38 La. Ann. 91 | La. | 1886
The opinion of the Court was delivered by
Defendant appeals from a conviction of an assault with-intent to commit murder.
He calls our attention to a motion to quash, and to three bills of exception involving matters connected with his trial.
His motion to quash the information filed against him presents two-points :
1. The first is rather undefinable, but it seems to read as an exception of Us pendens.
The papers of a previously instituted prosecution against him were, together with many other files and records of suits pending in the district court, purloined from the clerk’s office; whereupon the district attorney asked and obtained leave of the court to enter a nolle pros-equi of that charge against this accused, and immediately thereafter,, he presented an information on the same charge, which resulted in the trial now on appeal before us.
Defendant’s-contention that the nolle prosequi could not be entertained in the absence of the papers which contained the charge again stliim is without merit. The right of the district attorney to enter a nolle prosequi of a charge against any accused, under all circumstances has never been questioned, when the papers are in his possession, and the difference in law between that and the exercise of the same power,, when the papers are missing, is not easily discerned.
The argument as to the alleged irregularity in the mode adopted by the district attorney to reinstate a cause when the papers have been-lost, has no application to the state of the case as shown by the record.
In presenting the second prosecution, after a legal disposition by nolle prosequi of the previous charge for the same offence, the district-attorney did not propose to reinstate a lost case, but he simply exer cised his unquestioned right to prosecute a charge which he had previously withdrawn by a nol pros. Hence the previous prosecution •was not a pending cause, and it was no obstacle to the prosecution under which the accused was tried. To deny the right to the State’s-attorney to follow the course which he adopted in this case would simply be tying the hands of the State in favor of any offender who could;
2. The second point is a charge that the information is bad for ■duplicity, as containing two separate and distinct charges in the same information.
In one count the accused is charged with putting out an eye with a ■club, and in another count he was charged with an assault with -intent to commit murder with a club.
It is true that the two offences charged are denounced in different statutes, hut it cannot be denied that they could grow out of the same .act, hence they were kindred offences ; therefore they could be charged in the same indictment, provided they are contained in different counts. State vs. Green, 37 Ann. 382; State vs. Gilkie, 35 Ann. 53; State vs. Johns, 32 Ann. 812; State vs. Depass, 31 Ann. 487; State vs. Malloy, 30 Ann. 61.
These considerations are sufficient to dispose of one of the bills of exception, in which the same matters growing out of a charge to the .jury, are raised and discussed.
3. The complaint of the accused, whose case was fixed for trial for the second week of the term, that the list of jurors drawn to serve during the third week had not been served on him, is too trivial to be seriously considered by this Court. He might with as much grace have complained that a list of jurors drawn for a previous term of the court had not been served on him,
4. The alleged error of the trial judge in allowing the jurors to separate during- the trial is not au error.
This was not a capital case, and the jury could separate. State vs. Dubois, 24 Ann. 309.
We are, satisfied from the record that the defendant has had a fail-trial.
Judgment affirmed.
