The accused, Emile Lecompte, who was charged by an indictment returned against him on November 17, 1942, with the crime of manslaughter, on May 28, 1946, more than three years later, ruled the state to show cause why the indictment should not be nol. prossed under the provisions of Article 8 of the Code of Criminal Procedure requiring the district attorney to enter a nolle prosequi in such cases, and, upon his failure or neglect to do so, allowing the court, unless during the interim the accused absconded, was a fugitive from justice or escaped trial because of dilatory pleas or other pleadings filed on his behalf, to enter such a nolle prosequi upon the motion of the accused. The state is now appealing from the ruling of the trial judge ordering such nolle prosequi and is asking that we review the evidence upon which the judge's ruling was based although the state failed to reserve a bill of exceptions to such ruling incorporating *Page 132 therein the evidence we are requested to review.
It is the well established jurisprudence of this court that"The only known way by which evidence can be brought before theSupreme Court is by annexing and making same a part of a billof exceptions, timely reserved." State v. Stewart, 188 La. 546,177 So. 662. See, also, State v. Carr, 111 La. 716, 35 So. 839; State v. LeBleu, 203 La. 337, 14 So. 2d 17, and the authorities therein cited; and II Marr's Criminal Jurisprudence 1124, Sections 727, 728, etc. Testimony or documents not a part of a bill of exceptions, although included in the record, are in the same situation "as if the evidence had not been incorporated in the transcript," and cannot be considered on appeal. State v. Simmons, 118 La. 22, 42 So. 582. See, also, State v. Nelson, 32 La.Ann. 842; State v. White, 37 La.Ann. 172; State v. Richard, 42 La.Ann. 83, 6 So. 897; State v. Johnson, 104 La. 417, 29 So. 24, 81 Am. St. Rep. 139; and State v. James, 106 La. 462, 31 So. 44. (The italics are mine.)
The function of the bill of exceptions is to incorporate into the record that which would otherwise form no part thereof and it is Hornbook law that without the reservation of a bill of exceptions only errors patent on the face of the record can be considered on appeal. The bill of exceptions is the vehicle by which those errors not patent on the face of the record are made a part thereof. State v. Fant, 2 La.Ann. 837; State v. Richard, supra; State *Page 133 v. Pitre, 106 La. 606, 31 So. 133; State v. Bradley, 144 La. 459, 80 So. 657; and State v. Braxton, 157 La. 733, 103 So. 24.
In the majority opinion it is conceded that "when the State appeals from a ruling which is based upon evidence, as in this case, the record must contain `the evidence upon which theruling complained of is based,' just as the bill of exceptionsreserved by the defendant must, as provided in Article 500 of the Code of Criminal Procedure," but it is held that the state is not required to reserve a bill of exceptions in order to have such evidence brought up with the record and reviewed by this court on appeal. As the basis for this conclusion it is declared: "There is not a single article in the Code of Criminal Procedure expressly or by implication providing that in those instances where the State is permitted to appeal from a final prejudicial judgment, it is necessary for the State to reserve a bill of exceptions to the ruling of the court or that the evidence upon which the ruling complained of is based should be attached thereto." As otherwise stated in the opinion, "A careful reading of the several articles of the Code of Criminal Procedure, particularly Article 500 thereof, leads to the conclusion that neither the authors of the Code of Criminal Procedure nor the Legislature which adopted it, contemplated that the State should reserve bills of exceptions in criminal cases, for the obvious reason that to do so would serve no useful purpose." (The italics are mine.) *Page 134
In answering this same argument in the recent case of State v. LeBleu, 203 La. 337, 14 So. 2d 17, decided by us on April 12, 1943, where the identical issues here presented for decision were decided adversely to the contention of the state, we recognized that under the established jurisprudence of this state "evidence can be brought before this court in a criminalcase only by incorporating it in a bill of exceptions" and that "It cannot be considered, even though in the transcript, unless it is annexed to and made a part of the bill that has been timely reserved," and, also observing that while the appeals had been taken by the defendant and not by the state in the cases establishing this jurisprudence, we held that "we know of nogood reason why the stated requirements should not be equallyapplicable to the state when appealing." The reason given therefor was very simple: "The rule merely states the manner by which an appellant, in order to obtain a review of an adverse conclusion drawn from facts, shall present the pertinent evidence to the appellate court; and the matter of whether or not the complainant is the accused or the state, it seems to us, should be and is of no moment." (Italics mine.)
