State v. Gremillion

68 So. 615 | La. | 1915

SOMMERVILLE, J.

Defendant appeals from a judgment convicting him of having retailed spirituous and intoxicating liquors on or about the 20th day of July, 1914, without having previously obtained a license from the police jury of the parish of Avoyelles, or the mayor and council of the town of Marks-ville, to do so.

Bill of exceptions No. 1: Defendant moved to quash the indictment because the proces verbal of the jury commissioners failed to recite the names stricken from the list because of previous jury, service, because of death, removal from the parish, etc.; and because it does not give the number of names withdrawn, or the number of names supplied.

Reference to section 6 of Act No. 135,1898, p. 220, and to the proces verbal filed in this case, shows that the proceedings of the jury commissioners herein are in conformity with the terms of the law. The act of the Legislature does not require that the commissioners record the names of those who have been removed from the jury list for the causes enumerated in the act. The proces verbal declares that the commissioners shall supplement the original list and the ballots in the box with the names of good and competent men from the qualified jurors of the parish, for those which had been taken from the box and erased from the list, so as to keep the number of names in the general venire box and the jury list at the original standard of 300 names contained therein to serve as jurors, etc.

[1] In the case of State v. Love, 106 La. 658, 31 South. 289, we hold it not to be legally necessary to recite the names of any of those stricken from the list; but we there suggest that it would be better and safer practice to do so. But the failure to record the names thus stricken from the list has not- been shown to have worked defendant any injury whatever.

Bill No. 2: Defendant next moved for a bill of particulars, asking that the time and place and person or persons to whom the sale of liquor was made should be specifically set forth. The district attorney answered that defendant on or about the day and date mentioned in the indictment sold, in the town of Marksville, at his place of business as set forth in said bill of indictment, intoxicating liquor, to wit, whisky, to one Anatole Coco. Defendant objected to the bill of particulars on the ground that no special date was specified, and that “on or about the 20th day of July, A. D. 1914,” was too vague and indefinite for him to prepare a proper defense in the case.

The record shows that the question as to whether Avoyelles parish was prohibition territory or not was not involved in the case. It also shows that while defendant was a keeper of a drug store that there was no question of selling the liquor on a prescription, or for medicinal or mechanical purposes. It shows that a half glass of whisky was sold over the counter of defendant’s drug store for ten cents to the party named, Anatole Coco, on or about July 20, 1914.

[2] The offense charged was the sale of intoxicating liquors without having obtained a license to do so; the date of the sale was not material to the issues in the case. The date was fixed on or about the 20th day of July, 1914, and -the indictment was returned into court on November 11, 1914, within the prescriptive term. The date fixed in the indictment was sufficient to fully inform defendant of the particular offense he was to be tried for, and the time of its commission, so that he might make proper defense. State v. Green, 127 La. 830, 54 South. 45. The exact date of the sale of liquors in a case of this kind need not be testified to. State v. Doucet, 136 La. 180, 66 South. 772.

Under the authority of section 1063, B. S., and repeated decisions of this court, where time is not of the essence of the offense, or where the time is stated imperfectly, an indictment shall not be held insufficient. State v. Stover, 111 La. 92, 35 South. 405, and authorities there cited. The ruling complained of is correct.

[3] Bills Nos. 3 and 4: Defendant objected to the following questions, propounded to the prosecuting witness, on the ground that they were leading and suggestive of a specific date, and for the further reason that the questions did not call for a date that was fixed'in the indictment:

“Q. It is charged here you bought some whisky from Avit Gremillion on the, on or about the 20th of July, 1914. Did you ever buy whisky from him?”

“Did you ever buy any whisky from him in the month of July, 1914?”

The objections were overruled by the trial court on the ground that the questions involved the very issues before the court, and were entirely responsive to the indictment; and .for the further reason that the witness had already testified that he had bought whisky from the defendant during the month of July, 1914, and that the witness was only called upon to reiterate what he had previously testified to. The rulings were correct.

[4] Bill No. 5: This last bill was reserved to the ruling of the court sustaining an objection by the state to a question propounded to the prosecuting witness by the defendant, to the following effect:

“Q. What I want, to know is why it is you remember all those details about getting the whisky at Avit Gremiflion’s drug store and you cannot give any reason why you say and believe the whisky was bought in the month of July?”

The judge, in his per curiam, says:

“That the witness had been asked the same question a number of times, and every time had answered that he could not say what made him remember that he had bought the whisky in the month of July; but he was positive he had bought it in the month of July, about the middle of July, and as he persisted in answering in that way, and as that line of examination had gone far enough, and further questions on _ the subject would have been an abuse of the right of cross-examination, without serving any useful purpose, or obtaining a different answer from the one previously given a number of times, the objection was sustained.”

There is no error in the ruling.

Judgment affirmed.