114 So. 606 | La. | 1927
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *720
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *721 The defendant was convicted of having carnal knowledge of an unmarried female under the age of 18 years, with her consent. Act 192 of 1912. His appeal presents fifteen bills of exception. *722
Bills Nos. 1 and 2 relate to the refusal of the trial judge to permit defendant, after pleading not guilty, to withdraw his said plea and file a motion to quash the indictment on the ground that Act 192 of 1912 does not define any crime, the words "carnal knowledge" having no fixed and certain meaning.
Leave to withdraw a plea of not guilty to afford opportunity to file a motion to quash the indictment rests in the discretion of the trial judge, and his refusal will not be interfered with except for clear abuse of such discretion. State v. Foster,
In this case the trial judge did not abuse his discretion, since the motion to quash on the grounds set forth was wholly without merit, for the words "carnal knowledge" have a well-known and certain meaning, and hence Act 192 of 1912 clearly defines the offense which it denounces. State v. Normandale,
It was a matter wholly within the sound discretion of the trial judge whether he would or would not permit additional evidence upon such an issue in furtherance of truth and orderly proceeding. State v. Rose, 33 La. Ann. 932.
This was not even an amendment of the indictment but a mere correction of a formal error, which might be permitted at any time. Rev. Stat. 1870, §§ 1047, 1064. Cf. State v. Thompson,
As the offense with which defendant was charged is punishable by imprisonment either with or without hard labor (Act 192 of 1912), it follows that he was properly tried by a jury of five, since the punishment may be at hard labor. Const. 1921, art. 7, § 41, p. 50.
It is true that, since the offense was charged as of July 8, 1925, the state was bound to show that it occurred on that date, but evidence as to the relations between the defendant and the prosecuting witness on other occasions around and near that date was admissible to corroborate the testimony of the prosecuting witness that the offense had been committed on that date. State v. Ouzts,
It is within the sound discretion of the trial court to permit leading questions "where it deems such course necessary or advisable," and error cannot be predicated upon such ruling in the absence of palpable abuse of such discretion. 40 Cyc. 2427, 2429, verbo, "Witness."
Moreover the question was not leading and suggestive. It called for a categorical answer, but that answer might be either "Yes" or "No," and there was no suggestion therein how the witness should answer. The question was direct but not leading. State v. Hollingsworth,
"The question [as to threats made by the accused against the deceased] was in the usual form and was not leading, as it did not suggest the answer. The instructions of the district attorney to the witness to answer the question yes or no were not objectionable."
See, also, State v. Sullivan,
The title of the statute indicates a purpose to make the offense a "felony," and the body of the statute provides that the offense shall be punishable by imprisonment with or without hard labor. Hence the offense is subject to an infamous punishment, and is therefore a felony. State v. Hutchinson,
Bill No. 15 is without merit and has not been pressed.
(1) That the verdict finds the defendant "gilty"; the u being omitted from the word "guilty." But bad spelling will not vitiate a verdict when the meaning thereof is clear. State v. Green,
(2) That there is nothing in the minutes of court to show the impaneling of the grand jury or that the indictment was returned in open court.
(a) The transcript herein brought up by the defendant appellant himself begins with the minutes of the day on which he was called for arraignment (March 28, 1927) and hence does not contain any mention of what occurred at previous sessions of the court. The indictment, however, is marked "Filed Sept. 11th, 1926," and, since defendant made no objection thereto at any time in the lower court, where the true facts were readily available to him, the presumption is that the indictment was either returned in open court or filed with the clerk whilst the court was not in session under the provisions of Act 135 *726
of 1898, § 9. Cf. State v. Vial,
(b) As to any supposed irregularity in the impaneling of the grand jury, that should have been raised in the lower court by motion to quash the indictment before entering upon the trial; it is entirely too late to raise that question on appeal or after verdict. "Generally the plea of not guilty is a waiver of all right to take advantage of defects in the organization of the grand jury, as objection should be interposed before a plea to the merits. So an objection to an irregularity in the formation of a grand jury cannot be raised for the first time on appeal or error." 12 R.C.L. 1029, verbo, "Grand Jury," § 16.