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case.

ror.

(157 La.)

assert such relationship as ground for new No. 26861.

trial. STATE v. CARRICUT.

10. Criminal law 956 (13)–Facts held not (Supreme Court of Louisiana. Nov. 3, 1924.)

to show attempt by outsiders to communicate

with jury during their deliberation. (Syllabus by Editorial Staff.)

That persons were seen below open win1. Jury cw97(2)-Juror, who stated he could dow of jury room, which was 20 feet above,

not do justice to state or to accused, held during jury's discussion, held not ground for properly excused.

new trial as an attempt to communicate with

jury, where it appeared such persons were A juror, who on his voir dire stated that driven away by sheriff, and there was no evihe was an intimate friend of accused, and felt dence they attempted to communicate with he could not do justice to him and to state, was

jury. properly excused. 2. Jury Ow79(3)-Parties are entitled to trial 11. Criminal law @126(1)-Contention that by competent and impartial jury, and not by

popular prejudice against accused prevented

fair trial held untenable. particular jurors. Parties have no right to trial by particular first trial there was some feeling, but no demon

Where it appeared that before accused's juror or jurors, but only to trial by competent stration, against him, but that such feeling and impartial jury.

had subsided before second trial, it could not 3. Criminal law Oma I 1661/2(7)–Excusing juo be contended that popular prejudice was so

ror competent to serve, or sustaining chal- great throughout the parish that a fair trial lenge for insufficient cause, is not error, was impossible. where competent and impartial jury tries

12. Criminal law On 126(1), 913(1)-Popular

prejudice against aacused in vicinage is Excusing juror competent to serve, or sustaining challenge for insufficient cause, is not

ground for change of venue, but not for new

trial. error, where competent and impartial jury tries case.

Popular prejudice against accused in vicin

age is ground for change of venue, but not for 4. Witnesses O40(1)-Allowing nine year old new trial. boy of average intelligence to testify not er

13. Criminal law em 145–One willing to go to Allowing a nine year old boy of average in

trial before jury of vicinage cannot thereafter telligence to testify held not error.

complain, if trial was otherwise properly

had. 5. Homicide On 22 (1)-Murder is of only one

One who is willing to go to trial before degree.

jury of vicinage cannot thereafter complain of In Louisiana homicide is either murder in popular prejudice, if the trial was otherwise the first degree or not murder at all.

properly had. 6. Homicide Om 313(3) Jury's verdict of mur. 14. Criminal law Om 1144 (15)-Not assumed

der in first degree held not vague or in trial judge failed in his duty of policing court. definite.

The trial judge is charged with policing his Verdict, “We, the jury, have found you own court, and Supreme Court will not assume guilty as charge murder of first degree with he failed to keep spectators from close proxcapital punishment,” held not void as being imity to jury and to prevent demonstrations, vague or indefinite, in view of Rev. St. $8 784- where he certifies that such spectators did not 786, 1000, as to which jury must be charged; | interfere nor influence jury. phrases, "first degree" and “with capital punishment," being mere surplusage.

Appeal from Fourteenth Judicial District 7. Criminal law Ow493—Opinion of witness, Court, Parish of Avoyelles; S. Allen Borde

without ability to substantiate it, that two lon, Judge. persons are related is not proof of relation.

Martin Eustis Carricut was convicted of Opinion of witness, without ability to sub- homicide, and he appeals. Affirmed. stantiate it, that two persons are related is not proof of relation.

Philo Coco, of Marksville, and Wade J.

Broussard, of Alexandria, and Albert Cox, of 8. Jury m85–Whether distant relationship to Plaucheville, for appellant.

deceased disqualified juror held determinable in trial court's discretion, in absence of bias. Dist. Atty., of Marksville, and Percy T. Og

Percy Saint, Atty. Gen., Wade Normand, Whether distant relationship to deceased disqualified juror held determinable in trial den, Asst. Atty. Gen., for the State. court's discretion, in absence of bias, in view of Act No. 135 of 1898, § 1.

ST. PAUL, J. The accused was duly in

dicted, tried, and convicted of murder, and 9. Criminal law Com 923(9)- Accused failing to

inquire on voir dire not entitled to assert ju- sentenced to be hanged. His appeal presents ror's distant relationship to victim of murder six bills of exception, as follows: as ground of new trial.

