State v. Bailey

115 So. 613, 165 La. 341, 58 A.L.R. 1, 1927 La. LEXIS 1899

• Court: Supreme Court of Louisiana
• Decided: October 31, 1927
• Docket: No. 28873.
• Status: Published

Opinions

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

On Motion to Strike. Appellant was prosecuted upon an information filed by the district attorney, which charged, in separate counts, the crime of assault and robbery and a prior conviction. He was tried, convicted, and sentenced to hard labor in the state penitentiary for not less than 18 nor more than 28 years. From the verdict and sentence he appealed.

Defendant applied to this court for a writ of certiorari directed to the trial judge to send up the testimony taken in the case. The order issued, and in response thereto the judge says that no testimony was referred to in any bill of exception reserved by defendant. As the testimony desired was not referred to in nor attached to a bill of exception, it was properly omitted from the transcript; and the order heretofore issued directing the judge to show cause why it was not sent up is recalled and vacated.

In connection with the sentence the trial judge prepared and filed in the record a short history of the crime charged in the first count of the information, and a brief statement of the character of the accused. This history and statement were incorporated in the transcript, and counsel for the appellant filed a motion in this court to strike out and expunge it therefrom. The motion to strike out was submitted and it is the only remaining matter now before us.

It is alleged in the motion to strike out that the incorporation in the transcript of the written statement of the trial judge, entitled, "History of the Crime," which was filed in the record in the lower court, was without warrant of law and in violation of the rules of this court. Counsel has evidently over-looked the provisions of Act 222 of 1926, especially section 2 of said act, which is as follows:

"Section 2. That whenever any district judge imposes any sentence provided for in this act, he shall attach to the judgment carrying out such sentence, a short statement, or account, of the crime committed and a short statement of the character of the person sentenced, in all cases where the minimum sentence is one year or more."

In this case the minimum sentence exceeded one year; therefore when the trial judge filed a history of the crime in the record in connection with the verdict rendered and the sentence imposed, he literally complied with the provisions of the section of the statute quoted supra, and the document so filed is a part of the record in the lower court, and as such it was properly incorporated in the transcript.

For the reason stated the motion to strike out and expunge from the transcript the document entitled, "History of the Crime," is overruled.

On the Merits.