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8 Rob. 590

State v. Kennedy

Louisiana Court of Errors and Appeals

Decided July 15, 1845

Louisiana Court of Errors and Appeals · decided 1845-07-15

<p>A new trial will not be granted, in a prosecution for murder, on the ground of the jury having been permitted to communicate with persons not members of their body, where they were kept together in apartments provided for their use during the adjournment of the court, and the few words exchanged by the jurors with persons not of their body, were with sworn officers of the court, brought unavoidably in contact with them, and did not relate to the trial, nor were of a character to produce the slightest effect upon their decision.</p> <p>Where a jury in a criminal-case is put in charge of a sheriff or his deputy, it is not necessary that either should be specially sworn to keep them together, and not to speak to them except to ask them if they are agreed, nor to permit others to speak to them. The duty of the sheriff, or his deputy, in such a case is an official one, which they having been already sworn to perform, no additional oath was necessary.</p> <p>Where on atrial for murder, a person offered to be sworn as a jhror answers on his voir dire, that he has conscientious scruples against finding a verdict of guilty in any case involving the life of the accused, he may, on the principles of the common law, independently of any statutory enactment, be set aside for cause.</p> <p>Where twelve months have not elapsed between the time when a juror first determined to fix his residence in this State, and the date of the formation of the venire, he is incompetent, not having resided twelve months within the State, as required by law. The twelve months commence only from the date of the determination to reside within the State, though the party may have been within it for many months previously.</p> <p>An objection to a juror on account of want of residence should be made when the juror is offered to be sworn. Where no inquiry is made of the juror on his voir dire, as to his residence, any objection on that account will be too late on a motion for a new trial. Aliter, when, on being interrogated, he states that he possesses any qualification, and the statement is afterwards found to be false.</p> <p>In applications for a new trial in criminal cases, on the ground of newly discovered evidence, it must be shown that there has been reasonable diligence to procure the evidence, that it has been discovered since the trial and is material, and that it would probably produce a different verdict, if a new trial be granted.</p> <p>It is not necessary, either in England or in this State, to mention in an indictment the name of the court in which it was found ; consequently, where the style of 'the court is inaccurately given in the commencement and statement of an indictment, it will be disregarded as surplusage.</p> <p>The caption forms no part of an indictment. It is a separate act, not submitted to nor acted on by the grand jury, preferring no charge against the accused, and never appears on the record till the bill has been found, and generally not until the indictment has been removed for trial to a higher tribunal, by writ of error or certiorari. Its principal object is to show that the inferior tribunal had jurisdiction of the offence, and owes its origin to the peculiar organization of the English courts. In this State, where the same court before which an indictment is found must try it, no caption is necessary or required.</p> <p>In an indictment the venue, that is, the parish in which the offence was committed, must be stated, in order that the court may know whether it has jurisdiction.</p> <p>In indictments for offences termed felonies at common law, the time when the of-fence was committed must be stated with such eertaiuly that no doubt can be 'entertained of the period really intended. Any uncertainty in the averment of time and place will vitiate the indictment. This averment must be repeated as to every issuable fact; when they have been once set forth with certainty, they may, in every subsequent averment, be referred to by the words then and there, which are equivalent to a repetition of the time and place.</p> <p>In an indictment for murder, the material facts are the mortal stroke and consequent death, and the death must appear to have occurred within a year and a day after the mortal stroke. The averment of each of these material facts must be accompanied by an allegation of a certain time and place: thus, where an indictment for murder, after stating the mortal blow, with the usual averments of time and place, proceeds : “ Of which mortal wound so given by the said K. with the deadly weapon aforesaid, to the said W., the said W. did then and there suffer and languish and languishing did live, and, a few hours after did die of the said mortal wound,” the averment of the time.and place of the death is insufficient; and the defect is not cured by a verdict. Per Curiam : The words then and there” immediately precede and refer to the words “ languished and languishing did live,” and not to the allegation “ and a few hours after did die.” The copulative and is insufficient to connect the time and place with the death. The facts of time and place must be precisely and distinctly stated ; they cannot be inferred. Nor will the averment in the conclusion of a correct time and place of death, cure this defect; on the contrary, it will render it repugnant to the statement.</p> <p>The stat. of 4 May, 1845, s. 33, which provides that “ the forms of indictments (divested, however, of unnecessary prolixity,) the method of trial, rules of evidence aDd all other proceedings whatsoever in the prosecution of said crimes, offences and misdemeanors, changing what ought to be changed, shall be, except as otherwise provided for, according to the common law,” did not intend to confer upon the courts authority to legislate on the subject of criminal proceedings or the framing of indictments, but merely to direct prosecuting officers to omit those prolixities acknowledged to be such at common law, and unnecessary, though habitually inserted in indictments ; and the changes directed to be made, are those necessary to make our proceedings conform to our own laws and form of government. Whatever has been determined to be an essential averment in an indictment at common law will be deemed necessary here, unless a statute of the State has removed the reason, and with it the necessity for the allegation.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1845-07-15

