| La. | Apr 15, 1853
The defendants were jointty indicted on two separate counts— one for maliciously preparing combustible matters with intent to sot fire to a building, occupied as a mansion house, and the other for maliciously setting fire to and burning the same building.
The jury found Blanchard guilty upon the first count, and CazeaM on the second, without capital punishment. The District Judge, in conformity with the verdict, sentenced Gazcav, to har’d labor in the State Penitentiary for life, and Blanchard to the same punishment for the term of ton years ; from which judgment they have appealed to this Court.
There have been numerous assignments of error made for the defence, which wo shall proceed to notice in their order.
First. The refusal of the District Judge to quash the indictment, or to require the District Attorney to make his election upon which of the two counts the defendant Gwzeau should be tried, because of the misjoinder and duplicity of the counts.
This was only a matter of prudence and discretion which rested with the judge to exercise ; for, in point of law, there is no objection to the insertion of several offences of the same nature in an indictment in separate counts, though differing from each other in degree and punishment, when these offences are all felonies. In most of the States it has been held that, even felonies and misdemeanors may be properly joined when relating to the same subject matter. The right to compel the prosecutor to elect on which charge he will proceed, is confined to cases where the indictment contains charges which are actually distinct and which grow out of different transactions. Wharton, Criminal Law, 106, 108, 109 ; 2 Hale, 173 ; Chitty’s Criminal Law, 1 vol. 253. Both the of-fences charged in the indictment are felonies. What we understand by the term felony, is a crime of great magnitude and subject to an infamous punishment—death or imprisonment at hard labor in the Penitentiary. The State v. Paul Lartigue et al, 6th Ann. 405.
Second. The refusal of the District Judge to award a separate trial to Gazeau from his co-defendants.
In an indictment against several, when the offence is such that it may have boon committed by several, they are not, of right, entitled to be tried separately, but are to be tried in that manner only, when the Court, on sufficient cause, may think proper. It seems that where several defendants, entirely disconnected in the transactions through which they are sought to be convicted, are jointly indicted, it would bo sound exercise of discretion to grant them separate trials.
- Third. That the District Judge did not permit Gazeau to accept jurors that were peremptorily challenged by the other defendant.
Under the statute of 1837, twelve peremptory challenges are allowed to the defendant or defendants in all criminal prosecutions in this State for any crime or crimes, the punishment of which may be imprisonment at hard labor for a term of twelve months or more.
It is clear that each defendant has his peremptory challenge. The right of peremptory challenge is not of itself aright to select, but a right to reject jurors, and no one defendant can complain of challenges by a co-defendant. 2 Ilale’s Pleas of the Crown, 268 ; United States v. Marchant, 12 Wheat., 480" court="SCOTUS" date_filed="1827-03-12" href="https://app.midpage.ai/document/united-states-v-marchant-85536?utm_source=webapp" opinion_id="85536">12 Wheaton, 480; Wharton’s Criminal Law, 666.
Fourth. That the Court received the testimony of the President of the New Orleans Insurance Company, a witness on the part of the State, to prove the contents of a policy of insurance without the production of the original.
It appears from the bill of exceptions, signed by the Judge, that the defendants themselves afterwards introduced the policy itself in evidence, which we think cured any error which might have been committed in the introduction of-parole proof of its contents.
Fifth. That the Court refused to admit in evidence the deposition and affidavits of witnesses taken before the recorder or committing magistrate, to contradict and discredit their testimony on the trial before the Court.
This evidence was properly rejected by the Court, upon the ground that the credit of these witnesses could not be thus impeached, because no questions had been asked of them about their depositions or affidavits when on the stand.
It is a general rule that whenever the credit of a witness is to be impeached by proof of anything that he has said or declared, or done, in relation to the cause, he is first to bo asked, upon cross examination, whether ho has said or declared or done, that which is intended to be proved, in order that he may have an opportunity of explaining that which is prima facie contradictory. Starkie on Evidence, part 2, p. 146; part 4, p. 1753. Besides this, it is stated in the bill of exceptions by the Judge, that the recorder had not made a full examination of the witnesses before him, but had merely taken down in writing what he conceived to be the substance of their testimony.
