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(157 La.)

No. 26861.

STATE v. CARRICUT. (Supreme Court of Louisiana. Nov. 3, 1924.)

(Syllabus by Editorial Staff.)

1. Jury 97(2)-Juror, who stated he could not do justice to state or to accused, held properly excused.

A juror, who on his voir dire stated that he was an intimate friend of accused, and felt he could not do justice to him and to state, was properly excused.

2. Jury 79(3)-Parties are entitled to trial by competent and impartial jury, and not by particular jurors.

Parties have no right to trial by particular juror or jurors, but only to trial by competent and impartial jury.

3. Criminal law 11662 (7)-Excusing Juror competent to serve, or sustaining challenge for insufficient cause, is not error, where competent and impartial jury tries

case.

Excusing juror competent to serve, or sustaining challenge for insufficient cause, is not error, where competent and impartial jury tries case.

4. Witnesses 40(1)-Allowing nine year old boy of average intelligence to testify not er

ror.

Allowing a nine year old boy of average intelligence to testify held not error.

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

assert such relationship as ground for new trial.

10. Criminal law 956 (13)-Facts held not to show attempt by outsiders to communicate with jury during their deliberation.

That persons were seen below open window of jury room, which was 20 feet above, during jury's discussion, held not ground for new trial as an attempt to communicate with jury, where it appeared such persons were driven away by sheriff, and there was no evidence they attempted to communicate with jury.

1. Criminal law 126(1)-Contention that popular prejudice against accused prevented fair trial held untenable.

first trial there was some feeling, but no demonWhere it appeared that before accused's stration, against him, but that such feeling

had subsided before second trial, it could not be contended that popular prejudice was So great throughout the parish that a fair trial was impossible.

12. Criminal law 126(1), 913(1)—Popular prejudice against accused in vicinage is ground for change of venue, but not for new trial.

Popular prejudice against accused in vicinage is ground for change of venue, but not for new trial.

13. Criminal law 145-One willing to go to trial before jury of vicinage cannot thereafter complain, if trial was otherwise properly had.

One who is willing to go to trial before 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.

6. Homicide 313(3)-Jury's verdict of murder in first degree held not vague or indefinite.

Verdict, "We, the jury, have found you guilty as charge murder of first degree with capital punishment," held not void as being vague or indefinite, in view of Rev. St. §§ 784786, 1000, as to which jury must be charged; phrases, "first degree" and "with capital punishment," being mere surplusage.

7. Criminal law 493-Opinion of witness, without ability to substantiate it, that two persons are related is not proof of relation. Opinion of witness, without ability to substantiate it, that two persons are related is not proof of relation.

8. Jury 85-Whether distant relationship to deceased disqualified juror held determinable

in trial court's discretion, in absence of bias. Whether distant relationship to deceased disqualified juror held determinable in trial court's discretion, in absence of bias, in view of Act No. 135 of 1898, § 1.

9. Criminal law 923 (9)-Accused failing to inquire on voir dire not entitled to assert juror's distant relationship to victim of murder as ground of new trial.

Where juror was not examined on his voir dire touching his alleged distant relationship to accused's victim, accused was not entitled to

properly had.

14. Criminal law 1144(15)—Not assumed trial judge failed in his duty of policing court.

The trial judge is charged with policing his own court, and Supreme Court will not assume he failed to keep spectators from close proximity to jury and to prevent demonstrations, where he certifies that such spectators did not interfere nor influence jury.

Appeal from Fourteenth Judicial District Court, Parish of Avoyelles; S. Allen Bordelon, Judge.

Martin Eustis Carricut was convicted of homicide, and he appeals. Affirmed.

Philo Coco, of Marksville, and Wade J. Broussard, of Alexandria, and Albert Cox, of Plaucheville, for appellant.

Dist. Atty., of Marksville, and Percy T. OgPercy Saint, Atty. Gen., Wade Normand, den, Asst. Atty. Gen., for the State.

ST. PAUL, J. The accused was duly insentenced to be hanged. His appeal presents dicted, tried, and convicted of murder, and six bills of exception, as follows:

Bill No. 1.

[1-3] The district attorney challenged the juror Louis Ortego for cause; the trial judge

"Q. To testify? A. Yes, sir.

(102 So.) excused the juror on the ground that the juror "stated on his voir díre that he was an intimate friend of the accused, and felt that under the circumstances he could not do justice to [between] the accused and the

state."

