
    No. 9798.
    The State of Louisiana vs. Joseph Stephens.
    An appeal returnable at New Orleans on the first Monday in November in a criminal case, which ought to have been made returnable at Shreveport at the opening of the term, will be dismissed, where it is apparent that the return day is suggested by appellant in the body of bis motion.
    It will not relieve the appellant even if the return day was suggested by the judge.
    The error of the judge was accepted and became that of the appellant, and is a fault imputable to him.
    APPEAL from the Criminal District Court for the Parish of Orleans. Homan, J.
    
      M. J. Owmingham, Attorney General, and Lionel Adams, District Attorney, for the State, Appellee :
    ]. An appeal in a criminal case will be dismissed, proprio motu when made returnable on appellant’s suggestion at an improper time and place. 38 Arm. 34, 42, 363; 36 Ann. 865 ; 35 Ann. 980; 32 Ann. 692, 542; 27 Ann. 540.
    
      2. “Violently” is equivalent to “forcible,” and conveys with technical accuracy the idea of force as involved in the crime of rape. Therefore, in an indictment for assault with intent to commit rape, the term “by force” is not sacramental, but may be supplied by the word “violently.” 32 Ann. 336: Archb. P. and P. (Pomeroy’s notes) p. 1011; ■\Vhar. Prec. of Indictment and Pleas, sec. 253 ; Stark C P. 429 ¡ 1 Mood. O. C. 179; 96 and P. 52J ; 1 Whart. Cr. Law, sec. 573; 12 S. and JR 69 • 8 Gray 859; S. P. 67; N. C. 55.
    3. No rule exacts from a judge tlie adoption of the very language suggested by counsel for the accused in instructions to the jury which the latter may seek from the court. Nothing more can be required of the trial judge than to embody in charge the substantial meaning of an established principle of law invoked by the accused. 35 Ann. 1160, 970, 1159,
    
      4. A judge not only may, but should, refuse to charge an abstract legal proposition, which has no bearing on the case on trial, whether the proposition be correct or incorrect. 35 Ann. 970, 774, 1043; 37 Ann. 443, 57G; 38 Ann. 41.
    The hill of exception must show that defendant asked for instructions which had a material bearing on the case, and that ho did not require the court to charge upon abstract principles of law. G Ann. 287; 12 Ann. 679; 22 Ann. 425; 34 Ann. 1084; 35 Ann. 770.
    
      <T. J. Foley for Defendant and Appellant.
   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.

On Application por Rehearing.

' Watkins, J.

This application is made on the sole ground that, in dismissing the appeal, the opinion of the Court misinterpreted Act 30 of 1878, section 4 of which is, as appellant’s counsel insists, as follows, to-wit:

“That all such appeals shall be made returnable to the Supreme Court within ten days after granting the order of appeal, whenever the said Court may he in session on the return day thereof.”

He argues therefrom that, inasmuch as the order of appeal under consideration was granted on the 14th of September, 1886, at a time when this Court was not in session, the same was properly made returnable to this Court at its session on the first Monday in November, in this city, as it was.

This question has never been, in terms, decided; but it has, frequently, in effect.

The word “whenever,” as employed in the Act, is meaningless, and destroys its sense.

Researches have clearly satisfied us that the word used in the text of the original act is wherever.

In construing that statute, as printed in the volume published, this Court has invariably given it effect as written in the text.

In cases quite similar to this one, it has been held that appeals should have been made returnable to this Court at its term first convening thereafter. That ruling is in strict keeping with the spirit of the law, and in harmony with the' evident intention of the legislature.

Rehearing refused.  