
    No. 1406.
    The State of Louisiana vs. James Washington.
    In caso a party is charged with burglary and larceny, in one court, and is tried and found guilty as charged, and thereafter flies a motion for a new trial on the sole ground that the proof adduced was insufUeient to sustain the indictment for burglary: Held, that, at this stage of- the proceedings, it was competent and admissible for the District Attorney to enter a nolle prosequi as to the charge of burglary and prevent a new trial being- granted.
    A PPEAL from the Pierson, J. Eleventh District Court, Parish of Natchitoches.
    D. O. Scarborough and John A. Ogden, District Attorney for the .State, Appellee.
    
      Owmingham & Tucker for Defendant and Appellant.
   The]opinion of the court was delivered by

Watkins, J.

The a'ccused was 'indicted, tried and convicted of the crimes of burglary and larceny, and he thereupon filed a motion for a new trial. Pending the trial of this motion, the District Attorney entered a nolle prosequi as to the charge of burglary, and the trial judge overruled the same, and sentenced him to two years’ imprisonment at hard labor in the State penitentiary, and he has appealed.

For a reversal of the sentence and judgment appealed from, defendant relies exclusively upon his assignment of two errors in this court: (1) that his affidavit for a continuance, to procure the attendance and testimony of an absent witness, was arbitarily and illegally refused; (2) that the District Attorney’s nolle prosequi was illegally entertained and allowed.

I.

To the trial judge’s declination and refusal to grant the defendant a continuance, the defendant’s counsel retained no bill of exceptions, and his mere assignment of a matter of fact as a relievable error is without efficacy. See State vs. Frazier, No. 1395, on the docket just decided.

II.

The motion for new trial recites that the verdict was contrary to law and evidence, in that the only evidence against the accused was the presumption of guilt, arising from the possession of the stolen property, and that it was wholly insufficient and without effect to sustain the charge of burglary. It did not aver that such proof was insufficient to sustain the charge of larceny. But his counsel’s contention is, that inasmuch as- the crimes of burglary and larceny are charged against the defendant, conjunctively, in one count, the allowance of a new trial necessarily and unavoidably results, if the premises be conceded, viz., that burglary was not proven, because the verdict, like the indictment, is one and indivisible.

But the motion for new trial does not involve the structure of the indictment; only the correctness of the verdict found under t. The nolle prosequi does go to the validity of the indictment, and was intended to cure the defectiveness of the' verdict, in the identical particulars complained of in the defendant’s motion.

Now, it is not alleged that the indictment was originally defective, in that it preferred against the defendant both the charges of burglary and larceny in one count; nor is it claimed that it was beyond the competency of the District Attorney to have entered, before trial, a nolle prosequi of either, and gone to trial on the one remaining at issue. And it is not easily perceived how the status of the indictment has been changed by a non-consummated verdict, the finality of which has been suspended by the defendant’s motion. Had the motion been granted and a new trial awarded, the accused would accomplish nothing additional in the way of relief which the nolle prosequi has not already conferred.

This question being one of law, a bill of exceptions was not required to bring it up for review.

Judgment affirmed.  