32 La. Ann. 34 | La. | 1880
The opinion of the court was delivered by
The defendants were convicted on an information for publishing as true a forged order for payment of money.
They have appealed, and have presented for our consideration three bills of exception.
The first bill relates to a challenge to the array of petit jurors on the grounds that at the time the names were drawn from the wheel it did not contain the names of not less than one thousand good and competent men, selected impartially from the citizens of the parish of Orleans having the qualifications to register as voters; but that said wheel did contain the names of a large number of persons who were not good •and competent men, etc.; ’that of 400 names drawn, 352 were by order of the court stricken from the list for the following reasons, viz.; returned by sheriff as not found, 126 ; minors, 28 ; dead, 21; out of city, -24 ; not citizens, 14 ; sick, 17 ; exempt firemen, 13 ; over age, 17 ; served as jurors within two years, 23; residents of Sixth District, 1; exempt for militia services, having paid fifty dollars to the State, 2; United States officers, 2; member of General Assembly, 1; excused by the •court for other legal cause, 59.
The agreed facts are that there were at the time of the drawing 1369 names in the wheel. That of the 400 drawn there were, as stated above, 352 not available. Of the 352 there were 160 disqualified or exempt, not including those reported, not found, sick, and dead. The names in the wheel were selected by the jury commissioners from the •city directory, taking such names,-without special investigation of their •qualifications, as they supposed represented qualified persons. The law is as follows:
The question is, was the jury, thus selected and drawn, a legal one? The commissioners were certainly careless in the discharge of their duties, but there is no pretense that they acted corruptly or from improper motives. The law does not direct from what source the commissioners are to seek for names. It manifestly did not intend to confine them to the registration rolls, for it does not require the person to be a registered voter, but simply to have the qualifications requisite to-register as a voter. The purpose was to subject to jury duty that large class of citizens who do not register, and to this end it was their duty to-go to other sources than the registration. In the nature of things the’ most careful investigation would fail to afford a thoroughly accurate return. Many would not be found, many would be sick, or would die; or be absent, and more or less prove to be exempt or disqualified. True, the result of the drawing in question disclosed an undue proportion of such persons, more of them than there should have been with ordinary care. But if we hold that the presence of such names in the wheel vitiates the whole selection and drawing in this case, the principle-thus established would render it well-nigh impossible to get a panel at all. The law seems to trust the matter to the honesty and discretion of the commissioners, and, in the absence of charges of fraud or corruption, we think it would be unsafe to interfere. ¥e do not think the-present case presents legal objections to the panel. In the case of “ The-State vs. Newhouse,” 29 An. 84, the commissioners delegated the preparation of their lists to a person not authorized or sworn for the purpose-. In this case, the most that can be said is that the commissioners were-not as careful as they should have been in the discharge of their duties-
First. That the check offered in evidence as the’instrument forged was not sufficiently identified as such.
■ Second. That there was no evidence showing that Speed had guilty knowledge.
It is manifest that the questions here presented are of fact, and not of law, and therefore not reviewable by this court.
The third bill of exceptions is to the refusal of the judge to arrest judgment upon the grounds urged,” to wit:
1st. That the information charges the intent only “ to defraud?’ whereas it should have charged the intent “to injure and defraud.”
2d. That the information does not charge that it was “published with intent to defraud,” but charges that “ the defendants intended to defraud by means of the check,” which are not equivalent expressions.
3d. “ That the charges made in the information are not sufficient in law to constitute the crime of publishing,” etc.
The second ground above stated the counsel abandon, but they insist on the first and third, contending that as the statute (R. S. 883) makes use of the words “ with intent to injure or defraud,” the charge should have been “ with intent to injure and defraud.” The charge is, “ with intent thereby to defraud.” The rule is that where the statute in stating the intent uses the disjunctive, the indictment should use the conjunctive, if it changes more than one of the intents. Thus it would be bad to charge in this case, in the words of the statute, “ with intent t'o injure or defraud,” for that would leave the offense uncertain. If both intents are charged it must be done conjunctively. But it is' sufficient to charge either intent, as “ with intent to injure,” or "with intent to defraud.” It is a crime to do the act prohibited, with either or both intents, and they may be charged separately or conjunctively. ’ See State vs. Banton, á An. 32.
¥e therefore conclude that the judgment and sentence appealed from are correct, and the same are affirmed.
Rehearing refused.
