State ex rel. Butler v. Moise

• Decision Date: 21 December 1895
• Docket Number: 12,005
• Citation: 48 La.Ann. 109,18 So. 943
• Parties: STATE OF LOUISIANA EX REL. CHARLES A. BUTLER, DISTRICT ATTORNEY FOR THE PARISH OF ORLEANS, v. HONORABLE JAMES C. MOISE, JUDGE OF SECTION "B," CRIMINAL DISTRICT COURT FOR THE PARISH OF ORLEANS
• Court: Louisiana Supreme Court

18 So. 943

48 La.Ann. 109

STATE OF LOUISIANA EX REL. CHARLES A. BUTLER, DISTRICT ATTORNEY FOR THE PARISH OF ORLEANS, v. HONORABLE JAMES C. MOISE, JUDGE OF SECTION "B," CRIMINAL DISTRICT COURT FOR THE PARISH OF ORLEANS

No. 12,005

Supreme Court of Louisiana

December 21, 1895

Submitted December 7, 1895

APPLICATION for Writ of Mandamus.

Relator in propria persona.

Lionel Adams of Counsel.

Respondent in propria persona.

M. J Cunningham, Attorney General, E. Howard McCaleb and R. H Brown, for Respondent.

OPINION

WATKINS J.

The grounds upon which the relator demands relief are best stated in the phraseology of his own petition, which we reproduce in its entirety, to-wit, viz.:

'To the Honorable Chief Justice and Associate Justices of the Supreme Court of the State of Louisiana:

"The petition of the State of Louisiana on the relation of Charles A. Butler, District Attorney for the parish of Orleans, with respect represents:

"That there is now pending before Section B of the Criminal District Court for the parish of Orleans, of which the Honorable James C. Moise is the presiding judge, a certain prosecution, entitled No. 23,012, State of Louisiana vs. Henry Bier, indictment for perjury; which said prosecution has been duly allotted to Section B of said Criminal District Court, and of which the said court has jurisdiction.

"Your relator further avers that said Henry Bier, after having been duly arraigned and having pleaded to said indictment, was duly put upon his trial in said Section B of said Criminal District Court presided over by said Honorable James C. Moise, upon said indictment for perjury, and was duly convicted by a jury empaneled and sworn, and that subsequently, upon motion of said Henry Bier, a new trial was asked for and refused.

"Your relator further avers that subsequently, to-wit, on the 23d day of November, 1895, no judgment having yet been pronounced upon said Henry Bier, by reason of the verdict of the jury, hereinabove stated, upon said indictment, your relator, in furtherance of the ends of public justice, presented to the Honorable James C. Moise, Judge of said Section B of said Criminal District Court, the said court then being duly opened and in session, a formal motion to nolle prosequi the said pending prosecution of the State of Louisiana vs. Henry Bier, and for and on behalf of the State of Louisiana, declared that he would no further prosecute the said cause, which said motion your relator was duly authorized and empowered to present by virtue of the power in him vested by law as District Attorney for the parish of Orleans, and respectfully asked that said motion be filed and spread upon the minutes of said court, and that in obedience thereto a nolle prosequi be entered in said cause, and that said Henry Bier be discharged without day, and that thereupon the said Hon. James C. Moise, Judge as aforesaid, directed an entry to be made on the minutes of said court, refusing to permit the filing of said motion at this time, and fixing Tuesday, November 26, as the date for the hearing of evidence in the matter.

"Your relator further avers that on the said 26th day of November, 1895, the said Hon. James C. Moise, Judge of Section B of said Criminal District Court, the said court being then duly opened and in session, proceeded to take evidence in said matter, after having first overruled a formal objection interposed by your relator on behalf of the State of Louisiana, to the effect that said evidence was irrelevant to the issue before the court, and therefore inadmissible, and after the hearing of said evidence the court refused to order the filing of said motion, or the spreading of the same upon the minutes, and the making of the same part of said record. Your relator further avers, that notwithstanding that said motion was couched in respectful language and otherwise unobjectionable in form, and that no judgment had as yet been pronounced upon said Henry Bier, by reason of the verdict of the jury upon said indictment, and that it was the duty under the law of said judge to direct the filing of said motion and the spreading of the same upon the minutes and to make the same part of said record, whatever might be his subsequent action thereon, he has arbitrarily and unwarrantably refused to allow the said motion to be filed, or to be spread upon the minutes, thereby denying to your relator, on behalf of the State of Louisiana, the exercise of a legal and official right.

