214 La. 664

#### STATE v. McNEAL.

No. 39055.

Supreme Court of Louisiana.

Dec. 13, 1948.

*379Philo Coca, of Marksville, for defendant-appellant.

Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen. and Earl ’ Edwards, Dist. Atty., of Marksville, for ap-pellee.

HAMITER, Justice.

In a bill of information the defendant, Avery McNeal, was charged with the theft of a horse, valued at $100, the property of E. S. McCain. A jury of five, after trial, found “the accused guilty as charged with the value less than $100 and more than $20.” For this offense (a felony) he was sentenced to a term of twelve months in jail, six months thereof being suspended.

From the conviction and sentence defendant is1 appealing.

Whether the district judge had authority to suspend a portion of the term of the sentence imposed, in view of the jury’s failure to recommend the suspension, is a question we need not and do not pass upon. The state has not suggested the illegality of the sentence, either on an appeal of its own, which it could have perfected — Criminal Code of Procedure, Article 527, or on this appeal of defendant; and, naturally, the accused is not complaining of the suspension. Moreover, our jurisdiction of the case is unaffected by the fact that a portion of the sentence actually imposed has been suspended. See State v. Laborde, 214 La. 644, 38 So.2d 371.

For a reversal of his conviction and sentence, defendant relies on three bills of exceptions. Under the first he urges, without particularizing, that the verdict of ■the jury was contrary to the law and the evidence. According to our well settled jurisprudence this presents nothing for review. State v. Washington, 207 La. 849, 22 So.2d 193 (and cases therein cited).

The second bill of exceptions brings before us for consideration the following remark made by the district attorney in his closing argument to the jury:

> “ ‘It was quite significant that accused had placed none of his near neighbors to testify in his' behalf to the effect that he (defendant) did at one time own an animal such as the one in question today, although he had admitted that he had near neighbors.’ ”

Defendant objected to the remark on the ground that the state carried the burden of proving beyond a reasonable doubt the guilt of the accused; that it was not incumbent on defendant to produce any witnesses to establish his innocence; and that the argument was prejudicial and denied the constitutional right of a fair and impartial trial.

Defendant having testified that certain of his neighbors knew of his ownership of .the horse, it was proper for the district attorney to offer the commént to which objection is urged. “Counsel have the right to draw from the evidence received, or from the failure to produce evidence shown to be in the possession of the opposite party, any conclusion which to them may seem fit, but counsel have no right to draw from such evidence or suppression of evidence an incorrect conclusion of law.” , Art. 382, Code of Criminal Procedure. See also State v. Flattmann, 172 La. 620, 135 So. 3; State v. Simmons et al., 167 La. 963, 120 So. 612; State v. Scruggs, 165 La. 842, 116 So. 206.

Under the remaining bill of exceptions appellant 'complains of the court’s refusal to grant a new trial for alleged newly dis*380covered evidence, it being in the nature of opinions rendered by three veterinarians, who examined the horse in question following the jury’s verdict, that the animal was from six to twelve months under the age of four years. Those opinions, defendant insists, were extremely material inasmuch as age was an important factor in determining"*ownership, the prosecuting witness having testified that his animal was about five years old whereas defendant placed the age of the horse possessed by him at three years.

Much discretion is vested in the trial judge with reference to the granting of a new trial on the ground of newly discovered evidence (State v. Heintz, 174 La. 219, 140 So. 28), and in this case we are not satisfied that he has abused it. If age was an important factor, as defendant contends, it seems to us that with due diligence the desired expert testimony to establish it could have been timely obtained. On this point, to be sure, defendant argues that he could not anticipate that the animal’s age would be important in determining his guilt or innocence, and that during the trial, when the issue arose, there were no veterinarians immediately available or near enough to give their opinions. But, even in view of those circumstances, we do not find from the record that defendant moved for (and was denied) a continuance so that he might have an opportunity of obtaining and offering the expert evidence.

The conviction and sentence are affirmed.

HAWTHORNE, J., fully subscribes to the decree affirming the verdict and to the reasons given therefor, but respectfully dissents from that portion which affirms the sentence, and assigns written reasons.

HAWTHORNE, Justice

(dissenting in part).

I fully subscribe to the decree in the majority opinion insofar as it affirms the verdict of the conviction, and to the reasons given therefor, but cannot subscribe to that portion of the decree which affirms the sentence because I am of the opinion that the sentence is illegal, null, and void and is no sentence whatsoever, and that for this reason the case should be remanded to the district court for the judge to impose a legal sentence.