In my humble opinion the ruling in the LeBleu case is not only in accordance with the universally accepted rules of law and jurisprudence, but is based on irrefutable logic and sound deductions.
So far as I have been able to observe, the question of whether the state was required *Page 135 to reserve a bill of exceptions was first raised in the case of State v. Hincy, 130 La. 620, 58 So. 411, where the contention was made that because the state had not reserved a bill of exceptions to the ruling of the trial judge sustaining a motion to quash the indictment, this court was without authority to review the lower court's ruling in this respect. In disposing of this issue the court held it could review errors patent on the face of the record without the reservation of a bill of exceptions, observing: "While it is true that a bill ofexceptions is necessary, in order to bring up evidence needfulto a decision of the point raised, it is otherwise if the issueis one of law exclusively." The court could very easily have held, if it had thought the same to be correct, that the state did not have to reserve a bill of exceptions but, instead, it followed the universally accepted rule of practice and jurisprudence that this court on appeal is without authority to review or consider errors not patent on the face of the record unless properly incorporated in or made a part of the record through the medium of the bill of exceptions. (The italics are mine.)
The obvious fallacy in the reasoning of the majority opinion lies in the fact that it has been deduced from the premise that because the Code of Criminal Procedure expressly and specifically requires an accused to reserve bills, the legislature, by implication, intended to make it unnecessary for the state to do so by failing to make *Page 136 similar provisions with respect to the state.
In reaching this conclusion the author of the majority opinion overlooked the fact that the function of the bill of exceptions is to bring before the court that which is not otherwise made a part of the record and which could not therefore be reviewed on appeal since the only matters that can be reviewed on appeal without the reservation of a bill of exceptions are those patent on the face of the record, and the further fact that the lawmakers by failing to outline in the Code of Criminal Procedure the procedure to be followed by the state when appealing left the state, whether inadvertently or designedly, in the same status it occupied prior to the adoption of the act incorporating the Code of Criminal Procedure into our statutes, that is, amenable and subject to the rules and procedure established at common law, under which system of law the state had no such advantage or privilege.
"Under the common law as generally understood and administered in the United States, the state has no right to a writ of error, to an appeal, or to exceptions in a criminal case unless it is expressly conferred by statute * * * but the authority thusconferred on the state cannot be enlarged by construction of thestatute." 17 C.J. 39, Section 3310. (Italics mine.)
In a footnote to this section is to be found the following comment: "In Louisiana (1) *Page 137 the right of the state to appeal in a criminal case, where, before trial, the indictment is quashed or held bad on demurrer, and also where a motion in arrest of judgment has been sustained, is generally recognized. State v. Labry, 120 La. 434, 45 So. 382. (2) This right is not based upon express statutory provision but depends upon a constitutional provision (Const. (1852) art. 62) which merely provides that the supreme court shall have `jurisdiction over "all criminal cases on questions of law alone"' without specifically conferring such right upon the state. State v. Ross, 14 La.Ann. 364." See, also, 24 C.J.S., Criminal Law, § 1659.
This law is now incorporated in our Code of Criminal Procedure where, in Article 540, it is provided: "No appeal lies in any criminal case, except as otherwise provided in this Code, from any order, ruling or judgment which does not finally dispose of the case. The prosecution and the defense have each the right in an appealable case to appeal from the final prejudicial judgment."