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[4] The accused objected to the state using as a witness one Evans Carricut, on the ground that he was immature and incompetent, for this, to wit, (1) That the witness is only nine years old, in the primer grade at school, and is unable to answer questions accurately without their being first put in the form of a leading question; (2) he is reluctant, hesitates on all questions asked, and clearly shows inability to be impressed with any facts.

The trial judge overruled the objection, and allowed the witness to testify. He says: "The witness was examined at length as to his competency and understanding. The examination showed him to be a boy of average intelligence and fully qualified as a competent witness."

The examination referred to is in the record, and is here given in full, to wit:

"Examination by the Court.

"Evans Carricut, witness called on part of state, after being duly sworn, testified as follows:

"Q. How old are you, boy? (No answer.) "Q. Do you speak English? A. Yes. "Q. Where do you live? A. With my aunt. "Q. Did you go to school last session? Yes, sir.

A.

"Q. Do you know what an oath is? A. Yes. "Q. What is it? You swore to say what? To tell the truth? A. Yes, sir.

happen to you? A. I will go to jail.

"Q. And if you don't tell the truth what will

"Q. Who will punish you if you don't tell the truth? A. God.

"Q. You swore to tell the truth? A. Yes, sir. "Q. Now, will you tell the truth? A. Yes, sir."

Whereupon counsel for the accused objected, as aforesaid, and the court overruled his objection.

In State v. William, 130 La. 280, 57 So. 927, this court said:

"A wise discretion is left to the trial judge in deciding the competency of a child of tender years to testify, and where he examines the child and tests her understanding of the significance of an oath, and reaches the conclusion that she will be a competent witness, his ruling will not be set aside unless for very manifest error"-citing State v. Langford, 45 La. Ann. 1177, 14 So. 181, 40 Am. St. Rep. 277; State v. Williams, 111 La. 181, 35 So. 505.

In State v. William, 130 La. 280, 57 So. 927, the witness was said by the judge to be seven or eight years old; others thought she was about six. In State v. Williams, 111 La. 179, 35 So. 505, the witness was only eight years old, and did not know his age. In both cases the testimony of the witnesses on voir dire was brought up with the record, and is to be found in the report of the case, and their testimony showed them to be of about the same intelligence as the witness in the case before us.

In State v. Richie, 28 La. Ann. 327, 26 Am. Rep. 100, the testimony of a child six years old was received, and the court said: "Under the age of fourteen a child will not be presumed to have a sufficient understanding to be a witness, * * and his admission or rejection must depend upon the sound discretion of the judge."

*

It is therefore our conclusion that the rule announced in State v. William, 130 La. 280, 57 So. 927 (which is also the last expression of this court on that subject), is the correct rule in such cases. Which rule we find to prevail generally throughout the 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? A. Yes, sir.

"Q. What grade were you in? A. In the primer.

"Q. Since you left Bunkie, did you go to school? A. Yes.

"Q. Who was your teacher then? A. Miss Fontanne.

plained of.

Bill No. 3.

[5, 6] The verdict of the jury read as follows:

"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 chair? A. Yes, sir.

The complaint (on application for a new trial) was that the verdict is "vague and in

definite, and not responsive, inasmuch as there is in Louisiana no crime defined as murder in the first degree."

The relationship complained of was therefore not proved. The mere opinion of a witness that two persons are related, the wit

The (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.

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"Sec. 785. There shall be no crime known under the name of murder in the second degree; but on trials for murder the jury may find the prisoner guilty of manslaughter. "Sec. 786. Whoever shall be convicted of manslaughter shall be fined in a sum not exceeding $2,000 and imprisoned at hard labor not exceeding 20 years.

"Sec. 1000. In all cases where the punishment denounced by law is death, it shall be lawful for the jury to qualify their verdict by adding thereto 'without capital punishment.' And whenever the jury shall return a verdict qualified as aforesaid, the person convicted shall be sentenced to hard labor for life, in the state penitentiary."

In view of these statutes (and considering that upon a trial for murder the judge must charge the jury as to all the foregoing), there is nothing vague or indefinite in the verdict complained of, since there can be no doubt whatever as to what the jury meant.

And since there is in this state (as also at common law) but one degree of murder, it follows that every murder is either murder in the first and only degree, or not murder at all. The proof is that, had the addition been "second degree," it would then not have been responsive to the indictment. The addition "first degree" was therefore mere surplusage. It no more vitiated the verdict than did the other surplus addition "with capital punishment." See State v. Burns, 30 La. Ann. 679.

Bill No. 4.

