New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-06-02
joe Aben 81 Conceft HalIs.


two important points are presented which
will interest the general reader:
This Is a motion for a new trial. The
accused was tried and convicted of keep
ing a disorderly ale-hOuse and tipping
house, and through his counsel, Messrs.
Braughn, CastellanOs and Gastinel, has
moved for a new trial, unOn six grounds:
L. because the verdict of the jury is con-
trary to the law and the evidence"
The house Is situated at the corner of
Chartres and Cont streets, one of the most
quiet neighborhOods inthe city, and is occu-
pied by julius Socha, the accused, as APP
pears from the evidence, not only as an ale
and tipping house, but as a place where
theatrical performances are given. The bar
is attended by female walters, more COM
monty known as 'fbeer jerkers," and the
boards occupied by amusing performers,
male and female. They have music of a
lively character, which, added to the cOnve-
nience of the bar, renders the establish
ment not only lively, but no doubt amusing
to auditors. / feel we'll satisfied from the
evidence that the defendant maintained as
good order as would be likely to be en-
forced by anyone in such an establishment.
But it is commended by the prosecution, thar
admitting that it was as well kept as such
an establishment could be, it is an intoler-
able nuisance in such a quiet portion of the
city.
1t was established by a vast number of
most respectable citizens that the noise and
disorder not only disturbed tie entire
ne~ighbOrhoOd, but prevented their sleep,
created scandal in the neighbOrhOOd and
greatly deprecated property value in the
vicinity. The noise was described as being
elapping Of hands, screaming, beating on
tables, yelling, using obscene language,
Quarreling and sometimes fighting. The
great number and the respectability of the
witnesses testifving in the case cave no
doubt upon the minds of the court and jury
of the correctness of their statements. In
deed, it seems to ne that a house conducted
in the best manner that such an establish
ment could be, could be ne less than a nui-
sance in a respectable and quiet part of the
city; and how the city authorities could so
far disregard the rights and interests of so
large a number of respectable citizens and
heavy taxpayers in order to enrich a single
individual is to me u~naccOuntable.
Such an establishment, conducted as it is,
certainly furnishes amusement for a large
class of our citizens, but when established
in a quiet and orderly street, is destructive
to the peace, quiet and interest of the peo-
Pile to an extent that renders 1t an unbear-
able nuisance, aud therefore | think that
upon this ground the verdict is warranted
by the law and the evidence, and the de-
fendant not entitled to a new trial on this
ground.
2. because n of the jurors was i'm
properly ~impaneled in this case"
This ground is too vague and indefinite to
be considered.
3. That the Judge commented upon the
evidence.
The court has no recollection of so doing,
and there certainly was no objection made
at the time to the charge.
4. That the counsel were O~ver-cOnfdent,
and submitted the case without all their
evidence.
If the counsel negotiated to present their
whole case, it is not the fault of the court,
and the principle of half presenting a case
in order to obtain a new trial, would be
taking the chances of a verdict in favor of
the defendant, in order to get two chances
of an ~ac0uittal would be inadmissible, and
receives no encouragement from the courts.
;. The Jury asked to have additional tes-
timOny placed before them. after they la
been charged, and had retired and deliber-
ated for a considerable length Of time,
which was refused by the court for van of
a precedent. No further instructions were
asked by the jury.
6. Because one II. ~StackhOuse, a juror
impaneled in this case, was not a regis
tered voter, and was not qualified to sit as
a Juror upon the trial of this cause"
1t is conceded by the District Attorney,
and indeed satisfactorily established, that
StackhOuse was not a registered voter.
The deputy sheriff, upon being interrO-
gated, says that he inquired at the former
residence of II. StackhOuse, and ascer-
tanned that he had removed and hearing
that there was a man by that name on
another street, served the citation upon him,
which man proved to be another from the
H. StackhOuse registered and properly
drawn as a juror.
1t is not pretended that there was any
fraud practiced preiudicial to the prisoners
rights. and the question presents itself
markedly whether a trial with one of the ju-
rOrs, not drawn according to the manner
and form required by the statute, furnishes
sufficient ground to disturb the verdict of a
Jury. Upon examining the decisions of
some of our sister States, cases are found
in which il is deemed to be a sufficient
ground, and undoubtedly, if accompanied
with any fraud prejudicial to the prisoners
rights. it would be SO in this case; but in
the absence of fraud, nc point seems to be
better settled by the decisions Of the SD
preme Court of our State.
In the case of the State vs.. John Jackson,
charged with murder, II Annual, 679, the
court says: "The jury appear to have been
impaneled without objection on the part
of the prisoner. He is, therefore, in the alb
sence of any bill of exceptions, presumed
to nave accepted the jurors, who tried the
case as they were rendered him. After hav-
ing taken the chances of al acquittal with
the jury impaneIed on his trial, without
objections on his part, he must abide the
consequences of the verdict of such tribunal,
although it has fallen out against him.
In the case of the State VS.. James Nolan,
convicted of murder, Is Annual, 276, the
court says: "If the juror was IN alien it
would have been good cause of challenge;
but it is too late to object on that ground
after conviction.
THE objections ought to have been made
before he was sworn. The accused can
not be permitted to waive the objection
and take the chances of a verdict, and have
it set aside if it be adverse to him for a cause
existing anterior to the swearing of the
juror; by not challenging he waived the
objection. 1t has been held that the incOm-
potency of a juror is not good cause for
setting aside a verdict IN cases where a
juror was an atheist, not Indifferent, not a
freehOlder, an infant, an alien. McAllister
VS.. State, II Ala, 434; State VS.. BabcOck,
40l; Presburg VS.. Com, 9 Dana, 208; Hol-
liugwOrth VS.. Duane, 1 Dallas Reports,
353."
In the case of the State VS.. Burger. IA
Annual, 46l, the court says: "One of the
balesmen named S. L.. Stone, a juror in this
case, was not challenged for cause. although
it appears that he was not qualified to
serve. The court overruled the objection
filed on that ground, by the defendant, to
set aside the verdict of the jury. 1t is well
settled that where a jury can be challenged
for cause, the right must be exercised before
the juror is sworn, and that a verdict cures
the defect. No distinction is made by law
IN that respect between irregular jurors and
talesman.'
On this ground l am concluded by these
adjudications, and properly so.
The want OF registry is cured by verdict,