State v. Dellwood , 33 La. Ann. 1229 ( 1881 )

Motion to Dismiss.

The opinion of the Court was delivered by

Fenner, J.

The motion is based on the ground that the appeal taken on the 3d day of May, 1881, was made returnable to this point, instead of to New Orleans, where this Court was then in session and so remained until the 31st of said month, which is alleged to be in violation of the provisions of Act No. 30 of 1878. This act requires appeals, in •criminal cases,.to be “made returnable within ten days after granting the order of appeal, whenever the Supreme Court may be in session on the return day;” but it contains a proviso “that the judge may, when necessary, fix a different plaoe for the return of the appeal when, in his opinion, such a change will conduce to a speedy determination of the appeal.”

It is manifest that the only discretion confided to the judge is baaed on the consideration of promoting a speedy trial of the appeal, and we find it impossible to see how this end could be promoted by carrying the return day beyond, not only the pending session of this Court in New Orleans, but also the succeeding sessions at Monroe and Opelousas.

Considering, however, that the statute was evidently passed in the interest of persons accused, and that this defendant should not be prejudiced by the error of the judge in fixing the return day, we shall overrule the motion'to dismiss. Chaffe vs. Heyner, 31 An. 595.

In this case it is held that where the order of appeal was the act of the judge, in the exercise of his own discretion, and not based solely on the suggestion of the appellant, a mistake in the return day will not be visited on the latter. Such is clearly the case here; for the judge says in his order, “ by reason of the law and the foregoing application, the appeal is granted returnable,” &c. If the court considered the law and by reason thereof acted, this must be treated as the exercise of his judicial discretion.

This differentiates the case from that of Wooten vs. LeBlanc, 32 An. 692.