Imagens da página
PDF
ePub

R. S. 1038

Jefferson the sheriffs thereof may reciprocally serve all such subpoenas in either of said parishes, but where attachments become necessary in order to coerce the attendance of witnesses, they shall be executed by the sheriff of the parish in which the prosecution is pending.

ARREST AND DELIVERY OF FUGITIVES FROM JUSTICE. Const. U. S., Art. 4, Sec. 2, §2.

A person charged in any State with treason, felony or other crime, who shall flee from justice and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime.

Act of Congress, approved February 12, 1793, Sec. 1.

That whenever the executive authority of any State in the Union, or of either of the territories northwest or south of the river Ohio, shall demand any person as a fugitive from justice, of the executive authority of any such State or territory to which such person shall have fled, and shall moreover produce a copy of any indictment found, or an affidavit made before a magistrate of any State or territory as aforesaid, charging the person so demanded with having committed treason, felony or other crime, certified as authentic by the Governor or chief magistrate of the State or territory from whence the person so charged fled, it shall be the duty of the executive authority of the State or territory to which such person shall have fled, to cause him or her to be arrested and secured, and notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. But if no such agent shall appear within six months from the time of the arrest, the prisoner may be discharged. And all costs or expenses incurred in the apprehending, securing and transmitting such fugitive to the State or territory making such demand, shall be paid by such State or territory.

[Arrest of Fugitives From Any Part of the United States.]

1038. When any person shall be charged on oath of any creditable person, before any judge or justice of the peace of

R. S. 1039-1042

this State, with having committed any crime within any State or territory of the United States, and has fled from justice, it shall be the duty of such judge or justice to issue his warrant for the arrest of such accused, and to proceed to the examination of such case, and commit or discharge the accused, as such judge or justice may determine, provided no person so accused shall be detained in custody exceeding ninety days.

[Delivery of Fugitives.]

1039. The Governor may in his discretion deliver over to justice any person found within the State who shall be charged with having committed any crime under the constitution and laws of the United States or of any State or territory.

[Delivery, How Made.]

1040. Such delivery shall only be made on the requisition of the duly authorized ministers or officers of the government within the jurisdiction of which the crime shall be charged to have been committed, and upon their paying all expenses attending the apprehension, confinement and delivery of the party accused.

[What Showing Necessary Before Delivery.]

1041. It shall be the duty of the Governor to require such evidence of the guilt of the persons so charged as would be necessary to justify his apprehension and commitment for trial had the crime charged been committed within the State.

EXPENSES OF CRIMINAL PROSECUTIONS.

[Expenses, How Paid.]

1042. All expenses incurred in the different parishes of the State and in the City of New Orleans, by the arrest, confinement, maintenance and prosecution of persons accused or convicted of crimes, their removal to prison, the pay of witnesses, jurors and all expenses whatever attending criminal proceedings, shall be paid by the respective parishes in which the offence charged may have been committed, or by the City of New Orleans, as the case may be, such expenses shall be paid by the parish treasurer, or by the city treasurer, as the case may be, after an

R. S. 1043-1045

account thereof shall be duly certified to be correct by the clerk of the court and the presiding judge thereof (as amended by Act 16, 1884, p. 22).

In the absence of a statute directing it, attorneys designated by the court to represent the accused can not have their fees taxed as costs of the case to be paid by the parish. State vs. Simmons, 43 An. 995. An appeal from the sentence of a recorder of New Orleans imposing a fine or in default thereof imprisonment, for the violation of a municipal ordinance, is not an appeal in a criminal proceeding, and the clerk of the Supreme Court had the right to require the deposit made in civil cases. State vs. Heuchert, 42 An. 271. See also Board vs. Maginnis Cotton Mills, 46 An. 806.

Sec Sec. 1011 and note.

Act 106, 1874, p. 156, "provides for the payment of the sheriff or person appointed to take charge of persons arrested in other States or territories, who are charged with committing crimes in this State, and for whom the governor has made requisition.''

[Fees, Expenses, etc., How Regulated.]

1043. The fees, salaries and expenses to be paid by the local authorities, as above provided, shall be fixed and regulated by them, and until the same be done they shall remain as now fixed by law (Act 121, 1855, 161).

[Fees of District Attorney for Collecting Forfeited Bonds, etc.]

1044. The several district attorneys throughout the State shall be entitled to demand and receive one-fifth of all sums, first deducting the percentage allowed by law to the sheriff for and paying over the same, which may be collected on forfeited bonds, recognizances, and fines imposed in criminal prosecutions and misdemeanors by any court of justice.

This section is identical with Sec. 1169, which is repealed by Act 29, 1890, Sec. 2, p. 24, in so far as it relates to the District Attorney of the parish of Orleans.

[Proceeds of Forfeited Bonds, etc.]