How this case has been cited

Cited by 30 later decisions — most recently July 2016 · most notably State v. Brazile (1956), Wilkerson v. Whitley (1994)

2 federal appellate · 28 state decisions

50184518501860187018801890190019101920193019401950196019701980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1*609Application foe. a Re-hearing.

Preston, Attorney General,

¶2for a re-hearing. It is admitted, because the authorities are unanimous on that point, that if a material fact in an indictment be alleged with a certain day and place, the time and place of every other material fact which occurred on the same day, and at the same place, may be alleged, by referring by the adverbs then and there, to the time and place previously stated. It is admitted that it is stated in this indictment. with technical certainty, that Kennedy gave Wait a mortal stroke on the 29th day of December, 1844, in the parish of Orleans. Now the question is, whether the death of Wait, is referred by the adverbs then and there, in the indictment, to the said time and place, with technical certainty.

¶3The indictment states, that Kennedy gave Wait a mortal stab, in the parish of Orleans, on the 29th of December, 1844, of which mortal stab he then and there suffered, languished, lived, and a few hours thereafter died.

¶4All grammarians will agree, that the death is referred, in the foregoing sentence, by then and there, to the parish of Orleans, and the 29th of December, 1844.

¶5The words “ a few hours thereafter,” are inserted in the statement to show precisely the facts which occurred. They refer, by grammatical construction, and by their inherent meaning, to the mortal stroke. They do not refer to the fact that Wait suffered, languished and lived, because he could not die a few hours after he suffered, languished and lived, but must have died the instant he ceased to suffer, langu ish and live.

¶6The words “ a few hours thereafter died,” referring, therefore, to the mortal stab, and qualifying the death, as certainly connect the death with the day of the mortal stab, as the repetition of the word then would have done.

¶7As to place, it is the opinion of the court, the indictment should have read thus: “ Of which mortal stab the said Wait there languished and lived, and a few hours thereafter there died.” The repetition of the word there adds nothing to the precise certainty of the place of the death, and therefore, is merely unnecessary prolixity, forbidden by the act of 1805.

¶8I cannot admit for a moment, that the judgment in this case would have been arrested at common law, even before the statute of George the 4th abolished all these miserable technicalities in England. Hale, and Kenyon, and Ellenborough, and Mansfield, and Chief Justice Eyre, never would have arrested this judg*610ment after what they are reported to have said at pages 139 and and 140 of Chitty’s Criminal Law.

¶9There are but two decisions that can be found which give any countenance to such technicalities. One reported in black letter Norman French, at pages 68-69, of Dyer, in the reign of Edward the sixth ; and Cotton’s case, in the reign of Queen Elizabeth. In the margin of the former case, Leonard, and Coke’s Institutes, are cited, later authorities to the contrary; and Lord Hale in stating the decisions says, they were given in favorem■ vitae.

¶10In Cotton’s case, the allegation was, that Cotton, on the day, and at the place, having an axe in his hand, struck Speucer, whereof she the same day and year died. Exception was taken to the indictment, and it was held ill, because the place was alleged where he had the weapon in his hand, but not where he struck, or she died.

¶11But this case is entirely different from the one before the court. The time and place were not connected, as here, by the copulative conjunction “ and,” with the death ; but qualified the having an axe in his hand, and not the stroke with the axe.

¶12I have not seen the decision, that the then and there cannot be connected with the death, by the copulative and ; but that they must succeed and not precede the and. If there be such a decision, it is contrary to grammatical rules, and to the common understanding.

¶13It cannot be pretended, but that the whole of the consequences of the mortal stroke given to the deceased Wait, are referred by the technical words then and there to the time and place when and where the mortal stroke was given, according to the strict rules of grammatical construction. Then and there qualify the words immediately following them, and all words connected with them by the copulative and.

¶14Chitty indeed states, that that conjunction is not sufficient in some cases, but cites no authorities in support of his assertion; nor does he specify the cases in which it is insufficient. Pages 181, 220.

