State v. Roshto
| Decision Date | 04 November 1929 |
| Docket Number | 30159 |
| Citation | 169 La. 251,125 So. 67 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. ROSHTO |
Rehearing Denied December 2, 1929
Appeal from Ninth Judicial District Court, Parish of Rapides; R. C Culpepper, Judge.
Harvey Roshto was convicted as second offender of manufacturing intoxicating liquor for beverage purposes, and he appeals.
Affirmed.
T. F Hunter and Overton & Hunter, all of Alexandria, for appellant.
Percy Saint, Atty. Gen., and Cleveland Dear, Dist. Atty., and A. V. Hundley, Asst. Dist. Atty., both of Alexandria (E. R. Schowalter, Asst. to Atty. Gen., of counsel), for the State.
OPINION
The defendant was prosecuted upon an information charging him, as a second offender, with manufacturing intoxicating liquor for beverage purposes. The trial resulted in the conviction of the accused, as charged, and he was sentenced to serve a term of four months in the parish jail and to pay a fine of $ 800 and costs of the prosecution, or, in default of the payment of the fine and costs, to serve an additional term of eight months in the parish jail, subject to work on the public roads. The appeal is from that judgment and sentence.
During the trial six rulings of the court were excepted to, and a bill of exceptions was reserved to each of these rulings. In argument and brief bill No. 5 is waived.
Before arraignment the accused filed a motion for a bill of particulars, asking that the district attorney set forth the date on which the alleged offense was committed. In response to this motion the district attorney answered as follows:
"The date was that alleged in the bill of information, to wit: on or about April 20, 1929."
The court held that this answer was sufficient and bill No. 1 was reserved to that ruling. The court, in its per curiam to this bill, says that the answer was not objected to, but the minute entry is in the following words:
The only information asked for, in the motion for a bill of particulars, which was not given by the district attorney in his answer thereto, was the exact date on which the alleged offense was committed. It is the uniform jurisprudence of the state that, where the court and counsel disagree as to a pertinent fact or facts, and there is a minute entry in relation thereto, the minutes of the court control. We do not think, however, that this bill has merit. The bill was reserved to a ruling in a procedure had prior to arraignment and plea. It has been repeatedly held that time is not of the essence of the offense in prosecutions for violations of the Hood Act (Act No. 39 of 1921 [Ex. Sess.]) except where an alibi, or some specially pleaded defense, makes it so.
"No indictment shall be held insufficient, * * * for omitting to state the time at which an offense was committed where time is not of the essence of the offense." Article 234, Code of Crim. Procedure.
Following the court's ruling on the sufficiency of the answer to the motion for a bill of particulars, defendant pleaded to the information, and later went to trial of the case, without objection thereto. On the trial the state witnesses testified that the offense charged in the information was committed on April 27, 1929. When this testimony was given it does not appear that the accused objected to its introduction. He did not plead surprise, or disclose his defense, or apply for a continuance, or ask the court for any relief whatever. Under the circumstances, this court must hold that the accused, by his silence when he should have spoken, waived any objection he might then have urged to the introduction of that testimony. It is a well-recognized rule that, subject to certain exceptions in capital cases, an accused may waive a right or acquiesce in the proceedings. If he does so, he is not, after the verdict, permitted to object thereto.
Bill No. 2 was reserved to the overruling of an objection to testimony offered by the state to prove a sale of whisky by the accused on April 26, 1929. The objection was urged upon the ground that the accused was charged with the manufacture and not the sale of liquor, and, therefore, the testimony was not material or relevant. The Judge's per curiam to this bill is as follows:
"The objection was overruled and the testimony admitted merely as going to the effect, not to prove guilt, but as a circumstance which might, if properly connected up, throw light upon the question of the charge of manufacturing whisky."
The accused was charged with manufacturing whisky for beverage purposes. Proof that the accused sold whisky, for beverage purposes, a short time prior to his arrest, is a material circumstance tending to show the purpose for which the whisky was manufactured.
We think that the proof of sales of liquor, for beverage purposes, is relevant, as tending to show the purpose for which the liquor was manufactured.
Bill No. 3 was reserved to the overruling of an objection, by defendant, to a...
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State v. Johnson
...Time was not the essence of the crime and the defense was not an alibi; hence, there was no harm to the defendant. State v. Roshto, 169 La. 251, 125 So. 67; State v. Anderson, 125 La. 779, 51 So. Bill of Exception No. 2 This bill was reserved to the admitting in evidence the fact that glean......
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...La. 935, 9 So.2d 235; State v. Gremillion, 137 La. 291, 68 So. 615; and, also, State v. Johnson, 228 La. 317, 82 So.2d 24; State v. Roshto, 169 La. 251, 125 So. 67; State v. Anderson, 125 La. 779, 51 So. Moreover, the bills of information, together with the bill of particulars, provide a re......
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...Construction Co. v. Lehmann, 120 La. 273, 45 So. 138; State ex rel. Attorney General v. Lazarus, 39 La.Ann. 142, 1 So. 361; State v. Roshto, 169 La. 251, 125 So. 67. These minutes specifically state that the exception to the jurisdiction was filed with full reservation, and they also recite......
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State v. Leming, 39559
...to the hearsay because it formed a part of the res gestae. See State v. Jackson, 153 La. page 517, 96 So. page 53. State v. Roshto, 169 La. 251, 125 So. page 67. State v. Gunter, 180 La. page 145, 156 So. 203. In addition to this, I would like to point out in connection with these two bills......