On Rehearing.
PROVOSTY, J.Defendant was tried for murder, and convicted of manslaughter, and has appealed.
The state moves to dismiss the appeal, as having been taken too late. The law governing the matter is Act No. 108, p. 155, of 1898, which provides that “appeals in criminal cases shall be taken in open court within three days after sentence.” Defendant was sentenced on the 7th, and the court then adjourned over to, and did not again sit until, the 12th, when the appeal was taken. This was in time, since the appeal had to be taken in open court, and was taken the very first day that court sat after sentence pronounced.
The case is identical with that of State v. Estoup, 39 La. Ann. 906, 3 South. 124, except that there the appeal was taken after adjournment for the term, and after several months, instead of, as here, at the same term and within five days.
Any other construction would make it discretionary with the judge whether a defendant should have or not the-three days allowed him by the statute, for the adjournment of court is a matter discretionary with the judge. Nay, the three days’ delay provided by the statute might prove a snare to the defendant (as, defendant says, happened in this ease), for, if he trusted to it, the judge might adjourn the court for three days, and thus cut off the appeal. No prudent practitioner would consent to take such a risk; and, hence, the practical operation of such a construction would be that the defendant would in every case take his appeal on the day of sentence, and the statute allowing a delay would be nullified. Far from a defendant having to take his appeal on the day sentence is pronounced, the well-settled rule is that the day is not even to enter into the computation of the delay for appealing. Allen v. Creditors, 8 La. 223; Mercier v. Judge, 29 La. Ann. 223; Tuprey v. Edmondson, 29 La. Ann. 850; Garland v. Holmes, 12 Rob. (La.) 421; Solari v. Judge, 40 La. Ann. 793, 5 South. 63; State v. Michel, 52 La. Ann. 936, 27 South. 565, 49 L. R. A. 218, 78 Am. St. Rep. 364; Swift v. Tousey, 5 Ind. 196; Noble v. Murphy, 27 Ind. 502; Faure v. U. S. Ex. Co., 23 Ind. 48; Smith v. Gale, 137 U. S. 577, 11 Sup. Ct. 185, 34 D. Ed. 792; Cawlfield v. Brown, 45 Ala. 552; Calvert v. Williams, 34 Md. 672; Lubbock v. Cook, 49 Tex. 96; Bennett v. Kuhn, 67 Wis. 154, 29 N. W. 207, 30 N. W. 112; Carleton v. Byington, 16 Iowa, 588; Smith v. Laborre, 37 Kan. 480, 15 Pac. 577; Chiles v. Smith’s Heirs, 52 Ky. 460; Chapman v. Allen, 33 Neb. 129, 49 N. W. 926; Carson v. Love, 16 Tenn. (8 Yerg.) 215; Young v. Whitcomb, 46 Barb. (N. Y.) 615; Browne v. Browne, 3 Serg. & R. (Pa.) 496; In re Ege, 2 Watts (Pa.) 283.
The motion to dismiss is overruled.
*971Bills of exception Nos. 1 and 2 relate to the refusal of the judge to grant a continuance, because of the absence of character witnesses. The judge states that the trial lasted eight days, and that during that time the defendant could have procured the attendance of these witnesses if he had chosen to do so; but that, on the contrary, during the trial he requested that all character witnesses summoned hy him be discharged.
Bill No. 3 contains two exceptions; one to the ruling of the court refusing to permit defendant to prove misconduct of the jury by one of the jurors — which ruling is so manifestly correct that it needs no comment— and the other to the refusal to allow a supplemental motion for new trial to be filed.
In the light of the attending circumstances, the latter exception is equally without merit. The verdict was rendered on the 19th of June. Defendant filed his motion for a new trial on the 2d of July, and it was fixed for trial for the 5th of July. On that day, defendant asked leave to file a supplemental motion, and it was granted him, and he filed a motion assigning separation of the jury, misconduct on their part, and that they •had access to and were in contact and company with strangers. At the request of defendant, the case was then reassigned to the next day for trial. On the trial defendant offered one of the jurors as a witness to prove the alleged separation, misconduct, etc., and,.very naturally, objection was made, and sustained, that a juror could not be heard to impeach his own verdict. Defendant’s counsel .then stated in detail, and at great length, what the acts of separation, misconduct, etc., consisted of. The district attorney renewed his objection, and added the further objection that the allegations of the motion for new trial were too vague and general to admit of evidence in support of them.
The court having sustained the objection, the defendant asked for five minutes in which to prepare and file a supplemental motion embodying the detailed statement just made. The court ruled that defendant had had all the time he could possibly have needed to prepare his motions for new trial, and would not grant the delay. Counsel for defendant then offered to make part of his motion for new trial the statement just made by him, and which the clerk had taken down, and the court declined to allow him to do so.
