
    (42 South. 582.)
    No. 16,233.
    STATE v. SIMMONS.
    (Nov. 26, 1906.
    Rehearing Denied Jan. 7, 1907.)
    1. Criminal Law — Appeai>-Record.
    The testimony taken in a criminal case, though copied in the transcript, will not be considered, if not annexed to and made part of a bill of exception.
    [Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 2803, 2804.]
    2. Same — Bill op Exceptions.
    A note found in the body of such testimony to the effect that certain questions asked had been objected to, and the objections thereto sustained, and a bill was reserved, does not take the place of a bill of exceptions.
    [Ed. Note. — For cases in point, see Cent. Dig. voi. 15, Criminal Law, §§ 2803, 2804.]
    (Syllabus by the Court.)
    Appeal from Eleventh Judicial District Court, Parish of Natchitoches; Charles Vernon Porter, Judge.
    R. H. Simmons was convicted of crime, and appeals.
    Affirmed.
    Scarborough & Carver, for appellant. Walter Guión, Atty. Gen., and William Augustus WilkiDson, Dist. Atty. (Lewis Guión, of counsel), for the State.
   NICHOLLS, J.

The defendant has appealed from the judgment of the district court sentencing him to pay a fine of $325, and in default thereof 30 days in the parish jail.

We find in the transcript what purports to he' all the testimony as adduced on the trial. It was not annexed to and made part of a bill of exceptions, and we cannot consider it. No bill of exceptions appears to have been taken. The note found in the body of the testimony given on the trial by the defendant and by witness Baxter, to the effect that certain questions propounded to these witnesses were objected to by the state, that the objection was sustained, and the bill of exception was reserved, is not a bill of exceptions. State v. Comstock, 36 La. Ann. 309; State v. Haines, 51 La. Ann. 731, 25 South. 372, 44 L. R. A. 837; State v. Napoleon, 104 La. 166, 28 South. 972; State ex rel. Markham v. Read, 52 La. Ann. 271, 26 South. 826.

Binding no ground for the reversal of the judgment appealed from, it is hereby affirmed.

On Application for Behearing.

PROVOSTY, J.

The court did not misapprehend defendant’s cause of complaint. Only the court found that defendant was placing himself on evidence which, though incorporated in the transcript,was not attached to any bill of exception, and which, therefore, this court by a well-settled rule could not consider. State v. Carr, 111 La. 716, 35 South. 839, and cases there cited. Counsel assume this evidence to be part of the record, when it is not, and when the situation is just as if the evidence had not been incorporated in the transcript.

The enforcement of this rule was insisted upon in the brief filed in behalf of the prosecution, and the court enforced it. But now, on this application for rehearing, the district attorney, whether with or without the concurrence of the Attorney General the court is not informed, seems to consent that the court take cognizance of this evidence thus improperly brought up. Whether this belated consent could have had any effect, if given before the decision of the case, is a question which need not be considered. Suffice it to say that it comes too late. The-court cannot establish the practice that, after a case has been submitted for decision and correctly decided, it shall be revived by consent and tried a second time in amended, form.

Application denied.  