New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1876-04-27
, ORLxANS THURSDAY APRIL III 1876 &
VOLUME X.-NO. l5

T, NEW OR
j COUNT RECoRD.
| WEDNESDAY, APRIL 26, 1876.
] U.itea seates Cire.,e Csurs.
Present-Hen. W. B. Wosds, circui
United States W. Edward Fehrenbach Q,
al.-Conspiracy to defraud. On trial.
l. suosrssr Crlna1al Osaet. q.
"a ACTIONS ovERRULED. +" a
State va. Mrs. Cesaire.-Convicted ol
| grand larceny. Motion for new trial.
State W. w. J. Ingraham.-Convicted o.
embezzlement. Motion for new trial.
State of Louisiana vs. James L. Pres
tidge-Mufder~Oa Deti0n to Quash and
challenge to the arrsy.-This challenge to
! the array and motion to quash is based
l upon three grounds. No evidence has been
| offered either by the defendant in support
] of the motion or by the State, and the court
| is called upon to decide the questions ct
| issue simply upon the admissions contained
| in the plesdings and the legal presumptions
will ccnsider the grounds upon which
the motion is based in the order they are
presented.
First-That the law has not been COM
piled with 40 to the time of drawing the
jury; that the tenire OF persons from which
| the grand Jury we're selected was not drawn
ten days before the end of tho month a.
the law directs. but was drawn on the
| twenty fourth day of March.
TO thls the State answers inwriting, that
the order for tho drawing of the venire
from which the grand jury was selected was
| issued by this court on the twentieth day of
March, fully ten days before the expiration
of the month; that the jury or venire was
drawn in accordance with law, and in ODE.
dience to the order of court; and, further,
that the yenire from which the grand jury
were selected, being composed of per
sons possessing all the requirements OF
jurors, the failure of the jury commits
sioners and sheriff to draw on the day
designated BY the court d0esr not effect the
validity of the present grand jury.
There is an implied admission by the At
torney General, that the venire was not
drawn on the day designated by the court,
but it is mot admitted ~ i am able to
ten days before the end of the month. On
the contrary. the Attorney General repeats
the allegation in answer to this point,
'.shst the vesire .wasdraWn in accordance
With the law" Tho day designated by the
court is not material. The law does not con-
template any order by the court in the prem.
ises. There is no evidence before the court,
or admission in the pleadings, that weuld
authorize the concidsi0n that the venire of
Jurors in question was not drawn within
the time prescribed by the statute, or to
rebut the legal presumption that exists as
to all of1icers that they discharge their OIL
cisl duties faithfully.
For the purposes of this case it would be
unnecessary to discuss the question as to
Ia AEA 60: ~E h4
siOners to draw the venire of jurors within
the time prescribed by the statute would
effect the validity of the grand jury se.
lected from such venire; but a. this ques-
ton IL one OF general interest, have gwen
it my careful attention, and will pass upon
it in this connection.
If wss conceded that the venire in this
case was drawn on the twenty fourth day
OF March. az ls claimed by defendant, the
whioh provides that 'ten days before tho
expiration of every month in which the
said Superior Criminal Court shall hold its
sessions, the said commissioners, together
with the criminal sheriff. shall proceed to
draw from said box or wheel not less than
fortv-eight. Names" etc., directory or
mandatory a. to the tim6. Lord Mansfield
lays down the rule that statute 10 manda-
tory or directory according a. the thing di-
reoted to be done 10 or 10 not the essence Of
the thing required; and from full examisa:
ton of the latest authorities, this rule seems
to be we'll established that those enact.
ments may be regarded as directory, which
are not of the essenoe of the thing to be
done, but which are given merely with .
duct of the business, and by q failure to
obey which the rights of those interested
will not be sprejudiced. lam unable to see
that the rights of parties who may come
before this court can be in any way effected
by q failupe of the commissioners to comply
with the statute az to the time Of drawing
the jury, but l am forced to the con.
ture in fixing the time was simply to
secure the prompt discharge of the
business, and for - the convenience
of the officers of court, whose duty it is to
secure the attend ance Of jurors drawn. 1t
il evident that tipe was not regarded as
material by. the Legislature, from the fact
that in the same section Of the act referred
to majority of the Judges of the district
courts for the parieh Of Orleans are author
lied to .:preecribo forthar. rules as to the
time and manner of drawing such Jurors
for said courts" When it appeared that the
law as 10 the manner of drawing had been
fully complied with in all essential particu-
lars, that no wrong. had been committed or
injustice done; that the grand jury is COM
posed Of persona having all the legal quail
fcationS Of jurors, would not quash the
proceedings upon the ground alone that the
venire was not drawn on theproper day;
regarding that portion of the statute fixing
the time of drawing as directory merely.
Second-It is urged that the list of per-
sons from whom the grand jury was ee-
lected, was not a list of persons selected
impartially fiOm the citizens OF the parish
Of Orleans, for the reason that the court
set aside as exempt seven persons residing
in the Sixth and Seventh districts of the
parish of Orleans. Without considing the
right Of the Legislature to exemept all per
sons residing in the Sixth and Seventh dis
tricts of tho parish of Orleans from Jury
duty outside of the second judicial distric.
this objection Can not avail for the reason
that the selection of the grand jury from
the venire drawn is left entirely with the
court.
No citizen can demand as a right that he |
be placed on the grand jury, nor can any
concerned party demand that any district |
or section of the parish be represented in
the selection of the grand jury. The au-
thority Of the presiding judge to select the |
grand jary from the venire OF jurors and to |
excuse from service upon that body any |
whose services he does not require can not |
be questioned.
Third-That of tho names placed in the |
fury wheel by the commissioners during |
the month of,Aarcb, and prior to the draw |
ing of the venire in question, 200 names /
were furnished to the commissioners by l
Lionel Adams, deputy clerk of this court |
And it is admitted by the Attorney Gen |
eral that ct tho request of the jury cOmmis-
sioners, to aid them IN the discharge of
their duties. ono Lionel Adams, ESQ :, did
prepare list Of names and submit them to