
    No. 7100.
    State vs. Jack Toby.
    A service of tbe duly certified list of the jurors for theiterm at which the accused was tried, made on the aocused during that term, and made two weeks before his trial, is a sufficient compliance with the law requiring such service to be made two days before the trial.
    A defendant on trial for burglary and grand larceny, has no right to introduce in evidence his own voluntary statement taken before the magistrate. Decision in State vs. Vandergriff, 28 Annual 95 affirmed.
    APPEAL from the Superior Criminal Court, parish of Orleans. Whitaker, J.
    
      Q. N. Ogden, Attorney General for the State.
    
      Wm. Heed Mills, for the defendant.
   The opinion of the court was delivered by

Spencer, J.

The defendant was convicted of burglary and grand larceny. His counsel relies on two grounds for reversal of the sentence — ■

• First — On the ground that no duly certified list of the jurors for the December term was ever served upon him. There were two services of said list upon him — one on the 5th December, and one on the 14th December. His trial commenced on the 19th. The last copy served has no visible impress of the seal of the Court. The former has, but not a very distinct one. It is objected that neither is sufficient: and that even if the copy served on the 5th be properly sealed, it was not good for a trial commencing on the 19th, since the law says the service must be made “ two days before the trial.” We think that if the accused had two weeks instead of two days, to inform himself about the panel, he ought to be satisfied. The greater delay includes the less.

Second — The second exception is taken to the refusal of the Judge to allow the accused to introduce in evidence his own voluntary statement taken before the magistrate. We have been earnestly pressed to reconsider this question, and to overrule the ease of “ State vs. Yandergriff,” 23 A. 95, which decides against its admissibility. A careful consideration leads us to the conclusion that the decision referred to is correct, and rightly interprets the legislative will.

It is therefore ordered and decreed that the judgment appealed from be affirmed.

Dissenting Opinion.

DeBlano, J.

The voluntary declaration of an accused party, made to, received and certified by a judge or magistrate, “ shall he evidence before the grand and petit jury.” These are the words of the law; they are not restrictive ; and — to hold that they mean “ evidence for exclusively the State, against exclusively the accused is to restrict — howsoever plausibly — their clear and indivisible meaning.

If the only evidence which the prisoner is allowed and induced to give, can be used but against him and when he confesses the commission of a crime, and never in his favor, when it tends to disprove or justify the commission, is he not — indirectly aj least — and under that construction of law — impelled, by a legislative artifice, to become a State witness and to give evidence against himself ?

His unsworn declaration may be entitled to little or no credit, may be invariably suspected ; but — nevertheless—that which, in his own defence, he could not be denied the privilege of stating orally, he can state in writing to the jury. Otherwise, no prisoner can be induced or expected to make a voluntary declaration, to unsheath a weapon, the handle of which would always be in the grasp of the prosecuting attorney, and the point to his breast.

I respectfully dissent from the opinion and decree of the majority.

Make, J. I concur in this.

Rehearing refused.  