21 La. Ann. 251 | La. | 1869
The record in this case shows that, on the same day, the defendant was indicted, arraigned, and tried for the-crime of murder. The jury found him guilty.
A new trial was .prayed for on the grounds — 1st, that the verdict of the jury was .contrary to'the law and the evidence; 2d, that defendant was not furnished a copy of the indictment and a list of the jury which was to try him, two entire days before the trial; Sdj that since the trial, evidence material to his defense has been discovered. ’■ Later, an amended motion for a new trial was filed. It set forth the following ■grounds:
1. That Robert Coulter, one of the grand-jurors who constituted the grand jury which found the indictment against the defendant, was not a citizen of the United States, nor a duly qualified voter of the State of Louisiana, at,the time he was elected, empanneled, sworn -and charged as a grand juror, and, consequently, was not a competent juror.
2. That five of the jurors, who tried the case, had formed and expressed an opinion, adverse to the defendant, before the trial; and that the foregoing facts were not known to the defendant until after the trial.
This application was supported by the affidavit of the defendant and others.
The District Judge refused the new trial. A bill of exceptions was taken to the ruling of the Court, in which the foregoing facts, as well as.the reasons of the Judge, are stated.
It will be necessary to examine only one of the questions presented by the bill of exceptions.
It appears -from the record that Robert Coidter., one of the grand jurors composing the jury, which found the indictment, was incompetent, and that this fact was not known to the defendant until after the trial. Can this objection be urged after verdict.
Mr. "Wharton says, “anew trial will be granted at common law, where it appears after verdict that some one of the jurors should not have been permitted to sit upon the trial, on account of an eiitwe legal incapacity.'” Wharton 923; State v. Babcock, 1 Conn. 401.
This Court has decided that such an objection to a petit juror, who trie(d the case, is not good cause for a new trial, because the accused
But these reasons do not apply when the objection is urged against one of the grand jurors composing the jury which found the indictment. The accused liad no opportunity to question the grand jurors, and to object to any of them if they had not the legal qualifications. He did. not, therefore, waive any of his rights.
Neither could he urge an objection lefo.re trial, when he only learned of its existence after trial. • The law does not require an impossibility.
In Tlie State v. Jones, this Court said:.“We find from Hawkins1' Pleas, of the Crown, book 2, chap. 25, sections 26, 27, 28, that in the construction of the statute of the 2d Henry IV., C. 9, the. following points have, been decided: 1 That a person arraigned upon any indictment, taken contrary tp the purvieu of this statute, may plead such matter in avoidance, of the indictment. That a person outlawed- upon any such indictment without a trial, may. show, in avoidance of the outlawry, that the indictment was taken contrary to the form of the statute. That I*, any of the grand jury, who find an indictment, be Within any one of the exceptions of the statute, he vitiates the whole, thoiigh never so many unexceptionable persons-joined with him -in finding;it.’ We feel satisfied that this construction furnishes the nicest and- safest rule of decision; and. that the incompetency of one of the grand jury so to find a bill of indictment, vitiates the whole proceeding,” 8 R. 617.
Prosecutions shall be by indictment or information. Constitution, apt. 6.
“The qualifications of a juror to serve in any of the courts of this State shall be the following:
To be a. qualified elector of the State of Louisiana.” Acts of 1868, No. llu.
■ Robert Coulter-, not being a qualified elector of the State of Louisiana, was not a competent j-uror, -and ¿he bill of indictment found, by the grand jury of which he was a member was a nullity. The District Judge should have set aside, the verdict;of the jury and quashed the indictment, when the fact wgs brought to his knowledge.
It is therefore ordered, adjudged .and decreed, that the judgment of the District Qourt.be avoided, that the verdict of the jury be set aside, and that the case be remanded to tip District Court to be proceeded wjth according to law.