179 La. 92

#### STATE v. EUBANKS.

No. 32672.

Supreme Court of Louisiana.

Jan. 29, 1934.

Rehearing Denied Feb. 26, 1934.

Ped C. Kay, of De Ridder, for appellant.

Gaston L. Porterie, Atty. Gen., James O’Connor, Asst. Atty. Gen., and A. B. Cav-anaugh, Dist.' Atty., of Leesville (James O’Niell, Sp. Counsel to Atty. Gen., of New Orleans, of Counsel), for the State.

LAND, Justice.

Defendant was found guilty of the crime of shooting with intent to kill and was sentenced to the State Penitentiary for a term of not less than 16 months nor more than 24 months.

An appeal was granted to this court, but it does not appear from the rqeord that defendant applied for a new trial in the lower court before the appeal was taken.

It is provided in article 559 of the Code of Criminal Procedure that: “No new trial can be granted on appeal unless a motion ■ for same has been made and refused in the lower court. * **** ”

In State v. Stinson, 174 La. 510, 141 So. 44, this court enforced the above provision and dismissed defendant’s appeal, saying: “The record contains nine bills of exception, but they are of no value to defendant, even if they possessed merit, which they do not, for the reason that defendant has not placed himself in position to obtain* relief by filing and pressing a motion for a new trial in the district court.”

A strenuous effort has been made in this case by defendant to evade the plain and unmistakable provision of the Code of Criminal ’ Procedure that “no new trial can be granted on appeal unless a motion for same has been made and refused in the lower court,” and also to overrule, practically, the decision in State v. Stinson, 174 La. 510, 141 So. 44, by contending that the motion in arrest of judgment, made by defendant, takes the place of a motion for a new trial.

Two of the grounds of the motion for arrest are that the trial judge erred in overruling bill of exception No. 1, a motion to quash the indictment, and in overruling bill of exception No. 2, in which it is complained that the trial judge charged the jury orally as to a part of the charge after he had been requested to give written instructions to the jury. In addition to these grounds, defendant complains that she was not asked whether she elected to be tried by the court without a jury at the time of arraignment, and defendant also urges as error that neither the minutes of the court nor the indorsement on the bill of indictment affirmatively shows the offense with which the defendant was charged.

“A motion in arrest of judgment! lies only for a substantial defect, patent upon the face of the record.” Article 517, Code Or. Proc.

“No defect that is merely formal, or cured by verdict, or that can not be ascertained *32without an examination of the evidence, is good ground for arresting judgment.” Article 518, Code Or. Proc.

The “record” in a criminal case includes a statement of the time and place of holding court, the indictment and indorsement thereon, the arraignment and plea of accused, the impaneling of the jury, and the judgment; and a motion in arrest will he sustained only when it fs patent on the face of the record that there has been some irregularity in relation to one of the above-enumerated' steps of the proceeding. State v. McCrocklin, 130 La. 106, 57 So. 645.

 An alleged defect in an indictment cannot be reviewed on appeal if not urged in a motion for new trial. Such ground must be presented by moans of a motion to quash or a motion, in arrest. State v. Dreifus, 38 La. Ann. 884; State ex rel. Otis v. Mouton, 42 La. Ann. 1162, 8 So. 631; State v. Harris, 107 La. 327, 31 So. 782; State v. Moore, 111 La. 1007, 36 So. 100; State v. Taylor, 37 La. Ann. 40.

Nor can it be urged in a motion in arrest of judgment that the trial judge delivered a part of his charge orally, after being requested to submit the charge in writing, as the “record” does not disclose such a defect.

“Defendant cannot urge in arrest objections to the manner of drawing, summoning, impaneling or organizing either the grand or petit jury, or to the competency or qualifications of a jury commissioner or of grand, petit or tales jurors, or to the composition of the grand or petit jury. The remedy is by challenge to the array before trial, or to the petit or tales juror when tendered to be sworn; and this is true, though defendant allege the unconstitutionality or repeal of the law for the drawing of juries. Erom the foregoing' rules it follows that, upon a motion in arrest, cannot be considered an alleged variance between the averments of the indictment and the testimony adduced on the trial ;■ or evidence that the act charged does not come within a criminal statute, or that the court that tried the case in which the perjury was charged to have been committed was without jurisdiction, or that the prosecution in which the perjury was charged to have been committed was a prosecution for something that was not a crime; or that the prosecution did not make the necessary proof; ox-error in the admission of evidence; or that the property stolen was not offex-ed in evidence, or proved to be of any specific value; that the name of defendant is William Vol-sant, not Joseph Valsin; or that accused was indicted for the murder of ‘Lou Rhodes’ and was convicted of the murder of ‘Lun Rhodes’ ; that accused was manacled while his motion for a new trial was being tried; that there was error in refusing a new trial applied for on the ground; that the verdict was contrary to the law and the evidence; or the plea of autrefois convict or acquit; or that defendant was not served with a' correct jury list or with a correct copy of the indictment; or the disqualification of the District Attorney pro tern.; or of the attorney appointed by the court to defend accused; or the improper denial of the assistance of counsel; that, though the record recites an allotment of the case, there was, in fact, none; that the jury were guilty of misconduct, partiality and prejudice; that the judge illegally excused jurors; that accused had not been indicted at a regular jury term, the terms not having been changed in any manner permitted by statute; or that the oath was admin-istex-ed to the witnesses by an incompetent person; nor can an order fixing the terms of court, issued under the judge’s legal authority, be thus attacked.” Mart’s Criminal Jurisprudence, vol. II, pp. 1140, 1147.

