No. 10,386 | La. | May 15, 1889
The opinion of the Court was delivered by
The State appeals from a judgment which sustained a motion to quash an indictment for murder returned against the defendants.
The ground of tlie motion was the illegality of the drawing of the venire of the jury from which the grand jury had been formed, for the reason that the clerk of the court, at the time of said drawing, had not been sworn as a jury commissioner.
The proof is that the clerk had not taken an oath as jury commissioner at the time of drawing the venire for that term, and our jurisprudence has settled that such a defect will vitiate an indictment returned by a grand jury drawn from such a venire. State vs. Williams,
But tine contention on the part of the State is that the motion to quash was not made in time, as it was made after arraignment and plea of not guilty, and because it was not made on the first day of the term as required by Section 11 of Act 44 of 1877, which reads :
“That ail objections to the manner of drawing juries, or to any defect or irregularity than that can be pleaded against any array or venire, must be. urged on the first day of the term, or all such objections shall be considered as waived, and shall not afterwards be urged.”
It is very clear to our minds that this legislation was prompted by the frequent rulings of the courts tending to cure a vicious practice on the part of defendants in criminal prosecutions, who would take their chances of an acquittal before a defective jury, and who would, in case of conviction urge irregularities in the formation of the jury, which they should have set up in the preliminary stages of the trial.
But it is quite plain, and in fact it is conceded in this ease, that the letter of the statute cannot be rigidly enforced in all instances; and that it will not apply to a case in which the offense charged was committed after the first day of the term.
It is equally clear that it could not defeat a motion filed by a defendant who was accused or arrested only after the first day of the term. This was the state of facts exhibited in Conway’s case, 35 Ann. 350, as appears from the record which we have examined.
For the same reason the prohibition should not apply to a case in which the defect is not apparent on the face of the papers or proceedings, and when the defect is discovered after the first day of the term. And the mischief which jurisprudence had sought to avoid, and which the law was intended to cure, is likewise avoided, if the motion is made after plea but before trial when it appears that the defect was only discovered after arraignment, as was disclosed by the record, now before us, in Bradley’s case, 32 Ann. 402.
From the record in the present case, it appears that the defect which did not appear on the face of the papers, was not made known to the accused or their counsel, until or before the very moment that the motion to quash the indictment was filed.
Hence it follows that for that reason and on no other ground, the motion which was filed before that trial must be held to have been seasonably made, and that on authority the 'judgment which quashed the indictment is not erroneoxis.
Judgment affirmed.