On Motion to Dismiss.
The opinion of the Court was delivered by
Bermudez, C. J.The Attorney General contends that this court cannot consider the merits of this ease for the double reason, that the motion of appeal was offered and allowed and the transcript filed too late.
The defendant was sentenced on May 31, 1887. The court then adjourned, and reopened only on September 1, following. On that day, the accused, through counsel, moved for an appeal, which was granted, returnable to this court at this place (Shreveport) within ten days, and the transcript of appeal was filed here on October 1. The case was tried in the parish of Orleans (First Judicial District).
The act of 1878—No. 30, p. 56—relative to appeals in criminal cases provides, section 1, that “the party desiring to appeal, shall file his motion, either verbally or in writing, in open court * * * in the *908courts of the First Judicial District, within ten days after the sentence shall have been passed.” (Sec. 1.)
It is therefore clear that, as between the day on which the sentence was passed and that on which the appeal was asked and granted, the court did not sit at all, it was physically impossible for the accused to have filed his motion of appeal m open court.
Had ten judicial days elapsed in the interval, quite a different case would have been presented, as the law prohibits, in negative terms, that appeals be granted after the time specified shall have elapsed. (Sec. 3.)
It is true that the law directs that appeals in such cases shall be made returnable within ten days after the granting of the order of appeal; but the statute clearly contemplates that this must be so, where this court may be in session on the return day. (Sec. 4.)
Now, this court could not be in session at this place at all in September, as, under the law, the term opens here in October.
The law does not require vain things. Of what good would it have been, either to the State or to the accused, that the transcript be filed here within the ten days following September 1.
The ruling in State vs. Madlar, 38 Ann. 390, has not the remotest application to the present one, for the obvious reason that there ten judicial days had expired before the motion of appeal had been made, and likewise after the return day, and here none at all had previously elapsed.
The motion to dismiss is denied.