
    No. 6680.
    The State vs. George Bess.
    "Where the counsel o£ a defendant convieted'of manslaughter has in due season presented to the lower judge his written bills of exception to the rulings of the judge on matters of law, and without any fault of the accused or his counsel the bills of exception are absent from the files of the court, a new trial will be granted, even though it appear that the application for a new trial was not made to the lower court until after an appeal had been taken.
    APPEAL from the Fifth Judicial District Court, parish of Iberville. Mb Vea, J.
    
    
      M. N. Ogden, Attorney General, for the State.
    
      Edward B. Talbot and Ohas. 0. Lauve for defendant.
   The opinion of the court was delivered by

Manning, C. J.

The defendant was indicted for murder — was convicted of manslaughter — and sentenced to hard labour for five years, and appealed. The prisoner’s counsel reserved several bills -of exception to the charge of the court, which were prepared for the judge’s signature, and handed to the clerk. The judge obtained them from the clerk for the purpose of assigning his reasons for the ruling, and they have not since been seen. The judge never assigned his reasons, and did not return the bills to the clerk. This was in April 1876.

In May 1877, another judge being on the bench, an application was made for a new trial, reciting the above facts, and stating that “ the counsel of the prisoner requested the judge, E. E. Dewing now residing in New Orleans, to return said bills of exception into court in time for the appeal, and was assured that the same would be done, but they have never been returned.” The counsel also allege that they cannot remember the reasons or grounds of exception, except those set forth in one of the bills. The judge then sitting refused the new trial because an appeal had been taken, and his jurisdiction had ended.

Technically, and perhaps really, this was true, but we cannot refuse to grant a new trial. The prisoner was charged with the gravest of crimes — was convicted of one, the penalty of which was the deprivation of his liberty, and had been sentenced to five years’ confinement. His counsel had excepted in his behalf to what they conceived to be erroneous ruling of the court -in matter of law, — and incorporated their objections in bills reduced to writing apparently in due time, — and by no fault of theirs, or of the prisoner, they were absent from the files of the court. Indeed it is not disputed that they came into the possession of the judge, who was unmindful of the fact that his retention of them was jeoparding one of the dearest rights of a citizen. If we should not grant the new trial, this retention would not only have jeoparded, but have lost to the prisoner his liberty for half a decade. We cannot permit such a result to be accomplished by the negligence and carelessness of a judge.

• A new trial of the prisoner is ordered, and the cause is remanded in order that it be had.  