(107 So. 597)

No. 27692.

#### STATE v. RAMOIN.

(March 1, 1926.)

*(Syllabus by Editorial Staf.)*

1. Homicide ©=332(6).

Supreme Court will not review refusal of new trial for manslaughter where verdict was claimed contrary to evidence.

2. Criminal law @=87.

District court, not juvenile court, has jurisdiction over manslaughter case, where deceased was under 17 years, under Const. 1921, art. 7, § 35, par. 4; article 7, § 52, par. 4; Rev. St. § 786.

3. Jury &wkey;>63.

Chief deputy clerk may act on jury comr mission in preparing list of jurors and drawing panel, where clerk of court is ill, under Act No. 135 of 1898, § 3, and Act No. 220 of 1902.

4. Jury ¡@=116.

Where jury commissioner was not notified in time to be present for drawing of panel, it must be discharged if challenged.

5. Jury &wkey;>l 15.

Where jury panel must be discharged, if challenged, it was properly quashed by the judge on his own motion.

6. Jury (@=79(3).

Discharge of first panel is no objection to second panel, for parties have no right to particular juror or jurors.

7. Jury (&wkey;64.

Use of same names in jury box when drawing second panel as when drawing first panel is proper.

Appeal from Fifteenth Judicial District Court, Parish of Acadia; W. W. Bailey, Judge.

Adam Ramoin was convicted of manslaughter, and he appeals.

Affirmed.

Philip S. Pugh and Denis T. Canan, Jr., both of Crowley, for appellant.

Percy Saint, Atty. Gen., Percy T. Ogden, Asst. Atty. Gen., and J. A. Gremillion, Dist. Atty., of Crowley (E. R. Schowalter, of New Orleans, -of counsel), for the State.

*851ST. PAUL, J.

The accused was convicted, of manslaughter. His appeal presents only-two points, which, for convenience, we consider in reverse order to wit:

I.

[1, 2] He moved (1) for a *new trial*on the usual perfunctory ground that the verdict was contrary to the evidence, with which, of course, we have nothing to do; and (2) that the prosecution against him be dismissed (substantially, *in a'i'rest of judgment)*on the ground that *the deceased*(not the accused himself) was under the age of 17 years, and the juvenile court, *not*the district court, had jurisdiction over the offense with which he was charged [to wit, *manslaughter,*an offense punishable by imprisonment at *hard labor.*Section 786, R. S. 1870].

II.

Here are the provisions of the Constitution fixing the jurisdiction of the two courts, viz.:

> (a) “They [the district courts] shall have unlimited and exclusive original jurisdiction in all criminal cases, except such as may be vested in other courts authorized by this Constitution. * * * » Const. 1921, art. 7, § 35, par. 4, p. 49.

> (b) “The said [juvenile] courts shall have jurisdiction, except for capital crimes and assault with intent to commit rape, of the trial of all children under 17 years of age who may be charged in said courts as neglected or delinquent children, *and*of all persons charged with contributing to such neglect or delinquency, or with a violation of any law now in existence or hereafter enacted for the protection of the physical, moral or mental well-being of children, *not punishable by death or hard labor,*and also in all cases of desertion or nonsupport of children by either parent.” (Italics ours.) Const. 1921, art. 7, § 52, par. 4, p. 54.

These provisions *need*no interpretation; their meaning may be grasped at a glance. But we are pleased that the defendant has made the point, as it affords us opportunity to lay these parts of the Constitution before those who may not have read them. And thus *this*case, and State v. Malone, 156 La. 617, 100 So. 788, will (or should) suffice for a clear understanding of the *purpose*and jurisdiction of the juvenile courts of this state.

[3] Defendant moved to quash the *array*of petit jurors summoned for his trial. 1-Iis complaint is: (1) that the chief deputy clerk, and not the clerk of court himself, acted as one of the jury commission in preparing the *list*of jurors put into the jury box from. Which the *panel*was drawn, and in the *drawing*of said panel from the jury box; (2) that, in any event, a panel regularly and properly drawn, and out of which the- jury to try him should have been selected, was irregularly and ex 'proprio motu quashed by the judge, and the jury commissioners directed to summon a *new*panel, which then became the array which he now moved to quash; and (3) of certain *alleged*irregularities in preparing the list of jurors put into the jury box.