Bill No. 1. Where juror was not examined on his voir dire touching his alleged distant relationship to [1-3] The district attorney challenged the accused's victim, accused was not entitled to juror Louis Ortego for cause; the trial judge

em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

In

99

(102 So.) excused the juror on the ground that the i "Q. To testify? A. Yes, sir. juror "stated on his voir dire that he was an "Q. Do you know what an oath is? A. Yes. intimate friend of the accused, and felt that "Q. What is it? You swore to say what? To under the circumstances he could not do tell the truth? A. Yes, sir,

"Q. And if you don't tell the truth what will justice to [between] the accused and the happen to you? A. I will go to jail. state."

"Q. Who will punish you if you don't tell the Aside from the manifest propriety of the truth? A. God. ruling, the bill is yet without merit. "Q. You swore to tell the truth? A. Yes, sir. State v, Bagwell, 154 La. 980, 985, 98 So. 549, "Q. Now, will you tell the truth? A. Yes, 551, we said:

sir." "Parties have no right to a trial by any par

Whereupon counsel for the accused obticular juror or jurors, but only to a trial by a competent and impartial jury”-quoting 24 jected, as aforesaid, and the court overCyc, 251.

ruled his objection.

In State v. William, 130 La. 280, 57 So. It is therefore not a ground of exception, 927, this court said: where the procuring of such jury was not

"A wise discretion is left to the trial judge prevented, that the court excused a juror in deciding the competency of a child of tender who was competent to serve, or sustained a years to testify, and where he examines the challenge for insufficient cause. Asevado child and tests her understanding of the sig. v. Orr, 100 Cal. 293, 34 P. 777; McGrail v. nificance of an oath, and reaches the conclusion Kalamazoo, 94 Mich. 52, 53 N. W. 955.

that she will be a competent witness, his rul

ing will not be set aside unless for very maniBill No. 2.

fest error"-citing State V. Langford, 45 La.

Ann. 1177, 14 So. 181, 40 Am. St. Rep. 277; [4] The accused objected to the state us. State v. Williams, 111 La. 181, 35 So. 505. ing as a witness one Evans Carricut, on the ground that he was immature and incom In State v. William, 130 La. 280, 57 So. petent, for this, to wit; (1) That the wit- 927, the witness was said by the judge to ness is only nine years old, in the primer i be seven or eight years old; others thought grade at school, and is unable to answer she was about six. In State v. Williams, questions accurately without their being first | 111 La. 179, 35 So. 505, the witness was only put in the form of a leading question ; (2) he eight years old, and did not know his age. is reluctant, hesitates on all questions asked, In both cases the testimony of the witnesses and clearly shows inability to be impressed on voir dire was brought up with the record, with any facts.

and is to be found in the report of the case, The trial Judge overruled the objection, and their testimony showed them to be of and allowed the witness to testify. He says: about the same intelligence as the witness "The witness was examined at length as to in the case before us. his competency and understanding. The ex

In State v. Richie, 28 La. Ann. 327, 26 amination showed him to be a boy of average Am. Rep. 100, the testimony of a child six intelligence and fully qualified as a competent years old was received, and the court said: witness."

“Under the age of fourteen a child will not The examination referred to is in the rec

be presumed to have a sufficient understanding to be a witness,

and his admission or ord, and is here given in full, to wit:

rejection must depend upon the sound discre

tion of the judge." "Examination by the Court. “Evans Carricut, witness called on part of It is therefore our conclusion that the state, after being duly sworn, testified as fol- rule announced in State v. William, 130 La. lows:

280, 57 So. 927 (which is also the last expres"Q. How old are you, boy? (No answer.)

sion of this court on that subject), is the "Q. Do you speak English ? A. Yes. "Q. Where do you live? A. With my aunt.

correct rule in such cases.

Which rule we "Q. Did you go to school last session? a. find to prevail generally throughout the Yes, sir.

several states. See 40 Cyc. p. 2200, notes, "Q. Who was your teacher last year? A. 55-59, and page 2204, notes 79-88. Miss Lena Smith.

We see no manifest error, or error at all, "Q. How long did you go to school to her? in the ruling of the trial judge herein comA. So long, I don't know. "Q. Could you read?

plained of. A. Yes, sir. "Q. What grade were you in? A. In the

Bill No. 3. primer.