We have recited above the numei’ous errors committed in the trial of criminal cases that cannot be reached by a motion in arrest of judgment, in order to show the limited scope of such a pleading, by its restriction solely to substantial defects patent upon the face of the record.

On the other hand, a new trial is based upon errors arising in the course of the prosecution, which, to avail as grounds for a new trial, must have been, at the time of their occurrence, excepted to and embodied in bills of exception.

The usual grounds for a new trial are that the verdict is contrary to the law and the evidbnee, or that material evidence has been newly discovered since the trial.

Besides these visual grounds, there -are numerous other grounds upon which a new trial is prayed for, such as: That a severance, a change of venue, or a continuance was improperly refused; that the venire of jurors was illegally drawn; that the judge did not accompany the jury when the scene of the crime was viewed, or that the jury, while visiting the scene of the crime, wore a part of the time out of the presence of the accused; that an important witness was absent; that there was error in the jury list or in the copy of indictment sei-ved; that a grand or petit jury was disqualified, or petit jurors illegal*33ly excused, or incompetent by reason of prejudice ; that evidence was illegally admitted or rejected; that no foundation was laid for the introduction of certain evidence; that defendant was surprised by the evidence; that the argument or conduct of the district attorney was illegal; that the witnesses and jurors were sworn by an officer without authority to administer an oath; that the defenses of mover and of his codefendant were antagonistic; that the judge commented on the facts of the case, or made an objectionable remark in the presence of the jury, etc.

It is clear, therefore, that the grounds, urged for a new trial are dissimilar to the grounds urged in a motion in arrest of judgment, and for this reason, alone, a motion in arrest cannot be assimilated to a motion for a new trial, or be adopted as a substitute therefor.

Besides, in a motion for a new trial, a defendant prays that he be tried anew on the same indictment, while the defendant in this case prays that she be discharged from custody entirely.

One of the purposes of the( Code of Criminal Procedure is to establish orderly pleadings in criminal cases. If this court should go so far afield in this case as to convert a motion in arrest of judgment into a motion for a new trial, and review the case on appeal, the inevitable result would be to throw criminal pleadings in this state into such a condition of confusion and chaos that both the bench and the bar would be at the end of their wits in the trial of criminal cases.

The plain purpose of our Code of Criminal Procedure, in requiring that a defendant shall apply for a new trial, or else forfeit his right to be heard on appeal, is not only that the defendant, as well as the state, shall be fairly dealt with, but that the defendant shall exhaust all of his legal remedies in the court below, in order to correct errors, avoid delays, and prevent miscarriages of public jus--tice.

The appeal in this ease is dismissed.

O’NIELL, O. J., dissents and hands down reasons.

OVERTON, J., concurs in dissenting opinion of O’NIELL, C. J.

O’NIELL, Chief Justice

(dissenting).

The record contains at least one bill of exception for which the verdict and sentence should be set aside and a new trial granted. I refer to bill No. 2, in which the complaint is made that the judge gave a part of his charge to the jury orally, notwithstanding he was requested by the defendant’s attorney at the proper time to give a written charge, and notwithstanding the charge was principally in writing. The minutes of the court show- — and it is admitted — that the defendant’s attorney arose and objected while the judge was charging the jury orally. A bill of exceptions was reserved promptly, was signed by the judge, and is in the record. There is no doubt that, if this court would consider this bill of exception, the court would, unanimously, find the complaint well founded, and would set aside the verdict and sentence, under authority of State v. Rini, 151 La. 163, 91 So. 664, and State v. Wilson, 169 La. 684, 125 So. 854.

The dissertation in the prevailing opinion in this case, explaining the difference between the function of a motion for a new trial and that of a motion in arrest of judgment, is entirely beside the question. It might be inferred, from this discussion in the prevailing opinion, that the attorney! for Mrs. Eubanks neglected to reserve bills of exception at the proper time, during the progress of the trial, and depended entirely upon his so-called motion in arrest of judgment, to set aside the verdict and sentence. But the fact is that the attorney reserved a bill of exceptions to every ruling which he complained of, at the proper time, and he had the bills of exception signed by the judge, and they are all in the record. His so-called motion in arrest of judgment — which was in substance a motion for a new trial — as well as a motion in arrest of judgment — was merely a repetition of the complaints which were already made in the bills of exception, and which were already overruled by the judge, and which were again, specifically, reviewed and overruled by the judge, in passing upon the so-called motion in arrest of judgment.

