75 So. 843 | La. | 1917
The defendant was convicted of selling intoxicating liquor without a license, was sentenced to pay a fine and be imprisoned, and has appealed.
The third bill of exception is merely a repetition of the first.
The fourth bill was reserved to the overruling of the defendant’s objection to going to trial until the district attorney had filed a bill of particulars. It appears that the motion for a bill of particulars was filed before the first hearing of evidence, and it was then agreed by and between the district attorney and the attorney for the defendant that the former should furnish a pencil memorandum of the information, on the motion for the bill of particulars, in lieu of a formal answer to the motion. That was done, to the defendant’s satisfaction; and his subsequent insisting upon a formal answer to his motion for the bill of particulars, thereafter, was frivolous.
The fifth bill of exception was reserved to the taking of testimony, when the defendant objected to going to trial without a formal answer to his motion for a bill of particulars, to show that he had agreed that the pencil memorandum of the particulars furnished by the district attorney would suffice. This bill of exception is as frivolous as the fourth.
The sixth bill was taken to the refusal of the judge to postpone until the next day a plea of former jeopardy, that was filed on the morning of the trial. The plea itself was without merit, apparently had only the object of delaying the trial of the accused; and the court acted wisely in refusing to postpone a trial of the plea.
The seventh bill of exception was taken to the overruling of a motion for a continuance on the ground of the illness of one of the witnesses for the defendant. The witness was present in court, was examined by her family physician and by the coroner, and they both testified that she was well enough to testify. We are not informed, by the recitals in the bill of exception, whether the witness testified in the case, and we assume that she did testify, and that the defendant was not prejudiced by the alleged illness of the witness.
The eighth bill of exception was taken to the refusal of the district judge to permit the witness, referred to in the seventh bill of exception, to testify regarding her illness, on the trial of the motion for a continuance, on the ground of her illness. If the witness was able to testify on the trial of the motion, she must have been able to testify on the trial of the accused; and we imagine that such proceedings and objections on the part of the learned counsel for the defendant must have
The ninth and tenth bills of exception were taken to the refusal of the judge to allow the defendant’s counsel time to prepare a written motion for a continuance, on the same ground referred to in the eighth bill of exception. As is said in the statement per curiam, it would have been absurd for the court to have given the attorney an opportunity to prepare a formal motion for a continuance on the same frivolous ground that had already been urged in the verbal motion, which had been properly overruled.
The eleventh bill was reserved to the overruling of the defendant’s objection to a so-called leading question. The question was not at all leading, or suggestive of a particular answer. The witness was asked to state anything he knew about the sale of intoxicating liquor alleged to have been made on the date stated in the bill of information. There would be no merit whatever in the bill of exception even if the question was objectionable, because the answer given by the witness was a hearsay statement, and was excluded by the trial judge for that reason.
The sixteenth and seventeenth bills of exception were taken to the overruling of the plea of former jeopardy. The defendant was not put in jeopardy on what his counsel refer to as the first trial. There was, in fact, only one trial, although testimony was taken twice. At the conclusion of the taking of testimony the first time, it was discovered that the defendant’s plea of not guilty had been withdrawn, and he could not legally be convicted. Hence his liberty was not in jeopardy by the taking of testimony on that occasion.
The judgment and sentence appealed from are affirmed.