State v. Bailey , 167 La. 703 ( 1929 )

The defendant was convicted of the offense of hog stealing and has appealed. His appeal is founded on two bills of exception — one reserved to the action of the trial judge in overruling a motion for a new trial, and the other reserved to the action of the trial judge in refusing to sustain a motion in arrest of judgment.

Bill No. 1. The motion for a new trial is based on the ground that there is a variance between the averments of the indictment and the proof on the trial with reference to the date on which the alleged offense was committed. The testimony, however, appears to have been admitted without objection, which constitutes a waiver by defendant of any complaint on that score. State v. Smith, 139 La. 442, 71 So. 734.

Bill No. 2. The ground relied on by defendant in the motion in arrest of judgment is the same ground set up in the motion for a new trial, viz., that the date of the offense as alleged in the indictment was not sustained by the evidence. But the province of a motion in arrest of judgment is to assign some error patent on the face of the record, or some radical defect therein. An alleged incompatibility between the averments of the indictment and the testimony adduced on the trial of the case cannot be considered on a motion in arrest. State v. Evans, 104 La. 343, 29 So. 112.

For the reasons assigned, the conviction and sentence appealed from are affirmed.