On Rehearing The State of Louisiana is appealing from the judgment of the district court ordering the nolle prosequi of the indictment returned against the defendant, Emile Lecompte, charging him with the crime of manslaughter, for the reason that more than three years had elapsed since the date of the filing of said indictment without the accused having been brought to trial, in pursuance of the provisions of Article 8 of the Code of Criminal Procedure, as amended by Act 147 of 1942.
In order to determine whether the ruling of the trial judge is correct, it is necessary to review the evidence adduced on the trial of the rule, and, since it appears the the state failed to reserve a bill of exceptions to such ruling of the trial judge, there is now before us for consideration the question of whether or not the evidence although brought up with the record in the transcript, can be considered by this Court. Counsel for the State contends that it is not necessary for the State to reserve a bill of exceptions. Defendant's counsel argues that the only means of making evidence a part of the record *Page 142 is by incorporating it in a bill of exceptions.
This identical issue was presented for our consideration in the case of State v. LeBleu, 203 La. 337, 14 So. 2d 17, and was disposed of adversely to the State's contention herein, in a well-considered opinion. In that case, we recognized that under the established jurisprudence of this State "* * * evidence can be brought before this court in a criminal case only by incorporating it in a bill of exceptions. It cannot be considered, even though in the transcript, unless it is annexed to and made a part of the bill that has been timely reserved" (citing authorities); and that "In the absence of a bill of exceptions, the judgment of the lower court will not be reversed except when there is error patent on the face of the record". In commenting on the fact that the appeals in the several cases upon which this jurisprudence was formulated were taken by the defendants, the Court said: "* * * we know of no good reason why the stated requirements should not be equally applicable to the state when appealing. The rule merely states the manner by which an appellant, in order to obtain a review of an adverse conclusion drawn from facts, shall present the pertinent evidence to the appellate court; and the matter of whether or not the complainant is the accused or the state, it seems to us, should be and is of no moment." *Page 143 203 La. at page 340, 341, 14 So.2d at page 18.
After further study of this case, which is before us on rehearing, and, having decided that the findings reached in the original opinion handed down by this Court on November 10, 1947, are not in accord with our views, we come to the conclusion that our decision in the case of State v. LeBleu, supra, is logically sound and in harmony with the law and accepted jurisprudence of this Court and we will, therefore, adhere to the principles therein enunciated. Consequently, the note of evidence found in the record forms no part thereof and cannot be considered by us in determining the issues presented herein.
An examination of the record in the instant case reveals that the defendant was indicted for the crime of manslaughter on November 17, 1942 and that on May 31, 1946, more than three years later, his case not having been tried and it not appearing that the delay was caused by defendant absconding or being a fugitive from justice or that he "* * * escaped trial through dilatory pleas, or continuances obtained by him or in his behalf", it follows that the ruling of the district judge in ordering that a nolle prosequi be entered, under the mandatory provisions of Article 8 of the Code of Criminal Procedure, is correct.
For the reasons assigned, the judgment appealed from is affirmed; the State's right to apply for a rehearing is reserved. *Page 144
McCALEB, J., concurs.
HAWTHORNE, J., dissents and assigns written reasons.
O'NIELL, C. J., dissents, adhering to the opinion and decree written by HOLCOMBE, Justice ad hoc, on the original hearing of this case.