State v. Bullock, 66 So. 767

State v. Bullock

66 So. 767 | La. | 1914

Lead Opinion

On Motion to Dismiss.

MONROE, C. J.

[1] Relators, who are prosecuting this appeal from sentences for a criminal offense, complained that the minutes of the district court as they appear in the transcript show that they were present in open court on June 26th (the second day of the trial), but that as originally written they failed to make that showing, and they obtained an order for certiorari and alternative mandamus directing the clerk to send up a copy of the minutes, as originally written, and show cause why the corrected edition, as appearing in the transcript, should not be stricken out. The clerk makes return to the effect that defendants were actually present in open court upon the occasion mentioned and that the minutes, as originally *169written, were corrected by order of court before being signed in order to show that fact, which return is unchallenged and meets all the requirements of the ease; the correction of the minutes, under the circumstances and for the purpose stated by the clerk, haying been entirely competent and affording defendants no ground for complaint.

It is, therefore, ordered that the relator’s prayer that the alternative mandamus be made peremptory, be denied, and that this proceeding be dismissed.

Opinion on the Merits

On the Merits.

SOMMERVILLE, J.

Defendants were charged with murder. Billy Bullock was found guilty, and sentenced to the penitentiary for life; George Bullock was found guilty of manslaughter, and sentenced to the penitentiary for three years. They appeal.

The first bill of exceptions was without merit, and it appears to have been abandoned.

It is stated in the second bill of exceptions that evidence was improperly admitted of a second shooting between the defendants and a third person. The trial judge says, in explanation of the admission of the evidence, that:

“This second shooting occurred just after the shooting of Wilford Roberts (the deceased), in the same field, and whilst they (the defendants) were running from the scene of the first shooting ; and it was allowed to rebut the statement of the defendants that only William Bullock (one of the defendants) had a pistol. The evidence showed that both (defendants) had pistols, and fired at him, Jesse Roberts (the brother of the deceased). The defendants admit that they both fired, but claimed that they used the same pistol.”

The evidence was clearly admissible for the purpose stated by the trial judge.

[2, 3] The third bill of exceptions was taken to the denial of a motion for a new trial based on the separation and misconduct of the jury, and upon the fact that the deputy sheriff in charge of the jury had assisted in the selection of the jury, and that he was a witness for the state, and, further, that he was related by blood to one of the prosecutors.

The evidence in support of the motion for a new trial is not before us; but the trial judge says that the evidence did not disclose any misconduct on the part of the jurors, pr that any prejudice had been done the defendants. Defendants in their bill say that the jurors in retiring to the toilet, outside of the courtroom where they were closeted, were a “short distance down the corridor, but not out of the sight of the deputy sheriff in charge.” It is quite clear that there was no separation of the jury sufficient to work injury or prejudice to the defendants. The misconduct charged to the jurors was that of playing a game of cards with the deputy in charge after the jurors had been retired to their room for the night, but before the case had been argued and submitted to them for their consideration. We agree with the trial judge that no prejudice was shown to have been done the defendants by such act.

[4] Defendants next complain that the deputy sheriff in charge of the jury was a witness for the state, and that he was related to one of the prosecutors. The objection comes too late on a motion for a new trial. State v. Oteri, 128 La. 939, 55 South. 582, Ann. Cas. 1912C, 878. A verdict will not be reversed because the officer who attended the jury happened to be called as a witness for the prosecution.

[5] The last bill of exceptions was .taken to the ruling of the court in permitting some of the jurors sworn on the part of the state to testify that there had been no misconduct on their part, and that the deputy sheriff in charge of them had not said or done anything to the prejudice of defendants.

It was entirely competent for the court to examine the jurors, or some of them. While jurors may not be heard to impeach their *171verdict, there is no good ground for refusing to hear them den^ alleged misconduct on their part or on the part of the deputy sheriff in charge of them.

Defendants in this court assign as errors on the face of the record that:

“The record does not set forth and show on its face that the jurors responded to the verdict or were polled, and does not show, and fails to show, that the verdict of the jury was recorded and read as recorded to the jury, or that they answered to it or were called on to do so.”

The minutes of the court show that the jury brought in a verdict and that it was recorded there. They do not show that the jury was polled, and the presumption is it was not. But, where defendants fail to ask that the jury be polled, they cannot be heard to complain of its not having been done. It is only in case where a poll of the jurors is demanded by either party that the minutes should show the answers of the jurors to the question, “Is that your verdict?” State v. Cheney, Man. Unrep. Cas. 894.

[6] The other matters complained of as being missing from the minutes will be presumed to have taken place. They are not material facts connected with the defense or the trial. There is not claimed any forfeiture of individual rights. It will be presumed that the judge proceeded regularly with the trial of the cause and that he had the written verdict read to the jury, in the absence of any positive showing that he did not. It was the duty of the clerk of court to make minute entries of all the proceedings during the trial; but his failure to do his ministerial duty is not sufficient cause to hold that the judge failed in his duty in the routine of official business, and to reverse a solemn verdict and sentence.

Defendants had opportunities to call the attention of the court at the time, or in motions for a new trial and in arrest of judgment, to any irregularities prejudicial to them, and they did not do so. It is too late to assign in this court as errors those things which might have been remedied in the trial court, if such errors existed. It will be presumed under the circumstances that the errors assigned did not exist.

Judgment affirmed.