[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 757 Defendant appeals from a conviction and sentence for manufacturing intoxicating liquor for beverage purposes.
Bill of Exception No. 1. Counsel for defendant complains that the trial judge refused to charge himself "that there could be no conviction under the indictment where there was no evidence or proof of the manufacture of liquor, and that under the facts in this case there was no such proof."
The ruling was correct, as the trial court cannot be requested to charge itself as to the facts of the case. State v. Clary,152 La. 757, 94 So. 385.
In connection with the special charge, and as a statement of facts to be annexed to the bill reserved to the refusal of the court to accept said charge, counsel for defendant requested the court to take down in writing the evidence offered by the state. *Page 758
We know of no law that requires a trial judge to have the clerk take down in writing the facts upon which a special charge is based.
The proper procedure in such cases, as stated in the Clary Case, is to request the court to charge itself, if the facts are found to be so and so, then the law applicable thereto is as contended.
Bill of Exception No. 2. This bill was reserved to the overruling of a motion for a new trial on the ground that the verdict was contrary to the law and the evidence, and presents no question of law for us to review.
Bills of Exception Nos. 3 and 4. The original minutes show that defendant's counsel, on February 14th, filed a motion for a new trial, and requested the court to fix said motion for trial at some future date, in order that the testimony of the state might be taken down for the purpose of attaching same to the bill of exception filed; that the court refused to set down the motion; and that said motion was then and there taken up, tried, and overruled.
The judge a quo, however, in his per curiam to bills Nos. 3 and 4, states that the case was tried on January 30th, the last day of the term of court, and that, as counsel for the accused asked for a postponement of the sentence to file a motion for a new trial, his request was granted.
The judge a quo further states in his per curiam that, a few days prior to February 14th, he advised counsel for defendant that he would go to Colfax to try his motion; that on said date counsel for defendant appeared in court and presented his motion for a new trial, and requested that the trial be continued to some future day, so that he might have the testimony of the state's witnesses reduced to writing and attached to his bill of exception; that this request was *Page 759 refused, exception taken to the ruling of the court; and that the motion for a new trial was then tried and overruled.
On February 28th, the judge a quo, of his own motion, but contradictorily with the accused, caused the minutes of February 14th to be corrected so as to conform to the true facts, the court at the time being in special session.
The judge a quo states that the minutes of February 14th had not been approved by him prior to February 28th; that he was unaware of their incorrectness, until his attention was called to that fact by bill No. 3 being presented to him, when he took immediate steps to correct the minutes.
As defendant was not entitled to have the testimony of the state taken down by the clerk, under Act 113 of 1896, on the motion for new trial, and as this was the sole purpose of the motion, the same was properly overruled by the trial judge. State v. Chaney, 153 La. 373, 95 So. 417; State v. Lowry, 153 La. 180, 95 So. 596; State v. Craft, 118 La. 125, 42 So. 718.
The right of a trial court to correct its minutes at any time, and even after appeal, has been repeatedly recognized by this court. State v. Perry, 51 La. Ann. 1076, 25 So. 944; State v. Howard, 34 La. Ann. 369; State v. Revells, 31 La. Ann. 387; State v. Smith, 31 La. Ann. 406.
No evidence is necessary to correct minutes, when made by the presiding judge, who knows the facts. State v. Branch, 25 La. Ann. 115.
The certificate of the clerk appearing in the record merely states that the minute entry of February 14th was dictated to him by counsel for defendant in open court, and that he asked counsel if this was a correct minute of what had transpired, and that counsel stated to him that it was.
So, in the final analysis, the case presented is one of discrepancy in statement between the trial judge and counsel for defendant, *Page 760 and, under well-settled jurisprudence, we must accept the statement made by the trial judge in his per curiam to the bill reserved.
Assignment of Errors. Counsel for defendant assigns as error that the information filed in this case, charging defendant with the manufacture of intoxicating liquors for beverage purposes, alleges merely the conviction of the defendant for a second offense, under the Hood Act (Act 39 of 1921), without stating that this is the second offense for manufacturing liquor, i.e., for a similar violation of the statute.
The former indictment and minutes of the court show upon their face that defendant had been convicted for manufacturing liquor, and sentenced to pay a fine of $400, and to serve 60 days in jail, and to additional imprisonment for 4 months, in default of payment of the fine.
As defendant's counsel did not object to this offer in evidence of the first indictment, conviction, and sentence, the doctrine of aider by verdict must apply to the case, as the evidence cured the defect complained of by counsel.
The further complaint by defendant's counsel that the information neither alleges nor claims that the former conviction has become final is without merit, in the face of the statement in counsel's brief:
"He (defendant) freely admitted that he had had a still several months ago, when he was convicted the first time, at which time he paid the penalty for his violation of the law." Defendant's brief, p. 6.
In addition to this, the penalty imposed for the second offense did not exceed the limit for the first offense under the Hood Act, to wit, "a fine of $500 and 60 days, and in default of payment of fine, 6 months in the parish jail." Tr. p. 22.
The conviction and sentence appealed from are therefore affirmed. *Page 761
O'NIELL, C.J., dissents, and hands down reasons.