State v. Beeder , 44 La. Ann. 1007 ( 1892 )

The opinion of the court was' delivered by

Nicholls, C. J.

The defendant, Allen Beeder (alias Allen Beedle), having been convicted of murder and sentenced to be hung, appeals from the judgment of the lower court, and relies for reversal upon a motion for a new trial, and a motion in arrest of judgment made in the District Court and overruled.

The first two reasons in the motion for a new trial cover the same ground, that the verdict was contrary to the law and the evidence.

In overruling these two grounds the court assigned as a reason that the evidence established a deliberate and cruel murder beyond any question of doubt. The judge’s conclusions on that subject can not be reviewed by us on appeal.

The third reason assigned was that Section “ B ” of the Criminal Court was without authority and jurisdiction to try the case because the minutes did not show that the indictment was ever allotted, or -that the two judges had equally apportioned the same between them; the fourth, that the indictment had never been allotted as is required by the Constitution, Article • 130; the fifth, that the defendant was not served with a copy of the indictment and a list of the panel of jurors to try the case; the sixth, that one of the jurors on the petit jury which tried the case was an alien,'a fact not known to accused at the time he was' accepted as a juror; the seventh, that Act No. 98 of 1880, “ creating a Board of Jury Commissioners,” etc., is violative of Articles 46 and 48 of the Constitution, and, therefore, unconstitutional.

The motion in arrest is to the effect that all the proceedings in the case were absolutely null and void, for the reason that there was no proper and legal indictment found against the defendant, for the reas,on that Act No. 98 of 1880, under and by authority of which the grand jury of the parish of Orleans found the indictment, was unconstitutional, in violation of Articles 46 and 48 of the Constitution.

The first two grounds have already been disposed of.

The position taken by the defendant in his third reason for a new trial, that the “jurisdiction” of the Criminal District Court to try this case is dependent upon what the minutes should show in respect to an allotment, has probably resulted from the fact that in the appellate court judgments have been frequently reversed absolutely or cases remanded on account of the failure of the record to show the existence of certain facts which should be shown in order to sustain the action of the lower court.

Prom these decisions the defendant has fallen into the error of not discriminating between the “existence” of a thing and the “evidence” to establish it. Defendant’s position “as taken” was not well taken. In so stating there is no inconsistency in saying that under certain circumstances we might have reversed this judgment entirely or remanded the case for further proceedings had there been nothing in the record to show any allotment. The Constitution, however, does not only not make the jurisdiction of the court dependent upon the recital in the minutes of the fact of an allotment, but it is absolutely silent as to the necessity of any record whatever. State vs. Blackman, 35 An. 483.

As a matter of fact we find the following minute entry under date of 21st March, 1892, on the minutes of Section “B” of the Criminal Court: “State of Louisiana vs. Allen Beeder, alias Allen Beedle. Indictment for murder.

“The grand jurors of the State of- Louisiana duly empaneled and sworn in and for the parish of. Orleans having found a true bill upon the indictment herein preferred, and the same, together with their finding, having been regularly returned into open court, recorded and filed, and the same having been regularly allotted to Section “2J” of this court, Allen Beeder, alias Allen Beedle, in person, was placed at the bar of the court to be arraigned on the charge therein preferred against him, and having heard the said indictment read he pleaded ‘Not guilty’ thereto. The court ordered his plea recorded and the accused remanded to await further proceedings in this cause.”

We may understand defendant’s fourth ground to mean either that there has been no allotment whatever of this ease, or that there has not been such an allotment as is required by Art. 130 of the Constitution of the State.

If the first idea was intended, the facts of the case do not bear the defendant out in his contention. The objection having been raised on a motion for a new trial, the district judge permitted the fact as to whether an allotment had been made to be examined into, and evidence was heard on that point which supports thoroughly the minute entry.

