State v. Wright

90 So. 833 | La. | 1922

BAKER, J.

Defendants were convicted of cattle stealing, and sentenced to one year at hard labor.

They moved for a new trial, basing their application entirely on paragraph 4 of their motion, which reads as follows:

“They further urge that there were only five jurors accepted from the regular venire, and the clerk of court was then ordered to bring into court the detalibus jury box and to draw therefrom names, and in all there were drawn 60 names; that defendants did not know but that said detalibus jury box was legal and had its required complement of names required by law, but has since learned that it did not have the required 100 names therein, and they were deprived of their legal rights to have detali-bus jurors drawn from a jury box containing the required 100 names; that there is no record extant showing that the box produced in court was ever filled as required by law or ever replenished, etc., and by whom, and that they now charge that said detalibus box as produced in court and from which your defendants were compelled to select their jury was and is an illegal detalibus jury box; that, if same had been legal, which is denied, on November 21, 1921, then on that date there were drawn therefrom 81 names in another case, and immediately said 31 slips wore destroyed, although 5 of the 81 names were used upon the trial then in progress, all contrary to law, and thus leaving the box with only 69 names, and that at least 5 of the said names were illegally removed from said box Or should have been returned in accordance with law, and that said box was not replenished when later brought into court on the trial of this case; that these 31 names were destroyed immediately upon list being made and before being summoned and ascertaining whether they would serve; that 5 of them did serve, but that the slips bearing their names had already been destroyed when they were brought into court, and wore never replaced in the said box as required by law; that your defendants were thereby deprived of their legal rights and to their prejudice and irreparable injury;^ and that they did not know of any of these* facts until same was ascertained by investigation after the trial.”

[1] Defendants should have urged these alleged irregularities before going to trial. Section 16 of Act 136 of 1898, p. 216, the jury law, provides:

“That all objections to the manner of selecting or drawing the jury or to any defect or irregularity * * * must be urged or entered on the trial of the case; otherwise, all such objections shall be considered as waived and shall not afterwards be urged or heard.”

And this court has held in cases similar to the instant one that all such objections are fully cured by going to trial without first urging them. See State v. Ashworth, 41 La. Ann. 683, 6 South. 556; State v. Tisdale, 41 La. Ann. 338, 6 South. 579; State v. Curtis, 44 La. Ann. 320, 10 South. 784; State v. La Bauve, 46 La. Ann. 548, 15 South. 172.¹

L2] These same alleged irregularities were made the basis of a motion in arrest of judgment. They, not, being ground for a new trial, are a fortiori, not ground for arrest of judgment. Moreover, it is well settled that irregularities of the kind complained of are not ground for arrest of judgment. Marr’s Criminal Jurisprudence, p. 863.

[3] The learned counsel for accused urge that they and their clients did not know of these irregularities until after verdict; and they would have this absence of knowledge justify an exception to said rule. Such an exception cannot be recognized; for if it were, it would, in practice, destroy the rule.

Judgment affirmed.

O’NIELL, J., concurs in the result.

1 Reported in full In the Southern Reporter; reported as a memorandum decision without opinion in the Louisiana Annual Reports.