44 La. Ann. 976 | La. | 1892
The opinion of the court was delivered by
The defendant was tried and convicted of the crime of manslaughter and was sentenced to the penitentiary for five years.
He has appealed. The record discloses a motion to quash the indictment on the following grounds: That the grand jury was illegally constituted, as it was drawn from a venire selected by two of the jury commissioners only; thatT. A. Walker, who participated in the drawing and proceedings of the commission was a mere outsider and disqualified to act; that the proces verbal of the drawing of the venire was never filed in the clerk’s office.
In addition to the foregoing defences the defendant applied for a new trial on two grounds:
First, because counsel for the State, in closing the argument, stated to the jury that as the defendant answered, in response to a leading question on cross-examination, that if the deceased had not
That counsel said that this presented the only question for consideration, and that defendant thereby limited the grounds of defence to‘one, though there were several.
The second ground of the motion for a new trial is that the verdict is contrary to law and evidence.
There are several bills of exception to the transcript setting forth grounds of objection.
The defendant not being represented by counsel in this court, no argument is presented in their support.
We have read the grounds and find that they were properly overruled by the court.
In reference to the participation of a commissioner disqualified to act, a point presented in the motion to quash, it appears of record that the commissioner was appointed when the court was not in session.
His appointment and oath of office were filed with the clerk of the court and were spread on the minutes at the first term held after the appointment had been made.
The appointment and oath were of record in the clerk’s office, subject to the examination of the defendant, or his counsel. The failure of the clerk to make a note of the appointment in the minute book of the court at the time it was made, can not strike with nullity the acts of the person appointed and acting.
The failure of the clerk to file the proces verbal of the drawing of the jury is alleged as the second ground of the motion to quash.
The proces verbal was deposited in the clerk’s office for the March term of court of 1892, and summons issued for the jurors as drawn.
This failure to file the proces verbal was an irregularity in the clerk’s office which should be avoided; although a negligence, it is not per se of such a character as to make it necessary to annul and set aside the general venire for a term, or quash an indictment found by the grand jury.
The motion for a new trial on the ground that counsel for the State made misleading remarks to the jury in the closing argument has no merit.
The argument of counsel in closing before the jury, if objectionable, was not objected to at the time, and no request was made of
The motion for a new trial was properly overruled.
The defendant has not presented any ground in his defence upon which to annul and reverse the verdict and sentence of the court.
Judgment affirmed.
