Summary
In State v. Turner, 165 La. 657, 115 So. 814 (1928), the record initially failed to show that the indictment was returned in open court.
Summary of this case from State v. JonesOpinion
No. 28947.
January 18, 1928. On the Merits February 13, 1928. Rehearing Denied March 12, 1928.
Appeal from First Judicial District Court, Parish of Caddo; Robert Roberts, Judge.
Tony Turner, alias Pie, was convicted of murder, and he appeals. Affirmed.
Herndon Herndon, of Shreveport, for appellant.
Percy Saint, Atty. Gen., E.R. Schowalter, Asst. Atty. Gen., and L.C. Blanchard, Dist. Atty., and Aubrey M. Pyburn, Asst. Dist. Atty., both of Shreveport, for the State.
On Remand.
The defendant appeals from a conviction for murder and sentence of death. The transcript fails to show that the indictment, herein filed on September 27, 1927, was returned "in open court" on that day.
It is therefore ordered that this case be remanded to the court below for the purpose of supplying a duly certified copy of the minute entry of September 27, 1927, showing that said indictment was returned in open court, if any such entry there be, or otherwise to establish contradictorily with the defendant that said indictment was duly returned in open court on said day, if such be the fact, and to supplement the minute entries of that day accordingly; the whole to be returned to this court forthwith.
O'NIELL, C.J., dissents, being of the opinion that the verdict should be set aside, not only for the reason for which the case is being remanded, but because of the refusal to grant a new trial because of newly discovered evidence.
On the Merits.
The state has now produced and filed a duly certified copy of the minutes of the court below, showing that the indictment herein filed on September 27, 1927, was duly presented in open court on that day.
As we have said, the defendant appeals from a conviction for murder and sentence of death.
He complains only of the overruling of his motion for a new trial. The grounds set up for a new trial were (1) that the jury returned its verdict within five minutes after the case was submitted; and (2) alleged newly discovered evidence.
The trial judge correctly says that there is no law which requires a jury to deliberate any longer than may be necessary to agree upon a verdict.
The alleged newly discovered evidence is that of one witness who would swear to an alibi for defendant. But the motion itself shows that defendant had already produced some 12 to 15 witnesses to prove said alibi, and the trial judge did not abuse his discretion when he refused to grant a new trial on the ground that said evidence was merely cumulative, and "similar to other evidence disregarded by the jury."
Decree.
The judgment appealed from is therefore affirmed.
O'NIELL, C.J., dissents.