City of Baton Rouge v. Van Valkenburg

SANDERS, Justice. The City of Baton Rouge charged Rudy Van Valkenburg with refusing a chemical breath test for intoxication in violation of Section 233, Title 11 of the Baton Rouge City Code, applicable to automobile drivers. The defendant filed a motion to quash the affidavit, alleging that the ordinance on which the charge was based was unconstitutional. On March 4, 1971, the court held a hearing on the motion. The defendant and- the city attorney filed a joint stipulation of facts. Other evidence was also introduced. The city attorney offered the “1968 .Alcohol and Highway Safety Report/’ -The defense objected to its introduction, and the trial judge sustained the ■objection. The city attorney reserved a Bill of Exceptions No. 1 to the ruling. Upon completion of the hearing, the trial judge declared the ordinance' unconstitutional-and sustained the motion to quash, the Hiinute entry reading as follows: “The accused through his counsel filed a motion to quash. A stipulation- of facts jointly agreed by counsel for defendant and counsel for the city was filed. Evidence was introduced by counsel for the city. Counsel for the city sought to introduce a copy of the 1968 Alcohol and Highway Safety Report, to which introduction counsel for defendant objected. The Court sustained the objection to which ruling counsel for the city reserved a bill of exceptions. After hearing the evidence the Court sustained the motion to quash declaring Title 11, Section 233 of The Baton Rouge City Code unconstitutional. Counsel for city made a motion to appeal the decision of the court.” The City reserved no bill of exceptions at the time of the ruling. On March 30, 1971, however, the City Attorney presented to the trial judge a document labelled “Bill of Exceptions No. 2,” complaining óf The ruling declaring the ordinance unconstitutional, but incorporating no part i;6]f! the transcript, containing the fact stipulation, evidence, and the oral reasons, or grounds, for the ruling. The trial judge filed-no Per Curiam, to either of the bills of .exceptions. , In this Court, the defendant asserts that no reviewable question is before this Court on appeal, because the City failed ,|o reserve a bill . of exceptions .to. the . tr,ial judge’s rilling on,the motion- to-,qpash. [27] The City Attorney, on the other hand, contends that the ruling can be reviewed without a bill of exceptions, the sole restriction being that this Court cannot review the evidence. The City did reserve a bill of exceptions to the exclusion of the “1968 Alcohol and Highway Safety Report” from the evidence. Our examination of this bill, Bill of Exceptions No. 1, discloses that the rejected report is not incorporated in the Bill of Exceptions. Hence, the Bill provides no basis for a review of the admissibility of the report. Evidence can be brought before this Court for consideration in a criminal case only by incorporating it in a bill of exceptions. LSA-C.Cr.P. Art. 844; State v. Moye, 250 La. 117, 194 So.2d 717; State v. George, 247 La. 333, 170 So. 2d 861; State v. Stewart, 188 La. 546, 177 So. 662. More difficult is the question of whether this Court can review the trial judge’s ruling quashing the affidavit on the ground of the unconstitutionality of the ordinance. Article 841 of the Louisiana Code of Criminal Procedure provides in part: “An irregularity or error in the proceedings cannot be availed of after verdict unless it is objected to at the time of its occurrence and a bill of exceptions is reserved to the adverse ruling of the court on such objection. Failure to reserve a bill of exceptions at the time of an adverse ruling of the court operates as a waiver of the objection and as an acquiescence in the irregularity or ruling. “This requirement shall not apply to: “(1) A ground for arrest of judgment under Article 859, or the court’s ruling on a motion in arrest of judgment; or “(2) The court’s ruling on a motion for a new trial based on the ground of bills of exceptions reserved during the trial.” (Emphasis ours). This provision, requiring the reservation of a bill of exceptions at the time of the adverse ruling, applies both to the defense and the prosecution. Comment (b)„ Art. 841, LSA-C.Cr.P. The reservation of a bill of exceptions at the time of the ruling is basic to a formal bill of exceptions. LSA-C.Cr.P. Art. 843. In essence, the formal bill of exceptions is a proces verbal of the courtroom procedure, showing the objection or motion, the ruling by the court, the evidence essential for consideration of the ruling, and the contemporaneous reservation of a bill of exceptions. LSA-C.Cr.P. Arts. 841, 843, 844; Slovenko, Handbook of Criminal Procedure and Forms, p. 634 (1967). Concededly, the prosecution reserved no bill of exceptions to the adverse ruling on the motion to quash. The document la29 belled “Bill of Exceptions No. 2” does not recite that such a bill was reserved. Nor could it properly do so.1 As this Court stated in State v. Pitre, 106 La. 606,31 So. 133: “Complaint alone is not all that is necessary to bring up a question for review on appeal. The defendant is required timely to urge his objection, and to reserve his points. In the absence of a bill of exceptions informing the court on appeal of the objections to the findings of the lower court, it is as if no objection had been raised.” We conclude that the City’s “Bill of Exceptions No. 2” presents nothing for review. See State v. Sinclair, 258 La. 84, 245 So.2d 365 (Footnote 1). In addition to valid bills of exceptions, however, this Court can consider on appeal “Any error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” LSA-C.Cr.P. Art. 920; State v. Elfert, 247 La. 1047, 175 So.2d 826. Such errors are not waived by the failure to reserve a bill of exceptions. The pleadings and proceedings in the present case include the affidavit, the motion to quash, and the ruling of the trial judge, reflected in the minutes, sustaining the motion to quash. They do not include the stipulation of facts and other evidence or the oral reasons assigned by the trial judge setting forth the grounds for his ruling. The motion to quash in the present case is not directed at the recitals of the affidavit. Rather, it attacks the constitutionality of the basic ordinance on multiple grounds, to some or all of which the evidence, including the stipulation of facts, may be pertinent. Because of the evidentiary hearing and minute recital, we must assume that the trial judge considered the evidence in making his ruling. Hence, if error exists in the ruling, it cannot be determined solely by an inspection of the pleadings and proceedings. After submission of the case for decision in this Court, the City caused a certified copy of the contested ordinance to be filed with the Clerk of the City Court of Baton Rouge and with the Clerk of this Court, apparently to comply with LSA-R.S. 13:3712, relative to judicial notice of municipal ordinances. Although such recordation is essential for a court to take judicial notice of a municipal ordinance, recordation of the ordinance provides no adequate substitute for a bill of exceptions in [31] the' present case. Under Article 841, LSA-C'.Cr.P., the City’s failure to reserve a bill of exceptions operated as an acquiesence in the ruling and as a waiver. We hold that the posture of the case is such that the constitutionality of the ordinance is not ripe for review. Hence, we express no opinion as to its constitutionality. We affirm the trial court’s ruling, solely because of the absence of a reviewable bill of exceptions. For the reasons assigned, the judgment of the City Court for the City of Baton Rouge is affirmed. BARHAM, J., concurs. Footnotes [1] The document recites that “a motion for appeal was reserved by the city,” apparently referring to the motion for appeal entered immediately following the trial judge’s ruling on the motion to quash. A formal motion for appeal was entered later, on March 16, 1971.