State v. Moore

95 So. 605, 153 La. 203, 1922 La. LEXIS 2521

• Court: Supreme Court of Louisiana
• Decided: December 29, 1922
• Docket: Nos. 25496, 25497
• Status: Published

Opinions

O’NIELL, J.

The defendants were prosecuted under two bills of information. In one case they were accused of having had intoxicating liquor in their possession for beverage purposes, and in the other case they were accused of having sold intoxicating liquor for beverage purposes. On arraignment, each defendant pleaded not guilty, and the cases were fixed for trial. Thereafter, but before the day of trial, each defendant withdrew his plea and filed a motion to quash the bill of information in each case, averring that Act 39 of 1921, under which defendants were prosecuted, was violative of section 18 of article 3 of the Constitution of this state, because section 8 of the statute defined intoxicating liquor by reference to federal legislation. The motion was argued, submitted, and overruled, and a bill of exceptions was reserved to the ruling. When the cases were called for trial, on the date for which they were originally assigned, they were consolidated, or treated as one case, and tried together, without objection on the part of either defendant. Ursin Moore was convicted of having had intoxicating liquor in his possession, and Joe Olivier was convicted of having sold intoxicating liquor. Each defendant was condemned to pay a fine and suffer imprisonment, and each appealed. Joe Olivier has abandoned his appeal, and is serving 'the sentence of .imprisonment.

The transcripts of appeal, as originally filed, did not show that the defendants were rearraigned after their motions to quash the bills of information were overruled. The district attorney, therefore, by writ of certiorari, brought up a supplemental' transcript, showing that the defendants, through their counsel, again waived arraignment, after their motions to quash the bills of information had been overruled, and before the trial was commenced. However, in the minute entry, as corrected, the charge is stated, “Manufacturing intoxicating liquor.” The title and the number of each case is given in the caption Of the entry on the minutes; and the bills of information, to which the minute entry refers, show that the defendants were not accused of the offense of manufacturing intoxicating liquors. Therefore, it is very probable that the statement of the charge,.in the minute entry, “Manufacturing intoxicating liquor,” was an error on the part of the clerk of court. If it be an error, there will be an opportunity to correct it, because, in his assignment of errors, the defendant, Moore, makes another complaint which requires that the case should be. remanded for correctiomof the minutes. As far as the corrected minutes show, the waiver of arraignment and plea to the bills of information were entered, not by the defendants in person, but by their attorney. The corrected minutes do not show that either of the defendants was present in court when the waiver and plea were entered, or during the trial, or when judgment was pronounced. It is necessary that the record should show whether the defendant Moore, who was condemned to imprisonment, was present during the proceedings mentioned.

It is ordered that this case be remanded to the district court for a correction of the minutes, to show whether the defendant Moore was present in court during all of the proceedings had in the case on the 29th of June, 1922, and to show whether he waived arraignment and pleaded not guilty of the offense of having intoxicating liquor in his possession for beverage purposes. The record is to be returned to this court within 30 days from the date of this order.