
    98 So.2d 218
    STATE of Louisiana v. Neelis BROUSSARD.
    No. 43392.
    May 6, 1957.
    On Rehearing Nov. 12, 1957.
    
      Allen C. Gremillion, Crowley, for defendant-appellant.
    Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Bertrand De Blanc, Dist. Atty., Lafayette, Charles T. Everett, Asst. Dist. Atty., Crowley, for appellee.
   SIMON, Justice.

The defendant, Neelis Broussard, was convicted of the crime of simple burglary denounced by LSA-R.S. 14:62, and was sentenced to serve a term of six years in the state penitentiary. During the course of the trial sixteen bills of exception were reserved as a basis for this appeal and upon which the defendant relies for a reversal of the conviction and sentence.

In this Court, the State filed a motion to dismiss the appeal on the ground that the motion for appeal filed by the defendant was not timely.

LSA-R.S. 15 :542 is the controlling law as to the manner and time of perfecting appeals in criminal cases, and provides as. follows:

“The party desiring to appeal in a criminal case shall make in open court a motion for an appeal verbally or in writing, within ten judicial days after the rendition of the judgment complained of; provided, that if before the expiration of the last day upon which an order of appeal can be entered the judge has not acted on the bills of exception tendered him, the accused shall be granted an additional delay to appeal of one day for every day after the tenth day the judge fails to act finally upon the bills of exception tendered him for signature.” (Italics ours.)

The pertinent dates in the instant case as shown by the record reflect that sentence was imposed on June 13, 1956; that the bills of exception were submitted by the accused to the trial judge on June 26, 1956; that the trial judge signed said bills on September 28, 1956; and that the defendant filed his motion for an appeal on November 19, 1956, which motion was denied by the trial court on December 3, 1956.

Upon application by the defendant for writs of certiorari, mandamus and prohibition, we issued an order directing the trial judge to grant to defendant-relator a suspensive appeal or to show cause why such relief should not be granted. In obedience to our order, the trial judge granted a suspensive appeal to the defendant on December 7, 1956. The issuance of these writs by us in no way prejudged the issue presented by this motion to dismiss but simply reserved the constitutional right of the defendant to an appeal. The timeliness of the motion for appeal by the defendant is an issue to be resolved by us.

The fundamental law bearing on the issue presented here is pronounced in the case of State v. Elias, 229 La. 1032, 87 So.2d 521, 522, as follows:

“A judicial day is one ‘on which court is actually in session’ (Black’s Law Dictionary (DeLuxe Ed.) p. 507; State ex rel. Davis v. Judges of First Circuit Court of Appeals, 48 La. Ann. 1079, 20 So. 282; State ex rel. Marcade v. City of New Orleans, 216 La. 587, 44 So.2d 305, and under the mandatory provisions of the Constitution .of 1921, LSA, district courts ‘hold continuous sessions during ten months of the year. * * * ’, Art. 7, § 43. This provision, as construed by the Legislature of 1950, ‘means that district court shall be open always * * *’, LSA-R.S. 13:503, except on Sundays and legal holidays, and during court vacation, LSA-R.S. 13 :- 501 and 13:502; and LSA-R.S. 13:-503 further declares that 'proceedings shall be deemed held in open court while the judge is on the bench. * *

It is seriously and somewhat plausibly contended by defendant that under LSA-R.S. 15:542 he is entitled to one day for every day after the tenth day the judge failed to act finally upon the bills of ex■ception tendered for signature beginning from the day the bills were signed; and •that therefore, under the delays herein, since ninety-three days had elapsed from the day the bills were submitted to the day they were signed, defendant was entitled to ninety-three days beginning September 28, 1956 to file his motion for appeal; and that November 19, 1956 was only fifty-one days from the signatory date and therefore the motion filed on November 19, 1956 was timely.

The Fifteenth Judicial District Court in which the defendant was tried and convicted is in session for ten consecutive months each year, its vacation period being the months of July and August. LSAConst.1921, Art. 7,- Sec. 43.

Defendant timely submitted his bills of exception to the trial judge for his approval and signature on June 26, 1956 which was within the tenth judicial day after the rendition of the judgment complained. However, the bills of exception were not acted upon or signed by the trial judge until September 28, 1956, a period of ninety-three days from the day the bills were submitted to him.

