State v. Bunger , 14 La. Ann. 461 ( 1859 )

Voorhies, J.

The defendant was indicted, in the year 1856, for the murder of his wife, found guilty and sentenced to death. Having appealed to the Supreme Court, in session at Munroe, he succeeded in obtaining a reversal of this judgment; and the case was remanded for a new trial. 11 An. 607.

A new indictment for the same offence was preferred against him in the District Court. He then obtained a change of venue, was tried, again found guilty, and was sentenced to death.

We will now consider the questions of law presented by the numerous bills of exception, which the prisoner has taken to the rulings of the court below:

I. There is a complaint with regard to the service of the venire ; tho bill of exception states, “ that no list of the jury, who were to pass on his trial, had been delivered to the accused two entire days before that time.”

The record does not show that this party ever complained that an informal and irregular list of jurors were ever served upon him, nor does the District Attorney, in his brief, concede this point.

The Sheriff, in his return, states, that “ he served on the prisoner a certified list of the jury for the first week of the venire facias, who were liable to service as petit jurors.” It is true, the same bill of exception sets up as a matter of grievance, that the District Judge admitted the introduction of parol evidence, “ to prove that the list of jurors served on the accused, was made out after certain jurors had been excused.” Apart from the manifest inconsistency that wo find in this bill of exceptions, with regard to the fact of the service of the venire, we must confess our inability to see the practical effect of the second objection. There would be some meaning in it, had the prisoner rested his complaint upon the ground, that the list of jurors served upon him, was not such a one as the law contemplates. As he has not done this, we must overrule this bill of exception.

II. A juror by the name of G. W. Waugh was challenged for cause by the accused, on the ground that he had formed and expressed an opinion as to the guilt of the accused. The objection was overruled ; but it appears that the juror did not sit on the trial of this case.

This juror, being sworn on his voir dire, states : That he has formed and expressed an opinion as to the guilt or innocence of the prisoner ; that he has heard a good deal said about this case, the evidence of which, however, he has not heard; that, after hearing the evidence, he can give a fair and impartial verdict ; that he has heard the accused himself speak of the case; that he is of opinion that the accused is guilty ; and, finally, that he has no prejudice or opinion which will prevent him from doing impartial justice after having heard the testimony.

We will not disturb this ruling of the District Judge in this instance, for several reasons. Was the opinion of the juror based wholly upon rumor ? Or wholly upon the narrative of the accused himself? Or partly on both ? Now an opinion predicated upon rumor, when there is no bias or prejudice in the mind of the juror, is not a disqualification. On the other hand, if this opinion is based on the statement of the prisoner, the objection would seem to come more properly from the District Attorney.

The apparent hardship, in this case, consists in the fact, that the juror stated that he believed the prisoner guilty; but then, he does not say that his opinion is based on the declarations of the prisoner, nor on rumor. And, although from his answers, one or the orther, or perhaps both of these elements, must have presided in the formation of his opinion, there was clearly presented for adjudica^ tion, a question of fact, which the inferior court alone could decide. Was that opinion based upon rumor ? Was it based on the declarations of the prisoner ? Or was it the result of both ?

This was a matter of fact, which had to be weighed; and it is not made apparent by bill of exceptions, that in so doing, the District Judge violated any known rule of law applicable to the instance, or applied in its solution a ruling of doubtful applicability.

The jurisdiction of this court being limited to questions of law in criminal cases, it is obvious that we cannot review the action of the court below in this matter, without trespassing on the facts; and that is another reason why the ruling of the District Judge in refusing the challenge for cause of the juror, G. W. Waugh, should not be disturbed. 13 An. 491.

We may add that, as this juror did not sit in the case, and as it does not appear that the defendant thereby exhausted his peremptory challenges, we are unable to perceive the nature of the injury, which claims redress at our hands.

With regard to the other jurors challenged for cause, to wit, J. S. Bugg, Henry Maddox and B. S. Simms, it appears that their opinion was based wholly upon rumor, and that they were open to conviction. It is true that J. S. Bugg stated, in answer to the question: “ Would circumstantial evidence, different from what you have heard, change your opinion of the case”? “I think not.” But at the same time, he made the statement that “ he could judge of this case as of a case about which he had heard nothing, and formed no opinion.” The juror evidently misapprehended the purport of the question propounded to him relative to circumstantial evidence, the nature of which was probably unfamiliar to him.

It was, however, peculiarly within the province of the court below, to determine whether the facts elicited from the juror, on his voir dire, were such as to warrant the conclusion that the juror was or was not open to conviction ; and, if the accused was under the impression, that in so doing, an error or mistake of law had been committed to his detriment, it was incumbent upon him to present his grievance in a tangible form. As this bill of exception does not point out the error of law complained of, (and this remark applies to the challenge for cause of the other jurors,) we are exposed, in sustaining it, to review an opinion of the District Judge, which possibly may have been the solution of a mere question of fact, conceding the law to be as stated by the defendant’s counsel. Let us add that of these four jurors, the only one who sat in the case was Henry Maddox, who was clearly qualified to do so.

It is the duty of parties, in a criminal prosecution, to set up their grievances on appeal to this court, so that it can safely exercise its jurisdiction, without being exposed to violate the constitutional provision upon this subject. See the case of State v. Brunetto, 13 An. 45, and the authorities there quoted. See opinion of O. J. Merrick, in case of State v. Henderson, 13 An. 491.

