A list of tales jurors drawn under Act No. 44 of 1877, § 7, by the jury commissioners under order of the judge, and to be used only in the particular case for which drawn, and after exhaustion of the regular panel, has not to be served upon the accused. 11 La. Ann. 685; 15 La. Ann. 297; 14 La Ann. 464-652; 30 La. Ann. 536; 34 La. Ann. 193; 37 La. Ann. 459; Act No. 138, Ex. Sess. 1877, p. 209; Thomp. Jury Trials, pp. 13, 18, 20, 23, and authorities.

MCENERY, J. The defendant was tried for murder, found guilty without capital punishment, and sentenced to imprisonment at hard labor for life. He appealed.

The trial judge ordered the clerk, in view of the possibility of exhausting the regular panel, to notify the jury commission to meet in open court, and draw 30 additional jurors to pass upon defendant's case. The defendant complains that this list of jurors was not served on him two entire days before the trial. The list was not served on him, but a copy was served on his attorney. This was not in compliance with the law, as section 992 of the Revised Statutes requires that the list be served on the defendant. It is contended by the state that the law does not require that a list of jurors drawn under section 7 of Act No. 44 of 1877, in anticipation of the exhaustion of the regular panel, should be served on the defendant, as they are not a part of the regular venire, and are tales jurors, to be in attendance in case the panel should be exhausted. Section 7 of said Act No. 44 we think clearly distinguishes jurors drawn by the jury commission under the order of the court and those summoned instanter by the sheriff from among those in the court room and vicinity. The authorities referred to by the district attorney, which dispense with the service of the list of jurors on the defendant, are in those cases where the jurors were summoned from among the bystanders by the sheriff for instant service, and when there was no time to serve the list on the defendant. In the case of State v. Stewart, 34 La. Ann. 1037, it was held that jurors drawn as talesmen under section 7 of Act No. 44 of 1877, although designated as such in the act, are not assimilated to talesmen drawn from among the bystanders, a list of whom cannot be made and served on the accused in the time required by section 992 of the Revised Statutes; and it was further held that the list of tales jurors drawn in pursuance of said section of said act must be served on the defendant in accordance with section 992, Rev. St. In that case the jurors were ordered drawn to serve generally at the term of court in all criminal cases. But we do not see in what manner the effect of the statutes can be changed by order

as was done in the case of defendant. It would seem that there is stronger reason for the service of the list of jurors in such case. In the case of State v. Chambers, 45 La. Ann. 36, 11 South. 944, objection was made that no list of the additional jurors, drawn in pursuance of section 7 of Act No. 44 of 1877, had been served on the defendant two entire days before his trial, and that the order specified the particular cases in which they were to serve. The judge ordered the jury commission to draw 75 additional jurors to serve on the case of defendants in this case. We held that this did not vitiate the drawing, and found that the list had been served on defendants in accordance with law. We took occasion to say that the ob ject of the statute (section 992, Rev. St.) in requiring a list of the jurors to be served on the defendant, is that he may have an opportunity of inquiring into the character and qualifications of the jurors who are to pass on his case, and be able to prepare with intelligence the challenges which he may wish to present. In the case at bar the ju rors were drawn for the special purpose of passing on defendant's case, and as a fact some of them formed a part of the jury impaneled to try him. He was deprived of the benefits of section 992, Id., and we think the trial judge erred in forcing him to trial over his objection that he had not been served with a list of jurors who were to pass on his case two entire days before his trial. State v. Stewart, 34 La. Ann. 1037; State v. Chambers, 45 La. Ann. 36, 11 South. 944. It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled and reversed, and it is now ordered that this case be remanded, to be proceeded with according to law.

refusal of a new trial, asked for on the grounds that it did not. 30 La. Ann. 401; 32 La. Ann. 526; 38 La. Ann. 497.

Under section 3 of Act No. 7 of 1880 it is sufficient that the district judge shall fix at least four terms of court in each parish of a judicial district composed of three or more parishes, and that at least three weeks shall elapse between the holding of each term of court in the same parish. This act does not require that any special length of time shall transpire between the session of the court in one parish and its session in an adjoining parish of the same district. Act. No. 7 of 1880, § 3.

The use of intoxicating liquors as refreshments by jurors, during the progress of a protracted trial, is no ground for granting a new trial, without evidence of intoxication on the part of the jurors. 23 La. Ann. 148; 1 Bish. Crim. Proc. § 999; Thomp. & M. Juries, § 378; Proff. Jury Trial, § 402.