(5, 6] The verdict of the jury read as fol"Q. Since you left Bunkie, did you go to school? A. Yes.

lows: "Q. Who was your teacher then? A. Miss

“We, the jury, have found you guilty as

charge murder of first degree with capital pun"Q. What grade are you in now? A. In the ishment.” primer. "Q. Do you know why you are placed on that

The complaint (on application for a new chair? A. Yes, sir.

trial) was that the verdict is “vague and in

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definite, and not responsive, inasmuch as The relationship complained of was there. there is in Louisiana no crime defined as fore not proved. The mere opinion of a witmurder in the first degree."

ness that two persons are related, the witThe (revised) statutes of this state on the ness not knowing how they are related, is no subject of homicide are as follows:

proof of such relationship. "Sec. 784. Whoever shall commit the crime

In any event, in State v. Scarborough, 152 of willful murder, on conviction thereof, shall La. 669, 94 So. 204, it was held that distant suffer death.

relationship to the deceased, unaccompanied "Sec. 785. There shall be no crime known by bias, was not a disqualification for a under the name of murder in the second de- juror, but the matter lay in the discretion of gree; but on trials for murder the jury may the trial judge. See Act 135 of 1898, § 1, pp. find the prisoner guilty of manslaughter. "Sec. 786. Whoever shall be convicted of 1025, 97 So. 27.

216, 217; and State V. Holbrook, 153 La. manslaughter shall be fined in a sum not exceeding $2,000 and imprisoned at hard labor

Moreover, it is not shown that the juror not exceeding 20 years.

was examined on his voir dire touching this “Sec. 1000. In all cases where the punish- relationship. In State v. Nash, 45 La. Ann. ment denounced by law is death, it shall be 1143, 13 So. 732, 734, the rule was laid down lawful for the jury to qualify their verdict by that, in order to entitle the defendant to a adding thereto 'without capital punishment.' | new trial on grounds of that kind (even And whenever the jury shall return a verdict where the juror was absolutely incompetent qualified as aforesaid, the person convicted

on account of age), the defendant must al-
shall be sentenced to hard labor for life, in
the state penitentiary."

lege and prove: (1) That the juror was
legally incompetent; (2) that this fact was

unknown to defendant and his counsel until In view of these statutes (and considering after verdict; and (3) that the juror was that upon a trial for murder the judge must questioned on the point, and answered that charge the jury as to all the foregoing), there

he was competent. is nothing vague or indefinite in the verdict

In State v. Holbrook, supra, we said : complained of, since there can be no doubt whatever as to what the jury meant.

"These jurors [distantly related to, or conAnd since there is in this state (as also at voir dire that they had no bias against the ac,

nected with, the deceased) answered on their common law) but one degree of murder, it cused, and may have forgotten or disregarded follows that every murder is either murder this remote connection.” in the first and only degree, or not murder at all. The proof is that, had the addition In the case before as the juror had evibeen "second degree,” it would then not have dently forgotten, or perhaps never knew of, been responsive to the indictment. The ad- the remote relationship between himself and dition "first degree" was therefore mere the deceased; indeed any such relationsurplusage. It no more vitiated the verdict ship actually existed. than did the other surplus addition "with It is complained of in the motion for a capital punishment." See State v. Burns, new trial, and in brief, that this juror was 30 La. Ann. 679.

anxious to get on the jury. But the rec

ord not only does not establish that fact, Bill No. 4.

but actually negatives it. If the evidence [7-9] The complaint is that the Juror L. A. shows anything at all on this subject; it shows Couvillon, who sat in the trial, “is a third rather that the juror was not anxious to cousin of the victim of the act for which the serve, as he was not favorable to capital accused is being tried." The trial judge punishment. Moreover, none of this is mensays:

tioned in the bill of exceptions; doubtless be“The juror stated, on motion for a new trial, cause it was thought not proved, as the trial that he was not aware of any relationship with judge must also have thought, since he revictim until after the trial, and, while having fused the new trial, been told so, he was still unaware of any de We see no error in the foregoing. gree of relationship. Furthermore, if he was, it is not within the prohibited degree under the

Bill No. 5. law."

(10) The complaint in this bill is that: The only other evidence as to relationship “Despite efficient and careful precautions is as follows:

taken by the sheriff to prevent interference George Bordelon, testified:

with the deliberations of the jury, several per

sons were seen in an attempt to either com"Q. Do you know whether Mr. L. A. Couvil-municate or obtain information from the jury lon is related to the deceased wife (victim) of thus deliberating, and in fact one of the depthe accused? A. Yes, sir; they are third uties attempted to apprehend or arrest an incousins. Q. Can you explain to the court truder who made his escape in the dark. That how he is related to the deceased? A. I really immediately upon (the jury) retiring it was do not know how they are related. Q. You are rumored that the jury stood eleven to one for of the opinion, however, that they are related ? hanging; which rumor developed to be corA. Yes; but I don't know how."

rect.”