Sixth. The defendants, after having established by proof that the State House of Louisiana had been destroyed by fire in January or February, 1828, and that the journals of the Senate and House had been wholly lost or destroyed at the same time, offered the Official Gazette, called the Argus, containing the proceedings of the Senate and House of Representatives of Louisiana, for the purpose of showing that the Act of the 21st February, 1828, entitled an Act to amend the Penal laws of this State -was, in its inception in the Senate, entitled an Act to amend the Penal law's of this State relative to the punishment of the crime of Arson. The object of introducing this evidence in behalf of the. defendants, was stated to bo, for the purpose of showing that the entire and exclusive object of the Act of February 21, 1828, on its introduction and up to the moment that the 3d and 4th sections wore added thereto in the House of Representatives,-was to change alone the punishment prescribed in the 4th and 5th sections of the Act of February, 1817, entitled “ an Act supplementary to
We do not think the Judge erred in the rejection of this testimony.
The Act of 1828 is in these words: “ Whenever a free person shall be convicted of having maliciously set fire to a mansion house or other building, or to a vessel or other water craft, the person thus convicted, shall suffer death.” The title of this Act cannot control the plain words in the body of the statute, and if the Act of the 21st February, 1828, had passed without any change in its oi'iginal title, the words in the body of the statute are too plain to admit of doubt. In the case of the United States v. Fisher et al, assignees of Blight, 2 Cranch. 358, Chief Justice Marshall said: “ On the influence which the title ought to have, in construing the enacting clauses, much has been said; and yet it is not easy to discern the point of difference between the opposing counsel in this respect. Neither party contends that the title of an Act can control plain words in the body of the statute ; and neither denies that, taken with other parts, it may assist in removing ambiguities. When the intent is plain, nothing is left to construction. Where the mind labors to discover the design of the legislature, it seizes everything from which aid can be derived; and in such case the title claims a degree of notice, and will have its due share of consideration.” In the Act under consideration there is no ambiguity.
Seventh. That the Court charged the jury “ that when the Court charged specifically as to what the law was, they were bound implicitly thereby, and to receive, construe and to apply the law, as they were instructed by the Court.”
We do not consider ourselves called upon in the present case to decide upon this highly important question, as the defendants do not complain of any instructions that were given to the jury by the District Judge upon any questions, of law. If, therefore, the Judge erred on this point, it could not have caused. any injury to the defendants. See the case of the State v. Brette, 6th Ann. 658.
Eighth. That the District Judge refused to charge the Jury, that if they believed, from the evidence, that the mansion house, mentioned in the indictment, and the other property, described by the witnesses as having been consumed at the fire, was the hona fide and lawful property of Gazecm himself, and that he was in the rightful and exclusive possession and occupancy of the same, at the time that the fire took place, and that no house or building of another had been burned or set on fire, or was designed to have been burned or set on fire by the said Gazecm—that then, under the laws of Louisiana, he is not liable to conviction upon either count of the indictment.
From the opinion wo have just expressed upon the plain words and meaning of the Act of the 21st February, 1828, entitled, an Act to amend the penal lavrs of this State, we can nave no hesitation in saying that the District Judge did not err in refusing to give the instruction asked for.
Under the Act of the 22d February, 1817, it was provided: That if any person or persons shall willfully and maliciously set fire to, or burn any dwelling house or other building of another, the offender or offenders, on conviction, should be sentenced to an imprisonment at hard labor. See Moreau’s Digest, 1st vol. p. 384. But the Act of 1828, which we have already quoted, extends the crime of Arson to the malicious setting fire to a mansion house, or other building, even if it should bo the property of the person who commits the of-fence, and increases the punishment to death, which is mitigated, however, by a
It is, therefore, ordered and decreed, that the judgments of the District Court against the defendants he affirmed, w'ith costs.