255 La. 115

#### STATE of Louisiana v. Tommy L. GARNER.

No. 49783.

Supreme Court of Louisiana.

Dec. 15, 1969.

Rehearing Denied Jan. 20, 1970.

*720Alcide J. Weysham, Barry F. Viosca, New Orleans, for appellant.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for appellee.

McCALEB, Justice.

Appellant and one Solomon Henderson were jointly indicted for the murder of George Askins, alias Buckner. Henderson pleaded guilty without capital punishment. Appellant pleaded not guilty, was tried, found guilty without capital punishment and sentenced to serve the balance of his life at hard labor in the State Penitentiary. He has appealed, relying on three bills of exceptions for a reversal of his conviction.

While Officer Márchese of the New Orleans Police Department was testifying for the prosecution, he was shown a board which had been received in evidence as a state exhibit and was asked by the prosecuting attorney to identify it. Márchese replied that the board, which was lying at the victim’s head when he arrived at the scene of the killing, had blood and fragments of hair on it and that “ * * * it was obvious that this board was used to beat the victim.” Whereupon, defense counsel objected. The trial judge sustained the objection to the part of the officer’s unsolicited statement, that the board was used to beat the victim, but permitted the testimony, that the witness saw blood on the board, to stand. Defense counsel reserved Bill of Exceptions No. 1 to this ruling.

We find no merit in the bill. The statement of the officer, that the board was stained with blood at the time he reached the scene of the crime, was not opinion testimony as counsel contend. It was the recital of a fact within the knowledge of the witness. If he was mistaken in his identification of the substance as blood, this would affect the weight of his testimony but not its admissibility.

Bill of Exceptions No. 2 was reserved when the trial judge admitted in evidence, over the objection of defense counsel, an oral statement made by appellant to Officer Márchese and Detective Knapp at the scene of the crime “ * * * to the effect that he was present at the scene of the alleged crime, but that he explained that he had *721nothing to do with the commission of the crime.” The judge states in his per curiam to this bill that, after hearing the evidence, it was his opinion that the State had proved beyond a reasonable doubt that the alleged inculpatory statement that appellant was present at the scene of the crime was made “ * * * freely and voluntarily * *

In contending that the judge erred in his ruling, defense counsel state that the record in the case is not complete in that the testimony of appellant, who (counsel declare) denied that he was advised of the constitutional warnings prescribed in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), stating that no policeman or anyone else advised him of any of his rights and this matter was not even discussed with him. Counsel maintain that in view of the conflicting testimony, “ * * * which is not included in the record * * * the statement in question should not have been admitted in evidence.”

Since the testimony given by appellant out of the presence of the jury at the time the foundation was being laid for the admission of the alleged inculpatory statement is not attached to the formal Bill of Exceptions No. 2, it is not part of the record and cannot be considered by this Court on appeal. Indeed, we find that in the preparation of this bill of exceptions defense counsel made only “the officer’s testimony and the Court’s ruling * * * ” a part of the bill which was submitted to the trial judge and signed by him. Pursuant to this recital the testimony of Márchese and another officer (Knight), who was also present when the alleged inculpatory statement was made, has been included in the record.

Under Article 844 of the Code of Criminal Procedure it is provided:

> “A. The appellate court shall consider only formal bills of exceptions which have been signed by the trial judge in conformity with Article 845. In a case where the death sentence has been imposed, the appellate court, to promote the ends of justice, may consider bills that have not been timely signed by the trial judge.

> “B. A formal bill of exceptions shall contain only the evidence necessary to form a basis for the bill, and must show the circumstances and the evidence upon which the ruling was based. * * * ”

It is the settled jurisprudence that evidence which is not made part of and attached to a formal bill of exceptions may not be considered by this Court. State v. Honeycutt, 218 La. 362, 49 So.2d 610 (1950);1 and State v. Lee, 247 La. 553, 172 So.2d 678 (1965) and the many authorities cited in those pronouncements.

We do not know why defense counsel, in preparing Bill No. 2 and presenting it for the judge’s signature, did not see fit to include as part of the formal bill all of the evidence taken out of the presence of the jury at the time the State was laying the predicate for the admission of the in-culpatory statement in evidence. See Art. 843 C.Cr.P. But, whatever the reason, it could not avail appellant consideration here for it is well settled that a defendant in a criminal case has the burden of preparing his bills so as to enable this Court to say whether the trial judge erred in his rulings. State v. Todd, 173 La. 23, 136 So. 76 (1931); State v. Labat, 226 La. 201, 75 So.2d 333 (1955), affirmed 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83; and State v. Watson, 247 La. 102, 170 So.2d 107 (1964) and the many authorities there cited.

Insofar as the evidence attached to the bill is concerned, the judge had before *722him the statement of the officer who testified that the warnings prescribed by the Miranda decision were imparted to appellant and also swore that appellant’s alleged inculpatory oral statement was freely and voluntarily given. Under the circumstances, the judge was correct in ruling that appellant’s statement was admissible.2

Bill No. 3 was taken when the trial judge overruled a motion for a new trial. It is alleged in this motion: (1) that the verdict is contrary to the law and the evidence, which presents nothing for review; (2) that the statement made by appellant to Officer Márchese was not free and voluntary, which we have already reviewed; and (3) that the State witness, Solomon Henderson (formerly a co-defendant), should have been required to testify to the truth as his claim of self-incrimination was not legal “since he had already pleaded guilty.”

Defense counsel declare that Henderson was permitted by the trial judge to refuse to answer practically all of the questions propounded by them on the ground that his answers may have tended to incriminate him. From this premise it is said that, since Henderson had already been sentenced to life imprisonment, his answers could not have incriminated him and, therefore, the motion for new trial is meritorious.