If defendant’s attention was to contest merely the manner of the allotment, he should have urged it before going into trial, and should have made known the specific grounds he relied on. To say that the allotment was not such as the Constitution required was entirely too general. But, as has |been said, the Constitution is absolutely silent as to any details of the allotment in the Criminal District Court. In the first part of Art. 130 (when referring to the Civil District Court) the allotment was ordered to be made under “rules of court ” to be adopted for that purpose, but in the latter part, (when referring to the Criminal District Court) nothing was said on that subject. In the absence of any statute regarding it, the only possible way for the Criminal District Court to carry out the requirements of the Constitution was (as the Civil District Court was required to do) to establish rules to govern its action, and we presume not only that it has done this, but that .the allotment in this case has been made in accordance with them. If the allotment was not so made, it was defendant’s duty to have shown that fact affirmatively, and he should have introduced the rules in evidence and brought them up with the transcript. Only in that way can we come to a knowledge of them (Heunen, page 76, No. 4). In the case of the State vs. Shalling, 34 An. 350, speaking of an entry similar to the one in this case, this court said: “The entry showed that the requirement of the Constitution was complied with — that this prosecution was allotted to Section ‘ B ’ of the court, and there is nothing in the entire record that impairs the force or legal effect of this entry, or weakens the presumption that the allotment was rightly made. It is not necessary that the record should show the manner or process by which the allotment was made. It is sufficient that it shows that it was done, and the legal presumption follows that it was rightly dme.” State of Louisiana vs. A. C. Blackman, 35 An. 483.

The court alluded to the case of the State vs. Ardotto (34 An. 1), sa.ying it was not applicable to the one at bar as the record was presented.

We make the same remark here. In the Ardotto case there was an utter absence of any allotment whatever. Here there would be, at best, an irregular or informal allotment.

We think it well to repeat what we have already said, that an objection of that character should be seasonably made, and when made as against such an entry as we find in this ease, affirmatively established. There is much force in the views expressed by Mr. Justice Manning in his concurring opinion in the case of the State vs. Williams, 34 An. 1198, where he said:

“The sole object of the constitutional requirement that criminal' proceedings should be apportioned between the judges by lot is to prevent any selection of cases by preference.

“Chance must determine which judge shall try each case. When that is accomplished it is a matter of indifference how or at wha^ stage of the proceedings the lot is cast. The constitutional provision is of that character that requires the most liberal construction in the interests of society and public order.”

In passing upon the fifth and sixth of the complaints set up in the motion for a new trial against the regularity of the proceedings had at the trial, which were to the effect that reversible error is to be found in the fact that copies of the indictment and venire were not served upon the defendant two full days before his trial, and that one of the jurors who sat upon the trial was an alien, the district judge said : “The objection that the defendant was not served with a copy of the indictment and venire comes too late when raised for the first time after verdict. The alienage of a petit juror is ground for challenge, but not for objection after verdict.” The authorities sustain the judge in these rulings.

The last reason assigned for a new trial and that embodied in the motion for an arrest of judgment cover the same ground — they both attack the constitutionality of ActNo. 88 of 1880 as violative of Arts. 46 and 48 of the Constitution of 1879.

The defendant assuming that statute to be a local and special law claims that it was enacted without the preliminary notice required by Art. 48, and that it contravenes Art. 46 in that it attempts to regulate the practice and jurisdiction of a particular court.

The question of the constitutionality of that statute has been twice before this court; once in the case of the State vs. Crowley, 33 An. 782, and once in the case of the State vs. Dalon, 35 An. 1142, and in both instances the law was upheld.

In the latter case, where the precise point was made which is taKen here, that the notice required by Art. 48 was not given, the court held that it did not fall under the provisions of Art. 48, as it was not a local or special law in the sense of the article relied on, and at some length it went into an examination of ' the meaning of these terms. The decision in that case controls the present one. • We do not see what interest the defendant would have in obtain - ing a decree declaring the unconstitutionality of Act No. 98, for were we to read the act out of the statute book the position of the defendant would not be bettered. Were we to say that the Governor of the State has no authority to appoint jury commissioners under the authority of that statute, their appointment by him would be still sustainable under Act No. 24 (E. S.) of 1878, and their acts on the score of their official status would be valid.

We do not see in what way the defendant is concerned in tracing the Governor’s power of appointment to any particular source.

jlf it be gran ed that the commissioners were legally appointed, defendant’s objection to the constitutionality of the act bears — if it has any bearing at all: — merely upon the manner of their action, and resolves itself into nothing more or less, as was said in 35 An. 96, than a challenge to the array after verdict, and as such not seasonably made.

The character of the objection is not changed by the form in which it is presented.

We do not see wherein any provisions of Act No. 98 touch defendant’s case or injuriously affect his rights, or wherein it attempts to regulate the practice of the court or its jurisdiction to his detriment."

If anything in "the act had that effect it was defendant’s duty to have pointed out to us specifically wherein he was aggrieved. "25 Pacific Reporter, 248.

As we understand the situation, the destruction of Act No. 98 would cause defendant’s case to fall under the operation of replacing antecedent laws, and by those laws to leave the proceedings against him still regular, and bis conviction legal.

For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment of the lower court be and the' same is hereby affirmed.

Judgment affirmed.