III. The accused made a motion, in the court below, that the District Attorney be ordered to elect on which of the two indictments for the same offence, he would prosecute. No bill of exception was taken to the ruling of the District Judge, upon the rejection of this application.

Besides, the motion to elect can be exercised only with reference to the improper insertion of different counts in the same indictment. Wharton’s Criminal Law, p. 190, ed. 1852.

IV. The regular pannel of jurors having been set aside, on the application of the prisoner, he cannot now be listened to, when he contends that the bill of indictment preferred against him, should have been presented by the Grand Jury thus discharged.

V. The next ground of complaint is, that the prosecution originated before the Grand Jury, without previous preliminary investigation before a committing magistrate.

The statues regulating the arrest and commitment for crimes and misdemeanors, do not require a previous examination of the prisoner, in order to authorize the Grand Jury to inquire into the matter. Indeed, the discharge of the prisoner by the committing magistrate, would never be seriously opposed as precluding the action of the Grand Jury. Besides, it is the common law practice, and a practice invariably followed in this State, and never before questioned, that prosecutions may originate in the Grand Jury. Chitty Cr. L. p. 163.

VI. The defendant’s counsel urge that the reception of illegal evidence by the Grand Jury, vitiates the indictment. But it does not appear by bill of exception how the law has been violated in this respect, in the case at bar; nor in what respect the District Judge has misconstrued or misapplied the law. We have nothing to do with the statement of facts which we find in the record, on this branch of the case.

VII. The regular session of court for the parish of Madison, having been adjourned over for two weeks by the written order of the District Judge at chambers, and the jury of the first week ordered to attend accordingly, the prisoner challenged the array on the ground, that their term of service had expired by law. The District Oourt properly overruled this objection.

The court was not in session the first and second weeks. These jurors did not serve, or even attend court during that time; and the District Judge properly held that, in contemplation of law, the first week of the actual session of court, was that during which the jurors first enlisted had to attend court and serve iu that capacity.

YIII. The accused was not entitled to service of the list of talesmen ; this is not an open question. State v. Reeves, 11 An. 686.

IX. The Sheriff having summoned the talesmen out of the presence of the court, and when the court adjourned over from day to day, it is contended that the persons so summoned were not bystanders, and as such not liable to serve as jurors. The counsel states in his brief: “ On this point, I am aware that the later American decisions have greatly relaxed the English common rule, but contend that Louisiana has adopted the common law of England as it stood iu 1805, and that the late innovations on this well established principle of the common law, do not apply to this State.”

The rule is undoubtedly as laid down by the counsel; but it is obvious, that if the jury cannot be completed by summoning bystanders, recourse may be had to other persons not within the presence of the court. The bill of exceptions does not set this matter right before the court, and we are bound to presume, in the absence of proper evidence to the contrary, that the District Judge and the officers of court, did their duty on this occasion. If the Sheriff did not act with impartiality toward the accused, as the latter complains, that was a matter of fact which ought to have been submitted to the District Judge, and which rested in his sound discretion.

X. One of the talesmen, named S. L. Stone, a juror in this case, was not challenged for cause, although it appears that he was not qualified to serve. The court overruled the objection filed on that ground, by the defendant, to set aside the verdict of the jury. It is well settled that, when a juror can be challenged for cause, the right must be exercised before the juror is sworn ; and that a verdict cures the defect. No distinction is made by law, in that respect, between regular jurors and talesmen. Courts of justice cannot distinguish.

XI. The last bill of exceptions refers to the charge of the court to the jury. The counsel for the defence requested a charge to the effect: “ That a confession in a capital case, from the nature of the thing, is a very doubtful species of evidence, and should be received with great caution.” The District Judge refused to give this charge, on the ground that he had already given these instructions to the jury in his charge, in a less objectionable form. In this respect, we agree with him in laying down the law, that “ a free and voluntary confession by a person accused of a crime, is evidence against him; and it is with the jury to attach to a confession, that weight to which it is entitled.”

The District Judge having already charged, that in case the jury were satisfied of the insanity of the accused at the date of the commission of the deed, they must bring in a verdict of acquittal — had the right to decline giving the charge, asked by the prisoner’s counsel on the same subject-matter. The charge demanded was the substance of the charge already given, with the only difference that the former was stated in a manner calculated to mislead the jury.

We have had occasion during the progress of this investigation, to notice that this record contains an abundance of parol and documentary evidence ; and we take this opportunity to state, that inasmuch as the facts aré not within the province of this court in criminal prosecutions, it is the duty of the Clerks of the District Court to avoid' encumbering the transcripts, in such cases, with statements of facts. See opinion of C. J. Merrick, in the case of State v. Henderson, p. 491, 13 An., in which the following passage occurs :

“ It is apparent that inasmuch as the testimony is never taken down by the Clerk in criminal cases, that the record cannot be certified, as in civil cases, to contain all the evidence. This was known to the framers of the Constitution, when they conferred the appeal, and to the Legislature also when it authorized an appeal in criminal cases without giving bond. The Articles of the Code of Practice which gives cither party the right to require the Clerk to take down the testimony in civil cases and to require him to certify the same to the Supreme Court, are not applicable to appeals in criminal cases; and it seems torts as a consequence that the appeal cannot be dismissed, because the appellant did not do an impossible thing. C. P. 601, 896, 897.”

It is, therefore, ordered and decreed, that the judgment of the District Court be affirmed.