57 So. 645 | La. | 1912
The defendant was charged with perjury. The district attorney presented an information to the court, in which he averred that the defendant had committed perjury in the case of the State v. E. S. Whitaker. She was tried and found guilty, and condemned to serve 12. months at hard labor in the state penitentiary.
The one point in the cause was raised by a motion in arrest of judgment, which was overruled and a bill of exceptions reserved. The contention of the defendant is that the district court had no jurisdiction in the case of the State v. E. S. Whitaker, in which he was prosecuted for a crime against nature and found guilty. After the record in his appeal to this court had been filed, he departed this life, and, in consequence, the appeal abated.
*109 “As there is do error on the face of the papers, no bill of exceptions was taken, the case is not reviewable on appeal.” State v. Wilson, 109 La. 74, 33 South. 85.
On the same ground, the judgment was affirmed in State v. Marks, 119 La. 1035, 44 South. 856. In a ease of that gravity, the rule here announced was expressly adhered to. The failure to take a bill of exceptions to the judge’s charge is the same in effect to the failure to take a bill of exceptions on motion in arrest of judgment. The present case is much stronger by reason of the fact that, if the evidence had been ‘introduced to establish the illegality of the indictment against Whitaker, it would not have been admissible.
There are therefore two illegalities: First, the evidence was not admissible if it had beén offered, and if it had been admissible it was not offered, and no bill of exceptions, therefore, could have been taken as relates to the first point urged, which cannot be brought up in a motion in arrest of judgment.
“At the common law, this motion will be sustained for defects apparent on the face of the record; no others.”
The court had jurisdiction to try the case against Whitaker. We will not assume that it was without jurisdiction, as the fact to prove its want of jurisdiction is not before this court. As the want of jurisdiction charged does not appear on the face of the record, it cannot afford good ground for dismissing the suit. See State v. Fink, 127 La. 191, 53 South. 519, in which the court held that evidence aliunde will not be considered to the end of determining that the court was without jurisdiction. The presumption is that the court had jurisdiction, and the burden is upon the defendant to show affirmatively that the court had no jurisdiction. This plea itself to the want of jurisdiction was not evidence. Mere allegations are not evidence in favor of the one by whom they are made. A verdict and judgment are taken as correct until reversed.
Affirming the legality of proceedings
The verdict and judgment are affirmed.