State v. Early

• Citation: 183 La. 664,164 So. 620
• Decision Date: 02 December 1935
• Docket Number: 33594,33502
• Court: Louisiana Supreme Court
• Parties: STATE v. EARLY

164 So. 620

183 La. 664

STATE v. EARLY

Nos. 33502, 33594

Supreme Court of Louisiana

December 2, 1935

Appeal from Criminal District Court, Parish of Orleans; A. D Henriques, Judge.

Frank P. Early was convicted of murder, and he appeals.

Affirmed.

Edmund G. Burke and Clem H. Sehrt, both of New Orleans, for appellant.

Gaston L. Porterie, Atty. Gen., and Charles A. Byrne, Dist. Atty and George J. Gulotta, Asst. Dist. Atty., both of New Orleans, for the State.

Eugene Stanley, of New Orleans, amicus curiae.

OPINION

LAND, Justice.

Defendant charged with the crime of murder, was tried by jury in the court below, and was found "guilty without capital punishment." He has appealed from the conviction and sentence.

The first and only bill of exceptions reserved by defendant was to the overruling of a motion for a new trial. Before this bill was signed by the trial judge, defendant moved for an appeal, which was granted and made returnable to this court. Six days thereafter defendant tendered his bill of exceptions to the trial judge, who signed same. Defendant then filed a motion to withdraw the original motion of appeal granted, which was refused by the judge a quo. Thereafter, on the same day, defendant filed a second motion of appeal in order that his only bill of exceptions might be properly before this court. This motion was also refused, for the reason that the trial court was immediately, upon the signing of the original motion for appeal, divested of jurisdiction. Defendant then applied to this court (183 La. 71, 162 So. 805) for writs of certiorari, mandamus, and prohibition, and in his application stated that there was a custom prevailing in the divisions of the criminal district court for the parish of Orleans that defendants were given a reasonable time within which to present formal bills of exceptions for proper signing, after the motion of appeal was signed by the trial judge.

The bills apparently having merit, if timely filed, this court returned the case to the trial court for the purpose of taking testimony to ascertain if such a custom did prevail in the criminal district court for the parish of Orleans. The evidence taken on the matter shows that no such custom prevails in that court.

The Code of Criminal Procedure in article 545 provides that: "After an appeal has been granted, no further action in the case can be taken by the trial Judge; provided that as to matters of ministerial or not in controversy on appeal, the trial Court may render interlocutory orders and definitive judgments."

In State v. Young, 153 La. 605, 96 So. 275, 278, it is said: "If the accused obtains an appeal before the bills are signed, or without being given time within which to present them, the necessary consequence is that he waives or abandons them."

In the present case no time was asked for and none given.

"If accused obtains an appeal before bills of exceptions are signed or without being given time in which to present them he...