State v. SenegalState v. Senegal
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Robert Thomas Cline, Asst. Dist. Atty., for plaintiff-appellee.
PER CURIAM.
The defendant was convicted of manslaughter,
This assignment of error relates to a denial of a challenge for cause of a prospective juror. Essentially, the defendant argued that the prospective juror should have been excused because he had gone to school with the deceased and used to drink beer with him. Nevertheless, considering the entirety of the voir dire examination, we conclude that the trial court acted within its discretion in finding the relationship between the juror and the person injured by the offense was not such that it was reasonable to conclude that it would influence the juror in arriving at a verdict. Accordingly, a challenge for cause was not required, and this assignment is without merit.
ASSIGNMENT OF ERROR NO. 2
This assignment relates to the overruling of defendant‘s objection to the introduction of X-rays on the ground that a proper foundation had not been laid. Although the doctor who produced the X-rays in court had not actually taken them, his testimony that they were X-rays taken of the deceased after the crime was supported by his physical examination of the deceased, the doctor‘s presence at the hospital while the X-rays were taken and developed, and the hospital‘s X-ray identification system. The trial judge properly decided that it was more probable than not that the X-rays were those of the deceased and consequently admissible as evidence in the case.
This assignment is without merit.
ASSIGNMENT OF ERROR NO. 3
Neither the minutes nor the transcript of the proceedings indicate whether the defendant was present at all stages of
ASSIGNMENT OF ERROR NO. 4
This assignment relates to the trial court‘s instruction to the jury that it could return either a verdict of guilty or not guilty. The instruction was correctly given as required by
“I have an objection to make to the charge to the jury that there were only two verdicts responsive to manslaughter. It is my contention that attempted manslaughter is also possible under Article 31, is also responsive, too, under certain conditions and under the conditions of this case, responsive to the charge of manslaughter.”
In this Court, defense counsel now urges for the first time that
Defendant‘s objection was actually a request for a special instruction to the jury not provided by law. Such charges may be submitted of right by the defendant before argument, but may be received by the court only in its discretion after argument has begun. Therefore, the defendant‘s request was clearly untimely and properly rejected by the trial court.
Even if viewed as an objection to the court‘s instruction, defense counsel‘s action was untimely and insufficient.
This assignment is without merit.
Since we find no trial error except for the deficienies in the trial court minutes noted in Assignment of Error No. 3, it is not necessary at this time to reverse the conviction and order a new trial, because the error might be eliminated upon a contradictory proceeding below. We reserve to the trial judge the power to grant a new trial should he determine that the defendant was not present at all stages of the proceeding as required by
The case is, therefore, remanded to the district court for further proceedings in accordance with this opinion.