199 La. 529

#### STATE v. STOMA.

No. 36252.

Supreme Court of Louisiana.

Nov. 3, 1941.

On Rehearing Feb. 2, 1942.

*651George Stoma was convicted of rape, and he appeals.

Verdict and sentence annulled and set aside and defendant ordered discharged from custody.

Eugene Stanley, Atty. Gen., Niels F. Hertz, Asst. Atty. Gen., and Edwin M. Fraser, Dist. Atty., of Many (John B. Hill, of Many, of counsel), for the State.

A. B. Cavanaugh, of Lake Charles, and J. Reuel Boone, of Many, for defendant-appellant.

ODOM, Justice.

The defendant was indicted for the crime of rape, convicted as charged without capital punishment, and sentenced to hard labor for life. He appealed from the conviction and sentence.

There are in the record 30 bills of exception, each of which is based upon an alleged error in the proceeding. It is unnecessary to mention or discuss these bills because there is an error of law apparent on the face of the record. This error is set up by counsel for defendant in a special assignment of errors filed in this court.

Article 421 of the Code of Criminal Procedure provides that, “When the error in the proceedings complained of is discoverable only by the taking of evidence, the method of setting aside the verdict is by means of a new trial; when the error is patent upon the face of the papers, the method is by an arrest of judgment or by an assignment of errors”.

Article S60 of the Code of Criminal Procedure says that an assignment of errors “is a written statement filed by the appellant in the appellate court, within ten days after the transcript is brought up, setting up some error of law apparent on the face of the record”. That article goes on to provide: “When the certificate of the officer who has made up the transcript shows that the transcript is complete, the appellant may at any time, orally or in brief, call the attention of the court to any error apparent on the face of the record, without making any formal assignment.”

There is attached to the record in this case a certificate of the clerk that the transcript is complete.

The transcript was filed in this court on May 26, 1941. On June 6, following, counsel for defendant filed in this court a formal assignment of errors, which recites among other things, “That the record in this case shows that the trial, the verdict of the jury, and the sentence of the court, were had upon an invalid bill of indictment.”

Attached to this formal assignment of errors is a certificate, signed by one of defendant’s attorneys, that a copy of the' assignment was mailed to the district attorney on June 4, 1941. Counsel for defendant filed their brief in this court on October 1. Counsel for the State filed their brief on October 9. The case was argued orally on October 10.

In the brief filed by counsel for defendant there is printed at page 101 what is designated as a “Special Assignment of Errors”, from which we quote the following extract: “(3) The last ground urged in the special assignment of errors is that the record in this case shows that the trial, the *652verdict of the jury and the sentence of the Court were had upon an invalid bill of indictment. This special assignment of errors is urged because the bill of indictment does not show that it was endorsed by the foreman of the grand jury as. a true bill.”

It does not appear from the record, which includes the minutes of the court, that the indictment against the defendant was endorsed and signed by the foreman of the grand jury. The minutes of January 17, 1941, read as follows:

> “The Grand Jury being present in Open Court, after having been polled, through their foreman, presented to the Court the following Bill of Indictment, which they agreed should be amended as to form, altering nothing as to substance, which bill the Court ordered filed, numbered and recorded and warrants issued for the arrest of the accused, and when so arrested to be allowed bail as indicated on the face of the indictment, the Sheriff or any of his legally qualified deputies be authorized to take and approve the same.

> “The Bill was as follows, to-wit:

> “7563 State of Louisiana v. George Stoma, Rape.”

This minute entry begins on page 1 and ends on page 2 of the record. Neither the bill of indictment nor any endorsement thereon (if there were any endorsement) was copied in the minutes immediately following the above minute entry. But on page 2 of the record, immediately following the above entry, we find the minutes of the court of January 22, 1941. This minute entry reads in part as follows: “7563 State of Louisiana vs George Stoma, Rape. Accused appeared in Open Court, represented by counsel, and the State being represented by the District Attorney, and accused before pleading to Bill of Indictment, files motion for appointment of experts to examine prosecuting witness”; etc.

Immediately following this last minute entry, we find the minutes of January 24, 25, March 24, 25, 31, April 2, 3, 4, 5, 6, and 10, all of which related to certain proceedings had, including the arraignment, the empanelling of the petit jury, the trial, conviction, and sentence. These minute entries run consecutively in the record and cover 26 pages.

