No. 11,496 | La. | Apr 15, 1894
The opinion of the court was delivered by
Leonard Lee, having been jointly indicted with O. B.
(1) That the trial court erred in overruling his plea of autrefois acquit; (2) in refusing him a new trial of the aforesaid plea; (3) in disallowing him a severance of trial from the other defendants, and (4) in overruling his motion in arrest of judgment.
I.
The plea of autrefois acquit is predicated upon a previous indictment of Leonard Lee alone, on a charge of the murder of Tom Oordoway, of which he was duly acquitted on the day previous to his indictment in the instant case for the murder of Patria Cordoway. These facts appearing on the face of the two indictments, the controverted question is, whether this plea was one for the judge or jury to decide; and the judge having decided it, defendants counsel assigns his thus deciding as error.
In our opinion the ruling of the court was correct. The question of the sufficiency of the plea was made to depend solely, in the court below, upon the recitals of the two indictments — notwithstanding some other testimony was adduced — thus presenting a question of law.
The plea was filed at the August term of the court, 1893, and overruled. There was no bill of exceptions reserved to the judge’s ruling. The court was adjourned for the term, and the trial of the cause was deferred until the February term, 1894. At this latter term defendant’s counsel filed a motion for a new trial of the plea of autrefois acquit, which had been overruled at the previous term— assigning as error therein that the question was for the jury and that the judge had decided it.
The judge refused to entertain the motion on the ground that his first ruling was correct, and defendant reserved a bill.
We take it to be clear that the same rule obtains with regard to the allowance vel non of a new trial of a simple motion or plea, as of a new trial of the merits of the cause, and, adhering to that rule, we can not reverse the decision of the trial judge, except in case he has committed a manifest error to the injury of the accused. And the
Taking up the question as we find it in the record, an unmixed question of law, and applying' the precepts of our jurisprudence thereto, it is clear that the defendant’s plea of autrefois acquit was correctly submitted to the trial judge, and disposed of by him in the first instance, and hence the view that was entertained by the judge on the application for a new trial of the plea was correct also.
In State vs. Shaw, 5 An. 342, it was held, that “ when the plea of autrefois acquit shows on its face that the offence plead was not the same of which the prisoner was before acquitted, the plea may be demurred to, and it is not necessary to submit it to a jury.” Citing State of Tennessee vs. Hite, 9 Yerger, 357.
In State vs. Helveston, 38 An. 314, it seems that the plea of autrefois acquit was demurred to by the State, tried by the judge, and sustained, and from the judgment the State appealed. But this court, not doubting the jurisdiction of the trial judge to entertain the plea, reversed his finding on the ground “ that the offences charged in the two informations are not the same,” etc.
In thus demurring, the State in that 'case followed the common law practice, for it is stated by Mr. Bishop to be the rule that “if the plea is inadequate in form, or if the two indictments are such that the offences can not be the same, the prosecuting officer demurs.” 1 Bishop’s Grim. Proe., Sec. 817.
And the purport of our decision in the recent case of State vs. Emma Williams, 45 An. 936, is that this is a correct rule and is to be followed.
Mr. Wharton announces a like doctrine. Whar. Crim. Pleading, Secs. 482 and 484.
Looking into the defendant’s plea of autrefois acquit filed in the instant ease, we find it to be alleged that he had theretofore been indicted, tried and acquitted of the murder of Tom Oordoway — referring to the cause by title and number, and averring that the crime therein charged against him is identically the same as that for which he is prosecuted in the indictment in the instant case. But looking
As this court had occasion to say in quite a similar case:
“ The corpus delicti in each (case) is in every respect distinct and independent.” State vs. Vines, 31 An. 1079.
II.
This point of objection being necessarily involved, in principle as well as in fact, with the first one, the two were taken together and disposed of at one and the same time.
III.
The defendant, Lee, filed a motion, praying for a severance rof trial from his co-defendants, on the ground, maiDly, that his defence was contradictory of that of the other defendants — one of the defendants having, on a former trial, made statements implicating him as a particeps criminis to the homicide; and the trial judge having declined to award the severance, he reserved a bill of exceptions.
It is stated by the judge as a reason why he had refused the application “ that no sufficient ground for the severance was shown. The district attorney states in his evidence on the trial of the motion that he would offer no confession of either of the four defendants indicted as principals, in which either of the others was involved; and this was strictly adhered to throughout the trial,” etc.
The general rule is, that persons jointly indicted are not entitled to a severance of trial as matter of right, though the trial judge may, in the exercise of his discretion, grant a severance. State vs. Leonard, 6 An. 420; State vs. Cozan, 8 An. 109; 1 Bishop Cr. Pr., See. 1018; Whar. Or. PL, Sec. 309.
It is proper for the judge to grant a severance in case the confession of one jointly indicted may implicate both — in case the prosecution intends to offer same on the trial. 1 Bishop Cr. Pr., Sec. 1019; Whar. cr. PL, Sec. 310.
It appears that the district attorney directed the evidence on the part of the State to this exception — disclosing his intention to
And it is quite apparent that he in no wise abused his discretion in refusing it. ,
IV.
The question that is raised for decision on the motion in arrest of judgment is — the indictment charging the defendant, Lee, jointly with several other persons with the murder of Patria Cordoway, and the averment thereof being that the several parties “ did wilfully, feloniously, and of his malice aforethought, kill and murder Patria Cordoway — ” whether the indictment is fatally defective in a matter of substance, because the singular pronoun “his” was employed, representing only one of the several persons accused.
The trial judge assigns the following reasons why he declined to entertain defendant’s motion, viz.:
“ While the indictment is not good for murder, it is good for manslaughter, for which (crime) the defendant is convicted, and he is without interest to inquire as to its sufficiency for murder, since he is acquitted of that (crime) .”
It is evident that the judge’s ruling was correct. Had all the parties been convicted, or, possibly, if any one of them had been, the indictment would have been held bad, on the authority of State vs. Jones, 45 A. 1454, the doctrine of which case we unhesitatingly affirm.
The case appears to have been correctly disposed of in the court below. Judgment affirmed.
Rehearing refused.