State v. Sisemore

92 So. 274, 151 La. 675, 1922 La. LEXIS 2766

• Court: Supreme Court of Louisiana
• Decided: January 2, 1922
• Docket: No. 24644
• Status: Published

Opinions

On Motion to Dismiss.

OVERTON, J.

The defendants were indicted and tried for murder; were convicted of manslaughter; and now appeal to this court.

The state has filed a motion to dismiss the appeal on the ground that no appeal was moved for, nor granted, after sentence.

The defendants have filed an answer to this motion averring, if the transcript shows that the appeal was granted prior to sentence, then that it is incorrect in this respect, and have asked, in that event, that it be sent to the clerk of the district court for the parish of Catahoula, and that the clerk be ordered to correct it, so as to make it conform to the truth.

[1] Thereafter defendants moved this court for a writ of certiorari, which was granted. The motion for the writ sets forth that the transcript shows that the appeal was taken before sentence; whereas, the minutes show that it was taken after sentence. The writ was granted. It commanded the clerk to amend the transcript of appeal, if the same should be found to be incorrect, by transcribing and returning to this court, as part of the record, that part of the minute entry made in this case relative to the time when said appeal was ’asked for and granted, and that he make return forthwith.

The clerk evidently misunderstood the writ, and instead of filing with his return a certified copy of the minute entry, showing when the appeal was granted, filed a return stating his conclusion that the minutes in the transcript are erroneous, in so far as they show that the appeal was taken before sentence; and then the clerk adds:

“In truth and fact, the original minute record of this office shows that said appeal was taken after sentence.”

The state filed a motion to strike this return from the record, for the reason that it is “no part of the transcript, inasmuch as no certified copy of what the clerk claims to be the original minutes has been filed in this case.”

Then the state avers that the return is incorrect; that the original minute entries, up to, and until after, November 26, 1921, were the same as the copy found in the transcript, and that, without any authority whatever, “some one merely struck out the word, ‘before,’ and inserted the word, ‘after,’ in the minute entry of March the 26th.”

The above motion is supported by the oath of the district attorney, as well as by that of one of the assistant counsel for the state.

The return of the clerk is not sufficient. Bfesides, it has been suggested that the minutes have been altered without authority. Therefore, in order to gain possession of all the facts necessary to properly dispose of the motion to dismiss, we have concluded to remand the case, without disturbing the judgment that has been rendered, or the sentence that has been imposed, for the limited purposes to be stated in the decree.

.Therefore, without disturbing said judgment or sentence or the appeal taken, it is ordered that this case be remanded to the lower court to enable the state to show contradictorily with the defendants whether said minute entry of March 26, 1921, showing the granting of the appeal herein, has been altered, and, if so, whether without authority; and also to enable the defendants to show in said proceeding what error, if any, exists in said minute entry; and, if error should be found by .the court to exist in said entry, to the end that the court may correct the error, so as to make said entry conform to the truth; and it is further ordered that the evidence taken in said proceeding be reduced to writing, an'd that transcripts of the same be returned to this court; and, in any event, that three certified copies of said entry as it existed at the time the certified copy thereof contained in the transcript was made, and three certified copies of the entry as corrected by the court, if the court should find error in the original entry, and correct the same, together with copies of the ruling of the court in said proceeding, be forwarded to this court, as part of the transcript herein, by the court below; and this, to the end that the motion to dismiss the appeal may be determined.