8 Rob. 513 | Louisiana Court of Errors and Appeals | 1843
The accused was convicted before the inferior court, of the crime of horse stealing, and has taken an appeal to this court, upon an exception to the opinion of the judge, a quo, on a motion in arrest of judgment, for reasons stated in the motion itself.
Judgment was sought to be arrested in the lower court, on the ground that four of the grand jurors by whom the bill of indictment was found, were not qualified, as the law requires, to act as jurors. This motion was met, on the part of the State, by a dent,urrer, which was sustained by the court, and the motion to arrest the judgment overruled.
It is contended, on the part of the State, that the incompetency of the jurors is cured, by the provisions of the fifth section of the act of the Legislature, entitled, “ An act directing the mode of composing and drawing juries for the District Courts,” approved March 6th, 1840.
This section declares ; “ That all and every objection which might or could be made on account of any defect or informality which may have occurred, either in the formation, drawing, or summoning of said juries, under the provisions of this act, or any other defect whatever in the construction of said juries, shall be made on the first day of the terms of the said District Courts, and not afterwards.”
The provisions of the act of 1840, are not confined to the grand jury alone, but refer to the whole panel; to the traverse, as well as to the grand jury, to civil as well as criminal cases. Were such a construction as that urged on the part of the State, adopted by the court, it would abrogate entirely the right of challenge, would repeal, in tolo, the various statutes passed by the Legislature upon the subject of juries, believed now to be in force, thereby annihilating, at a blow, all those safeguards established by the lawgiver, for the purpose of insuring a fair and impartial trial. Thus, a party litigant on the civil docket, having no apparent interest in analyzing the composition and constituent elements of a grand jury, would be frequently entrapped. Conscious that no criminal prosecution could be directed against him, it could scarcely be expected or required, that he should pry into a matter which evidently concerned him not, under the heavy penalty, in case of neglect, of being deprived of the right of submitting his case to a competent and disinterested jury of the country. Yet, if such be the true construction of the act, it could lead to no other result. In vain would he invoke the right of challenge to the individual
It however by no means follows from this train of reasoning, that the objection cari be successfully urged at all stages of the trial, or in every form of exception. What might be good upon a motion for a new trial, might and would be inadmissible on a motion in arrest of judgment. On this latter motion, the party is confined to matters apparent on the record. He is not permitted to travel out of, nor beyond the record; he cannot seek matter aliunde, to impeach the correctness of the proceedings.
A demurrer, on the part of the State, does not appear, to this court, to have been a proper answer to the motion, conveying, as it does, an admission that the jurors did not possess the qualifications necessary to make them good and lawful men. Still this circumstauce cannot change the law, which refuses relief whenever the error complained of is not apparent on the record, upon which alone, the motion can be based. No subsequent occurrence can make that good, which was bad ab initio. The record contained, when the motion in arrest of judgment was made, no evidence whatever of any want of qualification in any member of the jury; and, therefore, furnished nothing upon which the motion could operate.
Chitty, (Crim. Law,) observes; “ It is clear, that a defendant before issued joined, may plead the objection in avoidance; but if he
Three other points have been made by the counsel for the accused, as being apparent on the record, which it becomes the duty of the court to examine. First, it is averred that the indictment is bad, because there “ is no such place as the parish of Caddo, it being the body of the county.”
The answer to this exception is found in the act of the Legislature, designating its limits, establishing its courts, and giving it a name, “ the parish of Caddo.” The law organizing the courts ordains, that a district court shall be holden in each and every parish. The district courts are obliged, by the statute, to hold sessions in each parish, into which the former division of the State is merged. The substitution, therefore, of the word “parish” for “ county,” was .both proper and necessary. The point as urged in the argument before this court, assumes as fatal, the absence of the assignment of a particular place wi-thin the parish, at which the crime is charged to have been committed ; as also the use of the word “ at” instead of “ in.”
Upon an examination of the forms of indictment in the English books, we find such to be the formula usually adopted : exempli gratia, at the parish of Weslham, in the county of Essex, &c. 1 Chitty, 146. The first to designate the venue; the second to show jurisdiction in the court. Slarkie’s Grim. Plead. 67, et seq. Both were requisite in England; and may, probably be so now, for reasons, however, which are inapplicable in this State. There the party accused was entitled to be tried by a jury of the vicinage or neighborhood. Here the prisoner has no such right, the jury being selected from the body of the parish for the trial of all cases cognizable by the court. The word “ parish” was, therefore, properly substituted for “ county,” necessarily required to be used in England. The necessity which required its use in England, not existing in Louisiana, it is difficult to find any reason why it should be adopted here. Cessante rations, cessat et ipsa lex. Besides, it comes within the very letter of the act, approved 4th March, 1805, which evidently intended, in adopting the common law of England, to strip it of all those redundancies and useless formalities of which even
Now, what change would more palpably strike us as proper, than that of dispensing with a form (though still followed in England, if such be the case,) which would here, and under our system of jurisprudence, be nugatory and vain.
“ At the parish of Caddo,” the court believes to be equivalent to in the parish of Caddo. The two expressions would convey the same idea to every man in the community ; and, therefore, what every one would understand as meaning the same thing, cannot reasonably be supposed to be so vague and indeterminate as to have operated, to the injury of the accused. Besides non constat, to this court, at least, that the crime charged was committed in the parish of Caddo. It may have been committed, for aught the court knows to the contrary, in the adjoining parish, on the boundary, or within one hundred yards of it, on which hypothesis the indictment would be clearly good. Vide Robinson’s Crim. Law, p. 191, articles, 335, 336.
The second exception is; “ That the verdict is bad, no foreman having been appointed through whom the jury acted, as appears by the record, and the verdict not having been signed.”
In criminal proceedings the court never appoints a foreman. It is true, that the jury speak through one of their members as their organ of communication with the court, which member, in legal parlance, has been called a foreman ; but he is no officer, of the court, neither can he exercise authority, nor control the deliberations of his peers. He speaks for the whole jury, who would otherwise be compelled to answer seriatim, preventing thereby the unnecessary consumption of the time of the court. In England, the verdict is delivered ore tenus, recorded by the clerk as delivered, and read to the jury as recorded. They are asked if such be their verdict, and an affirmative answer closes their mission. The verdict is never signed. The practice in* our State has not been uniform in this particular,- some judges following the English forms, others requiring the verdict to be signed by the foreman. Either manner appears to this court to be legal.
Had the additional imprisonment of one day transcended the maximum of punishment defined by the law, the question would have presented itself under a different aspect. By the act of 19th March, 1818, under which this conviction took place, the punishment is limited to five years ; and it appears to this court, that the judgment is substantially a condemnation for three years and-one day, according to the prisoner the privilege or faculty of release one day sooner, on payment of the costs.
The statutes referred to in argument, by which a prisoner may be discharged, either by ajustice of the peace, or by act of insolvency, are inapplicable to this case, where the sentence is imprisonment and costs, and not fine and costs, as stated in the statutes.
Judgment affirmed.