State v. Hopkins , 33 La. Ann. 34 ( 1881 )

The opinion of the Court was delivered by

Fenner, J.

The errors charged by defendant are presented in a bill of exceptions, a motion for new trial, and a motion in arrest of judgment..

First. The bill of exceptions and motion in arrest are based on the same ground, viz.: the failure of the judge to deliver his charge in writing after having been requested to do so by counsel for accused, though, before the charge was delivered, the counsel withdrew the request.

Although the counsel states in thd'bill that “he withdrew the request for the reason that it might prejudice the jury against the accused,” it appears that, in so doing, he acted freely and voluntarily, without any suggestion from the judge, who promptly acceded to the request and announced his readiness to comply with it. He had the right to withdraw the requirement, a matter entirely within his discretion, and the judge was not concerned with the motives of his action.

The judge should not, and in this case did not, exhibit any unwillingness to comply with such request, or say or do any thing tending to throw upon counsel any blame for the inconvenience to which the jury might be subjected.

This is as far as the Court went in State vs. Swayse, 30 An. 1323, where the judge said that, “if the counsel insisted, he would adjourn court and prepare the charge.” The Court said “ he should have given the written charge without requiring the counsel to insist upon it. We doubt the soundness of that decision, and certainly shall not extend it.

Second. The motion for new trial is made on no other ground than that the verdict was “ contrary to the law and the evidence.” It is impossible for us to say that the judge erred in overruling it.

It is, therefore, ordered and adjudged and decreed that the judgment appealed from be affirmed.

Levy, J., absent.