We think the court should have granted the motion, and allowed the allegations of the motion for new trial to be supplemented by the giving of particulars. It would not have delayed the trial. But we find that the objection to the vagueness of the allegations was not thereafter renewed, and that the defendant was permitted to offer all the testimony he had touching the alleged separation, misconduct, etc., so that defendant would have been in no better position had he been permitted to amend his pleadings. Under these circumstances, the erroneous ruling did no harm, and therefore is not reversible error.
Bill No. 4 is to the refusal of the judge to compel the stenographer to transcribe and furnish a copy of his notes, containing, besides the evidence, the several bills of exception reserved by defendant in the course of the trial.
The per curiam of the court on this point reads as follows:
“The court refuses to order the stenographer, Mr. C. H. Lander, to produce his notes, for the reason that the law makes no provision for the taking of testimony by a shorthand writer in criminal cases, in the country parishes; that the stenographer was not the official stenographer of the court, in this case, and was the specially employed private stenographer of the accused.
“Before the beginning of the trial, the court was informed by the district attorney that the gentleman who presented himself to take the testimony was the private stenographer of the accused, and that he had nothing to do with his employment and would not consider him as an official stenographer, and objected to his being sworn, and taking the testimony as such; but that, if the testimony was taken by the *973stenographer, and the bills dictated to him, he would be willing to relieve counsel for the accused of the trouble of writing his bills of exceptions during the trial as required by law, provided the notes transcribed be presented by counsel for the accused, and that they be correct. Counsel for the accused stated to the court that the stenographer was the private stenographer of the accused, and that he could not produce the testimony, because his client could not pay the stenographer, who took the testimony in shorthand during eight days, working on an average of 11 hours a day. The stenographer being an employs of the accused, and not an officer of the court, the court considered itself powerless to order him to transcribe and produce his notes.
“The court has been informed by Mr. Lander and by counsel for the accused that the notes would be produced as soon as they would be paid for, or if counsel for the accused expressed a willingness to pay for them. .Even if the court had the power, it certainly would be an injustice to force Mr. Lander, the stenographer, to work for nothing.”
Inasmuch as the stenographer was the private stenographer of the accused, working under a private agreement with him, we do not see how the judge could have ruled differently.
Bill No. 5 is to the refusal of the judge to leave the case open until the next day, so as to permit defendant to. summon other witnesses. Defendant had had every opportunity for summoning witnesses, and was not entitled to any further time. There was no question of surprise or of newly discovered evidence. The sole excuse was that the persons whom defendant desired to summon had been present during the day, and that defendant thought they would remain.
Bill No. 6 is not noticed in defendant’s brief, and therefore nothing more need be said of it than that we have examined the rulings complained of and found them correct. The court will take occasion to say that it cannot countenance the practice attempted here of simply annexing the clerk’s note of evidence to the bill as an exhibit, and referring to it in general terms for the objections, rulings, and reservations of'bills, instead of setting forth the objections and the rulings in the bill itself. If an objection and the ruling thereon is not deserving of a statement in the bill, it is not deserving of any attention on the part of the court.
Bill No. 7 is to the overruling of the motion for new trial. The original motion was based on the grounds: (1) Verdict contrary
to law and evidence; (2) error in the rulings of the court in the course of the trial; (3) error in refusing special charges. The supplemental motion was based on the alleged separation, misconduct, etc., of the jury.
The first of these grounds is not reviewable by this court. The rulings alluded to in the second ground are not further specified than by being said to be recited in the bills of exception said to have been reserved thereto and said to be annexed as part of the motion, but, in point of fact, not annexed to the motion, or otherwise appearing in the transcript. They were, doubtless, contained in the stenographer’s notes which were never copied. The third ground will be considered in connection with bill No. 8. So far as the supplemental motion is concerned, the allegations of separation, misconduct, etc., were simply not proved.
Bill No. 8 is to the refusal to give certain special charges. This bill is not noticed in defendant’s brief, and therefore might be passed over in silence; but we will say that we have carefully considered it, and found that it has no merit. Of the 13 special charges requested, all were covered in the judge’s charge, except Nos. 7, 8, 9,. and 12. Charges 7, 8, and 12 relate to homicide per infortuniam. If they were applicable to the facts of the case, the judge should have given them, because the mere general charge that, for a conviction, the homicide must be found to have been willful, is not sufficiently specific; but nothing shows that they were, applicable to the facts of the case. Hence nothing shows that the refusal to give them caused any injury to defendant. Charge 9 is to the effect that in a case of homicide the defend*975ant cannot be convicted, unless tbe fatal wound is shown to have been inflicted maliciously. In such a case a defendant may be convicted of manslaughter without such proof. Hence this special charge was properly refused, as not being good law.
Judgment affirmed.