On Motion to Dismiss Appeal.
MONROE, J.Defendant, who was indicted for murder and convicted of manslaughter, prosecutes this appeal, which the state moves to dismiss, on the ground that it was not taken within three days, as required by law.
It appears from the record that the jury brought in its verdict on June 19th; that defendant moved for a new trial, and the motion was heard and overruled and sentence pronounced on July 7th; that the court then adjourned until July 12th, and did not sit during the interval in the parish of St. John the Baptist; and that, upon its reopening in that parish, on July 12th, the motion for appeal was presented and the appeal allowed.
Act No. 30, p. 56, of 1878 provides:
“Section 1. * * * That, in all criminal cases, in which appeals are allowable under the Constitution, the party desiring to appeal shall file his motion, either verbally or in writing, in open court. This motion for appeal must be filed, in the courts other than those of the First judicial district, during the term at which the sentence shall have been rendered, and, in the courts of the First judicial district, within ten days after the sentence shall have been rendered.
“Sec. 2. * * * That all such appeals shall be suspensive and no bond shall be required from the appellant.
“Sec. 3. * * * That no appeal shall be granted in such cases after the time herein specified shall have expired.”
Section 4 relates to the return of the appeal.
.“Sec. 5. That all laws and parts of laws inconsistent with this act be and the same are hereby repealed, and that this act shall take effect from and after the first day of March, 1878.”
It will be seen that, under this law, the party desiring to appeal was allowed until the last day of the term at which the sentence was pronounced within which to do so, but he was obliged to take the appeal “either verbally or in writing, in open court,” and he was, in express terms, denied the right to appeal after the lapse of the time specified in the act. Hence, if the sentence was pronounced on the last day of the term, it was necessary that the appeal should be taken on that day. By the present Constitution, it is provided that:
“Art. 117. District courts shall hold continuous sessions during ten months of the year. In districts composed of more than one parish, the judge shall sit, alternately, in each parish, as the public business may require.”
Act No. 163, p. 320, of 1898, being an act to carry these provisions of the Constitution into effect, reads, so far as it needs be quoted;
“Sec. 2. * * * That, in districts composed of more than one parish, the judge shall sit alternately in each parish, provided that no session in any parish of a district shall be fixed for less than one, or more than three, weeks, as the public business may require. * * *
“Sec. 3. * * * That it is the intent and meaning of article 117 of the Constitution that district courts shall always be open and the proceedings held to be in open court while the judge is on the bench, and that the fixing of the sessions in districts composed of more than one parish shall not affect the authority of the duty of the judge to sit at any time in any of the parishes of his district when the public interest may require it.”
Construing the provisions of section 2, above quoted, this court has held that the General Assembly did not thereby mean to control the judges in the matter of the time during which they shall actually hold court in the respective parishes of their districts, but, merely, that they shall designate, in advance, certain periods, as “terms of court,” with the view of furnishing a basis to public officials for fixing dates, for drawing jurors, or doing other acts, which, under existing laws, have to be done a .certain number of days before sessions of the court. Webb v. De Baillon, 51 La. Ann. 789, 25 South. 648. Act No. 108, p. 155, of 1898, is entitled “An act to amend and re-enact Act No. 30 of 1878, relative to appeals in criminal cases,” and reads as follows, to wit:
“Sec. 1. * * * That appeals to the Supreme Court, in criminal cases allowable under the Constitution of 1898, shall be taken by motion, either verbally or in writing, in open court, within three days after the sentence shall have been pronounced.
*967“Sec. 2. * * * That all 'such appeals shall be made returnable to the Supreme Court within ten days from the date of the order of appeal ; that all such appeals shall be required from the appellant; and that all such cases shall be tried and determined by preference.
“Sec. 3. That all laws and parts of laws inconsistent with this act be and the same are, hereby, repealed.”
At tbe time that tbe act thus quoted was adopted, no definite understanding had been reached as to whether the 10 months’ “continuous session,” provided for by the Constitution, was to be regarded as-a “term,” within the meaning of the law which granted the accused until the last day of the “term” within which to appeal, or whether the term (for that purpose) was to be considered the period of actual, continuous sitting, in a particular parish, and the evident purpose of the General Assembly was to fix the maximum delay for such appeals at three days, in all cases, and to provide against a delay, in any case, during the 10 months’ “continuous session,” provided for by the Constitution, or, as we apprehend, during the intervals, exceeding three days, between the actual sitting at which the sentence is pronounced and the next actual sitting in the same parish. Any other construction than this would give to the act of 1898 the effect of lengthening, and adding uncertainty to, the time allowed for such appeals; whereas, we are of opinion that the General Assembly was fully alive to the commonly recognized evil resulting from the delay in the administration of criminal justice and enacted the statute in question as a partial remedy therefor. That its provisions are mandatory, there can be no doubt. The language is:
“That appeals * * * in criminal cases * * * shall be taken, by motion, either verbally or in writing, in open court, within three days after sentence shall have been pronounced.”
And, in construing it, this court has said:
“The word ‘shall’ is not used in the statute to give discretion, but to require, peremptorily, that all appeals shall be taken three days after sentence. The statute .adopted a positive and dbsolute rule in which public interest is concerned and which cannot be waived under any of the defined powers given to the prosecution.” State v. Moore, 52 La. Ann. 606, 26 South. 1001.
We have it settled, therefore, that the appeal must be taken within three days after sentence, and must be taken in open court, and, apart from the common understanding on the subject, the General Assembly has declared that “open court” means the actual session of the court, “while the judge is on the bench.” Act No. 163, p. 320, of 1S98, § 3. It will be observed that there is no proviso in the statute to the effect that, in case the court should adjourn immediately upon pronouncing sentence, and should not open again until after the expiration Of the three days within which the defendant is required to take his appeal, the delay shall be extended until the court shall again open, from which, it follows that, in such cases, the appeal must be taken upon the day upon which the sentence is pronounced, as was required before the act of 1898 became a law, and it is only when the court remains open until, or reopens upon, the third day after the sentence is pronounced, that the defendant can avail himself of the full term, “within” which he is required to act if he desires to appeal.
In the case of State v. Fairbanks, 115 La. 458, 39 South. 443, the appeal was sustained, though this court found that, whilst it was applied for within three days, the application was made after the adjournment of the court by which the sentence was pronounced. In that case the chief justice was of opinion that the motion should have been made before the adjournment, and we now concur in that view. In the case of State v. Estoup, 39 La. Ann. 906, 3 South. 124, it was held that, where, under the closing paragraph of section 1 of Act No. 30, p. 56, of 1878, which reads:
“The motion to appeal must be filed in the courts other than those of the first judicial district, during the term at which the sentence *969shall have been rendered, and, in the courts of the first judicial district, within ten days after the sentence shall have been rendered”
—the court adjourned upon the day upon which the sentence was pronounced, a motion for an appeal, made upon the day upon which the court reopened, was in time, though more than 10 days had elapsed since the sentence. The court, in that case, seems to have fallen into the error of applying the provision relating to appeals from the first judicial district to an appeal from the parish of Orleans; but, apart from that, we are unable to concur in the view there expressed. The decisions upon the questions here at issue in the two cases last above mentioned are therefore' overruled.
And, for the reasons thus given, it is ordered, adjudged, and decreed that the appeal in this case be dismissed.
A rehearing on the motion to dismiss was granted on January 7, 1907, and the case then went to trial on the merits.