State v. Ewell

90 So. 733, 150 La. 385, 1922 La. LEXIS 2575

Opinions

On Motion to Dismiss Appeal.

O’NIELL, J.

[1] The attorneys representing the state, averring that the order of appeal in this case was granted before the sentence was imposed, move to dismiss the appeal. The minutes of the court do not show, affirmatively, that the order of appeal was granted before the sentence was imposed. The proceedings with regard to the sentence, t-he motion for appeal, and order of appeal were had on the same day, and were recorded as contemporaneous proceedings. The fact that the clerk’s entries in the record are not in their proper order does not destroy the presumption that the judge did not grant the order of appeal before he had imposed sentence upon the appellant. “Omnia pr£e-sumuntur rite et solemniter esse acta.”

In the case of State v. Sisemore (No. 24644) 151 La. —, 92 South. 274, which was remanded for a correction of the minutes, etc., it appeared that the record had been tampered with. The original entry showed that the appeal had been asked for and granted “before sentence,” and the word “before” was stricken out and the word “after” written over it. There is no such suspicious circumstance in the present case. The motion to dismiss the appeal is therefore overruled.