State v. GrosState v. Gros
Oristilе Gros, having been tried on a charge of “shooting with a dangerous weapon with intent to murder,” was granted a new trial upon motion of his counsеl in arrest of judgment calling the court’s attention to the fact that a jury of twelve instead of a duly constituted jury of five had returned the verdict of “shooting with intent to kill,” and he is now appealing from his second conviction of this lesser crime, relying for the reversal thereof on six bills of exceptions reserved during the course of this second trial.
In his first bill the defendant objects to the overruling of his pleas of “former jeopardy” and “autrefois acquit,” by the trial judge, it being his contention that since the jury of twelve failed to insert the word “guilty” before “shooting with intent to kill,” this was tantamount to а verdict of “not guilty,” and freed him from a subsequent trial on this same .charge, regardless of the fact that it was upon his own motion in arrest of judgment that hе was granted a new trial on the ground that the jury rendering such a verdict was not duly constituted, his argument being that the jury of twelve was duly constituted and jeoрardy attached the moment it was impaneled and sworn, since the additional seven jurors were mere surplusage.
Since the defendant himsеlf filed the motion arresting the judgment in the first trial, under the express provisions of Article 274 of the Code of Criminal Procedure, he could again be рut in jeopardy for this same offense. Moreover, to constitute jeopardy, “it is necessary, that the court in which the former trial took рlace * * * was legally constituted.” Article 279. Since the crime for which the defendant was being tried was not necessarily punishable at hard labоr, • he should have been tried by a jury of five. Consequently, when he was tried and convicted by a jury of twelve, the court was not legally constituted.
The second bill was levelled at the refusal of the trial judge to quash the jury venire of the second trial, containing some of the same members who *709 hаd first tried the defendant, in particular the name of Gustave Arcement, the juror who had served as the foreman of the former jury, in violation of Artiсle 188 of the Code of Criminal’ Procedure, which requires that the names of all persons serving on previous juries be withdrawn from the box at the end оf the six-month period. In his brief, defendant’s counsel also raises the point that the jury venire did not contain the full 300 names required by law.
There is no evidеnce in the record to show that the names of persons who served on previous juries were not withdrawn from the box. The appearаnce on the new venire list of the name of one such juror does not prove defendant’s contention, and while a juror’s service on the petit jury first trying the defendant might have been good ground for challenging him for cause, it was not sufficient cause to set aside the entire venire, fоr “unless some fraud has been practiced or some great wrong committed that would work irreparable injury,” a venire cannot be set aside because some of the jurors on the list are not qualified to act or because of some defect or irregularity in the manner of selecting the jury. Article 203 of the Code of Criminal Procedure. See, also, State v. Batson,
Defendant’s Bill of Exceptions No. 3, reserved when thе- judge refused to grant a continuance on the ground that some of his witnesses were in the armed services and unable to testify, has apparently been abandoned, as has also his Bill of Exceptions No. 4, reserved when the defendant objected to the fixing of the case for triаl on the morning following the argument on his application for a change of venue.
Bill of Exceptions No. 4% was reserved when the district attorney was permitted, in rebuttal, to impeach the testimony of Ridley Gros, who had been placed on the stand for the purpose of impeaching the testimony of the prosecuting witness, it being defendant’s contention that he was prejudiced by such ruling since he had asked that all witnessеs be sequestered and the district attorney had been present in the court room during the entire trial. There is a further objection that no prоper foundation was laid for impeaching the testimony of Ridley Gros.
In his per curiam to this bill, the trial judge states most emphatically that proper foundation was laid for impeaching Gros, which, in the absence of evidence to the contrary, is controlling. Consequently, since under the express provisions of Article 371 of the Code of Criminal Procedure “the judge may in all cases, in his discretion, permit any witness to testify,” there is no merit to this bill, no abuse of, this discretion having been • shown by the defendant. See State v. Fernandez,
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Bills pf Exceptions Nos. 5 and 6, reserved when the trial judgе overruled the defendant’s motion for a new trial and motion in arrest of judgment, are discussed together by the defendant, since both motions are based on the fact that when the jury took the indictment into their room during their deliberation, the verdict rendered during the first trial, i. é., “Shooting with intent to kill. (S) Gustave Arcement, Foreman,” appeared thereon. It is the defendant’s contention that this writing constituted extraneous evidence not produced during the course of the second trial and was highly prejudicial to his cause, as indicated by the exact copy of this verdict as the vеrdict of the jury sitting at his second trial, the word “guilty” only having been added before “shooting with intent to kill” after the court had charged them a second time as to the proper verdicts that might be rendered. In support of his contention he relies on the case of State v. Schaff,
In that cаse the court in holding that the notation on the indictment of a previous mistrial was not reversible error, because it did not appear that the defendant’s cause had been prejudiced thereby, did observe that “trial judges should, as far as possible, avoid placing before juries in a second trial any evidence showing what may have occurred on the former trial.” • However, the identical question here raised wаs disposed of contrary to the defendant’s contention in the case of State v. Gonzales,
For the reasons assigned, the conviction and sentence appealed from are affirmed.