Counsel for defendant, then, asked: “Did he not' do the same thing on Tuesday and Wednesday of this week?” to which the same objection was made, and sustained. Whereupon counsel for defendant took a bill of exceptions. It is contended that the questions were competent for the purposes of the cross-examination of the witness on the stand; but the testimony previously given by the witness has not been brought up, and, as the questions appear to have been intended for the purpose- of impeachment, and the answers might well have had that effect, we are unable to say that the trial judge committed any error in excluding them.
IV.
The State offered in evidence a document marked P 5, to which counsel for defendant objected, on the grounds: “1st.. That there was
The document in question reads as follows:
“P. D. Plantation, Welsh, La.
“Welsh, La. Dec, 1901
“To any one whom it may concern thereof. I, one Edwin Batson,, hereby giving my signature to this date, give my whereabouts to the public or to any one who finds this slip of paper my name is as follows-Albert Edwin Batson was born in Atchison Mo Apr 8 1881 my father and M John and J Batson lived in said places J my father lives in Nodoway Co Mo my mother being now Mrs Joe Bayne lives in Spickards Mercer Co Mo my sister Mrs. C. M. Vredenberg lives in Princeton Mercer Co. Mo my brother J. N. Batson I do not know where he is but he that finds this will do the dead a justice by sending my mother or my sister word of my death, and how it occurred. This is all I request of the dear friends. So a long and happy life I do wish to you all signed a rit x — 2. .y. 1 — fare well
“A. E. Batson
“friend to all. Ha. Ha bye bye I’m gone.”
The fact that this instrument, purporting to have been written by the accused, was found in the pocket of a vest shown to have been left by him upon the occasion of his flight from the parish seat of the parish where the murder had been committed was, of itself, a circumstance in the case which might well have been relevant, and which, together with the authorship of the writing, was properly submitted to the consideration of the jury. State vs. Bradley, 6th Ann. 554.
V.
The State offered in evidence the signature of W. B. Earle on the-document marked P 12, for the purpose of comparing the same with-the document marked P 4, which offering was objected to as inadmissible and irrelevant. The objection was overruled on grounds thus stated'
And to the ruling so made counsel for defendant objected and excepted. The document P 12 is a written contract between Ward Earle and a land company, which has no relevancy to the prosecution or the defense in this case, the sole purpose of the offer being to establish a comparison between the writing of the signature and that of the documents P 1 and P 4, the latter of which the State was endeavoring to prove had been written by the accused, though purporting to have been written and signed by Ward Earle and posted on the door of the house -where the bodies of the victims were found.
Section 976 of the Revised Statutes of this State provides that:
“All crimes, offenses and misdemeanors shall be taken, intended and •construed according to, and in conformity to, the Common Law of England; and the forms of indictment (divested, however, of unnecessary prolixity), the method of the trial, the rules of evidence, and ■all other proceedings whatsoever, in the prosecution of crimes, offenses and misdemeanors, changing what ought to be changed, shall be according to the common law, unless otherwise provided.”
This is merely a re-enactment of section 33 of the act of 1805; but, dealing with it as of the date of the adoption of the Revised Statutes, there has, since then, been no -other provision made with respect to '“the rules of evidence”- — which are to be applied in the prosecution of the crime of murder, and it, therefore, follows that we have only to ascertain what the common law rule applicable to the question at issue is in order to determine whether that question has been correctly decided. The rule is thus stated in Doe vs. Suckermore, 5 Ad. & Ell. 703 (31 E. O. L. 40), in which the early English cases were exhaustively reviewed:
*491 “A direct comparison of handwriting by a witness has been, with the .exception of one or two supposed cases, uniformly rejected; and it is .only in very recent times that ® jury has been allowed to institute such a direct comparison, and even that has been confined to comparison between documents proved and given in evidence in a cause, being relevant to the issues raised in the record, and which, being before the jury, it is hardly possible to prevent a comparison being instituted.” (Citing b. number of cases.) “One authority to the contrary is to be found in Allesbrook vs. Eoach, 1 Esp. 351. But this court recently, in the case of Doe vs. Newton, N. & P. 1, 5 Ad. & El. 514, 31 E. C. L. 382, has expressly determined that documents irrelevant to the issue on the record shall not be received in evidence at the trial in order to enable a jury to institute such comparison. Much less can it be permitted to introduce them in order to enable a witness to do so.”
See also Am. & Eng. Enc. of Law, 2nd Ed., Vol. 15, p. 264, and notes. This doctrine has been distinctly affirmed by this court in the only case in which, so far as we are informed, the question has been presented, Mr. Justice Wyley, as the organ of the court, saying:
“It is true, American decisions are not uniform on the subject, but as the rule has been so clearly settled, and upon the highest authority, in England, we think it best to adhere to it. We are not aware that the question has heretofore been presented to this court for adjudication. The writing offered to the jury in this case, and received by the court for the purpose of instituting a comparison of handwriting only, was not admissible, and the defendant has been convicted upon illegal evidence.” State vs. George Fritz, 23rd Ann. 57.
It may be remarked in this connection that the author of the article under the title, “Handwriting,” in the Am. & Eng. Enc. of Law (2nd Ed., Vol. 15, pp. 270-271, and note), includes the State of Louisiana among States which have statutes authorizing the proof of handwriting by comparison, and he makes the comment that the case above cited was “apparently decided without reference to the statute.” The statute law to which the learned author refers is, however, that contained in articles 2245 of the Civil Oode and 325 of the Code of Practice, which relate to civil proceedings, whereas, by section-976 of the Eevised Statutes, hereinbefore quoted, it is provided that “the method of trial, the rules of evidence, and all other proceedings whatsoever in
There are other bills of exception in the record, as also a motion for new trial, but they present no points of merit which have not been considered. Eor the reasons assigned, it is ordered, adjudged and decreed that the verdict and sentence appealed from be set aside and annulled and that this ease be remanded, to be proceeded with according to law.