A separation of the jury will not vitiate a verdict, unless it be of such a character that prejudice to the party complaining may be expected to have resulted therefrom. The rule cannot be extended to such temporary or necessary separations as may be reasonably anticipated, or must necessarily occur in the course of a protracted trial. 10 La. Ann. 501; 30 La. Ann. 921; 28 La. Ann. 657; 25 La. Ann. 574; Thomp. & M. Juries, p. 370.

If the jurors are accused of misconduct, they may show by their oaths, not only in their own vindication, but in furtherance of justice, that they were not guilty of the misconduct charged against them. Thomp. & M. Juries, p. 547, § 446.

PARLANGE, J. The defendant, having been indicted for murder, was tried, found guilty of manslaughter, and sentenced to imprisonment in the state penitentiary for a term of 20 years. He has appealed. He relies for the reversal of the judgment against him upon three bills of exception. The gravest complaint which he makes is as to the refusal of the judge a quo to grant him a new trial. The motion for a new trial alleges, among other matters, that the jurors separated while they were deliberating; that they drank a large quantity of whisky; that one or more of the jurors were under the influence of liquor; and that while they were deliberating they were boisterous and noisy; so much so that on one of the two nights during which they were deliberating their noise prevented the inhabitants of the town from sleeping. The motion for a new trial sets out at length and in detail the alleged misconduct. From the testimony of the deputy sheriff who was in charge of the jury it clearly appears that the jurors separated. After they had entered upon their deliberations the deputy sheriff took them to his house, which is about 300 yards from the courthouse. The 10

There

The

white jurors were placed in one of the rooms in the house and the 2 colored jurors were placed in the kitchen at a distance of about 35 feet from the room in which the white jurors were. After the jurors had retired for the night, the deputy sheriff left the room in which the white jurors were, and he occupied another adjoining room. There was no officer with the white jurors during that night, nor was there any with the colored jurors. The doors of the rooms were not locked. The jurors might have left their rooms without the knowledge of the deputy sheriff. There is a back door to the room in which the colored jurors slept, and they might have gone out of their room without the knowledge of the deputy sheriff. These facts are clearly established. was no attempt to disprove them. deputy sheriff admits them. It is well established that in capital cases the Jury cannot be permitted to separate. State v. Crosby, 4 La. Ann. 434; State v. Desmond, 5 La. Ann. 398; State v. Costello, 11 La. Ann. 282; State v. Populus, 12 La. Ann. 710; State v. Evans, 21 La. Ann. 321. In capital cases, upon a separation of the jurors, misconduct and abuse will be presumed. State v. Hornsby, 8 Rob. (La.) 554; State v. Evans, 21 La. Ann. 321; State v. Frank, 23 La. Ann. 213; State v. Nockum, 41 La. Ann. 691, 6 South. 729; State v. Warren, 43 La. Ann. 828, 9 South. 559. In State v. Warren, 43 La. Ann. 828, 9 South. 559, this court held that, in a capital case, a separation of the jury, part of the jurors remaining without a deputy in charge while the others are led out of the building, is fatal to the prosecution. The defendant is so manifestly entitled to relief because of the separation of the jurors and by reason of the failure of the deputy sheriff to properly remain in charge of them, that we consider it unnecessary to pass upon the other questions presented. It is therefore ordered that the verdict of the jury be set aside, and the judgment appealed from annulled, avoided, and reversed; that the defendant be de tained in custody subject to the orders of the sixth judicial district court for the parish of West Carroll, to await further prosecution or proceedings according to law.

1886, and that her statement does not show that she is ignorant of the nature of an oath. 2. A person to whom complaint has been made by the victim of a rape or of an attempt to ravish cannot be permitted to repeat at the trial all the details of the outrage as reported to the witness, but can only testify to the fact of the complaint having been made, and to the condition of the victim when making the complaint. As part of the res gestae, such statements are admissible, and defendant may bring them out on cross-examination. may also be given to corroborate the testimony of the prosecutrix, but only when her testimony has first been impeached.

They

3. Where the defendant was being tried for an assault with intent to ravish, and the deputy sheriff in charge of the jury, on be ing informed that the jury stood 11 to 1, said to the juror opposed in opinion to the other jurors: "Why, John! Plain case," ," held, that the verdict of guilty brought in by the jury was vitiated by the misconduct of the deputy sheriff.