In his computation of the delay, defendant includes judicial days as well as non-judicial days. LSA-R.S. 15:542, however, provides for judicial days; and under defendant’s contention the delay should then be computed to be one day for every judicial day from the tenth day designated in said article until the day the bills were signed.

Thus, omitting the dies non, there were three judicial days in June and twenty judicial days in September, or a total of twenty-three judicial days, before the judge signed the bills.

The defendant complains of the unusual delay on the part of the trial judge in acting on the bills of exception and of his unconscionable failure to notify the defendant or his counsel of the signing of the bills as of that date. Counsel acknowledges having learned thereof some two or three weeks after said bills were signed. However, he failed to file a motion for an appeal until November 19, 1956. Thus, omitting the dies non, thirty-four days elapsed from the date the judge signed the bills of exception to the date of the filing of the motion for an appeal.

Should we uphold defendant’s contention, which we do not, that the defendant had the right to file his appeal within a delay of one judicial day for every day after the tenth day the judge failed to act finally upon the bills beginning from said signatory date, under his own contention, defendant would have been obliged to file his motion for an appeal on October 31, 1956, being the twenty-third judicial day following the signatory date of September 28, 1956. Thus, even under his own contention having filed it on November 19, or thirty-four judicial days after the signing of the bills, the motion was filed too late.

Under our existing law and jurisprudence, however, the defendant was obliged to file his motion for an appeal the day following or one day after the judge had signed the bills of exception; and the next judicial day available to defendant to file his motion was October 1, 1956.

We appreciate the hardship which this law, as interpreted by us, may impose on defendants as well as their counsel. Nevertheless, we are bound to enforce the law as it is written, and any desirable change therein is vested exclusively in the province of the Legislature.

Therefore, we conclude that, having delayed to make his appeal more than one judicial day after the day the judge signed the bills of exception, the defendant filed his motion for an appeal too late; and, therefore, it cannot be considered by this Court.

Accordingly, for the reasons assigned, the appeal is dismissed.

HAMITER, J., concurs in the decree.

HAWTHORNE, J., absent.

McCALEB, J., dissents.

McCALEB, Justice

(dissenting).

I think the construction placed on Article 542 of the Code of Criminal Procedure (R.S. 15:542) by the majority, that the appellant in a criminal case has never more than one day after the judge acts on the bills of exceptions within which to appeal, is in discord with the unequivocal provisions of the statute. The statute, which is quoted in full in the main opinion, plainly provides that, if the judge has not acted on the bills before the expiration of the last day upon which an order of appeal can be entered, “ * * * the accused shall be granted an additional delay to appeal of one day for every day after the tenth day the judge fails to act finally upon the bills of exception tendered him for signature”.

It will be noted that the law grants to the accused an additional delay, spelling out that such delay will be one day for every day after the tenth day. It does not declare, as resolved by the majority, that the delay is only a one day delay after the judge acts. I reiterate, the law gives the accused one additional day to appeal for every day that the judge does not act. And, in computing the number of days of additional time to which an accused is entitled in a case where the judge has not acted within the ten judicial day period, it seems obvious to me that it was not intended that the days following the tenth day deadline should be charged against the accused in the computation because, during the time in which the judge holds the bills under advisement, the accused cannot exercise his right of appeal. Thus, in the instant case, where the judge did not act on the bills for a period of 93 days following the tenth day, the defendant had 93 days after the judge acted within which to take his appeal, if he is going to be given the additional delay accorded by the statute, i. e., one day for each day the judge failed to act. Otherwise, he never is given but one day after the judge signs the bills within which to appeal. If such was the intention of the Legislature, it would have been very easy to accordingly provide.

Nor do I believe that, in computing the delay, judicial days are to be considered except as to the specified ten judicial day period following sentence provided for as the initial delay for taking an appeal. The law grants an additional delay "of one day for every day after the tenth day the judge fails to act”. It does not say one judicial day and, in my view, should not be interpreted as meaning a judicial day, for the judge can act on any day he sees fit whether it be a judicial day or not. Hence, if the accused is to be given the delay the law grants him, he should be given an equal number of days (not judicial days) corresponding with the delay caused by the failure of the judge to act, within which to appeal.