It is said in the prevailing opinion:

“If this court should go so far afield in this case as to convert a motion in arrest of judgment into a motion for 3⁄8 new trial, and review the case on appeal, the inevitable result would be to throw criminal pleadings in this state into such a condition of confusion and chaos, that both the bench and the bar would be at the end of their wits in the trial of criminal cases.”

That might be well said if the attorney for Mrs. Eubanks were depending upon his so-called motion in arrest of judgment, to have the verdict and sentence set aside and a new trial granted. But that is not the case. The only purpose for which the attorney for Mrs. *34Eubanks depends upon Ms so-called motion in arrest of judgment is to save ber right of appeal. The only reason why a majority of the members of the court are about to dismiss the appeal is that Mrs. Eubanks’ attorney did not file (besides his so-called motion in arrest of judgment) a motion for a new trial — so as to afford the judge an opportunity to correct the rulings which were already complained of in the several bills of exception.

It is true that the attorney for Mrs. Eu-banks did not label his motion “Motion for a New Trial,” but the motion was one on which the court could have granted a new trial, and was in fact as much a motion for a new trial as it was a motion in arrest of judgment. The motion set forth not only the complaints of alleged errors which appeared on the face of the record, and wMch were therefore available by a motion in arrest of judgment, but also the complaints of the alleged errors referred to in the bills «.of exception, which were not apparent on the face of the record, and which therefore were not available by way of a motion in arrest of judgment, but only by way of a motion for a new trial. And the prayer of the motion was not only for an arrest of the judgment and sentence, and for the defendant’s discharge finally, but also for all further necessary orders and for general and equitable relief. The prayer for the judgment and sentence to be arrested and for the defendant to be discharged finally was a prayer for more than the defendant was entitled to for an error not patent on the face of the record— such as the error of giving an oral charge to the jury — for which the plaintiff was entitled only to a new trial. But, as to that error, complained of in the so-called motion in arrest of judgment, the prayer for an arrest of the judgment and sentence, and for the final discharge of the defendant, and for all further necessary orders,'and for all general and equitable relief, was certainly comprehensive enough to include a prayer for a new trial.

It has been decided by this court that the reason for article 559 of the Code of Criminal Procedure, requiring the defendant to file a motion for a new trial in the district court before asking for an appeal, is to give the judge another opportunity to correct his. error if he has *made one.*That was done, in this case, by the so-called motion in arrest of judgment. Of course, in so far as a motion for a new trial is based upon the complaint that the verdict is contrary to the law and the evidence, it serves no purpose whatever in the Supreme Court because it is not within the court’s jurisdiction to consider such a eonrplaint.

In State v. Stinson, 174 La. 511, 141 So. 44, it was plainly indicated that the requirement of article 559 of the Code of Criminal procedure, that a motion for a -new trial must be filed in the district court before an appeal can be taken, is not without exception, viz.:

“The purpose of the article is to require the defendant to exhaust his recourses in the trial court by submitting for review the rulings there made, many of which, of necessity, were hastily made, before appealing to this court. It may be said, for what it is worth, that the record presents for review no motion in arrest of judgment, which may be said logically to follow, rather than precede, a motion for a new trial, and hence it 1⁄8 unnecessary to determine whether, if the record presented a motion in arrest for review, it could be passed upon, notwithstanding the failure to file and press a motion for a new trial.”

The purpose of article 559 of the Code of Criminal Procedure was served in this instance. In fact, the judge discloses, in his statement per curiam, annexed to the bill of exceptions, reserved to the overruling of the so-called motion in arrest of judgment, that, in response to the motion, he reconsidered each and every ruling complained of, including those which could be corrected not by a motion in arrest of judgment but only by a motion for a new trial, and that he (the judge) adhered to his rulings, for the reasons which he gave. The judge, therefore, was given the opportunity to correct his error, and insisted that he had made none.

The defendant in this ease is condemned to serve a sentence of imprisonment at hard labor in the penitentiary for a term not less than sixteen months nor more than two years, without having had a legal trial, or the right of appeal; and the only reason for that, as I see it, is that the defendant’s attorney did not say, in so many words, in his so-called motion in arrest of judgment, that if his client was not entitled to be finally discharged she was at least entitled to a new trial. It is certain that the attorney did not intend to abandbn his client’s right to a new trial, because he stressed, to his very last effort in the district court, every complaint which might entitle her to a new trial, and which could not entitle her to an arrest of judgment, or final discharge. In fact, it *35would be a terrible indictment of a lawyer to say that he intentionally abandoned his client’s right of appeal while complaining of an error for which the verdict ought to be set aside.