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(102 So.) The trial judge says, and the evidence y effort was made to influence them during the shows:

trial by any one in an illegal way.'

"The judge is charged with the policing of "The courtroom is in the upper story of a his own court, and we will not assume that he two-story building. The jury room is imme- failed in his duty." (Italics ours.) diately in the rear of the courtroom. The trial was held in the latter part of June, and con.

Decree. sequently it was very hot. The jury, while deliberating, opened two windows leading on The judgment appealed from is therefore the outside; these windows are about 20 feet, affirmed. from the ground. Two persons were seen on the ground immediately under the window, and were driven away. There is no evidence that they were attempting to communicate with the jury, but, on the contrary, had simply stopped

MCINTOSH V. HILL. (8 Div. 664.) at this point in the hope, possibly, of hearing some discussion going on in the jury room. (Supreme Court of Alabama. Nov. 20, 1924.) No harm or injustice resulted."

Estoppel Om95-Part owner held estopped We see no merit whatever in this bill. from asserting title to fixtures sold to en

force mortgage and landlord's lien. Bill No. 6.

Where part owner of fixtures, whose in[11-13] The accused had two trials; the terest was not mortgaged, purchased the fixfirst having resulted in a mistrial. Before

tures at sale by mortgagee of the other part the first trial there was some feeling (but tended to enforce mortgage debt and claim

owner's interest, knowing that mortgagee inno demonstration) against him; but that had for rent in the same sale, and did not indicate subsided before the second trial. This dis- that his interest was not subject to landlord's poses of the contention that “popular prej. | lien, he is estopped by silence from claiming udice was so great throughout the parish that his interest was not included in sale. that a fair trial was impossible." Moreover popular prejudice against the accused Appeal from Law and Equity Court, in the vicinage before trial is not a ground Franklin County; B. H. Sargent,' Judge. for granting a new trial, but only for a

Bill in equity by T. C. Hill against J. H. change of venue. If the accused is satisfied

McIntosh. From a decree for complainant, to go to trial before a jury of the vicinage,

respondent appeals. Reversed and rendered. he cannot afterwards complain, if the trial was otherwise properly had.

By his amended bill complainant avers [14] The accused further complains that that he, the complainant, and J. H. McIn"during the course of the trial the courtroom tosh, the respondent, are joint owners and and galleries, and windows directly behind tenants in common of certain barber shop the jury box, were crowded with spectators, fixtures, particularly described, which propso much so that the jury could have heard rty cannot be equitably divided betwee any statements made by these spectators in them, and prays a sale thereof for division as low a tone as a whisper. This condi- of the proceeds. Respondent filed answer tion was so aggravated that the court on and cross-bill setting up these facts: several occasions had to instruct deputy In 1910 respondent rented his building to sheriffs to drive away these spectators; but one Arnold for use as a pool room and soft they would gather around, and it was im- drink stand, a barber shop being later subpossible to keep them away.”

stituted for the drink stand. In 1921 Arnold The trial judge says:

sold his interest in the pool room and barber "It is true the courtroom and the galleries shop fixtures to one Barrett, who took over were crowded. At the beginning of the trial and assumed the lease of the premises. In the court instructed the sheriff to keep people these dealings complainant was not known from close proximity to the jury. That was to respondent. done as far as possible. At no time did any In January, 1923, Arnold sold and transdemonstration, act, or circumstance occur that ferred to respondent a mortgage executed to interfered with or influenced the jury in the him by Barrett to secure the purchase price discharge of its duty. The accused had a fair of the properties. In August thereafter Barand impartial trial."

rett was due respondent $1,481.84 for accuIn the above we see no grounds for a re- mulated rents, and thereupon authorized reversal

. In State v. Holbrook, 153 La. 1025, spondent to sell, either privately or publicly, 97 So. 27, we said:

the properties for the satisfaction of rents,

Thereafter, on August 27, respondent sold "Defendant complains that the relatives of the deceased, including officials, crowded be the properties at public outcry, conducting tween the defendant and the jury, thus ille- the sale in strict conformity with the provigally prejudicing and biasing the jury. The

sions of the Barrett mortgage and contract. trial judge says: "The jury was not crowded, and complainant bought in the property for and there was no one sitting near the jury. No) $1,400. The pool room property was subject