£ respectfully dissent.

On Rehearing

FOURNET, Chief Justice.

After a careful reconsideration of this case we adhere to the conclusion previously reached that inasmuch as the bills of exceptions in the instant case were filed and tendered to the judge within ten judicial days after rendition of the judgment complained of, the additional delay “of one day” to take the appeal granted in such cases under the provisions of Article 542 of the Code of Criminal Procedure (R.S. 15:542), i. e., "of one day for every day after the tenth day the judge fails to act finally upon the bills of exception tendered him for signature,” required the accused to move for an appeal on the next “judicial day” after the judge “acted finally” upon the bills thus tendered. However, we think we were in error in our conclusion that the signing of the bills by the trial judge fixed the time from which this added day given the accused is to be computed. (The emphasis has been supplied.)

It is apt to observe that the commission appointed to draft the Code of Criminal Procedure under legislative and constitutional mandate in 1926 stated, in submitting this draft, that they had “conscientiously striven to write a Code of Criminal Procedure that will abolish unnecessary technicalities, expedite the dispatch of business, and as far as possible, eliminate the ‘law’s delay,’ so that the application of the substantive law to concrete cases will accomplish its ideal purpose, which is a deterrent to the commission of crime. At the same time, we have been careful to safeguard all of the just rights of the defendant.” (The* emphasis has been supplied.)

It was further disclosed that the draft was actually a codification of the then existing law with few changes, the time for taking an appeal not being one of these. As incorporated in this draft the then existing law on that subject was contained in Article 542, which provided that “The party desiring to appeal in a criminal case shall malee in open court a motion for an appeal verbally or in writing, within three judicial days after the rendition of the judgment complained of.” The legislature, however, saw fit in its wisdom to change this to ten judicial days, and, apparently realizing the judge, either through carelessness or by necessity because of the number and complexity of the bills, might need additional time in which to prepare his per curiam to each bill or to certify at the foot of the bill it required no per curiam, as required by Article 504, added the further provision that forms the sole exception to the rigid 10-day appeal rule which reads : “ * * * provided, that if before the expiration of the last day upon which an order of appeal can be entered the judge has not acted on the bills of exception tendered him, the accused shall be granted an additional delay to appeal of one day for every day after the tenth day the judge fails to act finally upon the bills of exception tendered him for signature” (Article 542), and which delay, as interpreted in our original decision and affirmed here, is to run concurrently with the day to day delay of the judge. (The emphasis has been supplied.)

The legislature did not spell out in so many words what is meant by the provision that the accused is given an added day from the day on which the judge finally acts on the bills, but we think a reasonable interpretation of this clause of necessity connotes more than the mere affixing of the judge’s signature to the bills and the filing of them with the clerk or in the clerk’s office, for it is elementary that it would be impossible for an accused to move for an appeal during the additional delay of one day granted him unless he first received notice that the judge had acted on the bills. We think this construction is a reasonable one that gives full effect to the intention of our law-makers in granting the accused the right to have his case reviewed on appeal .by a higher court.

The record discloses the' accused was sentenced on June 13, 1956, and immediately placed in the local jail, where he has remained until this day. On June 26, 1956, within the ten judicial days following sentence provided by Article 542, defense counsel tendered some seventeen bills ■ of exceptions to the trial j'udge for action .and signature. The trial judge not only failed to act within the ten judicial days following the complained of judgment, but also failed to do so on September 6, 1956, • although only two days previously he had assured defense counsel he would perfect the bills on September 6, so that counsel •could then move for his appeal in open ■court. In fact, the bills were not perfected by the judge until September 28, when, out ■of court, he filed them with the clerk, having only that day signed them. Neither the accused nor his counsel was ever given any official notice of this action although counsel had, prior to September and also following the judge’s failure to take the promised action on September 6, repeatedly requested the judge to act on and sign the bills as he was anxious to have them perfected preparatory to taking his appeal. We therefore ■conclude the appeal taken on November 26, 1956, was timely. Accordingly, the motion to dismiss is overruled.