Under early English practice, the defendant himself had only a narrowly circumscribed form of review, it being confined to errors of law appearing on the face of the record in misdemeanor cases alone. The appeal was by what is known as a writ of error. Bills of exceptions were unknown to the common law until their creation by the adoption of the statute of 13 Edw. Ch. 1, Chapter 31, and they were then held to apply *Page 138 in civil cases only although they were subsequently, as a matter of favor, ex gratia, allowed in cases not involving treason or felony. Under this early English practice the prosecution never had a right of appeal in criminal cases and the same is true in England to this day. The prosecution cannot appeal on any matter, either from an acquittal or an order of the court to the Court of Criminal Appeals although in rare cases an appeal by the prosecution lies from the Court of Criminal Appeals to the House of Lords on questions of unusual public importance and even then the consent of the attorney general is necessary. By the enactment of the Crimes Act of 1805, and, subsequently, the Revised Statutes of 1870, we adopted into and made a part of our criminal system the rules of evidence and procedure in criminal matters as they then existed under the common law and we have ever since been construing our statutes and deciding our cases in the light thereof. This court did, however, by jurisprudence, permit review on appeal of rulings of the lower court when they were based on testimony and such testimony or evidence was incorporated in a bill of exceptions. It was not until the adoption of Act 113 of 1896 that it was made the mandatory duty of the court when a bill of exceptions was reserved to"order the clerk to take down the facts upon which the bill hasbeen retained, which statement of facts shall be preserved among the records of the trial; and if the case be appealed, the clerk shall attach to the bill of exceptions *Page 139 a certified copy thereof, which shall be taken by the appellate court as a correct statement upon which the exception is based." (Italics mine.)
Prior thereto the only known method of bringing evidence before the Supreme Court in a criminal case was by incorporating in a bill of exceptions retained by the complaining party (whether the state or the defense) the facts excepted to in the lower court and these, if correct, were approved by the court. If not, the trial judge, in a per curiam, would give his appreciation of the facts and this, of course, under our jurisprudence was controlling. This system, while the best and only one known at the time, was most unsatisfactory. This court, in the case of State v. Nelson, 32 La.Ann. 842, in discussing the "jurisprudence of the State and of the conflicting foreign authorities by which it was sometimes propped," characterized it as being "contradictory, vacillating, unsettled, and unsatisfactory." That this condition gave rise to the enactment of Act 113 of 1896 is eloquently suggested by the court's observation in that case that "The difficulty of a disagreement between the judge and counsel as to the facts proved may well be obviated by requiring the testimony to be reduced to writing,and, next, annexing it to a bill of exception, as a componentpart thereof * * * to have such testimony put of record at theinstance of either party * * * ." (Italics mine.)
It is to be noted that the legislature in adopting Act 113 of 1896 prescribed as a *Page 140 condition precedent to the taking of testimony the reservation of a bill of exceptions and limited such testimony to the facts upon which the bill was retained. Clearly, therefore, without the reservation of such a bill the taking of the testimony was not only unauthorized, but it could not form a part of the record either under the act or under the jurisprudence. The act did not limit its applicability to the defense. It simply states that "if the case be appealed" the clerk of court shall reduce the testimony to writing and annex it to the bill of exceptions reserved and make it a part of the record. Obviously it was intended to apply "at the instance of either party", depending on the one appealing. (Italics mine.)
With all due respect to the learned author of and my colleagues who signed the majority opinion, I cannot subscribe to the same. It is my firm opinion that the prior decision of this court in the LeBleu case is not only sound and in keeping with the statutory law and the jurisprudence, but that it has for its basis the fundamental precepts of the common law, by which this state by express statute has elected to be guided in the trial of criminal cases. State v. Hunt, 4 La.Ann. 438; State v. Dorsey, 207 La. 928, 22 So. 2d 273.
I cannot conceive of any compelling or logical reason for the overruling of the LeBleu decision. The majority opinion has not cited a single authority, obviously because none is to be found. Besides, the majority opinion is based on a deduction *Page 141 that, in my humble opinion, is not in accordance with any recognized rule of construction.
For these reasons I respectfully dissent.