State v. Simon

39 So. 971, 115 La. 732, 1905 La. LEXIS 727

• Court: Supreme Court of Louisiana
• Decided: December 4, 1905
• Docket: No. 15,783
• Status: Published

Opinion

PROVOSTY, J.

Tbe two defendants were convicted of rape, were sentenced respectively to 10 and 12 years at bard labor, and Joseph Simon has appealed.

His sole complaint is that the following motion for a severance was overruled.

“Now comes Joseph Simon and moves the court for a severance, on the ground that his defense is entirely different and antagonistic with that of his codefendant, and that the said codefendant had made a confession implicating your said mover, and for that reason it is necessary that he be tried separately; his defense being different and distinct from that of his codefendant. That it will be impossible, unless a severance is granted, for him to get a fair and impartial trial, and thereby the ends of justice will be defeated.”

The judge says he overruled this motion because it was not sworn to or otherwise supported by any proof, and that as ,i matter of fact the two defenses proved to be the same — the consent of the ravished woman.

The first ground was sufficient. The facts stated in the motion should have been verified by oath. Enc. of Plead, and Prac. vol. 19, p. 528. The trial judge is not required to accept the mere statement of a motion as true, nor is he under the obligation of setting on foot an investigation into its verity.

Judgment affirmed.