State v. Laborde

• Decision Date: 30 November 1896
• Docket Number: 12,250
• Citation: 48 La.Ann. 1491,21 So. 87
• Court: Louisiana Supreme Court
• Parties: STATE OF LOUISIANA v. CLEOPHAS LABORDE

21 So. 87

48 La.Ann. 1491

STATE OF LOUISIANA v. CLEOPHAS LABORDE

No. 12,250

Supreme Court of Louisiana

November 30, 1896

Submitted November 21, 1896

APPEAL from the Seventeenth Judicial District Court for the Parish of Orleans. Debaillon, J..

M. J Cunningham, Attorney General, and M. T. Gordy, Jr., District Attorney, for Plaintiff, Appellee.

A. &amp Chas. Fontelieu, for Defendant, Appellant.

OPINION

NICHOLLS C.J.

Defendant was indicted for murder. He has appealed from a verdict convicting him of manslaughter and from a sentence based thereon to imprisonment for ten years in the penitentiary.

In the brief filed in this court on behalf of the appellant it is said:

"He relies for a reversal on the verdict and sentence of the court upon a bill of exceptions reserved to the following part of the judge's charge:

"As to the tender appeal made on behalf of the little children, you must give him a deaf ear. You will now take the case, forgetting everything but the law, the evidence and your oaths, will pass an honest and deliberate verdict between the State and the prisoner."

The only evidence before us touching the matter complained of, is found in the transcript, in the following copy of a certificate of the District Clerk, under date of the 25th of September, 1895, the date of the trial:

"STATE OF LOUISIANA

VS.

"CLEOPHAS LABORDE.

"Counsel for defendant objects to that portion of the charge of the court: 'The tender appeal made by the presence of the children you must turn a deaf ear,' to which the counsel reserved a bill of exceptions, and tenders this in lieu of a bill.

"I hereby certify the above and foregoing to be a true transcript of the proceedings had in the above bill of exceptions.

"Witness my hand officially this 25th day of September, 1896.

(Signed)

"JAMES G. DEBLANC,

"Dy. Clerk of Court."

Defendant bases his claim that the above certificate brings properly to our consideration for review the charge of the judge upon Act No. 113 of 1896. That statute declares that "on the trial of all criminal cases in this State, when an objection shall be made and a bill of exception reserved, the court shall, at the time and without delay, order the clerk to take down the facts upon which the bill has been retained, which statement of facts shall be preserved among the records of the trial; and if the case be appealed the clerk shall attach to the bill a certified copy thereof, which shall be taken by the appellate court as a correct statement upon which the exception is based."

The provisions of this statute have no application to the certificate in the transcript, as a bare inspection will show. The "statement of facts" which the act of 1896 directs to be attached to "bills of exception" are to be made under orders of court (which would be granted as of course) and are not to be made out by the clerk of his own motion, or simply at the instance of counsel for defendant.

There was no bill of exceptions taken in this case to which it was attached, and it would be (even if otherwise strictly correct) absolutely without effect, independently of a bill. There is nothing to show that it ever came to the knowledge of, or under the eye of either the judge whose charge is referred to, or the District Attorney.

An objection to the charge of the judge should be made to the court. There could be no objection that the...