90 So. 406 | La. | 1921
On indictment of having received deposits'in. the. bank of which he was cashier,- knowing, the bank to be insolvent, the defendant was convicted, sentenced to nine to ten years at hard labor, and has appealed.
The first bill of exception is to the overruling of his motion to quash based on the grounds following:
“First. That accused was compelled to testify against himself before the grand jury without any warning being given him that he might decline to answer incriminating questions.
“Second. That the district attorney and also-the special counsel for the state participated in the deliberations of the grand jury and advised them on questions of fact and as to what bills of indictment they should return against accused.
“Third. That the jury venires which served in defendant’s case were illegally ■ drawn and’ constituted, because S. H. Cochran, a member of the jury commission, and whose presence made a quorum of said commission, lost more than $18,000 in the said bank failure charged to accused, assisted the prosecution in securing the evidence, engaged private counsel for the prosecution, and paid them; further, that four members of the grand jury which actually found the bills were interested in the said bank failure, and that one of them, G. G. Allen, was foreman of the grand jury; that a number of other jurors drawn, both for the grand and petit jury, lost money in the said bank failure and were interested in said prosecution.”
For overruling this motion the learned trial judge assigned the following reasons:
“The defendant being carried before the grand jury was the result of his- having previously expressed to the district attorney a willingness and a desire to procure the indictment of others said to be implicated in wrecking the bank. Accused was assured that the sole purpose of his appearance was to enable the grand jury to obtain information connecting others with the wrecking of the bank, which information was obtainable only from accused. The examination of accused was for the purpose of trying to indict others and touched his own case incidentally. The intelligence of accused precludes the idea that he required any special warning as to his constitutional privileges to decline to answer questions that might tend to incriminate him.
“As to the objection that S. H. Cochran, who was president of the bank and active in the prosecution, had abused his membership on the jury commission to pack the grand and petit jury against the accused, the court will-*1069 state that, owing to the illness and absence of two jury commissioners, Mr. Cochran’s participation was necessary in order to constitute a quorum for the drawing of the jury. Knowing the very high character of Mr. Cochran and from his testimony the court is convinced that Mr. - made no effort to pack either the grand or the petit jury to the prejudice of defendant.
“The fairness, impartiality, and high character of Mr. Cochran was attested by defendant’s counsel during the trial of the case by the fact.that without previous consultation Mr. Cochran was called to the witness chair on the question of defendant’s previous good character by defendant’s counsel.”
Rehashing here the testimony taken on the trial of this motion would serve no useful purpose. It shows that a fair and impartial jury could be obtained; and subsequent events proved the correctness of that view, since a fair and impartial jury was obtained for the trial of the case without the accused having had to exhaust his peremptory challenges.
The witness was testifying as ail expert accountant, giving the result of his examination of the books of the bank. 'This kind of evidence is an exception to the rules of hearsay and primary evidence. State v. Mathis, 106 La. 263, 30 South. 834; Shea v. Sewerage Board, 124 La. 331, 50 South. 166.
“Gentlemen of the jury, I, as district attorney, have given Mr. Perry every opportunity to prove Ms innocence.”
This was merely argumentation, and therefore harmless. Whether, if the accused had not testified in his own behalf, such a remark might not have been construed as a comment on the fact of his not having availed himself of the opportunity to exculpate himself by his own testimony — qurere?
Such an incident as this has been several times held by this court not to vitiate the verdict. State v. Jones, 51 La. Ann. 105, 24 South. 594; State v. Easley, 118 La. 690, 43 South. 279.
A motion for a new trial based upon tbe points hereinabove considered was properly* overruled.
Judgment affirmed.