State ex rel. Ramsay v. Judge Third District

The opinion of the court was delivered by Blanchard, J. The writ is sought to compel the respondent Judge to sign a bill of exceptions. The relator was recently on trial in the Parish of Claiborne under an indictment for murder, was convicted of manslaughter, and from a sentence at hard labor has taken an appeal to this court. The bill of exceptions was taken to a ruling of the judge in the course of the trial, and the averment is that it is necessary to his defence in this court and to the completion of the record sent here. One J. M. H. Taylor being called as a juror was sworn on his voir dire, and examined touching his fitness to serve in the case. The questions propounded and the answers thereto were taken down in short-hand. At the conclusion of the examination and cross-examination, the State announcd its acceptance of the juror, whereupon the accused challenged him for cause. This challenge being overruled, an exception on part of the accused was noted and a bill reserved. This occurred late in the evening of the day of trial, October 10th. On the morning of October 12th, at motion hour of the court, the accused through counsel presented his bill of exception for the signature of the Judge. To this the Judge replied that the rules of court required bills of exception to be presented the morning after the taking of same, and, accordingly, the bill in question had not been seasonably presented, it being one day late. To this counsel for accused replied that it was through no fault or laches of the accused or his couusel the bill had not been presented earlier, that the stenographer had been so busy with other court matters it had been impossible for him to transcribe the examination of the juror Taylor on his voir dire from the stenographer’s notes, that this was necessary as the examination was an essential [1127] part of the bill annexed thereto, and that the bill had been prepared and presented at the first opportunity after the transcribed notes had come into possession of counsel for accused. The Judge, thereupon, announced he would consider the question of its signature, and took possession of the bill with others reserved in the case. These áre the averments under oath of the relator, who goes on further to say that he remained thereafter under the impression the Judge had, later, signed the bill in question, along with the other bills in the case, and that he and his counsel did not ascertain otherwise until the transcript of the case for appeal was being made out, when the bill, being missed, was searched for and found unsigned in the back of the Judge’s docket. He states this was after the court had adjourned for the term. To the rule to show cause why the mandamus should not issue the Judge replies that the facts of the case are not correctly given by the relator, and proceeds to give his version of the occurrence. In substance he says that Taylor was called as a juror late in‘the afternoon (five o’clock) of the 10th of October, not “ late in the evening,” and that shortly afterward court adjourned for the day; that when the bill was presented on the morning of the 12th, counsel for the State objected to its being signed as presented because the statement of facts in the bill embodied only the questions propounded to Taylor by counsel for the accused and his answers thereto, and did not contain the questions and his answers thereto, propounded on part of the State; that the bill, with this objection, was handed to him (the Judge) and on examining the bill he called the attention of accused’s counsel to the fact that the bill was presented too late under the rules of court; that counsel replied the bill had been prepáred as soon as the short-hand notes had been transcribed and he had been furnished with a copy thereof to be annexed to the bill; that he (the Judge) had heard nothing of the stenographer being too busy with other court matters to render it impossible to seasonably transcribe the notes; that he knew the fact to be otherwise and the notes could have been copied in time for the bill to have been presented on October 11th; and that on Oetobor 15th, before adjourning the sitting of the court, he announced his ruling on the onjection to the bill sustaining same, and he supposed relator’s counsel had heard him as he was present. He annexes a copy of the rule of his [1128] court relating to the time for presenting bills of exception for signature, stating, in that connection, that frequently attorneys, for reasons assigned, obtained extensions of time, and that he (the Judge) sometimes signed bills presented after time if there was no disagreement between counsel as to the facts, and if the facts were stated as he recollected them, but that he had always declined to sign bills when there was a dispute as to facts. We think the bill should have been signed. All the doubts should have been resolved in favor of the accused in this as in other respects. When the bill was presented on the morning of the 12th the objection- of counsel for the State was leveled at the bill as drawn, not at the time of its presentation. If the bill, to make it fair and perfect, should have embodied, or had attached to it, a fuller reproduction of the examination of the juror Taylor on the voir dire, it was within the power of the judge to require it to be done, or he could have embodied same in his reasons, written in the bill, for making the ruling he did as to the competency of the juror, and thus have obviated the objection of the State. Nor does it appear that the statement of counsel for the accused, made when the bill was presented, that he had not been able seasonably to procure a copy of the examination, was controverted at the time. If it had been, he might have verified the same by a statement then and there from the stenographer, and the opportunity should,, at least, have been given him so to do, by the then raising of the issue of fact. , ’ To afterward deny the bill on the ground that he might have procured Taylor’s statement sooner, when his averment in this respect was unchallenged at the time he made it, was a ruling erroneous under the circumstances. And to deny the bill because it was not full enough in its recitals of Taylor’s examination, when it was in the power of the judge to order the whole examination on the voir dire into the bill, was also erroneous. If the transcription of the notes could not have been had sooner, it furnished' good ground for not holding the accused or his counsel to the strict observance of the rule of court, and the judge’s reply to the relator’s application for the writ shows that while the rule existed, and is no doubt a proper one, its enforcement had not always been insibted on. Besides, it was clearly within his discretion, in a proper case, to depart from it, and we think the facts here make out a case where he could reasonably have done so. [1129] For the reasons assigned it is ordered that the mandamus applied for be made peremptory, and that respondent judge sign the bill of exceptions annexed to relator’s petition, with full reservation of the right on his part to add to it the whole of the examination of the juror Taylor on his voir dire, and such statement of facts and reasons as he may chose to give for his ruling holding the juror to be competent. It is further ordered that when thus executed the bill of exceptions be filed in the record of the case of the State vs. Nick Ramsey, No. , on the docket of the District Court in and for the parish of Claiborne, and be copied as part of the transcript of appeal in that case, the filing to be of date October 15, 1898, mono pro tunc. And that costs herein incurred be borne by respondent. The Chief Justice and Mr. Justice Breaux dissent.