State v. Smith

Citations

• 124 La. 1035
• 50 So. 842
• 1909 La. LEXIS 586

Syllabus

<p>1. Criminal Law (§§ 595, 603*) — Continuance — Affidavit — Grounds — Remarks of Judge.</p> <p>Defendant’s first complaint is substantially that over his objection he was forced to trial when unprepared. To obtain a continuance, a motion for the same must be made in due form, and supported by affidavit. State v. Underwood, 44 La. Ann. 1114, 11 South. 823; State v. Perique, 42 La. Ann. 403, 7 South. 599; State v. Guillory, 45 La. Ann. 31, 12 South. 314.</p> <p>Even had defendant’s application been in due form, the delay which he was seeking to obtain was evidence to support an issue which he was not authorized to tender under the particular crime charged against him.</p> <p>2. Criminal Law (§§ 755%, 1154*) — Appeal-Review — Arguments of Counsel — Remarks of Judge.</p> <p>The exercise of the discretion of the trial judge in deciding in a criminal case as to how far a district attorney in his remarks to the jury was or was not within the bounds of legitimate argument is entitled to very great consideration by an appellate court. The trial judge knew (while the Supreme Court does not) the circumstances under which they were made and the likelihood or not of those remarks being legally prejudicial to the defendant. State v. Romero, 117 La. 1003, 43 South. 482.</p> <p>The trial judge in his charge to the jury, while defining the crime of embezzlement with which defendant was charged, made use of an illustration of what an embezzlement ivas which it would appear brought defendant’s case directly under the evidence. Defendant urges that by so doing' the trial judge prejudiced the jury and commented on the evidence. It is not claimed that the illustration given was not legally correct. If it was, it was for the jury to determine whether under the evidence the defendant’s case fell under it or not. The judge made no comment in the evidence. State v. Leñares, 12 La. Ann. 226; State v. Markham, 15 La. Ann. 498.</p> <p>(Syllabus by the Court.)</p>