I concur in the ruling on bill of exception No. 1, because it appears that the taking of testimony at the scene of the homicide, and afterwards in the basement of the courthouse where the automobile was stored, was done only so far as it was necessary to give the jury an accurate understanding of the facts of the case. Ordinarily, of course, the testimony in a criminal case should be heard in the courtroom, and it is only where it is absolutely necessary for a thorough understanding of the case that any testimony should be taken outside of the courtroom. The objection to the taking of testimony outside of the courtroom, where that is necessary for the jury to see something which cannot be brought into the courtroom, is that the jury may come in contact with an outsider, or may be tampered with. The record leaves no doubt that nothing of that kind happened in this case. The testimony that was taken at the scene of the homicide, or in the basement of the courthouse where the automobile was stored, was only such as was necessary and such as could not be given as intelligently in the courtroom.
Referring to bill of exception No. 9, which was reserved to the overruling of the defendant's motion for a new trial, and referring particularly to article 7 of the motion for a new trial, contending *Page 195 that article 201 of the Code of Criminal Procedure was unconstitutional, I consider it sufficient to say that the construction which this court put upon the provisions in this article in the Code of Criminal Procedure in State v. Dalon, 35 La.Ann. 1141, and in other cases, was virtually ratified by the constitutional convention of 1898, and again by the constitutional convention of 1913, and again by the constitutional convention of 1921. The ground on which article201 of the Code of Criminal Procedure is said to be unconstitutional is that it violates the provision in section 4 of article 4 of the Constitution of 1921, forbidding the Legislature to pass any local or special law regulating the practice or jurisdiction of any court, or changing the rules of evidence in any judicial proceeding or an inquiry before any court. Exactly the same provisions were contained in article 46 of the Constitution of 1879 and in article 48 of the Constitution of 1898, and in the corresponding article of the Constitution of 1913. In the case of State v. Dalon, which was decided in 1883, and with reference to article 46 of the Constitution of 1879, it was held that Act No. 98 of 1880, which, among other provisions, provided the method of drawing juries in the criminal district court for the parish of Orleans, was not violative of article 46 of the Constitution of 1879. There were several other decisions (as shown in the reprint of 35 La.Ann.) upholding the constitutionality of Act No. 98 of 1880. Therefore, when the constitutional convention of 1898, and the convention of 1913 adopted the provisions of article 46 of the former Constitution *Page 196 as article 48 of the new Constitution, and when the convention of 1921 adopted these provisions in section 4 of article 4 of the new Constitution, they were adopted with reference to the construction which had been put upon these provisions in State v. Dalon and other cases construing Act No. 98 of 1880.
My opinion is that article 201 of the Code of Criminal Procedure is a local law, but it does not make such a difference between the practice or jurisdiction of the criminal district court and the district courts throughout the State as is forbidden by section 4 of article 4 of the Constitution of 1921. The ruling in State v. Dalon might have rested upon the proposition that Act No. 98 of 1880 did not make such a difference between the practice or jurisdiction of the criminal district court for the parish of Orleans and the practice or jurisdiction of the district courts throughout the State, as was forbidden by article 46 of the Constitution of 1879.