74 So. 792 | La. | 1917
Lead Opinion
Defendant appeals from a verdict finding him guilty of the murder of Marion L. Swords, the shex-iff of the parish of St. Landry, and a judgment condemning him to death.
There are 13 bills of exceptions found in the record, and several unsigned bills.
The first bill has reference to a ruling of the court on the trial of a motion for a change of venue. The motion was subsequently abandoned.
The second bill was taken to a ruling of the court on defendant’s objection to going to trial on the ground that:
“The jury commissioners of the parish of St. Landry had failed and neglected to prepare the tales jury box, or box of 100 tales jury men, in accordance with law by placing therein the names of one hundx-ed men,” etc.
The trial judge states that the objection was overruled “for the reason that the defendant has not established by any method that the list of tales jurors was not regularly drawn, or to show how said list in any manner is irregular.” It appears from the record that 60 names were drawn from the box at one time, and subsequently 40 other names. It was therefore clear that the number of names in 'the box was 100 when the objection to going to trial was made.
“Q. Mr. Cannon, if the court instructed you that the defendant is px-esumed to be innocent, and is not required to prove his innocence, but, on the contrary, that the state is required to prove his guilt beyond a reasonable doubt, then you would require him to px’ove himself innocent?”
And in answer to a further question by defendant’s counsel, the juror stated:
“I didn’t understand what you were saying. If I did (that I would requii’e the accused party to prove his innocence before I would acquit him) I will take it back.”
Juror Guidry answered to the same effect. He said that the opinion which he had formed would depend upon the evidence, and that it would yield to that evidence; his opinion was not fixed, and that, if the evidence produced upon the trial was different from what he had heard, his opinion would be changed.
Juror Dupre answered the same; that, while he had formed an opinion, it would yield to the evidence, and that he would go into the jury box and decide the case exclusively on the evidence given by the witnesses and the law as given by the court.
Juror Cormier testified that his opinion was fixed from what he had heard, but that it could be changed by the evidence. When asked:
“Q. Do you feel that, notwithstanding what you have heard or x-ead about the ease and the opinion that you have expx-essed, you could go into the jury box here and under your oath as a juror decide the case according to the law and the evidence?”
—and he answered that he could; and that Ms opinion “would yield to the evidence.”
The eighth bill of exceptions was taken to confessions or admissions made by the defendant to the sheriff of Calcasieu parish, and were testified to by that sheriff as a witness. The ground of objection was that the defendant had been shot on the day before, and that he was not in a physical condition to have made any binding statement, and that he was not responsible for any statement that he made at that time. The objection was overruled by the district judge for the reason that:
“In the opinion of the court the evidence shows that the statement testified to by sheriff Reid was made to him by the defendant, free and voluntary.”
The evidence of the' witness was that the defendant had said that he was sorry that he had killed Sheriff Swords, and that he would not have done it if he had not had certain negroes with him. The witness further testified that the statements made by defendant were made freely and voluntarily, and that, while the defendant was suffering, he was conscious of what he was saying. The admissions of the defendant were properly admitted.
The ninth bill of exceptions is taken to the ruling of the court in permitting Sheriff Reid to testify that a certain rifle and belt had been picked up at the place of the killing and handed to him at the time of the arrest of the defendant, for the reason that it had not been shown that this rifle was the same one that Mr. Fontenot, the sheriff of the parish of St. Landry, had received. Mr. Fontenot did not take the stand to identify the rifle.
Mr. Reid appears to have testified, accord
Bill of exceptions No. 11 is to the same effect as that of No. 10, with this addition: That the witness is said not to have been able to repeat the entire conversation between the accused and the witness named in bill No. 10. He repeated the substance of the conversation; and this was all that was necessary. It would appear from the judge’s reasons that the witness testified to the entire conversation that he had heard. The ruling was correct.
“The evidence in this case shows that the defendant had armed himself and expressed his intention to resist arrest on a charge of murder then pending against him in the parish of Jefferson Davis. That he carried a rifle and belt of cartridges constantly with him and had sent word to the deceased sheriff that if he wished to see him, he must come alone and with open hands. The defendant’s counsel had made a pathetic appeal to the jury for mercy, and had read freely fromi the Bible in their plea for mercy. In answering this plea for mercy, the district attorney said: ‘They plead to you for mercy, but, gentlemen of the jury, under the circumstances of this case, this defendant is no more entitled to your mercy than is Villa to that of the civilized world.’ ”
It is difficult to see what injury may have been, done by the district attorney in the use of the language complained of. The district attorney therein was simply answering the appeal which had been made by defendant’s counsel for mercy, and he said that he was not entitled to mercy, no -more entitled to it than “is Villa to that of the civilized world.” This was a legitimate comparison, and it was used by the district attorney as being one that would be readily understood by the jury, as they had doubtless read or heard of Villa and his doings. There is no objection to the remark complained of.
“was allowed to dine in the restaurant (a public restaurant) along with the common public, and that they ate at separate tables, and were separated, that they were exposed to the remarks of the public, and that the public was highly incensed against the accused party, who is your mover, and that there were many people in the restaurant where they dined, and that numerous parties were compelled to vacate tables and go to other tables in the same room in order to allow the jury to occupy tables in the common restaurant, and that all of said occurrences*413 happened after they had been charged by the court, and were engaged in their deliberations.”
The evidence taken in connection with this motion does not sustain the allegations made, except in part. The jurors were taken to a public restaurant in charge of two deputy-sheriffs, and they ate at separate tables, because one table was not large enough to accommodate them all. There were not many people in the restaurant, perhaps not more than six, some of whom were requested to go to the other side of the room from where they were sitting, so that the jurors might all sit on one side of the room, away from the other guests. They did not “dine along with the common public.” They dined at three tables, ranged in a row, to themselves, and they were not exposed to any remarks of the public, or addressed by any person who “was highly incensed against the accused party.” They were kept apart from all other persons, and had no communication of any kind with any person. The jurors, under such circumstances, cannot be said to have been separated, and misconduct on their part, or on the part of any towards them, is not shown in the evidence.
Defendant’s counsel and his wife were among those who were in the restaurant at the time the jury entered, and they remained in the restaurant for a part of that time. Counsel did not testify to any misconduct on the part of the jury; and, as has been stated, none was shown. The motion for a new trial was properly overruled.
Judgment affirmed
Dissenting Opinion
dissents on the ground that the peremptory challenge of the jurors Guidry, Dupre, and Cormier should have been allowed, and on the further ground that the comparison of the defendant to the Mexican outlaw, Villa, in the district attorney’s address to the jury, was an unfair appeal to their passion and prejudice.