98 So. 86 | La. | 1923
W. I. Kahn was convicted jointly with J. U. Albrecht for embezzlement. Before sentence, both defendants filed a motion for a new trial. The motion was granted as to Albrecht, but refused as to Kahn, and the latter was sentenced to serve six months at hard labor in the state penitentiary. Thereafter, the district attorney nolle prosequied the ease against Al
The record contains excerpts from the testimony of some of the witnesses with a notation in each instance, by the clerk, of an objection by counsel for defendants, the adverse ruling of the trial judge thereon, and the reservation of a bill of exception. There is, however, no bill of exception in the transcript.
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. State v. Smith, 149 La. 700, 90 South. 28; State v. Miller, 146 La. 236, 83 South. 539; State v. Miller, 138 La. 373, 70 South. 330; State v. Bradley, 136 La. 55, 66 South. 395; State v. Evans, 135 La. 891, 66 South. 259; State v. Carr, 111 La. 716, 35 South. 839.
Act 102 of 1877, Ex. Sess., p. 176. permitting an objection to be reserved, without the necessity of a formal bill, by the clerk’s notation thereof, is an amendment to the Code of Practice, art. 48S, and hence applicable to civil cases only. State v. Jessie, 30 La. Ann. 1170; State v. Dufour, 31 La. Ann. 804; State v. Comstock, 36 La. Ann. 308.
Defendant’s motion for a new trial was made on the grounds that the verdict was contrary to the law and the evidence and of newly discovered evidence.
Neither of the grounds urged can be considered by this court. There is no allegation of due diligence; no showing as to the nature of the newly discovered evidence; no names of the newly discovered witnesses; and the motion is not sworn to. This court has appellate jurisdiction on questions of law alone and will not revise the refusal of the trial judge to grant a new trial upon the general allegation that the verdict is contrary to the law and the evidence.
Judgment affirmed-