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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to the superior lien of the city for unpaid , ANDERSON, C. J. There can be little or license, and this lien was enforced in the no doubt that the complainant owned an uncourts, leaving respondent's lien only against divided half interest in the barber shop fix. the barber shop fixtures.

tures, as distinguished from the pool room, Negotiations between complainant and re- and that the respondent's mortgage did not spondent led up to an agreement by which include said half interest, and if the sale had complainant sh and did, purchase the been made solely under the mortgage and barber shop fixtures for the sum stated at the to satisfy the mortgage indebtedness alone, sale on August 27th, complainant to secure there could be little plausibility in the rerespondent for the purchase price and to go spondent's contention. But the proof shows into possession under the terms of the lease that the mortgage indebtedness was only a made by Barrett with respondent. Within portion of what was due McIntosh, and he a few days thereafter complainant decided had a considerable claim for back rent and not to take the property, whereupon respond which carried with it a lien on the complainent took it over and has since been in pos-ant's interest in the barber shop fixtures as session under bona fide claim of ownership. well as the other property in the building. By this pleading respondent asserts that it is also apparent that in the frequent and complainant is estopped from denying the constant negotiations between Hill and Mcvalidity of the sale and from asserting any Intosh, Hill knew that the claim of McIntosh right or title to the property, for the reason included the rent, and that the bid to be that complainant knew all the circumstanc-made at the sale by Hill, whether for him. es surrounding the sale of August 27th, that self or as agent for McIntosh, was for all the whole property was being sold to satisfy the property subject to the city's lien for the rent lien against it, and that complain- license, and included the rent as well as the ant made no objection thereto.

mortgage debt, and which former was Complainant answered the cross-bill, set-charge against complainant's interest in the ting up that the barber shop fixtures were barber shop. Complainant claims to have bought and jointly owned by complainant paid his cotenant or partner a portion of the and Arnold, who installed and operated the rent, but there is nothing to indicate that shop as à partnership with respondent's McIntosh had received it or ever released knowledge, but that complainant never had his lien for rent and did not intend the bid any rent contract with respondent; that, to include same. Hill did not protest against subsequently, Arnold sold his interest to Bar- the sale and at no time indicated that his rett, taking a mortgage on the pool room interest in the property was not subject to fixtures and on half interest in the barber the rent. . Indeed, it develops in the testishop fixtures, which mortgage was transfer-mony that McIntosh was willing to make red to respondent; and that neither Bar- Hill some slight concession in the resale and rett nor Arnold made any claim to complain-rent, because of the burden falling on him ant's half interest in the barber shop prop- and his interest in the property. erty–which fact was known by respondent. In other words, the conclusion is irresistComplainant further alleges that while the ible that in making the bid McIntosh intendbarber shop was in respondent's building, ed to do so upon the idea of closing up the and prior to the sale, complainant paid matter and acquiring all the property not monthly to Arnold or to Barrett his portion only covered by the mortgage but by his of the rental, which complainant believes landlord's lien, and that Hill knew of this was paid to respondent; that complainant's purpose and intent and made no protest or half interest in the barber shop property objection to the sale of his interest. Had he was not included in the sale of August 27th; objected or indicated that the sale should that complainant, in bidding in the property not include his interest in the property, or at such sale, acted not for himself but as that it was not liable for the rent or to the the agent of respondent and at his request; | irregularity of the method of enforcing the that he had no such agreement as that shown landlord's lien, it is hardly probable that reby the cross-bill, and did not agree to buy in spondent would have authorized that the bid the property for himself at the price stated, practically cover the entire indebtedness with for the reason that he already owned a half a waiver or exclusion of complainant's ininterest in it and that the amount stated was terest in the property, when it is practically more than the property was worth.

conceded that all of the property was worth After hearing on pleading and proof, the less than said indebtedness. We therefore trial court decreed complainant entitled to hold that the complainant's conduct was the relief prayed, and adjudged that the such as to estop him from claiming that his property be sold for division of the proceeds interest in the property was not included in between the parties.

the sale, and that said conduct may have

and probably did influence the respondent in Williams & Chenault, of Russellville, for fixing the amount to be bid for the property. appellant.

"He who is silent when conscience requires J. Foy Guin, of Russellville, for appellee. I him to speak, shall be debarred from speak

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