Since the defendant was charged in the bill of information with the theft of a horse valued at $100, under Article 67 of the Louisiana Criminal Code, for which the punishment may be imprisonment with or without hard labor for not more than 10 years, this court has appellate jurisdiction. Article 7, Section 10, of the Louisiana Constitution of 1921 provides, insofar as it is applicable to this case, that the appellate jurisdiction of the Supreme Court extends to criminal cases on questions of law alone whenever the penalty of imprisonment at hard labor may be imposed. See State, v. Melancon, 163 La. 435, 112 So. 37; State v. Price, 164 La. 376, 113 So. 882.

The minutes of the lower court disclose that after trial the jury retuméd the following verdict:

> “We the Jury find the accused guilty as charged with value less than one hundred dollars and more than twenty dollars. H. A. deNux, Foreman.”

In due course, the district judge imposed a sentence upon the defendant under the above conviction of 12 months in the parish jail, and at the same time suspended six months of the sentence so imposed.

Article 530 of the Code of Criminal Procedure, as amended, insofar as it is applicable to this case, provides:

> “ * * * when any person is convicted by a jury of a felony, other than a capital offense, *and probation is recommended by the jury, the court shall have the power to suspend execution of the sentence imposed and to place the offender on probation*for such period and upon such terms as the court may deem best. * * * ” (All italics mine.)

■ In the instant case, since the jury failed to recommend probation, the judge of the lower court had no authority whatever to suspend any sentence which he should see fit to impose within the terms of the statute, and, even if the jury had recommended probation, he would not have had authority at the time of imposition of sentence to suspend only a portion of the sentence imposed.

*381In the case of State v. Blakeney, 164 La. 669, 114 So. 588, 589, this court found that the sentence imposed on defendant therein was illegal under the indeterminate sentence law, and during the course of the opinion we said:

> “ * * * *It is the duty of the district judge to impose a sentence according to law,*and to determine whether the minimum sentence shall be exactly two-thirds of the maximum, or less than two-thirds of the maximum, and, if less, how much less. *The sentence being illegal, the case is in the same condition as if no sentence at all had been imposed,*and it must be remanded for the judge to impose a legal sentence. The invalidity of the sentence, of course, does not affect the validity of the verdict.”

This rule was followed and the language quoted with approval in State ex rel. Cutrer v. Pitcher, 164 La. 1051, 115 So. 187.

Article 527 of the Code of Criminal Procedure provides that, when a sentence is illegal, it may be reviewed by the appellate court at the instance either of the State or of the defendant, and, as pointed out in the majority opinion, the State has not appealed from the illegal sentence imposed herein. I am mindful of the fact that, under Article 558 of the Code of Criminal Procedure, an appellate court cannot determine or consider any question which was not submitted to, and passed upon by, the trial judge unless the error is patent on the face of the record, but in such a case *this court is charged with noticing ex proprio motu such nullities or defects as may be apparent on the face of the record.*State v. Toney et al., 205 La. 451, 17 So.2d 624, and authorities therein cited. In that case this court said: “ * * * As a matter of fact, this court is *clvarged*with noticing ex proprio motu such nullities or defects as may be apparent on the face of the record. * * * ”

In the instant case, the error is one patent on the face of the record, for in a criminal case *the record includes*the caption, a statement of the time and place of holding the court, the indictment or information with the arraignment, the plea of the accused, the motion for empaneling of the jury, the verdict, and *the judgment of the court.*United States v. Taylor, 147 U.S. 695, 13 S.Ct. 479, 37 L.Ed. 335; State v. McCrocklin, 130 La. 106, 57 So. 645; State v. Leon, 177 La. 293, 148 So. 54; State v. Daleo, 179 La. 516, 154 So. 437; State v. Eubanks, 179 La. 92, 153 So. 31.

Article 527, which gives the State the right to appeal from the imposition of an illegal sentence, provides also that nothing contained therein shall be construed to deprive any person of his right in proper cases to a writ of habeas corpus. In the instant case, since the decree of the majority has failed to remand the case for proper sentence, the defendant herein is entitled to his release from his imprisonment in the parish jail under this illegal sentence under a writ of habeas corpus, subject, of course, to imprisonment under a valid sentence by the district court, as in State ex rel. Cutrer v. Pitcher, supra. To me, therefore, in order to preclude the possibility of further proceedings in such a case as this one, the better practice would be for this court, under the authorities cited hereinabove, to affirm the verdict, but to take notice of the error patent on the face of the record— that is, the illegal sentence — and to remand the case to the lower court so that a legal sentence may be imposed.