A copy of the bill of indictment, signed .by the district attorney, is found on page 27 of the record. But the clerk copied only the face of the indictment. This record on page 27 reads in part as follows:

> “Bill of Indictment

> “Filed January 17, 1941

> “State of Louisiana, Parish of Vernon.

> “In the Eleventh Judicial District Court.

> “In the name and by the authority of the State of Louisiana, the Grand Jurors duly empaneled and sworn, in and for Parish of Vernon, District and State aforesaid, upon their oath present that George Stoma late of the Parish of Vernon”, etc.

Then follow recitals charging that the defendant did, on or about a certain date, in the Parish of Vernon, State of Louisiana, commit the crime of rape, the indictment being signed by the district attorney. But neither in connection with this record nor anywhere else in the transcript is there found any evidence that the indictment was endorsed “A True Bill”, or that there was any endorsement whatever upon the bill showing that it was one returned by the grand jury, and no evidence or indication that it was signed by the foreman of the grand jury.

Article 3 of the Code of Criminal Procedure reads as follows : “An indictment is a written accusation of crime found by a grand jury. The finding must be concurred in by at least nine of the grand jurors and the indictment indorsed a true bill, and that indorsement must be signed by the foreman of the grand jury.”

This court has repeatedly held that an indictment which is not properly endorsed and signed by the foreman of the grand jury is no indictment at all, and that all proceedings had under an indictment not so endorsed are fatally defective.

In State v. Morrison, 30 La.Ann. 817, this court said: “The finding of the Grand Jury is expressed in one way alone; and that is by the indorsement of the crime, for instance, ‘Murder/ followed by the words ‘a true bill/ signed by the Foreman, in his official capacity, in the presence of the Grand Jury, in attestation of their official action; and no other evidence can be received to show that they have acted upon the charge and found the bill, than that afforded by the indorsement of the crime, and the finding, ‘a true bill/ verified by the signature of the Foreman.”

In State v. Logan, 104 La. 254, 28 So. 912, it was held, to quote Paragraph 2 *653of the syllabus, which is a correct statement of the ruling by the court, that: “A verdict and judgment of conviction in a criminal case based upon an indictment on which are not indorsed the words, ‘A true bill/ followed by the signature of the foreman of the grand jury evidencing a finding of the grand jury to that effect, cannot be sustained, since there is not a valid indictment. Especially is this true in the absence of a minute entry disclosing that the indictment was read in open court in the presence of the grand jury.”

In that case, the court affirmed the ruling in State v. Morrison, supra. In State v. Wilson, 126 La. 661, 52 So. 981, the court reaffirmed the ruling in State v. Morrison and affirmed the ruling in State v. Logan, supra.

In State v. Bay, 148 La. 559, 87 So. 294, 299, decided November 3, 1920, it was held on rehearing that an indictment not properly endorsed by the foreman of the grand jury was invalid. The court cited and followed the ruling in the Morrison, Logan, and Wilson cases, supra. It was pointed out by the author of the opinion on rehearing that there was no statute of this state requiring the signature of the foreman of the grand jury, or of anyone, to an indictment in order to make it valid. But the court said that, since it had been repeatedly held that, in order to be valid, a grand jury indictment must be properly endorsed “A True Bill” and that endorsement signed by the foreman of the grand jury, “we find no sufficient reason for establishing a precedent at variance with that jurisprudence. Our conclusion then is that the record fails to disclose a valid indictment.”

In this connection we take occasion to say that, since the Bay case was decided, the Code of Criminal Procedure has been adopted, which code specifically provides in Article 3 that the finding of the grand jury must be concurred in by at -least nine of the grand jurors “and the indictment indorsed a true bill, and that indorsement must be signed by the foreman of the grand jury”.

Since there is nothing in the record to show that the indictment in this case was properly endorsed and since the clerk has certified that the transcript brought up is complete in every, detail, it clearly appears that there is an “error of law apparent on the face of the record”.

For the reasons assigned, it is ordered that the verdict and sentence appealed from be annulled and set aside, and further'ordered that the defendant be discharged from custody.

On Rehearing.

PONDER, Justice.

