The Louisiana Democrat. [volume] (Alexandria, La.) 1845-1918, 1877-08-22
DE ON
TIL e SUPRE ME- COURT
IN THE CASE OF
TEE STATE VS.. JOHN 3. MCCOY.

Mr.. Justice Spencer delivered the
opinion and decree of the Supreme
Court in the words and figures follow
ing, to-wit: -
Defendant was indicted in the Par
ish of Grant for murder. On motion
and affidavit of the District Attorney a
change of venue was ordered to Rap
ides Parish, where the accused was
tried and convicted of murder without
capital punishment, and accordingly
sentenced to hard labor tor life. He
prosecutes this appeal and presents by
bills of exceptions for our decision va
rious grounds for reversal of the
sentence.
l. That the Court erred 10 granting
the change Of venue upon the simple
application of the District Attorney
without proof. The Act of 1868 does
not require proof when the District
Attorney applies for the change, but
makes it obligatory on the Judge to
grant it. In this case the District At
tOIney swore to the facts stated by
him and to the necessity of the change.
The change of venue was ordered in
January, 1876, aud no subsequent leg
islation should be construed as vaca-
ting the decree. This Act of 1868 is
not in conflict with the Constitution SO
far as We can see. Article 6 gnaran-
tees trial by Jury of the Parish, un-
less the venue be changed. The Leg
islatnre was and is free to declare
when and how the venue may be
changed. This is what it did by said
Act.
g H. L. Daigre, one of Defendants
Counsel, on the first day of the Term,
offered to file on behalf of one White
and one Jones, (who stood indicted be-
fore the Court,) motion to set aside
the venire, which the Judge refused to
permit him to do because he had not
paid his license-thereupon he except
ed. On trial of this case against Nc
Coy said Attorney offered to file there
in his said "Bill of Exceptions" taken
in the cases and on behalf of White
and Jones, stating that he had verbal
ly reserved tie right to file said Bill in
all cases wherein he was Counsel
The Court did not err refusing this ap-
plication. The District Court is a
Court of record and verbal reserva-
tions of the sort referred to cannot be
noticed. Defendant Mccoy has no
right to complain of the Courts rulings
in the cases of White and Jones with
which he has no connection. If he
thought the venire illegal he should on
the first day of the Term have fled or
offered to Ale his motion to quash it.
He did not do so.
3. That the Court erred in calling
R. j. Bowman, an Attorney at.Law, to
preside in the trial of this case. The
facts are that after the indictment of
Mccoy, his Attorney, w. F. BIackman,
was elected Judge of the Ninth Dis
trict. Judge Blackman entered an Or
der in this case refusing himself on the
ground that he had been of Counsel
for Defendant, and appointed R. J.
Bowman, an Attorney of his Court, to
try the case. Defendant excepted to
Bowman's appointment, and contends
that under Article 80 of the Constitu-
ton an Attorney cannot be appointed
to preside in the trial of a criminal
case. That Article reads as follows
"In any case where the Judge may be
recused and where he is not personally
interested in the matters in contesta-
ton, he shall select lawyer having
the qualification required for a Judge
of bis Court to try such cases, and
where the Judge is personally interest
ed in the suit he shall call upon the
Parish or District Judge, as the case
may be, to try the case" 1t would be
difficult to name a law in more general
terms than this: ain any case where
the Judge may be refused and where
he is not personally interested in the
matters in condensation lie shall select
a lawyer, etc.," when the Judge is per-
souaily interested in the suit he shall
call upon the Parish Judge, etc. The
provisions of Section 1868 of Revised
Statutes apply only where the Judge
is connected by blood with the prison.
er. So that the Interpretation of Arti-
Gle 80 of the Constitution contended
for by Defendant would leave the case
where the Iecuscd Judge was not per-
sonally interested and not related by
blood or marriage totally unprovided
for. We cannot adopt such VIEW
We think that the appointment of
an Attorney to preside is clearly legal.
If the law requires the Attorneys
appointed to take an oath as Judge ad
hoe we must presume that it was
done. The record does not show that
an oath was not taken-omnia presum
inter vite acta.
4. The accused made affidavit for
onn t;nuo,,oa ~, ooonuuf IF tIc a hsauca