State v. Hogan , 157 La. 287 ( 1924 )

It is only a deep sense of conviction and a duty, as I see it, which compels me to dissent from the reasons on which the opinion and decree in this case are founded.

The ruling of the court, as I understand it, is predicated on the theory that the bill of exception No. 1 was reserved to the refusal of the trial judge to try the plea of jurisdiction in limine and of his referring that plea to the trial of the case on the merits by the jury as an issue of fact.

In the opinion handed down it is stated:

"* * * Upon filing the plea and motion, counsel for defendant requested the court to allow evidence to be introduced in support thereof, and insisted that the trial judge should pass in limine upon the issue presented. This the judge refused to do, and counsel for defendant then produced, tendered, and offered in court the testimony of two witnesses, who were present for the purpose of testifying on the question raised by the plea and motion. The trial judge refused to hear the testimony, and referred the plea to the jurisdiction to the jury as a question of fact. Counsel for the defendant excepted, reserving a bill of exception, making the plea to the jurisdiction and the ruling of the court the basis for the exception."

I can find no fault with the statement as to what actually transpired in the court below, except as to that part of the statement which declares that a bill of exception was reserved to the ruling of the court in refusing to try the plea in limine and referring it to the merits to be tried by the jury as a question of fact. The court doubtless confused the recitals of the bill with the facts as stated in the minutes of the court. No such bill embodying the facts as stated in the minutes can be found in the record. Certainly no objection and no reservation of a bill to the refusal of the court to try the plea of jurisdiction is to be found in bill No. 1, which is made the sole basis of the decree handed down. The bill No. 1 plainly shows on its face that it was reserved to the overruling of the plea to the jurisdiction after all the evidence had been submitted, and no mention is made of the ruling of the court in refusing to try the issue of jurisdiction in limine.

The facts as disclosed by bill No. 1 are: That the plea of not guilty was withdrawn and the plea to the jurisdiction of the court was filed before the trial; that the court overruled the plea to the jurisdiction of the court, to which ruling the defendant reserved his bill of exception No. 1, making the plea of jurisdiction and the ruling of the court overruling it a part of the bill.

When the court refused to try the plea to the jurisdiction and referred it to the merits, the accused merely made his objection and reserved his bill by having his objection and bill noted on the minutes. No formal bill of exception was presented to the action of the court in not trying the plea in limine and of referring it to the merits, but counsel for the state and the accused announced that they were ready for trial. The trial was proceeded with until the close of that day. On the following day the trial was resumed, and at the conclusion of the evidence the court overruled the plea to the jurisdiction, and it was then only, and to that ruling only, that the bill of exception No. 1 was reserved.

I submit with great respect that the facts recited by the minutes of the court cannot be read into the bill of exception No. 1 in the absence of said minutes being attached to and made a part of the bill.

It is well settled in this state that an accused who fails to follow up his objections and exceptions to the adverse rulings of the court by formal bills of exception signed by the judge cannot be heard on such objections and rulings in the appellate court. State v. Wiggins, 45 La. Ann. 416, 12 So. 630; State v. Slutz,106 La. 637, 31 So. 179; State v. Poree, 136 La. 939, 68 So. 83.

And it is equally well settled that the mere reservation of a bill of exception entered by the clerk in the minutes does not relieve the necessity of preparing a formal bill and having it signed by the judge. State v. Miller,138 La. 373, 70 So. 330; State v. Miller, 146 La. 236, 83 So. 539; State v. Smith, 149 La. 700, 90 So. 28; State v. Haines, 51 La. Ann. 731, 25 So. 372, 44 L.R.A. 837; State v. Capell, 154 La. 662, 98 So. 58.

The latest affirmance of this rule is in State v. Kahn,154 La. 683, 98 So. 86, wherein this court said:

"It is well settled that the mere notation by the clerk of the reservation of a bill of exception in a criminal prosecution cannot be considered by this court. A formal bill, properly drawn and signed, is necessary."

I cannot believe that the court intended to overrule all of the decisions of this court which have so firmly consecrated the rule referred to. But if the opinion handed down in this case is permitted to stand, that will be the logical and natural sequence; for, as before stated, the bill of exception No. 1 was reserved to the overruling of the plea of jurisdiction at the conclusion of the evidence on June 18, and there is no bill to be found in the record as to the action of the court in refusing to try said plea on June 17 before beginning the trial, except as noted on the minutes of the court.

If I am correct in this conclusion, then the question of whether the court should have tried the plea to the jurisdiction in limine as a question of law, or of fact not pertaining to the guilt or innocence of the accused, is not properly before the court and should not be considered.

The bill of exception No. 1, without consulting the minutes, as I read it, presents on its face no reversible error. The defendant put at issue the venue or jurisdiction of the court. The court overruled the plea and declared that the jurisdiction of the court where the crime was committed and the trial of the accused had was established beyond doubt. We have nothing before us on which to say that the ruling of the court in maintaining jurisdiction was wrong.

It is worthy of note that the accused, in his motion for a new trial, which is made the basis for bill of exception No. 3, alleges as one of the grounds for a new trial the overruling by the court of his plea to the jurisdiction, but made no complaint against the action of the court in not trying the plea in limine.

In what I have said, I do not wish to be understood as subscribing to the principle that a plea to the jurisdiction of the court in a criminal prosecution is in all cases a question of law, or of fact not pertaining to the guilt or innocence of the accused. There are cases in which such a plea presents purely a question of law which should be decided by the court and not referred to the jury. Such a case is that of State v. Moore,140 La. 281, 72 So. 965, and there are others which it is not necessary here to mention.

But where the issue tendered by the plea, as I conceive it to be in this case, merely tenders the issue of venue or that the crime was not committed in the parish as laid in the indictment, the question is one of fact and is properly presented to the jury. The venue is a part of the state's case, and no jury is authorized to convict an accused unless the venue is properly laid in the indictment and established to the satisfaction of the jury.

For the foregoing reasons, I respectfully dissent.