The verdict and sentence herein was set aside and the defendant ordered discharged on error of law apparent on the face of the record in that there was nothing in the record to show that the indictment was properly endorsed and signed by the foreman of the grand jury. The transcript filed on this appeal was certified to by the clerk of court as being complete. This transcript was filed on May 26, 1941, and on June 6 thereafter an assignment of errors was filed by counsel for the defendant wherein it was recited among other things “that the record in this case shows that the trial, the verdict of the jury and the sentence of the court were had upon an invalid indictment.” A copy of the assignment of error was mailed to the district attorney on June 4, or two days prior to its filing. Defendant’s counsel filed a brief in support of the appeal on October 1, 1941, which contained a certificate across its face signed by the printer to the effect that a copy had been mailed to opposing counsel on that date. In the syllabus of this brief it is stated: “Indictment not endorsed ‘A True Bill’ followed by the signature of the foreman, is not a valid bill of indictment. State v. Morrison, 30 La.Ann. 817; State v. Logan, 104 La. 254, 28 So. 912; State v. Boasberg, 124 La. 289, 50 So. 162; State v. Bay, 148 La. 559, 87 So. 294; Art. 3, Code of Criminal Procedure.”

On page 103 of defendant’s brief the following argument and citation of authorities in support of the error assigned is set out as follows:

> “The last ground urged in the special assignment of errors is that the record in this case shows that the trial, the verdict of the jury and the sentence of the Court were had upon an invalid bill of indictment. This special assignment of error ‘is urged because the bill of indictment does not show that it was endorsed by the foreman of the grand jury as a true bill.” (Tr. Vol. I, Page 27).

> “ ‘An indictment is a written accusation of crime found by a grand jury. The find*654ing must be concurred in by at least nine of the grand jurors and the indictment indorsed a true bill, and that indorsement must be signed by the foreman of the grand jury.’ Article 3,' Code of Criminal Procedure.

> “ ‘Indictment not endorsed “a true bill” followed by the signature of the foreman is not a valid bill of indictment. State v. Morrison, 30 La.Ann. 817; State v. Logan, 104 La. 254, 28 So. 912; State v. Boasberg, 124 La. 289, 50 So. 162. * * * No indictment is valid which is not signed by the foreman in his official capacity. State v. Bay, 148 La. 559, 87 So. 294.' [Code Crim. Proc. Art. 3, note]”

On October 9, eight days thereafter, a brief on behalf of the state was filed. The case was orally argued on October 10 by counsel for the defendant and the district attorney. Nowhere in the brief of the district attorney or in his argument was our attention called to any insufficiency in the transcript. In fact there was not the slightest suggestion made that the transcript was incomplete. On November 3, 1941, our original opinion and decree was handed down in this case. At no time prior to that date was any application made to amend or supplement the transcript or even the slightest suggestion made to this Court that the transcript was deficient in any manner. On November 10, 1941, an application for rehearing was filed on behalf of the State. Attached to the application are two documents, one purporting to be a certified copy of the original indictment showing the endorsement of a true bill thereon signed by the foreman of the grand jury and the other a certificate of the clerk of court to the effect that the attached copy of the bill of indictment is a true and correct copy and that the copy of the bill of indictment, as shown in the transcript of the record filed herein, is incorrect and incomplete in that it does not show that it was endorsed a true bill and signed by the foreman of the grand jury. The State in its application asked the court to consider the attached copy of the original indictment as part of the application for rehearing, or for certiorari ordering the original record to be sent up, or that the case be remanded to the lower court for a correction and completion of the record. On November 15 counsel for the defendant filed an opposition to the application for rehearing and moved to strike from the record the ex parte documents attached to the application for rehearing. In both the application for rehearing and the opposition thereto authorities were cited in support of the contentions urged therein. A rehearing was granted and the matter is now submitted for our determination.

Counsel for the defendant strenuously contends that after a case has been decided by the Supreme Court the State cannot suggest incompleteness of the record and apply for certiorari. Counsel relies particularly on State v. Pierre, 49 La.Ann. 1159, 22 So. 373.

Counsel for the State takes the position that the case must be remanded for a correction or completion of the record. In support of this contention counsel cites State v. Morgan, 147 La. 205, 84 So. 589; State v. Oliver, 151 La. 659, 92 So. 217; State v. Futrell, 159 La. 1093, 106 So. 651; State v. Johnson, 171 La. 95, 129 So. 684; State v. Obey, 193 La. 176, 190 So. 371; State v. Peyton, 193 La. 354, 190 So. 579. The authorities cited by counsel for the State are not applicable for the reason that the incompleteness of the record was called to the attention of this Court prior to a decision of the cases.

