State v. Ashworth

71 So. 860, 139 La. 590, 1915 La. LEXIS 1920

• Court: Supreme Court of Louisiana
• Decided: November 2, 1915
• Docket: No. 21533
• Status: Published

Opinions

O’NIELL, J.

The defendants, Camillus Ashworth and Valentine Ashworth, were indicted and tried for murder, were convicted of manslaughter, sentenced to imprisonment in the penitentiary for the terms of 15 years and 21 years, respectively, and have appealed.

The first bill of exceptions recites that, after the regular venire of jurors was exhausted, the court ordered that the names of 30 tales jurors be drawn from the tales jury box, and that, before all of the tales jurors whose names were drawn came into court, the judge ordered the impaneling of the jury to be proceeded with, and the sheriff called jurors from the audience, whose names were not drawn from the envelope or from the tales jury box.

It is not true that the names of the tales jurors who were called from the audience by the sheriff had not been drawn from the tales jury box. The counsel who drafted this bill of exceptions evidently meant to say that the 30 slips drawn from the tales jury box, or the slips bearing the names of those who appeared in response to the sheriff’s summons, were not thereafter placed into a box and again drawn by the clerk, but that the sheriff called from the list made by him of the names that had been drawn from the tales jury box the tales jurors who were impaneled on the jury. The statement per curiam explains this, viz.:

“I ordered the deputy clerk to draw from the jury box the names of the tales jurors in the presence of the court. The sheriff made a list of said jurors as they were drawn. When seven or eight of the jurors reported, I ordered the trial to be proceeded with. The sheriff called names of the tales jurors from the list of those present, and the trial was proceeded with.”

To which the defendants’ counsel objected, and reserved a bill of exceptions.

[1, 2] It has been observed by this court that the manifest purpose of the Act No. 182 of 1914, amending section 11 of Act No. 135 of 1898, was to relieve the sheriff of his authority to select the tales jurors for the trial of a criminal ease. And it has been said that the sheriff is not to determine who or how many of the tales jurors whose names have been drawn he will summon from the list handed to him. See State v. Anderson, 136 La. 265, 266, 66 South. 966. Hence it seems that after the clerk has drawn from the tales jury box the number of names ordered by the judge, and when a sufficient number of those drawn, in the discretion of the judge, have appeared in response to the sheriff’s summons, their names should be put into a box and drawn out by the clerk in the same manner in .which tales jurors were drawn for service on the jury before section 11 of the Act No. 135 of 1898 was amended by the Act No. 182 of 1914, and as the regular jurors are impaneled. We cannot assume that the Legislature intended, by the Act No. 182 of 1914, to do away with the drawing by the clerk of court of the names necessary to complete the jury from the names of those summoned as tales jurors, and permit the sheriff to select or call them from his list.

It is unnecessary to consider the other ■bills of exception reserved by the defendants.

The verdict. and sentence appealed from are annulled, and it is ordered that this case be remanded to the district court for a new trial.

LAND, J., dissents.