"Your relator annexes hereto a copy of said motion, presented by him as District Attorney for the parish of Orleans to the said Hon. James C. Moise, judge of Section B of said Criminal District Court, together with all the exhibits attached to said motion, as well as certified copies of the minutes of said court of November 23 and 26, 1895, and makes the same part of this petition.

"Your relator further avers, that due notice was served verbally in open court upon the said Hon. James C. Moise, judge as aforesaid, notifying said judge of your relator's intention to apply to the Honorable the Supreme Court for a writ of mandamus in said matter.

"Wherefore, the premises and annexed affidavit considered, your relator respectfully prays that a writ of mandamus issue, directed to the Hon. James C. Moise, judge of Section B, of the Criminal District Court for the parish of Orleans, ordering and commanding him to direct the filing, spreading upon the minutes, and making part of the record in the case of the State of Louisiana vs. Henry Bier, No. 23,012 of the docket of the said Criminal District Court, the motion hereinabove referred to, so that the said motion, when so filed and spread upon the minutes, shall be considered, taken and held to be part of the record in said cause; and relator prays for all such further orders, aid and relief as may be needful in the premises.

"CHAS. A. BUTLER,

"District Attorney, Parish of Orleans."

It will be perceived that the gravamen of the relator's complaint is, that Henry Bier, having been indicted for perjury, in the court presided over by the respondent, a verdict of guilty having been rendered by the jury of trial, and a motion for new trial having been overruled, he tendered in open court a formal motion to nolle prosequi the case, as a pending prosecution, and "declared that he would no further prosecute the said cause." That he was duly authorized and empowered to present said motion; and, upon presenting same, he "respectfully asked that said motion be filed and spread upon the minutes of said court, and that, in obedience thereto, a nolle prosequi be entered in said cause, and that said Henry Bier be discharged without day." "That, thereupon, the (respondent) directed an entry to be made on the minutes of said court, refusing to permit the filing of said motion at that time, and fixed a different day for the hearing of evidence in the matter."

That after hearing evidence, the respondent refused to order the filing of said motion, or the spreading of the same upon the minutes, or the making the same a part of the record.

Having made the foregoing statement of the facts as disclosed by the record, relator makes the further averment as characterizing his right to enter a nolle prosequi, and, to that end, to have the written motion filed and spread upon the minutes of the respondent's court, viz.:

"Your relator further avers that, notwithstanding the aforesaid motion was couched in respectful language, and otherwise unobjectionable in form, and that no judgment has, as yet, been pronounced upon said Henry Bier, by reason of the verdict of the jury upon said indictment, * * * (the respondent) has arbitrarily and unwarrantably refused to allow said motion to be filed, or to be spread upon the minutes of his court."

To his petition the relator annexes the motion to nolle prosequi, which was tendered, and the filing of which was by respondent declined.

It is of the following purport, substantially, viz.: that relator comes into court, in the case of State vs. Henry Bier, No. 23,012, and "gives the court here to understand and be informed that," for certain causes and reasons therein recited as being satisfactory to himself, "he now enters a nolle prosequi" in the aforesaid cause, "and prays that said Henry Bier be discharged without day." (Our italics.)

It is quite evident that the relator assumed the right, under the circumstances related, to act independently of the respondent and enter a nolle prosequi upon his own motion, particularly in view of the fact that his offer to file his motion was accompanied with the declaration "that he would no further prosecute the said cause;" and the allegation of the motion was, that "he gives the court to understand and be informed that he now enters a nolle prosequi, and prays that said Henry Bier be discharged without day."

It was his intention and expectation, that the motion, once it was filed and spread upon the minutes of respondent's court, would take effect immediately, and irrevocably operate an absolute discharge of Bier, and leave nothing to be thereafter done but the performance of the purely ministerial duty of releasing him from confinement and setting him at liberty, and, this duty not having been performed by the respondent, recourse could be had to mandamus.

The respondent's return makes a similar showing as to the condition of the record in the case of State vs. Henry Bier, and he thereto annexes a certified copy of the indictment against the defendant and extracts from the minutes of his court, showing its exact status at the date the relator tendered his motion to discharge the defendant on a nolle prosequi.

Referring to the circumstances under which the relator's application was made, and...