83 So. 374 | La. | 1919
Defendant relies upon five bills of exceptions for a reversal of the verdict finding him guilty of embezzlement, and a sentence condemning him to a term in the penitentiary.
In volume 1 of Wharton’s Criminal Evidence, par. 225, p. 451, it is said:
“Par. 225. Repeated Testimoivy of Nonwit-nesses Generally not Admissible. — Extrajudicial statements of third persons cannot be proved by hearsay, unless such statements were part of the res gestee, or made by a deceased person in the course of business, or are admissions against interest, or are material for the purpose of determining the state of mind of a party who cannot be examined in court. In this sense, as hearsay, are to be considered the opinions of others as to the wealth and status of an individual; letters from nonresidents. * * *
“There is no reason to receive hearsay statements because the person making them is dead (save under limitations hereafter noted), or because he was called as a witness and, being taken suddenly ill, was unable to attend*53 the trial, or because he was legally incompetent as a witness.”
Article 139 of the Constitution gives to the criminal district court for the parish of Orleans exclusive original jurisdiction for the trial and punishment of all offenses when the penalty is death, imprisonment at hard labor, or imprisonment without hard labor for any time exceeding six months or a fine exceeding $300 may be imposed, etc. And again:
“All prosecutions instituted in, and all cases appealed to said criminal district court shall be equally allotted or assigned by classes among the judges, and each judge, or his successor, shall have exclusive control over any case allotted or assigned to him, from its inception to its final determination in said court, except as herein otherwise provided. * * * ” And the court shall have authority “to adopt rules not in conflict with law, regulating the order of preference, and proceedings in the trial of cases, and the method of allotting such cases, and of reallotting and reassigning them, in case of vacancy in the office, resignation, absence or disability of one or more of the judges, or in case such action is deemed necessary for the proper administration of justice.”
The record shows that after the allotment of this case to division A that in anticipation of the adjournment of that división for three months, and in the absence of the judge during that time, the case was reallotted, .or transferred, to section B, in open court, by and with the consent of the defendant then and there present. All of which was done, apparently, under the rules of the court which had been previously adopted.
The Constitution in giving exclusive control over a case allotted to a certain division to the judge of that division does not exclude that judge, for reasons stated in the Constitution, to transfer a case under his control to the judge of the other division, where the latter and the accused consent to such transfer.
Under such circumstances, it cannot be said that jurisdiction was given by consent.
Defendant further argues that the judge erred in failing to give certain instructions to the jury. But the charge of the judge is not before us, there appears to have been no objection made to the charge by the defendant in the course of the trial, and there is no bill of exceptions reserved on the point.
The judgment appealed from is affirmed.