In the case of State v. Pierre, supra, a rehearing was refused on the application of the State wherein it was suggested for the first time that the record was incomplete. It is stated therein, viz. [49 La.Ann., 1159, 22 So. 374]:

> “Before this cause was submitted to the court for its decision, the state failed to make any objection to the sufficiency of the transcript as sent up from the court below. No motion was filed suggesting a diminution or incompleteness of the record, and invoking the writ of certiorari for correction of the same. The only motion filed by the state was one to dismiss the appeal on the ground that the record presented no motion to quash, or for new trial, or in arrest of judgment, and no bills of exception to rulings of the court a qua. The state thus acquiesced in the transcript sent up as showing the whole case as presented and tried below. Trial was had - here on this transcript, and on the additional papers and briefs filed in the case in this court. The motion to dismiss the appeal was found to be without merit, and, on the face of the record and the papers before us, it was clear that the prescription of one year, brought to our attention in defendant’s assignment of errors, must prevail. Accordingly, a decree was entered reversing the verdict and sentence, and discharging the accused.

> *655“The state, in an application for rehearing, suggests for the first time the incompleteness of the record upon which the case was tried here, advances this as grounds for rehearing, and asks that a writ of certiorari issue, commanding the court below to send up a full and complete record of all proceedings had in the case there. The allegation is made that the true record would show the accused was informed against seasonably, and that the plea of prescription is therefore untenable. It is claimed that this is shown by a former bill of information, filed within the year of the commission of the offense, which, while still pending, was substituted by the information upon -which accused was tried, after which substitution there was entered a nol. pros, as to the original. As a matter of sound practice, to which the state must be held as rigidly as parties accused are, we are constrained to hold that, after a decision by this court on a case as presented, the prosecution cannot be heard to set up as grounds for rehearing the incompleteness of the record. Rehearing refused.”

In Marr’s Criminal Jurisprudence, Vol. 2, Sec. 776, page 1212, it is stated to the effect that after a case has been decided by the Supreme Court that the State cannot suggest incompleteness of the records and apply for certiorari. In this section of Marr’s based on the jurisprudence of this State touching the question of when a transcript may or may not be corrected, we find the following pronouncement: “Errors in the transcript may be corrected by certiorari at any time before argument, and, in important cases, even after submission. Though certiorari to supply deficiencies of record ordinarily comes too late after submission, yet, when defendant’s assignment of error, grounded on these defects, is itself filed only after submission, his laches excuse those of the State, and the application will be allowed. During the pendency of a motion to dismiss, missing documents and a supplemental transcript may be brought up. After the case has been decided by the Supreme Court, the State can not suggest incompleteness of the record and apply for certiorari.”

In the case of State v. Layton, 181 La. 274, 159 So. 387; this Court granted writs of certiorari and prohibition to prevent the trial judge and district attorney from correcting alleged errors in the minutes of the court by way of rule after we had decided the case and while it was pending here on rehearing. The defendant in that case was convicted of murder and appealed to this Court. On the hearing of the appeal counsel for the defendant in oral argument and in his brief pointed out that the transcript failed to disclose that the accused was present in court on four different days during the proceedings of. the trial in the lower court and that therefore the verdict and sentence should be annulled and the case remanded for a new trial. No effort was made by the district attorney, after being fully appraised of this fact, and no request was made to this Court to grant any order for the purpose of correcting the minutes prior to our decision of the case. After this Court had set aside the verdict and ordered the case remanded for a new trial on the ground that the record failed to affirmatively show the presence of the accused on these occasions the district attorney sought by rule, during the fourteen day period within which litigants are entitled to ask for rehearing, to correct the minutes in the lower court. During the meantime application was made to this Court for rehearing. The defendant applied to this Court for writs of certiorari and prohibition to prevent the trial judge and district attorney from correcting the alleged errors in the minutes by way of rule. At the time we were considering the application for rehearing we also had before us the petition for remedial writs, the return of the trial judge and the briefs of counsel representing the respective parties. At that time we concluded that under the circumstances of the case' the State was not entitled to have the minutes corrected in the manner and at the time it sought to do so. We stated therein that if we had reached the conclusion that the State was ¿ntitled to have the minutes corrected we would have granted a rehearing as the questions raised were identical with those raised in connection with the writs, and having disposed of them adverse to the State’s contention, it is not necessary to again consider them at length.

In the instant case the district attorney, after having been fully apprised that the error assigned was based on the ground that the indictment was not endorsed a true bill and signed by the foreman of the grand jury, submitted the case on the record as made up and permitted it to go to decision without calling our attention to the error in the transcript - or even suggesting in any manner that the transcript was incomplete. The State thus acquiesced in *656the transcript sent up as showing the whole case as presented and tried below. There could he no sound reason why the State should not be held as rigidly as parties accused.