[7-9] The complaint is that the Juror L. A. Couvillon, who sat in the trial, "is a third cousin of the victim of the act for which the accused is being tried." The trial judge

says:

"The juror stated, on motion for a new trial, that he was not aware of any relationship with victim until after the trial, and, while having been told so, he was still unaware of any degree of relationship. Furthermore, if he was, it is not within the prohibited degree under the law."

The only other evidence as to relationship is as follows:

George Bordelon, testified:

"Q. Do you know whether Mr. L. A. Couvillon is related to the deceased wife (victim) of the accused? A. Yes, sir; they are third cousins. Q. Can you explain to the court how he is related to the deceased? A. I really do not know how they are related. Q. You are of the opinion, however, that they are related?

In any event, in State v. Scarborough, 152 La. 669, 94 So. 204, it was held that distant relationship to the deceased, unaccompanied by bias, was not a disqualification for a juror, but the matter lay in the discretion of the trial judge. See Act 135 of 1898, § 1, pp. 216, 217; and State v. Holbrook, 153 La. 1025, 97 So. 27.

Moreover, it is not shown that the juror was examined on his voir dire touching this relationship. In State v. Nash, 45 La. Ann. 1143, 13 So. 732, 734, the rule was laid down that, in order to entitle the defendant to a new trial on grounds of that kind (even where the juror was absolutely incompetent on account of age), the defendant must allege and prove: (1) That the juror was legally incompetent; (2) that this fact was unknown to defendant and his counsel until after verdict; and (3) that the juror was questioned on the point, and answered that

he was competent.

In State v. Holbrook, supra, we said:

"These jurors [distantly related to, or convoir dire that they had no bias against the acnected with, the deceased] answered on their cused, and may have forgotten or disregarded this remote connection."

In the case before as the juror had evidently forgotten, or perhaps never knew of, the remote relationship between himself and the deceased; if indeed any such relationship actually existed.

It is complained of in the motion for a new trial, and in brief, that this juror was anxious to get on the jury. But the record not only does not establish that fact, but actually negatives it. If the evidence shows anything at all on this subject, it shows rather that the juror was not anxious to serve, as he was not favorable to capital punishment. Moreover, none of this is mentioned in the bill of exceptions; doubtless because it was thought not proved, as the trial judge must also have thought, since he refused the new trial.

We see no error in the foregoing.

Bill No. 5.

[10] The complaint in this bill is that: "Despite efficient and careful precautions taken by the sheriff to prevent interference with the deliberations of the jury, several persons were seen in an attempt to either communicate or obtain information from the jury thus deliberating, and in fact one of the deputies attempted to apprehend or arrest an intruder who made his escape in the dark. That immediately upon (the jury) retiring it was rumored that the jury stood eleven to one for hanging; which rumor developed to be cor

(102 So.)

The trial judge says, and the evidence effort was made to influence them during the shows: trial by any one in an illegal way.'

"The courtroom is in the upper story of a two-story building. The jury room is imme

his own court, and we will not assume that he "The judge is charged with the policing of failed in his duty." (Italics ours.)

Decree.

The judgment appealed from is therefore

diately in the rear of the courtroom. The trial
was held in the latter part of June, and con
sequently it was very hot. The jury, while
deliberating, opened two windows leading on
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
at this point in the hope, possibly, of hearing
some discussion going on in the jury room.
No harm or injustice resulted."

We see no merit whatever in this bill.

Bill No. 6.

[11-13] The accused had two trials; the first having resulted in a mistrial. Before the first trial there was some feeling (but no demonstration) against him; but that had subsided before the second trial. This disposes of the contention that "popular prej udice was so great throughout the parish that a fair trial was impossible." Moreover popular prejudice against the accused in the vicinage before trial is not a ground for granting a new trial, but only for a change of venue. If the accused is satisfied to go to trial before a jury of the vicinage, he cannot afterwards complain, if the trial was otherwise properly had.

[14] The accused further complains that "during the course of the trial the courtroom and galleries, and windows directly behind the jury box, were crowded with spectators, so much so that the jury could have heard any statements made by these spectators in as low a tone as a whisper. This condition was so aggravated that the court on several occasions had to instruct deputy sheriffs to drive away these spectators; but they would gather around, and it was impossible to keep them away."

The trial judge says:

"It is true the courtroom and the galleries were crowded. At the beginning of the trial the court instructed the sheriff to keep people from close proximity to the jury. That was done as far as possible. At no time did any demonstration, act, or circumstance occur that interfered with or influenced the jury in the discharge of its duty. The accused had a fair and impartial trial."

