State v. Smith

• Decision Date: 20 June 1924
• Docket Number: 26680
• Citation: 101 So. 22,156 La. 685
• Court: Louisiana Supreme Court
• Parties: STATE v. SMITH

101 So. 22

156 La. 685

STATE v. SMITH

No. 26680

Supreme Court of Louisiana

June 20, 1924

Appeal from Criminal District Court, Parish of Orleans; Frank T Echezabal, Judge.

James B. Smith was charged with breaking and entering a dwelling house with an intent to rob, and he appeals.

Affirmed.

Maurice R. Woulfe, of New Orleans, for appellant.

Percy Saint, Atty. Gen., and Robert H. Marr, Dist. Atty., of New Orleans (Percy T. Ogden, of Crowley, and M. M. Irwin, of New Orleans, of counsel), for the State.

BRUNOT J. ST. PAUL, J., concurs.

OPINION

BRUNOT, J.

James B. Smith and another person were charged with breaking and entering a dwelling house, in the nighttime, armed with a dangerous weapon, with intent to rob. The jury returned a verdict of "guilty as charged, without capital punishment," against Smith, and a mistrial was entered as to the other defendant.

Smith was sentenced to imprisonment in the Louisiana State Penitentiary for life. From that verdict and sentence he has appealed.

The minute entries in the record disclose that counsel for the defendant excepted to five rulings of the court, and noted the reservation of bills of exception to each of these rulings, but the record shows that no formal bills of exception were prepared and submitted to the court for its signature and per curiam. Since the filing of the appeal in this court no assignment of errors has been made, and therefore, unless it appears that there is error on the face of the record, there is nothing for this court to consider.

The first objection by counsel for the defendant was to the offering by the state, in evidence, of two automatic pistols, alleged to have been the dangerous weapons charged in the indictment as being in the possession of the defendants at the time the burglary was committed. In the absence of a bill of exceptions and the special facts upon which the lower court based its ruling, we must presume that the ruling was correct. State v. Smith, 149 La. 700, 90 So. 28; State v. Wilson, 109 La. 74, 33 So. 85; State v. Pastor, 111 La. 717, 35 So. 839.

The second objection was to the refusal of the trial judge to deliver the following special charge:

"The court instructs the jury, if you find from the evidence that the accused entered the house of Miss Gordon without breaking the door, or in fact without opening the door themselves, but that the door was opened for them, then you cannot under such a state of facts bring in a verdict of guilty as charged, nor guilty without capital punishment. The only verdict, if such a state of facts exists, that would be responsive, would be a verdict of guilty of entering in the nighttime a dwelling house with intent to rob."

In the absence of a formal bill of exceptions this court cannot determine whether the requested charge was relevant or whether it was merely based upon a statement of hypothetical and irrelevant facts. With reference to this requested charge the judge says:

"I denied the special charge requested by the defendant for the reason that the facts, as shown by the evidence, would not have justified a verdict of merely entering a dwelling house in the nighttime with intent to rob. The evidence proved beyond any reasonable doubt that there was a breaking."

As there is no assignment of error and no irregularity is shown the ruling will not be disturbed. Bacon v. Green, 36 Fla. 325, 18 So. 870.

The third objection noted in the court minutes was a blanket exception to the entire charge of the court. We have held that a general exception to the charge as a whole, even when presented in a formal bill of exceptions, is without merit. State v. Melton, 37 La.Ann. 77.

Counsel's fourth exception was noted to the court's overruling of a motion for a new trial. The motion reiterates the objections to the three rulings we have already disposed of, and presents the following additional reasons why the motion should be granted. It is alleged in the motion that the court erred in instructing the jury that:

"If a codefendant charged and tried together with his codefendant for the same alleged offense takes the stand as a witness, his testimony should be considered by the jury only as it relates to himself. The testimony of one codefendant should not be considered by the jury either against or in favor of the other codefendant."

Counsel in urging this ground for a new trial has evidently been misled by the case of State v. Lebleu, 137 La. 1007 69 So. 808, which holds that the jurisprudence founded upon the law as it stood prior to the adoption of Act 41 of 1904 was correct, but that the...