75 So. 68 | La. | 1917
The defendants have appealed from a verdict convicting them of cattle stealing, and from a sentence of imprisonment in the penitentiary.
Two bills of exception were taken to the rulings of the trial judge ordering a juror discharged and another impaneled in his stead, after 12 jurors had been impaneled.
The facts set forth in the two bills of exception were as follows: When the impaneling of the jury was completed, each of the defendants had used all of his 12 peremptory challenges, and the state had used 10 of its 12 peremptory challenges. The oath was administered to each of the 12 jurors impaneled to try the ease, and the district attorney read to them the bill of information. It being then late in the evening, the court adjourned until the next morning. During the night, a juror named Beatty, who had been impaneled, and to whom the oath had been administered and the bill of information read, met with an accident, and was, in the opinion of the trial judge, physically unable to serve on the jury. When court convened on the following morning, the judge announced that, on account of the physical disability of the juror, Beatty, it would be necessary to discharge him from the jury and select another juror from the talesmen who had been drawn and called the day before. The defendants’ attorneys requested that the trial of the case be postponed, to allow the disabled juror time to recover and serve on the jury. In the alternative, the defendants’ attorneys requested that if the court should insist upon removing Mr. Beatty from the jury and the immediate drawing of another juror in his stead then that each of the defendants should be allowed one more peremptory challenge because the state had yet two peremptory challenges, and, in using and exhausting their 24 peremptory challenges, the defendants had anticipated and believed that only 12 jurors would be impaneled whereas the discharge of Mr. Beatty and the drawing of another juror in his stead would amount to the impaneling of 13 jurors. The court ordered that the trial should be proceeded with immediately, by the discharge of the disabled juror, Beatty, and the drawing of another juror in his stead, and ruled that the defendants would not be allowed another peremptory challenge in the drawing of a juror to take the place of Mr. Beatty. It appears that Beatty was the sixth juror impaneled, and that when the state and the defendants accepted him as a juror the state had used 2 peremptory challenges, the defendant Chust had used 7, and the defendant Carmouche had used 5. To the rulings stated above, the defendants’ attorneys reserved bills of exception, and announced that they would take part in the selection of another juror only under protest.
The remaining tales jurors who had been drawn and called on the day previous were then called on their voir dire, and, the list of talesmen being exhausted, the court ordered other talesmen drawn and called. The district attorney was permitted to exercise his right to challenge peremptorily two of the tales jurors who were called on their voir dire. The district attorney finally accepted a juror to take the place of Beatty, and the attorneys for the defendants challenged him peremptorily. The district attorney -objected to the peremptory challenge, on the ground that the defendants had exhausted their peremptory challenges in the original drawing of the jury. The court sustained the objection, and the juror was impaneled and sworn, and served on the jury. To that ruling the defendants’ attorneys reserved another bill of exceptions.
In this case also the request of the defendants, that only one peremptory challenge be restored to each of them, was an implied acceptance of the remaining 11 jurors who had been sworn to try the case. The defendants were entitled to have a mistrial entered and a new trial commenced by having the remaining 11 jurors discharged from -the panel, having the 12 peremptory challenges restored to each of the defendants, and the impaneling of the jury commenced anew. But they did not demand that. On the contrary, they waived that privilege by accepting the remaining 11 jurors who had been impaneled and sworn. They were not then entitled to another peremptory challenge. The defendant is not, under any circumstances, entitled to more than 12 peremptory challenges. State v. Nash & Barnett, 46 La. Ann. 194, 14 South. 607; Jackson v. State, 78 Ala. 471; State of North Dakota v. Hazledahl, 2 N. D. 521, 52 N. W. 315, 16 L. R. A. 152. It must be borne in mind that the defendants had each exhausted their 12 peremptory challenges in the selection of the 12 jurors, of whom they were willing that 11 should be retained; and they were not any more entitled to another peremptory challenge than if the juror who became incapacitated to serve after he was impaneled had been excused from the jury before he was sworn to try the case. The refusal to allow either of the accused more than 12 challenges in the impaneling of the jury was a correct ruling.
The verdict and sentence appealed from are affirmed.