On Rehearing.
Motion to Dismiss Appeal.
MONROE, C. J.[3] In the opinion heretofore handed down, the court failed to pass upon a motion, filed by defendant, to dismiss the appeal on the ground that:
“Under said appeal the state attempts to bring up three cases against defendant when the same were not consolidated for trial in the lower court and no separate order of appeal was taken therein.”
Since the rehearing was granted, defendant has filed another motion to dismiss, in which the grounds originally relied on have been stated more specifically and the additional ground is set up “that the state did not except to the ruling of the court sustaining the motion to quash,” which additional ground we dispose of by saying that, even though it should be conceded that it is urged in time, and that it was necessary that the state should specifically except to the judgment from which it has taken the appeal, the bill of exceptions is to be found in the transcript.
The transcript further shows that, in a proceeding which was given the number 14927 of the docket of the district court, the grand jury of Oaddo parish, on November 20, 1914, returned a bill of indictment, in which it charged that defendant—
■“did willfully, feloniously, knowingly, and with intent to cheat, wrong, and defraud, embezzle, appropriate, and convert to the use and benefit ■of one J. R. Brown the sum of $650, the money, property, or funds of the Oil City Bank, a branch of the Continental Bank & Trust Company, a duly incorporated banking institution, organized under the laws of the state of Louisiana, * * * which he, the said Boylston, was in the employ of, and acting as the cashier of said branch bank, * * * which said funds had been intrusted to the care and keeping of the said Boylston. * * * ”
And there is a second count charging J. R. Brown with aiding and abetting, etc.
Defendant moved to quash the indictment on the ground that it charges no offense known to the law, and the further ground (by separate motion) :
“That Act 189 of 1902, particularly the seventh paragraph thereof, is unconstitutional and void, for the reason that said act does not express its object in its title, * * * and, if it does, * * * that then said act has two separate and distinct objects, * * * in violation of article 31 of the Constitution of the state.”
It appears that another indictment was returned on the same day (November 20, 1914), in a proceeding which was given the number 14928 on the docket, and which contained a charge practically identical in terms with that above quoted, save as to the date and amount of the alleged conversion and the fact that it alleges that the money was converted to the use of the firm of Brown & Boylston, composed of defendant and John R. Brown; and it also appears that an indictment had previously been returned against the defendant, Boylston, in a proceeding numbered 14543 of the docket, containing a charge practically identical in terms with the charge above quoted, save as to date and amount of the alleged conversion. It also appears that the same questions of law were presented in the three cases, and that they were argued together, though not consolidated, and that, thereafter the trial judge handed down an opinion and decree, sustaining the identical motion to quash which had been filed in each case, and bearing the title common to all, with the docket number of each case, thus:
“State of Louisiana v. W. H. Boylston.
“Nos. 14543, 14927, 14928.
“District Court, Oaddo Parish, Louisiana.”
*27The bill of exception to the ruling so made and the motion and order of appeal therefrom bore similar headings, and the text of the motion for appeal reads:
“In Ike above numbered and entitled causes [italics by the court], now comes W. A. Mabry, district attorney, and moves the court to grant an appeal, on behalf of the state of Louisiana, to the honorable the Supreme Court of said state, returnable according to law. Wherefore your mover prays that said appeal be granted, and for general relief.”
Each of the transcripts, as filed in this court, contains a copy of the opinion and decree of the district court, of the bill of exception, and of the motion and order of ap,peal, as thus described, and each contains a clerk’s certificate, headed, “State of Louisiana; Parish of Caddo,” to the effect:
“That the within and foregoing pages • * * contain true and correct copies of all orders made, papers filed, and proceedings had, to wit, in suits Nos. 14543, 14927, and 14928, entitled State of Louisiana v. W. H. Boylston, as the same appear on the docket of the First Judicial District Court, Section B.”
It is evident, therefore, that, as the opinion and decree were identified, by title and number, with, and were intended to apply alike to the three cases which had been argued. together, and in which the same motion'to quash had been sustained, so the motion and order of appeal, similarly identified, were intended to be applied to the opinion in its relation to the three cases, respectively; and, as defendant does not, and cannot, well deny the application of the decree to each of the eases, he cannot be heard to deny the application of the motion and order of appeal to the decree, as so applied to the'Cases. Moreover, the state appealed, as it was entitled to do, from the judgment, as entered upon the minutes, and it was so rendered and entered by the judge and the clerk, respectively, from which it follows that, if there were any defect, error, or irregularity in the appeal, resulting from the situation as thus brought about, the consequences are not to be visited on the appellant. C. P. art. 898. We do not consider, however, that there was any greater irregularity in deciding and appealing the cases, as was done, than there was in arguing them together, since the convenience of the litigants was equally subserved, and the cases no more lost their respective identities in one instance than in the other. The cases of “Dayries, claiming,” etc., 19 La. Ann. 73, and Mackin v. Wilds, 106 La. 1, 30 South. 257, to which we are referred, presented totally different conditions, and have no bearing upon the situation here disclosed.
The motion to dismiss the appeal should therefore be denied.