City of Lafayette v. Trahan

• Decision Date: 01 December 1924
• Docket Number: 26858
• Citation: 157 La. 305,102 So. 409
• Court: Louisiana Supreme Court
• Parties: CITY OF LAFAYETTE v. TRAHAN

102 So. 409

157 La. 305

CITY OF LAFAYETTE v. TRAHAN

No. 26858

Supreme Court of Louisiana

December 1, 1924

Appeal from City Court of Lafayette; G. A. Martin, Judge.

Anatole Trahan was convicted of possessing and selling liquor in violation of ordinances of the City of Lafayette, and appeals.

Appeal dismissed ex proprio motu.

George P. Lessley, of Lafayette, for appellant.

John L Kennedy, of Lafayette, for appellee.

ST. PAUL, J. O'NIELL, C. J., concurs.

OPINION

ST. PAUL, J.

On August 5, 1924, appellant was charged with violating two certain ordinances of the city of Lafayette, one relative to possessing intoxicating liquors for beverage purposes, and the other relative to selling intoxicating liquors for beverage purposes.

On August 6th he pleaded guilty to both charges, and was fined $ 100 on each; which fine he promptly paid that same day.

On August 16th he applied for a "rehearing," wherein he set up the alleged illegality of said ordinances on various grounds; and on August 18th his application was refused, whereupon he appealed to this court.

I.

The appeal is frivolous. The application for a so-called rehearing was in effect only a motion for a new trial. In State v. Jerome Smith, 156 La. 818, 101 So. 209 this court held that:

"A motion for a new trial should be made before sentence is pronounced, and may not even be filed if made afterwards." Citing State v. Smith, 46 La.Ann. 1433, 16 So. 372.

We said further:

"Still less can such a motion be made (even though termed supplemental) after an appeal has been taken." Citing State v. Offutt, 38 La.Ann. 364.

Now this much at least can be said of a motion for a new trial made after judgment but before execution, or even after appeal taken, to wit, that the sentence of the court has not yet become a "fait accompli"; and such a motion if allowed might yet result in some relief for the accused. But a motion for a new trial made after the judgment of the court has been fully executed, can avail the accused nothing whatsoever. A new trial cannot restore life to him who has been hanged; it cannot set free one who, having served his term of imprisonment, is already restored to liberty; it cannot direct the return of a fine already paid into the fisc; hence, such a motion, or an appeal taken from a refusal to allow thesame, presents only a moot question and must be dealt with accordingly.

In his motion aforesaid defendant "suggests,"

That at the time he was called upon to plead to the charges preferred against him he was not advised as to the illegality and nullity of the ordinances under which he was prosecuted; and that, acting under error, he entered pleas of guilty and to avoid being imprisoned paid the fines imposed by the court. That such action, being under duress, cannot be held to be acquiescence in the validity or legality of the action on the court in imposing said fines.

This "suggestion," can avail defendant nothing. We have already said that the granting of his motion for a new trial, by the lower court or even on this appeal, could not result in restoring to him the fine already paid into the fisc; and any action therein by either court would be merely passing on a moot question. But in any event everyone is presumed to know the law and the defendant knew, or should have known, that he was entitled to the benefit of counsel in defending himself. If he failed to avail himself of that right at the time he cannot afterwards complain that he was not advised of his rights when he went to trial.

In State v. Charles, 130 La. 683, 685, 58 So. 509, this court said:

"An accused cannot be permitted to remain supinely indifferent about having counsel, take his chances of acquittal, and, after verdict, successfully urge that he was entitled to counsel."

But for an...