State v. Fried
| Decision Date | 30 October 1922 |
| Docket Number | 25360 |
| Citation | 152 La. 710,94 So. 327 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. FRIED. In re FRIED |
Rehearing Denied November 27, 1922
Writs recalled, and application refused.
A. H Thalheim, of Gretna, for applicant.
C. A Buchler, Dist. Atty., of Gretna, for respondent.
An information was filed by the district attorney in this case on May 12, 1922, charging that the relator, "on the 15th day of October, in the year of our Lord one thousand nine hundred and twenty ," "willfully and unlawfully did desert, fail, refuse, and neglect without just cause to support and provide for his wife, Mrs. Henry Fried, she being in necessitous circumstances."
Defendant was duly arraigned, pleaded not guilty, and his case was regularly set for trial. He was found guilty by respondent judge, and was ordered by the court to pay to the clerk of the court for the support of his wife the sum of $ 20 per month, said amount to be paid on the 1st and 15th of every month. It was further ordered by the court that the defendant furnish a bond in the sum of $ 360 to secure the payment of said amount.
On May 26, 1922, relator filed in this court an application for writs of certiorari and prohibition, directed to respondent judge, alleging the absence from the transcript filed herein of nine bills of exceptions, the illegality of the sentence imposed upon him, and the error of respondent judge in overruling a motion in arrest of judgment based upon the contention that the information was prescribed upon its face.
Relator offered to prove, upon the trial of his case, as a "just cause" and defense for refusing to support his wife that, within a week after her return to him, after a separation of six months and one week, she had had a miscarriage at a hospital. The respondent judge excluded this testimony on the ground that, as relator and his wife had become reconciled, and were living together when the alleged miscarriage took place, no proof was admissible of this charge, as it had been condoned by the relator.
In this connection, we find an order of this court, of date October 2, 1922, directing the clerk of the parish of Jefferson to show cause why the writ of certiorari herein issued should not be complied with, on or before the 9th day of October, by producing the bills of exception in question. Respondent clerk answered that he had filed with the transcript a certified copy of all the proceedings had in the case; that he had no knowledge of any bills of exception supposed to have been handed to the respondent judge, for the reason that said bills of exception were never filed in the record in respondent's office; and that, upon inquiry of respondent judge, as to such bills of exceptions, he was informed by him that, after the transcript had been filed in the Supreme Court, and after the writs had been granted, the attorney for the relator handed certain documents to the said judge for examination, and that respondent judge refused to sign same, as they had never been officially filed in the record, and therefore constituted no part of the record; and that, the case having been already transferred to the Supreme Court, he (the judge) had no right or authority to proceed any further in matters pertaining to said case, and because the bills of exception were practically a repetition of the allegations of the petition filed in the Supreme Court praying for the writs. Respondent clerk states that since said bills of exception were never filed in the record, and at no time came into his possession, it is impossible for him to file same in the Supreme Court.
It is clearly the duty of counsel for defendants to present bills of exception and have them signed by trial judges and filed in the records of the lower court before lodging a transcript in this court. It is not legally possible to bring up in a record that which is not contained in it. Even if such bills of exception were properly before us, the writ of certiorari will not issue, when the object of the writ is to coerce the trial judge to admit evidence rejected on the ground of inadmissibility. State ex rel. Bright v. Judge, 36 La.Ann. 481; State ex rel. Unbehagen v. Nephler, 35 La.Ann. 365.
Moreover the decision of the trial court in the present case that relator deserted his wife without "just cause," is a matter of law which we cannot consider, for the reason that it does not affect the jurisdiction of the...
To continue reading
Request your trial
-
State v. Vaughn
...conviction and sentence. State v. Carrerot, 133 La. 487, 63 So. 599 (1913); State O'Neal, 138 La. 977, 70 So. 1011 (1916); State v. Fried, 152 La. 710, 94 So. 327 (1922); State v. LeBlanc, 160 La. 1053, 108 So. 87 (1926)." [3] This case was reviewed pursuant to Anders v. California, 386 U.S......
-
State v. Benoit, No. KA08-1252 (La. App. 12/23/2008)
...and sentence. State v. Carrerot, 133 La. 487, 63 So. 599 (1913); State O'Neal, 138 La. 977, 70 So. 1011 (1916); State v. Fried, 152 La. 710, 94 So. 327 (1922); State v. LeBlanc, 160 La. 1053, 108 So. 87 (1926). Numerous preliminary rulings are appealable by the state that are not appealable......
-
State v. Cappo
... ... antecedent violation of the provisions of the statute." ... No ... fault can be found with this statement of the law. Relator ... cites in support of it State ex rel. Mioton v ... Baker, 112 La. 801, 36 So. 703, and State v ... Fried, 152 La. 710, 94 So. 327. He might have cited also ... State v. Ebeier, 154 La. 347, 97 So. 473, and ... State v. Walter, 170 La. 677, 129 So. 127 ... But as ... a matter of fact the district judge did not sentence relator ... for contempt, but on the contrary did precisely what ... ...
-
State v. King
... ... of alimony by the defendant for the support of his wife and ... child. It was not a final sentence, [167 La. 354] but was a ... mere interlocutory decree, subject to modification at any ... time by the trial judge. State v. Clark, 143 La ... 481, 78 So. 742; State v. Fried, 152 La. 710, 94 So ... The sum ... of the weekly payments cannot be added to the amount of the ... fine so that the aggregate will make a sum within our ... jurisdictional limit, because it is the fine which must ... exceed $ 300. Defendant's appeal therefore must be ... dismissed ... ...