State v. Dominique

39 La. Ann. 323

• Court: Supreme Court of Louisiana
• Decided: March 15, 1887
• Docket: No. 9886
• Status: Published

Opinion

The opinion of the Court was delivered by

Poché, J.

In a prosecution for larceny, the District. Attorney, with leave of the Court, amended his information touching the given name of the owner of the stolen property. The name of the owner as originally alleged, was “ Isaiah T.'Sharp,” and it was amended so as to read “ Jeremiah E. Sharp, Jr.”

The amendment was made in open court after arraignment and before trial, in the absence of the accused, but in the presence of his counsel. To this inode of proceeding the defendant charges two errors:

1. That his absence from the court vitiated the proceeding.

2. That after the amendment he could not be legally tried without arraignment under the information as amended.

1st. The recent and somewhat numerous decisions of this Court, determining what proceedings in a criminal cause may he had during the absence of the accused, must have escaped the attention of counsel for defendant herein.

The rule' has been formulated thus:

“ Tlie absence of the accused during the trial of motions not making part of the actual trial of Ms guilt or innocence, but having reference to the form or conduct of the trial, will not vitiate the proceedings.’’ State vs. Fahey, 35 Ann. 9; State vs. Clarke, 32 Ann. 560; State vs. Harris, 34 Ann. 121; State vs. Gonsoulin, 38 Ann. 459.

Hence that contention can hardly be considered as serious.

2d. The amendment made in this ease is clearly covered by the provisions of Section 1047 of the Revised Statutes. Such an amendment has been allowed after the trial had begun. State vs. Holmes, 23 Ann. 604.

In a trial of larceny Hie gist of the offense is tlie unlawful taking and appropriating by the accused of the property of another; the name of the owner being a matter of .secondary impoitanee or consideration. State vs. Everage, 33 Ann. 120. Hence, in the recent case of the State vs. J. and H. Hanks, not yet reported, this Court sustained the ruling of the district judge, who had allowed, in a case of horse stealing, an amendment, after the trial had begun, of the, name of the alleged owner of the stolen horse, from “Sevigne Duhon” to that of the tutor’s daughter, “ Cecile Duhon, wife of William Harson.”

Hence, it follows that the trial judge in the case did not tresspass beyond his legal discretion in ordering the trial to proceed without a second and useless arraignment of the accused.

Judgment affirmed.