State v. Shoemake

¶1On Rehearing.

¶2A review of the record convinces us that the matters before considered, and -forming the basis of our opinion, are not sufficient upon which to set aside and reverse the verdict and sentence in this case.

¶3[1] Defendant objected to the offering of prayer by the judge at the opening of the court, in the presence of the jury. He says that the prayer could only have the effect of prejudicing the jury against the accused, but he does not recite any of the petitions of the prayer offered, or tell how he was affected prejudicially. In the absence of prejudice ox-injury being shown by defendant, the court cannot presume that either was done to him.

¶4The judge says that it is his custom to open court each day with a prayer, general in its terms, and that the jury, and no particular officer of the court, was mentioned in the zxx-ayer on the occasion refex-red to. Since such was the custom of the court, and no oixe was mentioned in the prayer, we fail to see how the prayer could have prejudiced the jury for or against the accused; and we believe that it did not.

¶5A prayer for divine guidance in discharging the duties of the high office which the judge administers would suggest to the mind that he who offered the prayer was a virtuous and a merciful man, and that those qualities, combined with a knowledge of law, would make of him a good judge. It does not suggest injury being done to any one.

¶6The opening of court with prayer by the judge is not usual, but it is not forbidden. The crier of the court usually performs that duty when he opens court and cries, “God save the state and this honorable court.” No one has ever suggested that that officer had acted prejudicially or injuriously to an accused person, or to any one else who was before the court.

¶7[2] Regarding the complaint that immaterial evidence was admitted, we are disposed to accept the trial judge’s finding to the effect that the evidence was material. We are not in so good a position as he was to rule upon the point. The bill is not sufficient to show that irrelevancy.

¶8The accused is assured of a speedy trial, and he would be deprived of that right if immaterial evidence to any great extent were permitted to be introduced on the trial. And, further-, immaterial evidence would serve to confuse the minds of the jurors, and it would becloud the issues. But the trial of this case did not consume much time; the testimony complained of was short, and it was not calculated to confuse.

¶9[3] Coming now to the remarks of the district attorney about Christianity, which were most general in terms, we fail to see anything objectionable. Accused did object to them, and he filed a bill. But a bill of exceptions must be taken, to a ruling by the court on some objection made in the course of the trial, or to a part of the judge’s charge.

¶10If the remarks of the district attorney were objectionable in the opinion of the accused, he should have requested the judge to stop the district attorney, ox- that he charge the jury to disregard the objectionable *69statements. Defendant did not make any suck request of the judge; he invoked no ruling by the court with reference thereto, and he cannot therefore be heard to complain thereof. State v. Boswell, 45 La. Ann. 1158, 14 South. 79; State v. Young, 114 La. 686, 88 South. 517; State v. Brannon, 133 La. 1027, 68 South. 507; State v. McKowen, 126 La. 1075, 53 South. 353; State v. Oteri, 128 La. 939, 55 South. 582, Ann. Cas. 1912C, 878.

¶11To justify the Supreme Court in setting aside a verdict approved by the judge on the ground of improper remarks made by the district attorney it would have to be very thoroughly convinced that the jury was influenced by such remarks, and that they contributed to the verdict found. State v. Brown, 126 La. 12, 52 South. 176; State v. Montgomery, 121 La. 1005, 46 South. 997; State v. Mitchell, 119 La. 374, 44 South. 132; State v. Young, 114 La. 686, 38 South. 517.

¶12The remark of the district attorney with reference to Christianity was not calculated to have any influence on the minds of the jurors, and it certainly did not contribute to the verdict found. The judge states in his per curiam to a hill of exceptions that defendant was charged with the murder of a female child some 16 years of age, yet the verdict found him guilty without capital punishment. The remark of the district attorney appears, if it had any effect, to have been favorable to the accused.

¶13The judgment appealed from is affirmed.