4. When an information for assault with intent to ravish charges that the defendant "with force and arms unlawfully did make assault upon A. B., with intent her, the said A. B., then violently and against her will feloniously to ravish and carnally know," the information is sufficient.

(Syllabus by the Court.)

Appeal from district court, parish of Grant; George Wear, Judge.

William Langford was convicted of assault with intent to rape, and appeals.

W. C. Roberts, for appellant.

Reversed.

A witness whose competency is objected to by defense in a criminal case, and who answers a question on cross-examination touching that question, that "she does not know what will be the consequence, nor how she will be punished, in case she swears falsely," is not a competent witness according to the terms of Act No. 29 of the Acts of 1886.

It is error to permit the state, in the prosecution of one charged with rape, or with an "assault with intent to commit rape," by one to whom the prosecutrix is alleged to have told the particulars of the assault, to prove what she told such person. Such testimony is not admissible for the purpose of corroborating the testimony of the prosecutrix; the fact of her making complaint only is admissible for that purpose. Knobl. Crim. Dig. p. 364, and the authorities there cited; Amer. Dig. (1892,) p. 4479, par. 37.

Improper communications between the jury and the officer in charge vitiates the verdict. When the officer states in the presence of the jury, addressing one of them, "Plain case," such statement is improper, and calculated to influence the minds of the jury, and the verdict is vitiated. 4 La. Ann. 26, State v. Summers; 35 La. Ann. 899, State v. Dallas; 8 Rob. (La.) 590, State v. Kenedy.

The conduct of an officer in charge of a jury may be proved like any other fact. Hawkins v. Publishing Co., 29 La. Ann. 134. In felonies the act charged must be charged to have been "feloniously" done, and in the charge "assault with intent to commit rape" the act must be charged also

to have been "forcibly" or "violently" done. Knobl. Crim. Dig. p. 232, and authorities there cited.

John R. Land, Dist. Atty., for the State.

The competent witness in criminal matters is any person of proper understanding, under Act No. 29 of 1886. No disqualifications can be recognized outside of said act. State v. Mack, 41 La. Ann. 1082, 6 South. 808.

While

Testimony of a third person is admissible in evidence to prove that the victim of an assault with intent to rape made complaint recently after the commission of the offense, and also to show condition of the victim at the time of making such complaint. such evidence does not constitute a part of the res gestae, it is admissible in corroboration of the testimony of the party outraged. 38 La. Ann. 618; 14 La. Ann. 529; Whart. Crim. Law, p. 441; 2 Starkie, Ev. p. 951; Greenl. Ev. p. 167.

Motions for new trials are addressed to the discretion of the trial court, whose action in denying them will not be reversed in the absence of a showing that the court abused its discretion to the detriment of appellant. 23 La. Ann. 326; 33 La. Ann. 310; 35 La. Ann. 96; 38 La. Ann. 497.

A juror cannot be examined as a witness to impeach the verdict of the jury of which he is a member. 30 La. Ann. 1266; 32 La. Ann. 842; 35 La. Ann. 1031.

While the testimony of jurors will not be received to impeach their verdict, it does not follow that such testimony will not be received to sustain it. If jurors are accused of misconduct, they may show by their oaths, not only in their own vindication, but in furtherance of justice, that they were not guilty of the misconduct charged against them. Thomp. & M. Jur. § 446.

The mental or physical condition of a person is not a question of law, but a question of fact. 14 La. Ann. 652; Id. 79.

In an information charging an assault with intent to commit rape it is not necessary that the pleader should qualify both the “act" and the "intent" as felonious. To qualify the intent is sufficient. 33 La. Ann. 921; 38 La. Ann. 963.

In an information charging an assault with intent to commit rape, it is not necessary that the pleader should qualify both the "act” and "intent" as "violently" or "forcibly" done. To thus qualify the "intent" alone is sufficient. 33 La. Ann. 921; 38 La. Ann. 963; 2 Bish. Crim. Proc. § 81.

