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jury had said they were tired, and wanted a drink of whisky, and that only a pint was furnished them. Our predecessors have, under exceptional circumstances, permitted liquors to be furnished to the jury during a trial that was protracted. State v. Caulfield, 23 La. Ann. 148. In that case it was justly observed by the court that “though we would be far from encouraging the practice in jurymen of taking an enemy into their mouths to steal away their brains, yet we must recognize the fact that alcohol has its use in case of exhaustion and illness.” That sentiment is particularly applicable here. In that case, as in this, the whisky was furnished to the jury during the trial. The court say: "It does not appear that any liquors were furnished to the jury after they retired to consider their verdict." The court declined to grant a new trial. While it is true, as stated in State v. Brunetto, 13 La. Ann. 45, that “the safer rule is to exclude spirituous liquors entirely from the use of the jury in capital cases, and so I understand the current of decisions to tend, yet in this particular instance no apparent injurious consequences flowed from the use of the modicum of whisky that was supplied during the progress of the trial, and it furnishes no ground to disturb the judge's ruling.

5. The motion in arrest of judgment is altogether without merit, because it mentions no defect of any kind that is patent on the face of the record. Judgment affirmed.

STATE es rel. MCCLENDON 0. SIMMONS. (Supreme Court of Louisiana. September 15, 1888. 40 La. Ann.) RECORDS-PROCEEDINGS OF POLICE JURY-IMPORTING VERITY.

The proceedings of police juries must be kept in writing. The minutes of their proceedings make up a public record importing absolute verity, and they cannot be attacked or contradicted in a collateral action to which the members of the board are not made parties. Nor can their secretary in such an action be required to correct

alleged errors, or supply alleged omissions in their minutes. (Syllabus by the Court.)

Appeal from district court, parish of Claiborne; ALLEN BARKSDALE, Judge.

Action by the state on the relation of R. T. McClendon against James H. Simmons, involving the right to the office of treasurer. Judgment in favor of relator. Defendant appeals.

J. W. Halbert, John Young, and C. J. Bootner, for appellant. J. A. Richardson and McClendon & Seals, for appellee

POCHE, J. This case involves the right to the office of treasurer of Claiborne parish, and defendant appeals from a judgment decreeing relator to be entitled to the office. Both parties claim to have been elected to the office on the same day by the police jury. The official minutes of the body for that day, which are in evidence, contain the following entry: “When, on motion, the the board proceeded to the election of parish treasurer, and, after several ballots, R. T. McClendon was elected treasurer for four years next ensuing;" and the proceedings of the succeeding day show that the minutes of the previous day were duly read and approved. This showing unquestionably makes a prima facie case in favor of the relator. In order to meet it defendant had recourse to parol evidence-the testimony of the secretary of the board to show that at the first ballot taken on that day defendant had received four out of seven votes cast, and that the president had arbitrarily refused to declare his election. He also proposed to require the same witness to correct the minutes by supplying an omission to enter therein the fact and the result of the alleged first ballot taken, resulting in his election on that day, and of which no mention had been made in the minutes. The attempt was properly resisted by relator, who contended that the minutes of the board could not be thus attacked in a proceeding to which the president and members of the police jury had not been made parties.

His position is fully sustained by law, and it disposes of defendant's pretensions to the office. It is elementary that the proceedings, ordinances, and resolutions of police juries must be kept in writing. Police Jury v. Town of Monroe, 38 La. Ann. 630. In that case the court used the following language, in dealing with an effort to prove by parol, authority in the president to stand in judgment for the board: "In this oral argument he [counsel] referred as proof of such authorization to the affidavit of plaintiff in support of the injunction prayed for, but he could not have been serious in such a contention. Police juries act only by ordinance or resolutions, and no parol testimony would be admissible to prove either.” The argument of defendant's counsel that the proposed correction of the minutes was not intended to contradict the record, but merely to supply an omission,--a proceeding sanc. tioned by jurisprudence,--is untenable. The record, as made by the minutes, shows that R. T. McClendon was elected treasurer; and the proposed correction would show the election of another person, J. H. Simmons, his opponent at the election. If such a proceeding is not a contradiction, we can hardly conceive an instance of contradiction. The contention is squarely covereil, and it must be controlled, by the views announced by this court in the case of Gaither v. Tax Collector, 40 La. Ann. 362, 4 South. Rep. 210, from which we make the following quotations as fairly decisive of the point under present consideration: "The official minutes of the proceedings of the board of levee commissioners show that they levied the tax in question at a meeting duly convened and held at Delta, La., on the 22d of January, 1886. Plaintiffs counsel sought to impeach this record by parol evidence, but the introduction of it was successfully resisted by defendants, on the grounds, viz.: (1) That the official minutes of the board constitute a public record which imports absolute verity on its face, and the same cannot be contradicted by parol, nor attacked in collateral proceedings to which said commissioners are not made parties. * .

