The opinion of the Court was delivered by
Bekmudez, C. J.The Attorney General asks the dismissal of this appeal, because made returnable on an improper day, at the suggestion of appellant.
The sentence was passed on the 2d of September, and the appeal was moved for in writing on the 14th following, the court acting on the motion which merely asks for the appeal, suggesting the return day. It is not followed, as motions usually are, by the order of the court granting the appeal, returnable to this Court at the city of New Orleans on the first Monday of November, the day suggested in the body of the motion of appeal, under the signature of counsel for defendant.
The appeal ought to have been made returnable to this Court at Shreveport on the second Monday of October following, it being the place and time where this Court was first to hold sessiou after the passing of sentence. Act No. 30 of 1878, secs. 1, 3, 4; State vs. Laqué, 37 Ann. 853; State vs. Burns, 363.
Counsel for appellant offered to file an affidavit to show that it was at the suggestion of the judge that the appeal moved for was made returnable at Now Orleans.
He was not permitted to do so, for the reason that, conceding the fact, the suggestion instead of being declined was accepted, and thus the error of the judge became that of the appellant, to whom it is imputable.
It is. therefore ordered that the appeal herein he dismissed with costs.
Fenner, J., dissents.