On the merits counsel for the state contends the bills that have been reserved on behalf of the accused cannot be considered by this court as they were not prepared in the manner prescribed by law and the jurisprudence thereunder. We find it unnecessary to consider this contention as it appears on the face of the record the information upon which the accused was tried is fatally defective, and, of necessity, the conviction and sentence thereunder must fall.

The state, in charging the accused might, under our law, have utilized either the long form or short form of information. In this case it obviously followed neither for the information simply accused the defendant with having committed “simple burglary of Cagnina’s Bar, in the City of Crowley, Acadia Parish, Louisiana, in violation of La.R.S. 14:62,” and, under the express provisions of the Code of Criminal Procedure, “no verdict can be of any effect if found upon an indictment so defective as to charge no crime." Article 405, R.S. 15:405. See, State v. White, 174 La. 355. 140 So. 501.

It is obvious from the mere reading of the information in this case that the state intended to follow the short form, yet it is equally obvious that in so doing the results fell short of the requirements of the law since the information failed to describe or particularize the houseboat “or other structure, watercraft, movable as the case may be” purportedly unlawfully entered, and to specify or designate to whom it belonged, as required by R.S. 15:235. See State v. Garon, 158 La. 1014, 105 So. 47; State v. White, 174 La. 355, 140 So. 501; State v. McDonald, 178 La. 612, 152 So. 308; and State v. Straughan, 229 La. 1036, 87 So.2d 523.

For the reasons assigned the conviction and sentence appealed from are annulled and set aside and the accused is ordered discharged.

McCALEB, J., concurs in the decree.

HAMITER and HAWTHORNE, JJ., dissent.

On Rehearing

HAMITER, Justice

(dissenting).

The appeal in this cause, in my opinion, should be dismissed.

As I construe LRS 15:542, “judicial” (not calendar) days are contemplated throughout the entire section; and an accused (when his bills are not timely acted upon) is thereby granted a delay for appealing (after the signing of the bills) of as many judicial days as the judge waited before affixing his signature.

But even under this construction the instant appeal came too late and should not be considered. According to the record', the judge signed the bills on September 28, 1956, which was twenty-three judicial days after they were presented for signature, and on the same date he filed them with the clerk of court — an act that unquestionably constituted constructive (and I think sufficient) notice to the accused of' the signing. Yet the latter did not move for this appeal until November 19, 1956, or until thirty-four judicial days had elapsed after the bills were acted upon (eleven judicial days in excess of the delay to which, he was entitled).

I respectfully dissent.

On Rehearing

HAWTHORNE, Justice

(dissenting).

I am of the opinion that judicial days, are contemplated throughout R.S. 15:542,. and that an accused, when his bills are not timely acted upon, is thereby granted a delay for appealing — after the signing of the bills — of as many judicial days as the judge waited after the tenth judicial day after the rendition of judgment before acting on the bills of exception tendered to him.

In the present case the judgment complained of was rendered on Juno 13, 1956. On June 26, 1956, the accused tendered to the trial judge his bills of exception, and the judge signed and filed the bills on September 28, 1956. However, the motion for an appeal was not made until November 19, 1956, and consequently under my interpretation of R.S. 15 :542, the motion for an appeal filed in the lower court in the instant case was not timely, requiring the dismissal of this appeal. 
      
      . In the repoi't of the commissioners they list as among the changes made in the existing law of criminal procedure that “(18) The trial judge is required to append a per curiam to every bill of exception, unless lie shall certify at the foot of the bill that none is necessary.”
     
      
      . Article 227 of the Code of Criminal Procedure provides that “The indictment [or information] must state every fact and circumstance necessary to constitute the offense * * R.S. 15:-227. (Brackets added.)
     
      
      . The pertinent part of Article 235 provides that simple burglary may be charged thusly: “A. B. committed simple burglary of the houseboat (or other structure, watercraft, movable as the case may be) belonging to O. D.” R.S. 15:235.
     
      
      . This statute, creating the offense of simple burglary, defines it as the unauthorized entering of any vehicle, water craft, dwelling or other structure, movable or immovable, with the intent to commit any forcible felony or any theft therein * *
     
      
      . The court recessed during July and August.
     