State v. Stephney

68 So. 949, 137 La. 545

• Court: Supreme Court of Louisiana
• Decided: June 7, 1915
• Docket: No. 21311
• Status: Published

Opinion

SOMMERVILLE, J.

Defendant appeals from a conviction of murder, without capital punishment. He relies upon a motion in arrest of judgment for the setting aside of the verdict and sentence. The error assigned is: That the indictment returned against him October 7, 1912, was not signed by any officer of the court; that said document was signed by I-Ion. A. D., Schwartz, an attorney at law, who, at the time of presenting said indictment, had not been appointed to act as district attorney pro tempore.

The minutes show that Adrian D. Schwartz, attorney at law, was sworn as district attorney pro tempore for the Twenty-Sixth judicial' district court, parish of Washington, May 13, 1912; that the indictment against defendant was filed October 7, 1912; that it (the indictment) was signed by A. D. Schwartz, acting district attorney for the Twenty-Sixth judicial district of Louisiana. The oath of office of A. D. Schwartz is in-' scribed on the minutes of May 13, 1912. The minutes also recite that on October 10, 1912, the court’s attention having been called to the fact that the order of June 22, 1912, appointing A. D. Schwartz, Esq.., district attorney pro tempore during the absence of Louis L. Morgan, Esq.i district attorney, Twenty-Sixth judicial district court, for the parish of Washington, had not been regularly entered on the minutes of the court at the time that the court administered the oath of office to said district attorney pro tern., it was ordered that the minutes be amended and cor-rected to show that the said > A. D. Schwartz, at the time he took the oath as district attorney pro tern., was appointed to such office by the court. There appears to be some confusion in dates here; but the minutes show that Mr. Schwartz was appointed district attorney pro tern., and that he was qualified as such before he signed the indictment against defendant.

The trial court correctly ruled that the objection came too late. If the exception had been good, it should have been pleaded before going to trial. State v. Nunez, 26 La. Ann. 605.

Judgment affirmed.