State v. Kennedy

189 So. 450 | La. | 1939

Defendant was found guilty of the crime of forgery of a check for $108.40, and was sentenced to the State Penitentiary for a term of not less than four years nor more than twelve years.

An appeal was granted to this court. As it does not appear from the record that defendant applied for a new trial in the lower court before the appeal was taken, the State has moved to dismiss the appeal.

In State v. Eubanks, 179 La. 92, 153 So. 31, it is said by the court that:

"It is provided in article 559 of the Code of Criminal Procedure that: `No new trial can be granted on appeal unless a motion for same has been made and refused in the lower court. * * *'

"In State v. Stinson, 174 La. 510, 141 So. 44, this court enforced the above provision and dismissed defendant's appeal, saying: `The record contains nine bills of exception, but they are of no value to defendant, even if they possessed merit, which they do not, for the reason that defendant has not placed himself in position to obtain relief by filing and pressing a motion for a new trial in the district court."

For the same reason, the appeal was dismissed in State v. Eubanks, cited supra, in which the court said:

"The plain purpose of our Code of Criminal Procedure, in requiring that a defendant shall apply for a new trial, or else forfeit his right to be heard on appeal, is not only that the defendant, as well as the state, shall be fairly dealt with, but that the defendant shall exhaust all of his legal remedies in the court below, in order to correct errors, avoid delays, and prevent miscarriages of public justice.

"The appeal in this case is dismissed." 179 La. page 99, 153 So. page 33.

In State v. Stephens, 183 La. 431, 164 So. 162, the court said: "The defendant, having failed to file a motion for a new trial and thereby exhaust his remedies in the trial court by submitting for review the rulings there made and complained of before appealing to this court, in accordance with the requirements of article 559 of the Code of Criminal Procedure, is not entitled to be heard before this court.

"State v. Stinson, 174 La. 510, 141 So. 44; State v. Eubanks,179 La. 92, 153 So. 31."

The record contains two bills of exceptions, which cannot be reviewed by this court, as the defendant has not placed himself in position to obtain relief by filing a motion in the lower court for a new trial.

The appeal in this case is dismissed.

HIGGINS, J., absent.