State v. Lovenstein

Ogdex, J. (Vookhies, J., absent.)

One of the jurors of the panel who had been in court during the day and preceding the trial of the prisoner, having been called and not appearing, the prisoner objected to the Sheriff’s proceeding to call another juror and requested that the Sheriff should be directed to bring forward the defaulting juror, to bo presented to him. The court having refused to do this and ordered the jury to be empannellod without the absent juror, the prisoner excepted. We think the court did not err. No distinction is made between the default of a juror who has not appeared and one who after appearing has made default. In either case if a sufficient number of the panel are present, the jury will be completed from them, unless the court in its discretion should defer the trial, in order to bring in by attachment the defaulting juror.

The prisoner was convicted under the 4th section of the Act of 1829, of an assault with a dangerous weapon, and moved for .an arrest of judgment on several grounds.

1st. That the proceeding against him by way of information was unautho-rised by law. The point made by counsel in support of this ground was expressly overruled in the case of The State v. McLane, 4th Ann. 435, in which it was decided that the statute of 8th March, 1841, authorizing proceedings by information in certain cases in the Criminal Court of the First District, was applicable to the First District Court of New Orleans, which after the Constitution of 1845, was substituted in place of the former Criminal Court of the First District. The decision in that case does not rest alone on the reason stated among' others, that the Act of 1846, organizing the courts for the parish and city of New Orleans, directed that informations should be filed in the First District Court., and the omission to insert a similar clause in the Act of 1853, organizing- the First District Court of New Orleans, under our present Constitution can not, in our opinion,, have the effect of making any change in the mode of prosecuting offences before that court, as it existed under the laws applicable to the court for which it was substituted.

2d. The next ground relied on, is that the statute of 1849, does not make an assault with a dangerous weapon an offence, unless coupled with the intent to kill, which is not charged in the information. The words of the statute are: “ that whoever shall, with a dangerous weapon, or with intent to kill, make an assault upon another person, &c.” The words or with intent to kill,” it is contended are explanatory of the words “ with a dangerous weapon,” and the French text of the statute in which the conjunction and is used instead of the disjunctive^ or., is relied on in support of this interpretation. In the case of The State v. Mix, 8th Rob. R. 549, the English text was considered by the court as expressing the true meaning of the Legislature, and as being free from any ambiguity. The meaning of the Legislature would appear to be to punish the offence of assaulting another, either with a dangerous weapon or with the intent to kiE even by the use of a weapon not in itself dangerous, but so used as to manifest the intention of killing, thereby creating two distinct and substantive offences. We think the offence was punishable under the statute as charged in the information.

The third and last ground relied on, is that the information is defective, because it does not charge that the weapon was concealed. The statute of 1829, *316on which the information is based, was an amendment of an Act of 1818, entitled, “ An Act against carrying concealed weapons and going armed in public places in an unnecessary manner,” and it is urged that the Act of 1829, must therefore he taken and construed as if it had been part of the Act amended under the above title and as having reference to concealed weapons. We do not think such an interpretation would be in accordance with the meaning of the Legislature, and the strictest-construction which is invoked in favor of the appellant, would not authorise us to disregard the evident meaning and intention of the statute as derived from its language.

The judgment of the court below is therefore affirmed with costs.