Our original decree is reinstated and affirmed.

ROGERS and HIGGINS, JJ., disent.

HIGGINS, Justice

(dissenting).

The indictment upon which the accused was tried and convicted in this case was unquestionably a legal indictment. There is no pretense that the original indictment was not properly endorsed and signed by the foreman of the Grand Jury. The defendant did not make any attack whatsoever upon the indictment in the district court, although he reserved numerous other bills of exception during the course of the trial. When the clerk of the district court prepared the transcript, he erroneously, through typographical error, omitted to copy on the reverse side of the indictment the endorsement and signature of the foreman of the Grand Jury. When the defendant’s attorneys prepared their voluminous brief for this Court, one of the assignments of error was that the copy of the indictment in the transcript did not show that it had been properly endorsed and signed by the foreman of the Grand Jury. During the course of the argument of the case in this Court, counsel for the defendant did not in any way mention or refer to this particular assignment of error and no point with reference thereto was made. Therefore, the district attorney’s attention was not called to this particular assignment of error in the argument here, and, consequently, no occasion arose for him to point out that this was merely a stenographic error in copying the original indictment. Our original opinion is based upon this particular assignment of error. We did not afford the State an opportunity to show that this was a mere typographical error or omission from the record. The district attorney and the Attorney-General filed an application for a rehearing and annexed thereto the original indictment which plainly and clearly shows that it was properly endorsed and signed by the foreman of the Grand Jury. The defendant did not oppose the application for a rehearing or in any way contradict the accuracy or truthfulness of the statement that the indictment was properly endorsed. We granted a rehearing.

When the case was reargued, counsel for the defendant, in their argument and in their brief, made the point that the State, having elected to stand upon the record as originally presented, could not, on an application for rehearing, ask the court to correct the omission from the record so as to make it conform with the original indictment. The district attorney, in his oral argument, as well as in his brief, stated to the court that he had overlooked this particular assignment of error probably due to the fact that the indictment had in no way been attacked or questioned in the district court and that his attention was focused upon the bills of exception which had been reserved.

Under the above circumstances and facts of this case, it can not be said that the State elected to stand upon the record with this obscure typographical omission, especially as it appears that the district attorney’s and this court’s attention was not called to the fact in the oral argument by counsel for the defendant. The district attorney reasonably explained why he overlooked this particular assignment of error of the many assigned by the defendant in this case. No point having been made with reference to the invalidity of the indictment in the district court on the ground that it was not properly endorsed and signed by the foreman of the Grand Jury, it is obvious that the attention of the clerk in preparing the transcript was not directed on that point and, therefore, the reason for the typographical omission.

It is my view that both the State and the accused should be held to reasonable requirements in having a true and correct transcript of the record made up in the district court, but, in the instant case, it is clear that the omission was purely a typographical one as now appears from the original indictment which has been placed before this Court in connection with the application for the rehearing. Certainly, under these circumstances, the defendant has not suffered any loss of a substantial right for the reason that the indictment was valid. He seeks to take advantage of a mere technicality to annul the verdict of the jury and the sentence of the court.

The modern trend of our legislation and jurisprudence with reference to the administration of criminal law is to prevent an accused from defeating justice by pleading technicalities that are not in any way harmful or prejudicial to his rights. Code of Criminal Procedure, Article 557. It is ob*657vious to me that a technicality without the slightest foundation in truth or in fact is here permitted to thwart justice. The Court has before it the original indictment which unquestionably demonstrates that the accused was not tried on any faulty or irregular indictment and, therefore, it certainly cannot be said that he was in any way prejudiced in that respect.

In connection with the motion for a new trial, the defendant tendered certain newly discovered evidence, but the trial judge refused to hear or consider this evidence and overruled the motion and the defendant reserved a bill of exception.

I am of the opinion that the defendant’s attorney made a proper showing that this was newly discovered evidence and that our learned brother below fell into error in depriving the defendant of the opportunity of presenting that evidence to the Court. It is, therefore, my conclusion that the judgment of the district court overruling the defendant’s motion for a new trial should be set aside and the case ordered remanded to the district court for a new trial on the motion therefor, in order that the newly discovered evidence may be placed before the court for its consideration.

For these reasons, I respectfully dissent.