¶15But if this indictment could have been arrested at common law, it cannot be by our courts. They are directed by the act of 1805, to change what ought to be changed in criminal proceedings. In England they have changed by statute the practice'of arresting judgments on such frivolous pretexts. No one will pretend that such a practice ought not to be changed here. Judgment was arrested in but two instances on such a ground in England, and that two or three hundred years ago. We have no knowledge of (hose remote and obscure cases; but we know, that the courts expressly say, that the technicalities were admitted in favorem vitae, and were inadmissible where the punishment was not capital. And why admitted in favorem vitae 7 Because a new *611trial could not be granted, aod for no other reason. No doubt, therefore, the courts finding a mao convicted, but innocent, sought the pretext for arresting judgment, in favorem viles, which the rules of law forbid in cases not capital.

¶16Under the power to change what ought to be changed, this court established, in the case of Hornsby, that a new trial should be granted in capital cases. They had no other authority to grant that now trial, except the power to change what ought to be changed in the common law, which allowed no new trial in capital cases, and by the principles of which they were bound until changed.

¶17The court in making this great change, abolished the whole reason on which the courts in England, two hundred years ago, allowed this frivolous technicality, in arrest of judgment, in fa-vorem vites; and by abolishing the whole reason for allowing it, abolished the technicality itself.

¶18The court did not notice the argument, that the place of the death has become immaterial, by our law’s authorizing the prosecution at the place where the mortal stroke was given * and that the time of the death was immaterial, if the whole record showed that the death occurred within a year and a day after the mortal stroke. Archbold, 385. I relied with great confidence on these points, for I cannot conceive how a most solemn proceeding can be set aside for mere arbitrary rules, without reason. Cessante ratione, cessat et lex.

Johnson J.

¶19The majority of the court who concurred in the decision rendered in this case, have considered the grounds urged by the attorney general for a re-hearing, without being brought to the conclusion that it ought to be granted. Time and place must be added to every material fact in an indictment. In an indictment for murder, the death must be laid on a day within a year and a day from the time at which the stroke is alleged to have been given, The time and place of the death of Wait became a material fact to be alleged in the indictment. It is immaterial that the time and place is not alleged strictly according to the truth, since, in that case, if the proof shows that the death was within the year and day, it is sufficient. But the indictment must allege the day of the mortal wound, and the day of the death, with certainty, and not leave it to be inferred by inductive reasoning. The indictment must, from an inspection, and by comparison of the date of the mortal wound with the date of the death, show that the death has occured within the limit of the year and a day. Thus, for instance, after averring the day of the mortal wound, continue■ “of which said mortal wound the said J. N., from the said 3d day of May, in the year aforesaid, until the 15th day of the said month, at the parish .aforesaid, ip the cqunty aforesaid, did lam *612guish. and languishing did live ; on which said 15th day of May, in the year aforesaid, at the parish aforesaid, in the county aforesaid, of the said mortal wound did die.” This form leaves no room for doubt as to the two periods of the mortal wound and of the death. How is the matter stated in the indictment now in hand ? After alleging that the mortal blow was given on the 29th of December, 1844, it continues; “of which mortal wound so given by the said Samuel Kennedy, with the deadly weapon aforesaid, the said Benjamin Wood Wait did then and there suffer and languish, and languishing did live; and a few hours afterwards did die of the said mortal wound.” How, we ask, is it proved on inspection of the indictment, by a comparison of the day of the mortal wound with the above account of the time of of the death, that the wound and the death both occured on the 29th of December, 1844? It is much easier to prove by process of reasoning, that it occurred on the 30th of December. For if the wound was inflicted on the 29th, and Wait then and there, (that is, at the parish of Orleans, on the 29th of December,) did Jan-guishingly live, and a few hours after, (that is to say, a few hours after the 29th of December,) did die of the said mortal wound, it would seem that he did not die on the 29th, but on the 30th. But in this respect, the indictment must prove itself; and the maxim “ that is certain which may be rendered certain,” has no force here.

¶20We have already said, that we can take nothing to our aid in this instance, from the act of 1805, introductory of the common law. If we could, it would turn out an universal panacea for all defects in indictments, till at length it would be said, that an indictment needs no particular form. But the attorney general thinks that, in granting Hornsby a new trial, we must have drawn on that statute for the power. We were not aware of it, supposing that our right to grant a new trial, when justice and humanity required it, depended upon the act of the Legislature organizing this court, as well as upon the practice in our courts.

¶21Re-hearing refused.

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