State v. Lacombe

Buchanan, J. The prisoner was convicted of larceny on an indictment framed under the 28th section of an Act relative to crimes and offences, approved 14th March, 1855. He was sentenced to an imprisonment at hard labor for one year, and has appealed. [196] The District Judge did not err in refusing to charge the Jury that the law under which the prisoner was indicted is contrary to the Article 117 of the Constitution of 1852, and the corresponding Articles in the Constitutions of 1812 and 1845. The 33d section of the Act of May 4th, 1805, (Bullard & Curry, page 248,) was in force when the first of those Constitutions was adopted. In numerous' decisions of this court, since the adoption of the first State Constitution; it has-been recognized that the common law of England' is the I&w of Louisiana, t'o" the extent and with the limitations provided in that section of the law of 1805, which section is moreover expressly preserved in force by the 73d section of the Act relative to criminal proceedings, No. 121 of'the Session Acts of 1855. In the face of these judicial and legislative recognitions of the validity of the' Act of 1805 in its adoption of the common law of England as the standard of definition of crimes and the rule of criminal proceedings, we cannot think of giving- the 117th Article of the Constitution of 1852, and' the Corresponding-Articles of the Constitutions of 1812 and of 1845, a retrospective operation. The other portion of the charge requested by the counsel of prisoner from the District Judge, refers, as we understand the bill of exceptions, to a matter of fact upon which the Judge was prohibited by law from charging. His refusal to give the charge was, therefore, perfectly correct. The argument of the-counsel of appellant upon this point, in this court, turns principally upon depositions of witnesses before the committing magistrate, which, by some means or other, have found their way into this transcript. Our constitutional jurisdiction in criminal matters not extending to facts, we only notice' those depositions for the purpose of admonishing the Clerks of the District Courts- that the depositions of witnesses in criminal cases are no part of the record-of appeal; and that the copying- of such into the transcript is consequently improper. A. point is made by appellant’s counsel," that the court refused to charge the jury in writing, as provided by the statute; but by reference to the bill of exceptions, it appears that the charges required in writing by the counsel, were charges which we have just decided the Judge correctly refused to give the. Jury, either orally or in writing. Of such refusal there can be no record; except the bill.of- exceptions. A written, charge of the court to the Jury, contrary to the opinion of the Judge upon the-law, is a self-contradiction and an absurdity. The Act of 1855, relative to crimes and' offences, does not, in our opinion,, violate the 115th Article of the Constitution of, 1852.. It is, therefore, adjudged and decreed, that the judgment of the District. Court be affirmed, with costs.