No. 11,543 | La. | May 15, 1894
The opinion of the court was delivered by
The defendant appeals from the sentence of death for murder. The record brings up ten bills of exception.
There was a motion to quash the indictment based on a challenge to the array of jurors for alleged irregularities in the drawing. It is
Another bill, the second, is to the refusal of the court to permit the propounding to jurors on their voir dire the question as to-whether they would follow the instructions in the contingency of a charge as to circumstantial evidence. Hypothetical questions how the jury would or would not be influenced in certain supposed conditions of the testimony are calculated to mislead and confuse jurors, and to ask the juror whether he would respect the instructions of the court is certainly out of the usual course. In this case while the
Another bill (the fifth) denies the right of the State to close the argument when the defendant, as in this case, offered no testimony. There is nothing in this exception. 15 An. 557; 31 An. 91.
It was part of the case of the State to offer testimony that a dress found in a bureau removed from the house of the deceased belonged to her, and that there were blood stains on the dress. The defendant objected to the testimony of the physicians tending to show the blood stains. It is claimed that the search, soon after the crime was committed, developed no such dress, or at least fione that was stained; that the mother of the deceased produced the dress some time after the killing, and, exasperated as she was against the accused, the statement of the mother that she had found the stained dress in the bureau was not entitled to credit. All that is urged by the defence in this respect might well tend to depreciate the weight of the testimony as to the dress and the character of the stains, but the testimony was certainly admissible; and this disposes of the third and fourth exceptions, if, indeed, the last, referring to the introduction of the dress, is pressed.
The sixth and eighth bills may be considered together. One, made after trial and verdict, is to the refusal of the judge to appoint ■experts to examine and report as to the stains on the dress, whether ■or not caused by blood. The application was supported by affidavits ■of a number of witnesses to the effect, generally, that in the search for evidence of the crime at the house of the deceased soon after.the killing no such dress, or at least none that was stained, was found, and in other respects the affidavits tended to discredit the dress theory and the testimony of the mother of the deceased, a witness on the trial. The rule for the new trial assigned as some of the grounds that the search developing no such dress, the defence was surprised by the testimony in this respect, and that newly discovered evidence would show that when the body of the deceased was found the dress was not in her house, and would in other respects present the case in a more favorable light for the accused. We have weighed with care these bills and the able argument of defendant’s counsel in support of the applications. We think the proposition
Prom an early period the law has provided that standing mute shall be no bar to the trial of the accused. In such case the court is directed to enter the plea of not guilty (Revised Statutes, Sec. 996). In this case the plea was made by counsel for the accused, but was entered of course under the direction of the court. It is not easy to appreciate that the plea entered necessarily under the eye and sanction of the court is vitiated because made through counsel. If the prisoner does not plead, the court is to order the plea to be entered. He does not plead in this case, and therefore the court in effect directs the plea to be entered. Utile per inutile non vitiatur would seem to apply to the circumstance that the counsel pleads, when if the counsel had not spoken at all the court would have caused the plea to be entered. Besides, in the argument on the rule for trial the bill recites the judge stated he had ordered the plea to be entered of his own motion, and he then, i. e. on this argument, directed the minutes amended so as to state the facts. The minutes were amended accordingly, and to this the defendant took a bill of exception, as well as to the refusal of the court to bear testimony that the minutes were correct as they stand, i. e. stating the plea by counsel of the accused. The right of the court to order an amendment of the minutes so as to conform to the facts and show this performance of
As to the ninth exception to the exclusion of testimony that a juror had been approached by the mother of the deceased and urged to find a verdict for the State, we concur with the judge that if offered to impeach his verdict it was inadmissible, and if for any other purpose it was irrelevant.
The tenth exception was to the overruling of the motion in arrest based on word “ prerent ” in the indictment instead of present. It is obvious this is a mere clerical error and did not vitiate the indictment. 38 An. 66; 35 An. 293.
Our consideration has embraced all the points in the numerous bills of exception, and the views expressed in this opinion we think embody all that need be said.
It is therefore ordered, adjudged and decreed that the sentence of the lower court be affirmed.