State v. Carter , 206 La. 181 ( 1944 )

I respectfully dissent from the ruling on the bills of exception numbered 3, 5, 6, 7, 8, 9 and 10. They have reference to the rulings of the judge refusing to exclude from the courtroom during the trial of the case four of the State's witnesses. One of them was a special investigator for the district attorney's office and the three others were deputy sheriffs. The judge did exclude from the courtroom the two prosecuting witnesses, Goodwin and Norwood. They were the two deputy sheriffs whom the defendant was accused of attempting to murder. The judge merely exercised the discretion which is expressly vested in him by article 371 of the Code of Criminal Procedure when he refused to exclude the three other deputies and the special investigator for the district attorney's office. The article provides that the judge may in all cases, in his discretion, allow any witness to remain in the courtroom during the trial and to testify as a witness in the case.

Referring now to bill of exceptions No. 4, article 226 of the Code of Criminal Procedure declares that a motion to compel a district attorney to elect on which charge of an indictment he will proceed "can be made only before the trial begins." Article 332 provides: "The trial begins the moment the first juror is called for qualification," et cetera. According to the per curiam attached to this bill of exceptions the jury had been selected and impaneled, and the bill of information and the defendant's plea thereto had been read to the jury, at the time when his attorney moved to compel the district attorney to elect on which count in the bill of information he would proceed. The motion was made verbally in open court. The fact that the defendant's motion to compel the district attorney to elect was filed too late to be entitled to consideration, under the terms of article 226 of the Code of Criminal Procedure, was a sufficient ground for overruling the motion. But I do not concur in the pronouncement that, from the ruling made in State v. Cannon, 185 La. 395, 169 So. 446, it is apparent that the defendant in the present case would have been entitled to the relief prayed for in his motion if it had been filed before the trial began. Article 218 of the Code of Criminal Procedure, which article was repealed by Act No. 153 of 1932, did not deal with the subject of the motion to compel the district attorney to elect on which charge he will proceed; neither did the decision in State v. Cannon deal with that subject.