1045. All bonds and recognizances, and all fines and forfeitures incurred for crimes and offences against the laws of this State, which by the laws heretofore in force, are required to be paid into the State Treasury shall, from and after the passage of this act, belong to, and be paid into the treasury of the parish where such forfeited bonds and recognizances have been executed and in which such crimes or offences have been committed, or such fines and forfeitures have been incurred, and in the parish and city of New Orleans such forfeited bonds and recog

R. S. 1046-1047

nizances and fines and forfeitures shall belong to and be paid into the treasury of said city. This section shall not be so construed as to affect in any manner the process for collecting forfeited bonds and recognizances and fines and forfeitures (as amended by Act 15, 1884, p. 22).

[Persons Placed Under Peace Bonds to Pay Costs.]

1046. Whenever a complaint shall be made before a justice of the peace, or the recorder of either district of the city of New Orleans, the object of which will be to have the person complained of bound to keep the peace, the cost incurred shall be paid by the person bound; but when it shall appear to the magistrate that the complaint is founded on frivolous or malicious motives, the costs shall be paid by the party complaining (Act 121, 1855, 162).

State ex rel. Babin vs. Foster, 109 La. 587.

MODE OF PROCEDURE.

[Variance, How Corrected.]

1047. Whenever, on or before the trial of any indictment for any crime or misdemeanor, there shall appear to be any variance between the statement in the indictment and the evidence offered in proof thereof, in the name of any parish, city or place mentioned or described in such indictment; or in the name or description of any person, body politic or corporate, therein stated or alleged to be the owner of any property, real or personal, which shall form the subject of any offence charged therein; or in the name or description of any person, body politic or corporate, therein stated or alleged to be injured or damaged, or intended to be injured or damaged by the commission of such offence; or in the christian name or surname, or both christian name and surname, or other description whatsoever, of any person whomsoever therein named or described; or in the name or description of any matter or thing whatsoever therein named or described; or in the ownership of any property named or described therein; it shall be lawful for the court before which the trial shall be had, if it shall consider such variance not material to the merits of the case, and that the defendant can not be prejudiced thereby in his defence, to order such indictment to be amended according to the proof, both in, that part of the indictment where such variance occurs and in every other part

R. S. 1947

of the indictment which it may become necessary to amend; the trial to be had before the same or another jury, as the court shall think reasonable; and after any such amendment the trial shall proceed, whenever the same shall be proceeded with in the same manner in all respects as if no such variance had occurred or amendments been made; provided, that in all such cases where the trial shall be so postponed, the witnesses shall be bound to attend to prosecute and give evidence respectively, and the defendant shall be bound to attend to be tried, at the time and place to which such trial shall be postponed, without entering into any fresh recognizances for that purpose, in the same manner as if they were originally bound by their recognizances to appear and prosecute or give evidence at the time and place to which such trial shall have been so postponed (Act 123, 1855, 171).

See Sec. 1063 what averments in indictments deemed immaterial. The accused was charged in two counts with burglary and larceny. The information alleged the burglary in proper form, but the count charging the larceny was worded as in an indictment. Held, that where the District Attorney on discovering his error and on the same day made the proper correction, the amendment would be allowed. State vs. Curtis, 44 An. 321. Section 1047 is applicable to amendments of indictments only; information may be amended with leave of court, the subject is entirely within the sound discretion of the court.'' State vs. Terrebonne et al., 45 An. 26. Where the indictment furnishes a legal basis for a conviction, and time is not of the essence of the crime charged, the correction of a manifestly erroneous date will be permitted. State vs. Hamilton, 48 An. 1568. See State vs. Pierre, 39 An. 915; State vs. Sullivan, 35 An. 845.

Defendants' objection that the indictment did not sufficiently describe the articles charged to have been stolen, should have been urged by demurrer and a motion to quash the indictment before the jury was sworn, and when the court might have permitted the indictment to have been amended. It is too late to do so for the first time after trial and conviction, in a motion of arrest of judgment. State vs. Perkins, 49 An. 310; State vs. Thomas, 30 An. 601; State vs. Johnson, 29 An. 714.

An indictment for larceny of one bale of cotton "in the lint" may be amended during the trial to one bale of cotton "in the seed." State vs. Jacobs et al., 50 An. 447.

In an indictment for larceny, the name of the alleged owner and the description of the place from which the property was stolen may be changed by amendment. The crime charged is not affected by the change in ownership or description of the place from which the property was alleged to have been stolen. State vs. Scatterwhite, 52 An. 499.

An information for larceny may, during the trial of the accused, be amended by substituting the name of the husband for that of the wife as the alleged owner of the stolen property, if the evidence shows the husband to have been the owner. State vs. Bright, 105 La. 341.

* *

An indictment which charges that ously and of their malice aforethought, kill and murder one

did maliciously, wilfully, felonietc., is

*

sufficient. The use of the pronoun "his" or "their" as may be required, is as

« AnteriorContinuar »