196 So. 921 | La. | 1940
The defendant prosecutes this appeal from his conviction and sentence to the penitentiary on a charge of cattle stealing.
During the course of the trial several bills of exception were reserved but only two were presented to the trial judge for his approval. The first, being without merit, was abandoned, and the second alone is before us for consideration. It is based on the ruling of the trial judge ordering *430 that seven additional jurors be drawn in order to complete a jury of twelve when it became evident, after a jury of five had been impaneled, sworn, and the district attorney had read to them the indictment and the law supporting the charge, that Act No. 64 of 1910 makes the offense of cattle stealing a felony, necessarily punishable at hard labor. Counsel for defendant objected to this ruling of the court, assigning at his reason therefor "that such procedure is illegal and highly prejudicial to the constitutional rights of the defendant," and called the court's attention to the fact that under said ruling, having already exhausted six peremptory challenges in the selection of the jury of five, he would be compelled to select the remaining seven with only six challenges. When the next prospective jurors were called, counsel objected to them being questioned on their voir dire or sworn "for the reason that the said jurors were temporarily discharged by the Court * * * after a jury of five had been impaneled and sworn and the Indictment and law in reference to the case read to the said jury * * *."
It is the contention of the defendant that under the express provisions of Article
On the other hand, counsel for the state argues that there is nothing in the record to show that the defendant was forced to accept an obnoxious juror or in what manner he was prejudiced by the ruling of the trial judge, and that, therefore, he is not entitled to have his conviction and sentence set aside and a new trial granted.
The offense of cattle stealing having been made a felony, necessarily punishable at hard labor (Act No. 64 of 1910), it is triable by a jury of twelve (Article 1, Section 9, Constitution of 1921 and Article
On the trial of a felony, jeopardy only begins when a jury of twelve has been completed, sworn, and the indictment read to them. Articles 277 and 279 of the Code of Criminal Procedure; State v. Heard, 49 La.Ann. 375, 21 So. 632; State v. Yokum,
The only complaint made by the defendant is that such procedure is illegal and highly prejudicial to his constitutional and statutory rights, but in his bill of exception he does not give us the basis for such conclusion, nor does his counsel in his argument (brief) show how the defendant was prejudiced.
From our review of the record we find that while defendant's counsel did have read into the minutes of the court, prior to his acceptance of the twelfth juror, the fact that the defendant had already exhausted his twelve challenges, he did not state that the juror was obnoxious or unacceptable to him. Consequently, we fail to see in what manner the judge's ruling could have resulted in a miscarriage of justice or be prejudicial to defendant's constitutional or statutory rights.
The Carmouche and Hataway cases cited by counsel are only authority for the rule of law that "* * * if a juror be removed from the panel for any cause, against the protest of the defendant, after the trial has commenced by the reading of the indictment to the jury, the discharging of the disqualified juror and the drawing of another juror in his stead is, in effect, the entering of a mistrial and the beginning of a new trial; and the defendant is then entitled to have his peremptory challenges *433
restored to him and to have the remaining eleven jurors retendered on their voir dire for acceptance or rejection, especially if the defendant's peremptory challenges were exhausted in the original drawing of the jury," [
For the reasons assigned, the conviction and sentence are affirmed.
