State v. McCort

Howe, J. The prisoner having been convicted of “entering- a dwelling house in - the night time without breaking and with intent to steal, and of larceny,” and sentenced to imprisonment at hard labor, has appealed. He makes four points in this court: First — That there was no order of the court authorizing the filing of the information. This objection, made here for the first time, comes too late. Second — That the verdict of the jury is not responsive to the charge [327] as set forth in the information. The charge was “breaking and entering a dwelling house in the night time with intent to steal, and larceny.” The jury, finding that there was no breaking, had a right to .find the verdict they did. The lesser offense was necessarily included in the circumference of the greater one of the same character. 6 An. 286. Third — That the law on which the prosecution was based and under which the defendant was sentenced had not then been promulgated (July, 1870). The law had been in force several years prior to that time, and in the case of State v. Brewer, 22 An. 273, we had occasion to decide that the revisory legislation of April, 1870, did not repeal, but continued it in force. Fourth — That the judge a quo erred in refusing to permit the counsel •of the accused to argue this question of promulgation to the jury. As a general rule, we would be slow to sanction any limitation of the right of the accused to be heard by counsel. But in this case, the point ■which the counsel desired to argue was so clearly outside the facts and the law of the case that we can not believe the action of the district judge constitutes a sufficient reason for a new trial. There was no «error to the prejudice of the accused. It was immaterial whether the revisory legislation of 1870 had been promulgated or not. Judgment affirmed.