35 La. Ann. 9 | La. | 1883
Tlie opinion of the Court was delivered by
Under a sentence to liard labor for life, for murder, tbe accused, ou appeal, complains of numerous errors alleged to have been committed by tbe District Judge:
1. In overruling a motion to quasli the venire of jurors drawn for the term.
2. In refusing to issue a commission to take tbe testimony of witnesses residing in tbe State of Illinois.
3. In admitting, over defendant’s objection, tbe testimony of a witness to prove tbe good character of a State witness, whose veracity bad been assailed by witnesses for tbe defense.
4. In overruling defendant’s motion for a new trial, predicated on tbe ground of newly discovered evidence.
5. In overruling bis motion in arrest of judgment, predicated on the failure of the minutes' to show bis presence in court during tbe fixing, trial and disposition of his motion to quash the venire; of bis
Mrst. In liis motion to quash the venire, the accused urged that J. O. Chacheré, the clerk of the court of St. Landry, had not taken an oath as a member of the jury commission since the date of his oath as clerk for his present term, on the 8th of April, 1830.
It appears from the record that Chacheré was the clerk of the District Court for the Parish of St. Landry, under the Constitution of .1868, for the term immediately' preceding his present term ; and that being elected to the same office under the present Constitution, he took the office under his new election on the 8th of April, 1880, on which day he took an oath as clerk, but not as ex-officio jury commissioner.
The record shows further, that under his election in December, 1879, and during his tenure of the office, under the Constitution of 1868, Chacheré took an oath as clerk of the Thirteenth Judicial District Court for the Parish of St. Landry, the present court, on the 21st of January7, 1880; and that on the 6th of March following, be took an oath as jury commissioner in and for the Parish of St. Landry.
The question is, therefore, as to the sufficiency of the oath thus taken on the 6th of March, 1880.
We are clearly of the opinion that the question must be answered in the affirmative.
In taking his oath of office as clerk elect, on January 21st, 1880, that officer fulfilled the requirement of the present Constitution, which provides in Art. 149, that “members of the General Assembly and all officers, before they enter upon the duties of their offices, shall take the following oath,” etc.
Nothing in the Constitution, nor in the existing laws, fixed the time at which such oath should be taken before the date, the first Monday in April, 1880, on which that officer was to enter upon the duties of his office; and, therefore, the oath could have been legally taken by him immediately after receiving his commission.
The only mandatory direction of the law was the statute prescribing the time within which the oath should have been taken after the issuance of the commission of office. Hence, the oath of January 21st,
1880, was sufficient to qualify him as clerk, as far as the exigency of the oath was concerned, and, therefore, the oath of March 6th, 1880, as ex-officio jury commissioner was sufficient. There was no necessity for the oath of April 8,1880, which did no harm, but added nothing to his legal qualification as clerk. State ex rel. Lemonnier vs. Beard, 34 An. 287.
Second. The judge did not err in refusing the commission to take testimony in Illinois; and in so doing he correctly applied the rule laid down by us, after mature reflection, in the case of Fulford, 33
Third. The veracity of a leading- State witness having been assailed by the defense, it was not only legal but incumbent, on the part of the prosecution, to attempt by testimony to maintain his good character. There is no force in the objection that the proffered witness had not been a long resident of the parish and, therefore, not competent to testify touching the good character of the assailed witness. This objection might go to the effect, but surely not to the admissibility of the testimony.
Fourth. The avowed object of the defendant in moving for a new-trial was to introduce newly discovered evidence against the veracity and character of the leading State witness, Riley, one of the very objects for which, under established criminal jurisprudence, a new trial should not be granted. Waterman’s U. S. Criminal Digest, pp. 458 and 459, Secs. 196, 207 and 208, and cases there noted; Archbold Cr. Practice, etc., pp. 649 to 653.
And besides, the affidavit fails to allege or show that with due diligence, that evidence had not been discovered before or during the trial. Evidence on that point had been introduced at the trial; and the newly discovered evidence would at most have been cumulative; an insufficient ground for a new trial. Waterman, p. 459, Sec. 207; State vs. Alverez, 7 An. 284.
As a groundwork for a new trial the affidavit was radically defective in failing to allege or show that the newly discovered evidence was sufficiently material to change the result of the trial. State vs. Clark, 8 R. 533; State vs. Hornsby, Ib. 554; State vs. Kennedy, Ib. 590; State vs. Johnson, 30 An. 305.
Fifth. The objection that the minutes fail to show the presence of the accused in court during the discussion of his motions for continuance and to quash the venire, etc., and during proceedings of an insignificant character, can hardly be treated as serious in the light of our recent rulings on this point, which were calculated to entirely eliminate such questions from the field of discussion.
It can now be considered as elementary, that the absence of the accused during the trial of motions not making part of the actual trial of his guilt or innocence, but having reference to the form or conduct of the trial, will not vitiate the proceedings. State vs. Clarke, 32 An. 560 ; State vs. Harris, 34 An. 121..
The point is clearly untenable.
Our conclusion is, that the defendant has had a fair, legal and impartial trial, and hence, he can obtain no relief by his appeal.
Judgment affirmed.
Rehearing refused.