In our view of this question it cannot be examined and decided in this collateral way, and in a suit to which the commissioners who levied the tax are not made parties." And the court refers with approval to the following dictum from the court of a sister state: “If a town corporation makes an erroneous record of its proceedings, this cannot be contradicted in a collateral action. In such action the record is conclusive, if false, and the corporation will not correct the record. A party interested may, by mandamus, compel it to make the correction.” Turnpike Co. v. Pomfret, 20 Conn. 590. That utterance is strongly suggestive of the remedy which defendant once had within his reach for the protection of his rights, but which he has not seen fit to invoke. Unless the members of a municipal corporation are before the court, there is no warrant for a judicial coercion on their secretary, who is not the officer of the court, to perform any act or duty touching the records of the corporation. We therefore conclude with the district judge that the relator is the duly-elected treasurer of the parish of Claiborne. Judgment affirmed.

*

STATE V. ADAM. (Supreme Court of Louisiana. October 17, 1888. 40 La. Ann.) 1. GRAND JURY-RIGHT TO ADVICE FROM State's ATTORNEY.

The state's attorney is the representative of the public and the legal adviser of the grand jury, who have a right to call upon him for advice on questions of law and procedure. Although he has no right to influence or direct them in their finding, or express any opinion on questions of fact, he may assist them in their labors. Surely his telling witnesses to state to the jury all they knew, is no improper inter

ference. 2. CRIMINAL LAW-CONTINUANCE-ABSENCE OF WITNESSES-COMPULSORY PROCESS.

The constitutional provision which guaranties to an accused the right to compulsory process is not a dead letter, and must be enforced. Under a proper showing for a continuance on the ground of the absence of a material witness, the trial must be postponed. Sufficient assistance must be afforded an accused to procure his wit nesses. When it does not clearly appear that such was given him in a capital case,

the accused is entitled to the benefit of the doubt. (Syllabus by the Court.)

Appeal from district court, parish of St. Martin; J. E. Mouton, Judge. Joseph Adam was tried and convicted of murder, and appeals.

Edward Simon, for appellant. Louis J. Voorhies, Dist. Atty., for the State.

BERMUDEZ, C. J. On a conviction of murder, without capital punishment, the defendant was sentenced for life to hard labor. On appeal he complains that the lower court erred (1) in overruling his motion to quash; (2) in refusing an application for a continuance; and (3) in allowing certain testimony. The motion to quash rests upon the ground that the district attorney was present before the grand jury during a part of the examination of the witnesses. Conceding that a motion to quash can be predicated on such ground, there is nothing to show that the district attorney was present at their deliberations, took any part therein, or influenced or directed them in their finding. It appears that he merely told one or two of the witnesses to state to the grand jury what they knew about the case. The district attorney is the representative of the public and the legal adviser of the grand jury. They have a right to call upon him for assistance as to the mode of proceeding, and on questions of law, although it is undeniable that it would be unlawful for him to participate in their council and express opinions

on questions of fact. It would not be illegitimate for him to assist them in the examination of witnesses, so as to elicit from them the material or essential facts on which the prosecution necessarily rests. The custom is one of long standing. It prevails in other sister states, and, as a conservative measure, it should not be interfered with, in the absence of express legislative prohibition. 1 Bish. Crim. Proc. $S 696, 861; Dav. Prec. 18-26.

The second ground of complaint will now be considered. The application rests on the fact of the absence on the day of trial of an alleged material witness residing in another parish, ordered to be summoned, and concerning whom no return had been made. It appears that some seven days before that fixed for the trial the defendant offered a petition, verified by his oath, setting forth material facts expected to be proved by a witness residing in an adjoining parish, and praying that he be summoned to testify. On the day fixed for the trial the witness' name was called, but the witness did not answer. The sheriff of the parish of the residence, to whom the subpæna had been directed, had made no return. Thereupon the defendant moved for a continuance, based on his affidavit, which establishes the material facts which he expected to prove by the absent witness, which, if proved, might have supported a case of self-defense; next, due diligence; further, his inability to prove the same facts by any known witness; and last, that the summons, which had been regularly issued to, had not been returned by, the sheriff of the parish of the residence of said witness. The district court overruled the motion, substantially on the grounds that the accused had not given proper directions as to the whereabouts of the witness, averring only that he is informed that he is on Hope plantation, in Iberia; that it is to the knowledge of the court that said witness is not there, and that he is absent from and beyond the process of the court; that the defendant has not shown the due diligence required by law, particularly where more than ordinary opportunity had been given; that the defendant does not swear that the facts alleged as material cannot be proved by any other witness, but simply that he knows of none, when it appears in the record of this case that several other witnesses summoned by him on preliminary examination have testified to identically the same facts; that it is evident from all the circumstances that delay is the object of the motion; that no showing is made to induce the belief that the attendance of the witness at a future day can be procured; and that the witness may never more be seen. It will suffice to say that the accused gave the only direction possible under the circumstances, when he stated the name of the plantation on which he had been informed that the witness resided; that the knowledge which the court claimed to have that the witness was not at that place, but is beyond the process of the court, is not defined, and may have been acquired on some misinformation, not stated, which the accused had no opportunity to contradict; that this knowledge is not such in itself, under the circumstances, that it can overthrow the presumption of verity which attaches to defendant's affidavit; that it is not perceived in what respect the accused could have shown more diligence; that it was suflicient for the accused to swear that he knew of no other witness who could prove the same facts; that the right of the trial judge to question the truthfulness of the assidavit of the accused in the manner attempted is more than doubtful; that if, as stated, other witnesses at the preliminary examination had testified to the same purport, it is not impossible that said witnesses may have since died, or disappeared for parts unknown; that there is nothing to show that the object of the defendant was to obtain further delay; and that his expectation to procure the attendance of the witness at any subsequent time is sufficiently established. It may be added that it is at least a possibility that the sheriff of the parish of the residence of the witness, to whom the subpoena had been issued, had served, and had not had time to make a return, or had not done so for some good reason. The accused was entitled to know of such return, and, in the absence thereof, could not be driven to a trial. The constitutional guaranty to an accused of a right to compulsory process for the attendance of his witnesses is not to be trited with. It is not a dead letter, and must be enforced. Considering, as we do, that the defendant was entitled to a continuance to procure the attendance of the witness, and that, if the facts stated in the aflidavit had been established by him, it is plausible to conjecture that the jury, in the absence of outbalancing evidence, might have returned a different verdict, we apprehend that the accused has not had the fair and impartial trial to which he is by law entitled, and that it is our duty to extend the relief sought. It is settled that where it is doubtful that an accused charged with a capital offense was afforded sufficient assistance to procure his witnesses, he is entitled to the benefit of such doubt. State v. Boitreaux, 31 La Ann. 188.