The short answer to this proposition is that, if counsel had desired to attack the judge’s ruling on this issue, they should have objected and reserved a bill of exceptions to the judge’s ruling, attaching thereto the questions propounded, the refusals to answer and the adverse ruling. As it stands, this Court has no way of ascertaining what happened below at this stage of the proceeding.

The conviction and sentence are affirmed.

FOURNET, C. J., did not participate.

1

. The ruling in the Honeycutt case, involving a death sentence, has been relaxed by the provisions of Article 844 of the Code of Criminal Procedure to the extent that this Court may, in the interest of justice when a capital verdict has been entered, consider bills even though they have not been timely signed by the trial judge.

2

. According to the per curiam, the judge states that, after hearing the evidence (which included appellant’s testimony out of the presence of the jury according to the minutes of the proceedings below), the State had proved beyond a reasonable doubt that the alleged inculpatory statement of appellant was voluntarily given. He also ruled that it was made with due regard “ * * * to so-called Constitutional rights of defendants as an-nunciated (sic) in U. S. v. Miranda * *

BARHAM, Justice

(dissenting).

This court has before it for consideration a perfected bill of exception to which is attached only a part of “ * * * the evidence necessary to form a basis for the bill * * ” and to reflect “ * * * the circumstances and the evidence upon which the ruling was based”. C.Cr.P. Art. 844(B). The trial court ruled that the State had adequately established the predicate for the admission of the “alleged inculpatory statement”, and when counsel reserved his bill to this ruling, through inadvertence or otherwise he requested only that “ * * * the testimony of this officer, the Court’s ruling and my objection * * *” be made a part of the bill. Apparently relying upon this, the clerk or reporter has omitted pertinent testimony taken out of the presence of the jury on the admissibility of a purported inculpatory statement by the defendant, more particularly the testimony of the defendant himself.

The minutes of March 12, 1968, which are a part of the record, reflect that Officer Márchese took the stand, and that the State submitted that it had laid its predicate; that the defendant Garner testified, and that the defense rested; that after Officer Knight testified in rebuttal for the State, both sides submitted “the question of admissibility”. The minutes then state: “The Court ruled that the said alleged oral admission and/or confession, if made by defendant was freely and vol*723untarily made and should go to the jury. To which ruling of the court counsel for defendant reserved a bill of exceptions.”

The majority relies upon State v. Todd, 173 La. 23, 136 So. 76 (1931); State v. Labat, 226 La. 201, 75 So.2d 333 (1954), and State v. Watson, 247 La. 102, 170 So.2d 107 (1964), which were all decided before our present Code of Criminal Procedure was adopted and which I find both distinguishable and inapposite.

In the instant case we know the entire proceedings were recorded because the case was tried in the Criminal District Court for the Parish of Orleans, where a record is required. Under R.S. 13:1373(B) the reporters of that court are required to:

*t(** * *

“(3) * * * prepare, make up, and furnish the transcripts of appeals to the supreme court.

«# * *

“(6) Report the evidence objected to in cases not otherwise required to be reported, whenever an objection shall be made and a bill of exceptions reserved, and *to transcribe it in case of appeal.*

“(7) In all cases of appeal to the supreme court, furnish to the clerk of the criminal district court three certified copies of *the testimony taken and of the bills of exception to which the testimony shall have been annexed.”*(Emphasis supplied.)

Code of Criminal Procedure Article 844 requires that a formal bill of exception shall contain only the evidence necessary to form its basis and the circumstances and the evidence upon which the ruling is based. Article 843 provides for the transcription of the objection and the facts or evidence which is the basis for the objection. Our early jurisprudence, which reflects strict and limited review under bills of exception, was developed when trial courts had inadequate and in many cases what are now considered antiquated means of reporting and transcribing trial proceedings. Our Code articles indicate an intent of the Legislature to expand appellate review, and the comments of the redactors in regard to bills of exception indicate their cognizance of the need, perhaps the constitutional requirements, for the reporting and transcription of criminal proceedings.

The majority on the basis of the testimony of one officer, and in the face of a clear statement in the official minutes that there was other testimony which concerned this particular objection, has held that the trial judge was correct in his ruling and thus has found no merit in Bill of Exception No. 2. If the defendant’s testimony were all that was before us and the officers’ testimony had been omitted, would we rule that the judge was incorrect under the only evidence attached to the bill? When our record clearly reflects an omission of testimony needed to complete an attachment to the bill of exception, we should refuse to review the bill at all or we should have the bill corrected. Only these rulings can protect the defense and the State from planned or inadvertent submission of incomplete evidence as a basis for a bill of exception.

We have before us a perfected bill of exception consisting of the statement prepared by counsel and the per curiam of the trial judge, and we have some of the evidence which should have been attached to the bill to “ * * * show the circumstances and the evidence upon which the ruling was based”.* Since appeals are favored and adequate appellate review of this bill of exception can be made only upon a consideration of all of the evidence forming the basis for the bill, it would do justice *724and comply with the intendment of the codal and statutory provisions to request that the omission be cured. Article 2 of the Code of Criminal Procedure states: “The provisions of this Code are intended to provide for the just determination of criminal proceedings. *They shall he construed to secure simplicity in procedure, fairness in administration,*and the elimination of unjustifiable delay”. (Emphasis supplied.)

I would neither rule upon the incomplete record before us as has the majority, nor would I refuse to review the bill, for I am of the opinion that the law and a just determination of this case require that the omission be cured.

I respectfully dissent.

*

 The per curiam of the trial court states that nothing is attached to the formal bill, and that there is nothing for review. The trial court has preempted the function of this court and failed to discharge its duty to provide for us the facts and circumstances which support his ruling. The per curiam has failed to supply the evidence or even mention the testimony which is omitted.