Opinion
No. 39582.
December 9, 1949.
APPEAL FROM CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, STATE OF LOUISIANA, HONORABLE J. BERNARD COCKE, J.
Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Herve Racivitch, Dist. Atty., Girard J. Fernandez, Asst. Dist. Atty., William J. Wegmann, Asst. Dist. Atty., New Orleans, for appellant.
Aubrey C. Evans, New Orleans, for appellee.
Defendant John H. Newman was charged in a bill of information with the offense of illegal carrying of weapons, as denounced by Paragraph 1 of Article 95 of the Louisiana Criminal Code. A motion to quash this bill, filed by defendant on the ground that it did not charge a crime known to the laws of this state, was sustained by the trial judge, and the State applied for, and was granted, an appeal to this court.
The article of the Criminal Code under which the defendant was charged provides: "Whoever commits the crime of illegal carrying of weapons shall be fined not more than two hundred dollars, or imprisoned for not more than six months, or both."
Article 7, Section 10, of the Constitution, provides that the appellate jurisdiction of the Supreme Court shall extend to criminal cases on questions of law alone whenever the penalty of death or imprisonment at hard labor may be imposed; or where a fine exceeding $300.00 or imprisonment exceeding six months has been actually imposed.
The penalty of death or imprisonment at hard labor may not be imposed in this case, and, since no trial or conviction was had in the lower court, the defendant has not been sentenced to pay any fine, nor has he been ordered imprisoned. Under these facts, this court is without appellate jurisdiction, and it is our constitutional duty to take notice ex proprio motu of this lack of jurisdiction.
In cases of this kind, this court has consistently refused to take appellate jurisdiction. See State v. Mack Smith et al., 39 La.Ann. 231, 1 So. 452; State v. B. F. Smith, 39 La.Ann. 320, 1 So. 867; State v. Blanchard, 45 La.Ann. 939, 12 So. 933; State v. Kramer, 127 La. 1033, 54 So. 341; State v. Moore et al., 140 La. 722, 73 So. 842; State v. Johnson, 176 La. 371, 145 So. 733; State v. Lejeune, 205 La. 708, 18 So.2d 33.
A reading of the penal provision of Article 95 reveals that, even if defendant had been tried and given the maximum sentence, we should still be without appellate jurisdiction since no fine exceeding $300.00 or imprisonment exceeding six months can be actually imposed.
For the reasons assigned, the appeal is dismissed.