PARLANGE, J. The defendant has been found guilty by a jury of an assault with intent to ravish, and he has been sentenced to imprisonment in the state penitentiary for a term of 18 months. He has appealed, and he relies on four bills of exception to reverse the judgment of the lower court. By his first bill of exception he contends that the

prosecutrix "was not a competent witness." The only ground for this contention is that on cross-examination she stated that "she did not know the consequence, nor how she would be punished, in case she testified falsely." The judge a quo, in overruling the objection to the competency of the witness, stated that "from the manner of the witness on the stand, and her answers to questions, she exhibited as much intelligence as ordinary persons of her class." We understand the defendant's counsel to contend in his brief that the statement of the prosecutrix proves her to be a person who does not understand the nature of an oath. This con tention is without force. There is nothing in the record to support it. The prosecutrix may well have meant that she was ignoraut of the instrumentalities by which the criminal law would punish her if she committed perjury, and that she did not know what the legal penalty would be. This would neither prove her to lack "proper understanding," within the meaning of Act No. 29 of 1886, nor to be ignorant of the nature of an oath. We are fortified in reaching this conclusion by the statement of the judge a quo, who heard and saw the witness, and to whom a large discretion is left in the matter., The judge refers evidently to the intelligence and mental capacity of the witness, and he did not consider the statement as relating to her ability to comprehend the nature of an oath. Competency is the rule, incompetency the exception. The burden is on the defendant to show the witness incompetent. He has failed to do so. If his intention was to show that the prosecutrix did not understand the nature of an oath, he could easily have addressed to her such questions as would have made the scope of his inquiry clear to her, and would have elicited from her such an answer as would have shown plainly whether she had or had not the proper understanding of the nature of an oath.

The second bill of exception reserves the objection of defendant to the admission of the testimony of a witness who was offered by the state to prove the statements made to him by the prosecutrix as to the crime for which the defendant was being tried. In the case of State v. Robertson, 38 La. Ann. 618, this court held that a person to whom complaint has been made by the victim of a rape, when placed on the witness stand, cannot be permitted to repeat all the details of the outrage, and the name of the ravisher, as reported to the witness, but can only testify as to the facts of the complaint having been made, and as to the condition of the victim when making the complaint. Bishop, in his treatise on Criminal Procedure, states that this is the English and the more common American practice. To the same effect is Greenleaf on Evidence. When the statements are part of the res gestae they are excepted from the operation of the rule just stated, and they may also

be drawn out by the defendant on cross examination. They may be admitted to corroborate the testimony of the prosecutrix, but only when her testimony has been impeached. When they are offered by the state in making out the case against the accused, and before the testimony of the prosecutrix has been impeached, they will be rejected, as was done in the case of State v. Robertson, just quoted. In the instant case the state offered the testimony without limitation. The testimony appears to have been offered while the state was making out the case against the accused, and before the defense had opened. The judge a quo states that the evidence was admissible in corroboration of the testimony of the prosecutrix, and that he limited it to that purpose. The statements could not have been admitted in corroboration, unless the testimony of the prosecutrix had first been impeached, of which there is no proof or indication in the record. On the contrary, it appears that the statements with all their details went to the jury before the defense opened. This

was error.

The third bill of exception concerns the refusal of the judge a quo to grant the defendant a new trial, for which the latter had moved on the ground that the verdict was contrary to the law and the evidence, and that "the jury, while considering the verdict herein, were improperly and unduly influenced by the deputy in charge thereof, who stated to them that it was a plain case, or straight case,' and further stated and exclaimed, 'Why, John!' one or more times, when informed that one John Wilson was holding them; that by said conduct the said John Wilson was influenced, and the verdict rendered by said jury vitiated." The testimony adduced on the hearing of the motion for a new trial was reduced to writing, and, the defendant having only excepted to the overruling of the motion, and having annexed said testimony to his bill, the same is before us for review. There were several objections made to testimony offered on the hearing of the motion for a new trial. but it is unnecessary for us to pass upon them, as we can reach a conclusion on this point by considering only the testimony admitted without objection. We are satisfied from the evidence that the deputy sheriff in charge of the jury went into the jury room after the jury had been deliberating for some time, and, on his inquiring whether the jury had agreed, was informed that the jury stood 11 to 1, and that John Wilson was the one juror opposing the views of the other 11 jurors. The deputy sheriff then exclaimed and said to John Wilson, "Why, John! Plain case," or words of similar import. Subsequently the jury agreed, and brought into court a verdict against the defendant. While bearing in mind the decisions of this court which declare that great weight is given to the rulings of trial judges in refus