State v. PeteState v. Pete
- Reporters:
- Before:
- Poché
The opinion of the Court was delivered by
Poché, J.The complaints of the accused who apрeals from a conviction of feloniously shoоting at another, and a sentence to hard labоr for one year, are presented in a motion for a new trial, and in a motion in arrest of judgment.
1. His motion for a new trial rested on newly-discovered evidеnce, and is supported by his own affidavit and by that of thе person whose testimony would constitute the newly-discovered evidence.
But no bill of exceptiоn was received from the ruling of the trial judge on the motion, and hence the question cannot be reviеwed on appeal.
*1096We note the statement in the brief of his counsel that a bill of exception had been reserved from the ruling of the judge, but after thе most diligent search of the record, we have failed to find as much as a mention of any bill of exception reserved throughout the trial.
No rule of criminаl jurisprudence is more firmly settled and more uniformly enforced than that which requires a bill of exceptiоn as an indispensable condition to entitle any mаtter connected with a motion for new trial to the attention of this court in a criminal case.
With the hope that the profession may be fully informed on the subject we have taken the pains of collating the following recent cases in which the princiрle has been recognized :
State vs. Williams, 30 Ann. 1029; State vs. Givеn, 782; State vs. Nelson, 32 Ann. 842; State vs. Ross, 32 Ann. 854; State vs. Hudson, 32 Ann. 1052; State vs. Chatman, 34 Ann. 881; State vs. Williams, 35 Ann. 742; State vs. Jackson, 35 Ann. 769; State vs. Belden, 35 Ann. 824; State vs. Miller, 36 Ann. 158; State vs. Comstock, 36 Ann. 310; State vs. Walker, 37 Ann. 560: State vs. Redwine, 37 Ann. 780; State vs. Deas, 38 Ann. 581; State vs. Wier, 38 Ann. 684; State vs. Boyce, 39 Ann. 229; State vs. Darrow, 39 Ann. 677; State vs. Waggoner, not yet reported.
2. In his motion in arrest the defendant charges that the minutes of the court do not show that the indictment was presеnted by the grand jury in open court.
It appears frоm the record that, while the court was in session, the grаnd jury entered the oourt-room and presented their report, which included the indictment in this case.
Under this showing, the argument thаt the indictment was not presented in open court is untenable. The awkwardness of the clerk’s composition does not destroy the fact which is shown by the entry.
He next contends that the indictment was not indorsed by the foreman of thе grand jury, but by the district attorney. The record shows the very rеverse, and discloses no irregularity on that score.
1-Iis last complaint is that the grand jury was defunct when the indiсtment’ was found, because the jury had adjourned for more than three days without leave of the court.
That point involves the discussion of a question of faсt which cannot be presented in a motion in arrest of judgment. The alleged error is not patent on the face of the record. State vs. Miller, 36 Ann. 158.
We find no error to the prejudice of the accused.
Judgment affirmed.
Todd, J. absent.