There is no necessity for expressing an opinion on the third ground of complaint. It is therefore ordered and decreed that the verdict of the jury, and the judgment and sentence upon it, be annulled and reversed, and that this case be remanded to the lower court for further proceedings according to law.

a

LAWRENCE 0. STATE.

(Supreme Court of Alabama. July 12, 1888.) 1. HOMICIDE-ASSAULT WITH INTENT TO KILL-EVIDENCE-THREATS.

On trial for assault with intent to murder, evidence of a previous assault and threats by defendant against the injured person is admissible to show the intent

with which the last assault was made. 2 SAME.

It is immaterial whether the offense, if completed, would have been murder in the first or second degree, as, if either, a conviction is warranted. 8. SAME-INSTRUCTION-INTENT.

The evidence showing an assault with a loaded gun, an instruction that "it is the intent unlawfully and maliciously to kill the person assaulted, which constitutes the crime of assault with intent to murder,” is not erroneous as asserting that mere intent, without ability to accomplish, completes the offense. Appeal from circuit court. Pilte county; John P. HUBBARD, Judge.

The defendant, Lawrence, was convicted for assault with intent to murder Coon Worthy. From the judgment he appeals.

T. N. McClellan, Atty. Gen., for the State.

CLOPTON, J. Generally, all occurrences, and the declaration accompanying them, having reference to and connected with the commission of an offense, though not coincident in point of time, are admissible in evidence as illustrating the conduct and motive of the accused. While the particulars or merits of a previous difficulty cannot be inquired into, the fact of such difficulty and the threats accompanying it may be proved for the purpose of showing malice or a motive for doing the deed. The previous assault and threats by the defendant against the particular person whom he is charged with having subsequently assaulted, had reference to the commission of the offense, and were admissible to show the intent with which the last assault was made. Ross v. State, 62 Ala. 224. If the details so far as narrated were not competent, the objection, as made, goes to the entire evidence relating to the previous diffculty and threats, and was properly overruled.

An intent to murder is an essential element of the offense of which the defendant was convicted, the burden of proving which is on the prosecution. If the facts and circumstances were such as, if death had ensued, would have reduced the offense to manslaughter, the defendant could not have been convicted of an assault with intent to murder. The determination of the guilt or innocence of the defendant necessarily involved the inquiry whether, if death had ensued, the offense would have been murder or manslaughter, or whether the killing would have been excusable homicide. But if murder, the inquiry is immaterial whether murder in the first or second degree, for, if in either degree, the defendant was guilty as charged. Meredith v. State, 60 Ala. 441.

To complete the offense, there must be both a wrongful act and a malicious jotent,an assault, and an intent to murder. A mere intent, without ability to accomplish it, real or apparent, is not sufficient. The charge given by the court, at the request of the prosecution, that “it is the intent unlawfully and maliciously to kill the person assaulted, which constitutes the crime of an assault with intent to murder,” when construed in reference to the evidence showing an actual assault with a loaded gun, which does not seem to have been controverted, is not obnoxious to the objection that it asserts the proposition that the mere intent, though ability real and apparent to accomplish

The publication of this case was delayed through difficulty in obtaining necessary matter.

* Respecting the admissibility of evidence of threats made by defendant on trial for homicide, see white v. Territory, (Wash. T.) 19 Pac. Rep. 37, and note; Westbrook v. People, (III.) 18 N. E. Rep. 304.

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