(1) To the *first*objection it suffices to say, that by section 3 of Act 135 of 1898 the chief deputy clerk of court becomes ex officio a member of the jury commission “in case of the inability of said clerk [himself] to act, *for any cause”*(italics ours); and the evidence shows that the clerk of court *was*unable to act because of illness. And moreover, Act 220 of 1902 expressly provides that *any*deputy clerk *“shall*exercise *all*the powers granted to clerks; * * * except such *judicial powers*as are herein or may be hereafter granted, * * * which shall belong to the clerk alone, and to the chief deputy clerk when the clerk * * * from any cause is unable to act. * * * ” (Italics ours.) Quid multa? See State v. Reeves, 56 So. 648, 129. La. 714, and cases there cited.

[4-6] (2) The deputy clerk, having some doubts as to the regularity of the *first*drawing because of one of the jury commissioners not having been *notified*in time,, and *for that reason*not having been present, laid the matter before the judge, who_ thereupon concluded (correctly) that the panel would have to be discharged, if challenged. See State v. White, 95 So. 776, 153 La. 300. Accordingly *853lie *properly*quashed the panel ex proprio motu and ordered a new panel drawn. For it would he absurd *and improper*for a judge, knowing that a panel of jurors *must*be discharged if challenged, to waste the court’s time and the people’s money *waiting*for the challenge which he knows he must sustain.

But even had the judge erred in discharging the panel, it would still avail the defendant nothing; for “parties have no right to a trial by any particular juror or jurors, but only to a trial by a competent and impartial jury.” State v. Bagwell, 98 So. 549, 154 La. 980; State v. Carricut, 102 So. 98, 157 La. 140. And hence, “the complaint which the defendant makes could, if sustained, lead only to the submission of his case to another grand [petit] jury, and yet any other grand [petit] jury which might be chosen would be obnoxious to the same objection which he makes to the grand [petit] jury by which he was indicted [tried] to wit, that it was not chosen from the venire * * * set aside by order of the court.” State v. Kellogg, 29 So. 285, 104 La. 580. So that if defendant’s complaint is *now*well founded, it will be well founded at all times in the future, and thus he can *never*be tried for the offense with which he is charged. But we do not apprehend that even the defendant would contend that the order of the district judge discharging the *first*panel drawn operated as a perpetual bar to any further prosecution of the case against him.

[7] (9) The irregularity complained of in preparing the list of jurors put into the jury box from which the *new*panel was drawn is that in filling the general venire jury box to the number of 300 good and lawful jurors, as required by law, the jury commissioners (who had just filled that box at the time the *first*panel was drawn, some 10 days before) “dumped” back into the jury box, before drawing the *'new*panel, the names of all those who had been drawn for the *first*panel, which the judge had quashed (some three score names).

The objection is devoid of all merit. In State v. Batson, 32 So. 478, 480, 108 La. 479, 485, this court said:

> “It is objected on behalf of the defense that the selection thus made was not original, but that the' commissioners merely *supplemented*a selection, which had previously been made, of jurors whose names were already in the box, so as to bring the number up to that required by the act of 1898. Assuming this to be true, * * * the objection is not well founded; there being neither allegation nor proof that the names in the box were not those of competent, good, and true men, qualified under the act of 1898 to serve as jurors, and the mere fact that their names were [already] in the box not disqualifying them or affording any reason why they should not be selected.”

Of which we may say to *this*case: Mutato nomine [et mutatis mutandis] de te- tabula narratur. Of which a (very) “liberal translation” would be: *It fits like a glove;*in other words, it is absolutely a “goose case” for this one. See Taylor v. Allen, 91 So. 635, 648, 151 La. 82, 119.

Decree.

The judgment appealed from is therefore affirmed.