108 La. 518 | La. | 1902
Lead Opinion
The opinion of the court was delivered by
The minutes of the Mayor’s Court show that one of the defendants in case number one was charged with “permitting a gambling- game to be run in his house, room, or tenement, accessible to the public in the town of Minden,” and the other defendants were found guilty of gambling.
He was tried and found guilty and sentenced to pay a fine of fifty dollars ($50.00) and to be imprisoned one day for each dollar imposed in default of payment. From this sentence he appeals.
Here a motion is made to dismiss the appeal on a number of grounds, among them the following:
1st. “That there are too many cases included directly and by reference in one transcript of appeal and there is an illegal cumulation of causes for appeal in the several cases by reference and that the several cases are not appealable in one transcript before judgment entered and legal orders granted therein; not having been first consolidated for trial; in ifiae alternative, if the town of Minden is held bound by the granting of such orders, then there is no reason for connecting ease No. 1 and case No. 2 against McCreary in one transcript, as those two cases*520 do not stand together and have not the same evidence and the issues are not triable in one case.
“2nd. That the case does not present any questions of law under the pleadings and issues presented. Five other cases are brought up in one transcript. The same defense is made as was made by defendant in case No. 1.”
In so far as plaintiff and appellee seeks to dismiss the appeal because the bond is not in due form, we can only say that it contains the essentials of a bond and is sufficient to enable appellants to sustain their appeal. The consolidation of the suits to which the appellant objects here for the first time is not as serious an objection as at first appears. All the papers are before the court that were before the court of tha first instance.
The court, in its discretion, can consider more than one criminal casa in one transcript, if they are germane to'each other.
The gambling charged against the defendants was, as we understand, one game in which they all took part.
The motion to dismiss is overruled.
Opinion on the Merits
On ti-ie Merits.
There are reasons special in this case, for refusing to reverse the judgment on the ground that the ordinance attacked the affidavits and that the other steps taken against the defendants are unconstitutional.
Appellants did not except to the action against them on the ground of illegality and unconstitutionality. Merely a note in the minute3 that defendant took a bill of exceptions to the court’s ruling is not the action required. We should be reluctant to subject the defendants to this fine unless compelled to do so by the clear rules of practice.
The decisions heretofore handed down leave us with no discretion in the matter. It may be another case of dura lex, yet it is the law, to which we must adhere. State vs. Napoleon, 104 La. 166.
Without a bill of exceptions, it does not appear that the question of illegality and unconstitutionality was raised and considered in the lower court. It has been repeatedly held that in order to raise the question of unconstitutionality on appeal it is necessary for it to appear that it had been raised in the court below.
Defendant has attacked the affidavit. The answer is to this complaint
The ordinance sets forth in substance that all gambling is prohibited-within the limits of the town of Minden.
Gambling, in one way or another, was made the subject of legislation-in this State. Statute 69 of 1886. See State vs. Hunter, 107 La. 187.
When the position is taken by defendant that the act charged is not denounced as a crime -and is not punishable, we can only say in answer that enough of the facts should be embodied in a bill 'of exceptions to-enable us to determine the question.
The judgment is affirmed.
Eehearing refused.