In the above we see no grounds for a reversal. In State v. Holbrook, 153 La. 1025, 97 So. 27, we said:

MCINTOSH v. HILL. (8 Div. 664.)

(Supreme Court of Alabama. Nov. 20, 1924.) Estoppel 95-Part owner held estopped from asserting title to fixtures sold to enforce mortgage and landlord's lien.

Where part owner of fixtures, whose interest was not mortgaged, purchased the fixtures at sale by mortgagee of the other part tended to enforce mortgage debt and claim owner's interest, knowing that mortgagee infor rent in the same sale, and did not indicate that his interest was not subject to landlord's lien, he is estopped by silence from claiming that his interest was not included in sale.

Appeal from Law and Equity Court, Franklin County; B. H. Sargent,` Judge. Bill in equity by T. C. Hill against J. H. McIntosh. From a decree for complainant, respondent appeals. Reversed and rendered. By his amended bill complainant avers that he, the complainant, and J. H. McIntosh, the respondent, are joint owners and tenants in common of certain barber shop fixtures, particularly described, which property cannot be equitably divided between them, and prays a sale thereof for division of the proceeds. Respondent filed answer and cross-bill setting up these facts:

In 1910 respondent rented his building to one Arnold for use as a pool room and soft drink stand, a barber shop being later substituted for the drink stand. In 1921 Arnold sold his interest in the pool room and barber shop fixtures to one Barrett, who took over and assumed the lease of the premises. In these dealings complainant was not known to respondent.

In January, 1923, Arnold sold and transferred to respondent a mortgage executed to him by Barrett to secure the purchase price of the properties. In August thereafter Barrett was due respondent $1,481.84 for accumulated rents, and thereupon authorized respondent to sell, either privately or publicly, the properties for the satisfaction of rents. Thereafter, on August 27, respondent sold "Defendant complains that the relatives of the properties at public outcry, conducting the deceased, including officials, crowded between 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

to the superior lien of the city for unpaid license, and this lien was enforced in the courts, leaving respondent's lien only against the barber shop fixtures.

Negotiations between complainant and respondent led up to an agreement by which complainant should, and did, purchase the barber shop fixtures for the sum stated at the sale on August 27th, complainant to secure respondent for the purchase price and to go into possession under the terms of the lease made by Barrett with respondent. Within a few days thereafter complainant decided not to take the property, whereupon respondent took it over and has since been in possession under bona fide claim of ownership. By this pleading respondent asserts that complainant is estopped from denying the validity of the sale and from asserting any right or title to the property, for the reason that complainant knew all the circumstances surrounding the sale of August 27th, that the whole property was being sold to satisfy the rent lien against it, and that complainant made no objection thereto.

ANDERSON, C. J. There can be little or no doubt that the complainant owned an undivided half interest in the barber shop fixtures, as distinguished from the pool room, and that the respondent's mortgage did not include said half interest, and if the sale had been made solely under the mortgage and to satisfy the mortgage indebtedness alone, there could be little plausibility in the respondent's contention. But the proof shows that the mortgage indebtedness was only a portion of what was due McIntosh, and he had a considerable claim for back rent and which carried with it a lien on the complainant's interest in the barber shop fixtures as well as the other property in the building. It is also apparent that in the frequent and constant negotiations between Hill and McIntosh, Hill knew that the claim of McIntosh included the rent, and that the bid to be made at the sale by Hill, whether for himself or as agent for McIntosh, was for all the property subject to the city's lien for license, and included the rent as well as the mortgage debt, and which former was a 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 a 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; that complainant, in bidding in the property at such sale, acted not for himself but as the agent of respondent and at his request; that he had no such agreement as that shown by the cross-bill, and did not agree to buy in the property for himself at the price stated, for the reason that he already owned a half interest in it and that the amount stated was more than the property was worth.

objected or indicated that the sale should not include his interest in the property, or that it was not liable for the rent or to the irregularity of the method of enforcing the landlord's lien, it is hardly probable that respondent would have authorized that the bid practically cover the entire indebtedness with a waiver or exclusion of complainant's interest in the property, when it is practically conceded that all of the property was worth less than said indebtedness. We therefore hold that the complainant's conduct was such as to estop him from claiming that his interest in the property was not included in 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

After hearing on pleading and proof, the trial court decreed complainant entitled to the relief prayed, and adjudged that the property be sold for division of the proceeds between the parties.

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