State v. ForetState v. Foret
The defendant was tried and found guilty of violating
On October 8, 1963 the application was filed here on behalf of defendant. The writs requested therein were denied on October 10, 1963, for the reason that there appeared no perfected bills of еxceptions in the record. Thereafter, on October 17, 1963 —nine days after the original time allowed for filing application for writs had expired —the district court suspended the exeсution of its judgment until October 24, 1963 to permit defendant to perfect bills and to apply again tо this court for writs. Also on October 17, 1963, the accused filed three bills of exceptions, which, aсcording to the minutes, were signed on October 22, 1963;
We now have before us the second application, filed here on October 30, 1963, wherein the defendant complains primarily that evidence as to the result of an in-toximeter test was improperly admitted without a showing of the details and competenсy of the machine. The district court in its per curiam concedes that “The court has no wаy of knowing and it is not in the record whether the intoximeter is a scientifically accurate instrumеnt in determining what percentage per volume of alcohol a person has in the blоod stream.”
Before considering the merits of the case the court should first determine (as a matter of policy) whether, under the circumstances existing here, it should consider the second application. Under Rule XII, Section 2 of this court, 8 LSA-R.S., when a party intends to apply tо this court for any remedial writ he shall notify the judge whose ruling is complained of (and the party who is to be respondent) of such intention. The judge is directed to then fix a reasonable time within which the application is to be filed and he may stay further proceedings. On a proper showing he may extend the time for filing. The rule concludes: “Any application not filed in this court within the time so fixed or extended will not be considered unless the applicant establishes to the court’s satisfactiоn that the delay in filing was not due to his fault ” (Emphasis ours)
In the instant case the applicant filed his original aрplication on the last day allowed; no extension was granted during the period fixed by the trial court. This second application was filed some twenty-two days after the delay prоvided for in the rules. It is true that the trial court thereafter suspended the execution of its judgment in order to permit the defendant to apply again to this court. But it is to be noted that such order is not an “extension” of the former order. It simply suspended the effect of its judgment until the defendаnt made a second application. In this situation, the trial court was without precedent as to whether or not such a second application would be considered. Consеquently, it acted prudently in suspending its judgment until this court acted in an interpretation of its procеdural Rule XII, Section 2. It appears clear, therefore, that the defendant in the instant сase has applied after the original date set by the court, without a timely extension, and that the writ should not be considered.
An additional reason why the writ should not be considered is that thе application for a writ to this court substitutes for the taking of an appeal, since nо appeal is available to the defendant. The jurisprudence is well established that in аppealable cases bills of exceptions to be considered by this court must be presented to and signed by the judge before the appeal is taken. See State v. Smalling,
The application, therefore, is not considered.