State v. Whitney

38 La. Ann. 579

• Court: Supreme Court of Louisiana
• Decided: May 15, 1886
• Docket: No. 9707
• Status: Published

Opinion

The opinion of the Court was delivered by

Bermudez, C. J.

The defendant claims that the sentence passed on ■him should be reversed and the case remanded for a new trial.

The transcript, which he has filed in this Court, is certified by the clerk as complete, as far as relates to the trial and conviction of the-defendant. The clerk further certifies that ail the other papers in the case have been lost, mislaid or abstracted from his office.

The record, however incomplete, contains the two bills of exception on which the defendant relies for a reversal of the sentence.

The first bill relates to the overruling of an objection made by his counsel to the admission of oral testimony “to prove the contents of' the indictment, bond and all the papers belonging to the case which were mislaid or lost, and no record having been made thereof as required by law.”

The second bill is to a kindred ruling permitting similar testimony and to the passing of sentence in the absence of the missing important documents themselves, or of others of almost equal dignity.

The bills could not stand strict legal criticism.

It may, however, be gathered from them that the objections urged,, were made to rest on the following grounds:

That no foundation had been laid to justify the admission of oral-testimony ; that the missing information could be supplied only by an exact copy of the same from the records; that the minutes did not show any particular charge of which the defendant was convicted;, that tlie court was without authority to sentence the defendant for a. crime not shown by the record, and that the accused at bar had not been identified as the party convicted.

In answer, it suffices to say that the first bill distinctly shows that-the information and other papers were mislaid or lost, and that no record of them existed.

Under such circumstances, the law allows the admission of proof of inferior dignity to supply the deficiency.

Oral testimony was then received and it is only after it had been heard that the judge, made aware of the material facts which the documentary proof would have established, had it been produced, proceeded to pass sentence.

The question of identity was one of fact on which the lower court could and did pass. It is not presented in any form to enable this Court to determine whether the lower court was right or wrong.

It appears that the appellant, after conviction, broke jail, remaining-at large some two years, and that it is after his capture, that these proceedings were had.

Under the circumstances, we feel no authority to disturb the condition of things.

Judgment affirmed.