
    (119 So. 67)
    No. 29209.
    STATE v. BUCKNER. In re BUCKNER.
    May 7, 1928.
    On the Merits, Oct. 29, 1928.
    Rehearing Denied Nov. 26, 1928.
    
      Ed. I. Mahoney, Ulic J. Burke, and Gaston Rose, all of New Orleans (Farrar & Mahoney, of counsel), for appellant.
    Percy Saint, Atty. Gen., and Eugene Stanley, Dist. Atty., and Niels F. Hertz and J. Bernard Cocke, Asst. Dist. Attys., all of New Orleans, for the State.
   OVERTON, J.

Defendant was indicted for murder, was found guilty without capital punishment, and was sentenced to the penitentiary for life. Before sentence was pronounced, he filed a motion for a new trial, based upon the ground that the verdict rendered is contrary to the law and the evidence, specifying a number of reasons why the verdict was not supported by either. This motion was overruled by the trial judge. Defendant excepted to the ruling, and presented a bill of exceptions to the trial judge for signature, in which he made a part of the bill the testimony of the state’s witnesses and also that of his own, naming these witnesses in the bill. The trial judge signed the bill, but refused to make the evidence taken a part of it, for the reason that this court “has 'repeatedly held that it has not the power to inquire into the sufficiency of the evidence in criminal cases.” This reason the trial judge reiterates in his answer to the rule that issued herein. As a result of this refusal, the evidence taken during the trial has not been sent to this court, and defendant now petitions us for relief.

Section 1 of Act 333 of 1926 reads as follows:

“That the presiding judge of each section of the criminal district court [referring to the criminal district court for the parish of Orleans] shall appoint a minute clerk at an annual salary of three thousand dollars, and an official stenographer at an annual salary of thirty-six hundred dollars. It shall be the duty of such stenographers to report in full the testimony taken in all preliminary examinations; to report in full all cases appealable to the judges of the criminal district court sitting as a court of appeals; it shall likewise be their duty to prepare, make up and furnish to the clerk of the criminal district court the transcript of the testimony taken in all cases' appealed from judgments of the criminal district court to the judges sitting as a court of appeals and the supreme court, as may be required by the clerk of said court in such appeals, and that the said clerk of the criminal district court shall prepare make up, and furnish the transcripts of appeals to the supreme court; and said stenographers shall report the proceedings in the trial- of all capital cases, and in felony cases where the punishment may be imprisonment at hard labor for a term exceeding five years, but only when a written request is made therefor by the attorney for the defense or the district attorneys; also in cases triable by the judge without a jury wherein an appeal may be had to the supreme court when a written request is made therefor by the attorney for the defense or the district attorney, and in such other proceedings as in the opinion of the court may be important and necessary. In cases not reportable, whenever an objection shall be made and a bill of exceptions reserved, it shall be the duty of such stenographer to report the evidence objected to and transcribe the same in ease of appeal. It shall be the duty of each official stenographer in all cases of appeal to the supreme court to furnish to the clerk of the criminal district court three certified copies of the testimony taken by said stenographer, and of the bills of exception to which said testimony shall have been annexed. * * * ”

The charge upon which defendant was tried is a capital charge. Therefore, by the terms of the statute, the court stenographer was required to take the evidence, and, an appeal having been taken to this court, he is required to furnish the clerk .of court with three copies of the testimony taken, obviously for the purpose of transmission to this court as part .of the transcript of appeal. While, therefore, as observed by the trial judge, this court has repeatedly held that it is without jurisdiction to inquire into the sufficiency of the evidence to justify a conviction, and while the evidence, when it reaches here, may be .of no practical service in passing upon the motion, yet as the statute makes it part of the record for the purposes .of appeal, and as the defendant demands that it be incorporated in the record as part of his bill, we think that the evidence should be forwarded to this court.

For these reasons it is ordered that the rule that issued herein be made’ absolute, and that the required three copies of said testimony be sent to this court as part of said bül of exceptions.

On the Merits.

THOMPSON, J.

The defendant appeals from a life sentence for murder, and asks the court to reverse the conviction and sentence on the sole ground that the trial judge erred in overruling his motion f.or a new trial.

The motion for a new trial covers nine typewritten pages, and alleges that the verdict of the jury was contrary to the law and the evidence, in that the jury failed to follow the instructions of the court on the question of reasonable doubt, and failed to give due and proper weight and effect to the evidence introduced to establish an alibi.

There is no question of law involved. N.o complaint is made that the trial was illegal or irregular in any respect, and no suggestion is made that the charge of the court to jury was not proper, ,or that it did not fully cover ever phase of the case as presented before the jury.

A synopsis of the evidence is given in the - motion for a new trial, and all of the evidence both for the state and the defense was attached to the motion, and was brought up to this court by certiorari under the provisions of Act 333 of 1926.

The Constitution of this state has made the jury in all criminal cases the judges of the facts on the question of the guilt or innocence, and has limited the jurisdiction of this court, in criminal cases appealable to it, to questions of law alone.

It is perfectly obvious, therefore, that this court, in .order to grant a new trial on the ground that the jury failed to give proper weight and consideration to the evidence, would have to usurp the power and function vested in the jury, in violation ,of the fundamental law governing trials by jury and appeals in criminal cases.

This the court has so often refused to do, and so repeatedly announced such refusal, that it would seem useless to have to again refer to the matter.

Another matter, set out in the motion for a new trial, and which has not escaped our attention, is directed at remarks made by the assistant district attorney to the jury, to the effect that the accused had a motive in shooting the deceased, because the accused himself was a union man and a member of the Longshoremen’s Association, and the deceased was a nonunion man and not a member of said association.

The trial judge in his per curiam says that the remark ,of the district attorney was to the effect that the motive for the killing was known only to the deceased and ihe defendant, and that when the defendant objected he instructed the jury to disregard the statement of the district attorney.

We find no reversible error in the remarks made by the district attorney, even though the judge had not instructed the jury, which was on his own motion, to disregard the remarks.

It appearing that the defendant was a union man and the deceased was not, the district attorney was well within his rights to have argued that that furnished a motive.

But he did not go that far, and contented himself with the statement that the motive was known only to the accused and the man whom he had killed.

The accused had testified on his own behalf, and had full opportunity of refuting any intimation of a motive on his part for the killing, arising from the facts stated.

The jury, after hearing the evidence, found the accused guilty. The trial judge, who likewise heard the evidence, gave his unqualified approval of that verdict. This court is without right and without power to say that either the jury or the court was wrong in so finding under the evidence.

The conviction and sentence are affirmed.  