State of Louisiana v. Bryan Clemmons Brief in Opposition to Writ of Certiorari

    SUPREME COURT OF LOUISIANA
Nos, 46,078, 46,079

STATE OF LOUISIANA, EX REL. B. ELTON COX,

VERSUS

BRYAN CLEMMONS, SHERIFF, EAST BATON ROUGE 
PARISH, LOUISIANA.

In Re: State of Louisiana, ex rel, B. Elton Cox, Apply­
ing for Writs of Habeas Corpus, Certiorari, Man­

damus and Prohibition.

Application From the Nineteenth Judicial District Court 
for the Parish of East Baton Rouge, State of Lou­

isiana; Hon. Fred S. LeBlanc, Judge.

ORIGINAL BRIEF ON BEHALF OF THE STATE OF 
LOUISIANA, RESPONDANT IN OPPOSITION TO 

THE WRIT OF CERTIORARI HEREIN 
ISSUED.

JACK P. F. GREMILLION, 
Attorney General.

M. E. CULLIGAN,
Assistant Attorney General. 

SARGENT PITCHER, JR., 
District Attorney.

RALPH L. ROY,
Assistant District Attorney.



SUPREME COURT OF LOUISIANA
Nos. 46,078, 46,079

STATE OF LOUISIANA, EX REL. B. ELTON COX,

VERSUS

BRYAN CLEMMONS, SHERIFF, EAST BATON ROUGE 
PARISH, LOUISIANA.

In Re: State of Louisiana, ex rel, B. Elton Cox, Apply­
ing for Writs of Habeas Corpus, Certiorari, Man­

damus and Prohibition.

Application From the Nineteenth Judicial District. Court 
for the Parish of East Baton Rouge, State of Lou­

isiana; Hon. Fred S. LeBIanc, Judge.

ORIGINAL BRIEF ON BEHALF OF THE STATE OF 
LOUISIANA, RESPONDANT IN OPPOSITION TO 

THE WRIT OF CERTIORARI HEREIN 
ISSUED.

May it please the Court:

Although this Honorable Court granted writs of Cer­
tiorari in Numbers 46,078 and 46,079 relator’s brief covers 
case number 46,078 only, but since both cases involve the 
same issue they will be discussed herein together. Since 
no bills of exceptions were perfected the only matter which 
may be reviewed by this Court is the record and since the 
sole issue in this case is whether or not the accused waived



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the twenty-four hour delay between conviction and sentence. 
The ultimate question may be answered simply by an ex­
amination of the minutes of January 31st, 1962, which 
surround the circumstances at the time of the verdict of 
Court and sentencing of this accused. These circumstances 
appear in the quoted minutes as follows:

WEDNESDAY, JANUARY 31, 1962.

“ Nineteenth Judicial District Court, Criminal Section, 
Honorable Fred A. Blanche, Jr., Judge presiding, was 
opened pursuant to adjournment.

No. 42,199 
No. 42,200 
No. 42,201 
No. 42,202 
State of 
Louisiana 
vs.
B. Elton Cox

The trial of these cases was resumed, 
the accused being present in court repre­
sented by counsel. The remainder of the 
evidence was introduced, and the matter 
was argued by counsel for the State and 
counsel for the accused and submitted to 
the Court.

The Court, for oral reasons assigned, 
found the accused not guilty in No. 42,199 
and found the accused guilty as charged in 
Nos. 42,200, 42,201 and 42,202.

At this time counsel for the accused 
gave notice in open court to the Court and 
to the District Attorney of his intention 
to apply to the Honorable the Supreme 
Court of the State of Louisiana for writs 
of certiorari, prohibition and mandamus 
in Nos. 42,200 and 42,202, and made a mo­
tion for an order of appeal returnable to 
the Honorable the Supreme Court of the 
State of Louisiana in No. 42,201, at which 
time the District Attorney suggested that 
the request was premature. Counsel for 
the accused then stated to the Court that



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he would reiterate his motions immediate­
ly after sentence was passed.

Whereupon, the Court sentenced the 
accused as follows: in No. 42,200 to pay 
a fine of $500.00 and to be confined in the 
parish jail for five months or in default of 
the payment of said fine to be imprisoned 
five months additional; in No. 42,201 to 
pay a fine of $5,000 and to be confined in 
the parish jail for one year or in default 
of the payment of said fine to be im­
prisoned one year additional, this sentence 
to run consecutively with the sentence 
imposed in No. 42,200; and in No. 42,202 
to pay a fine of $200.00 and to be confined 
in the parish jail for four months or in 
default of the payment of said fine to be 
imprisoned four months additional, this 
sentence to run consecutively with the sen­
tences imposed in Nos. 42,200 and 42,201.

Counsel for the accused then gave 
notice in open court to the Court and to 
the District Attorney of his intention to 
apply to the Honorable the Supreme Court 
of the State of Louisiana for writs of cer­
tiorari, prohibition and mandamus in Nos. 
42,200 and 42,202.

On motion of counsel for the accused, 
an order of appeal was entered herein in 
No. 42,201 returnable to the Honorable 
the Supreme Court of the State of Lou­
isiana, on Friday, March 30, 1962.

I certify that the above and foregoing is a true extract 

from the minutes of January 31, 1962.

/ s /  ROSALYNE B. DOBBS
Deputy Clerk of Court”



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It will thus be seen from the minutes that counsel for 
the relator attempted to make his intention known of ap­
plying for writs and also moved for an order of appeal. 
At that time the District Attorney suggested to relator’s 
counsel that his action was premature in that this could 
not be done prior to sentence, thereupon counsel for 
relator answered that he would reiterate his motions im­
mediately after sentence was passed. Thereupon the court 
proceeded to sentence relator in the respective cases. Im­
mediately afterwards relator’s counsel again urged his 
motions; that is his intention to apply for writs and moved 
for an order of appeal which was granted by the court. Of 
course under R.S. 15:540 an appeal lies only from a ruling 
which finally disposes of the case. In a criminal prosecution 
this means after sentence.

State vs. Manuel, 214 La. 998, 39 So. 2nd 445
State vs. O’Neal, 138 La. 977, 77 So. 1011

In the misdemeanor cases where the sentence actually 
imposed is $300 or less the only means by which an accused 
may get a review by the Supreme Court is to apply for 
writs. Article 7, Section 10, Louisiana Constitution 1921. 
Relator’s attorney, as stated in his brief, was anxious to 
obtain a review of these cases, however, the question here 
is whether or not by his actions he waived the twenty- 
four hour delay period between verdict and sentence. It 
is the State’s contention that he has waived it; that when 
he attempted to declare his intentions to apply for writs 
and to appeal he was informed by the District Attorney



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that his actions were premature, whereupon he informed 
the Court that he would reiterate those very same motions 
immediately after sentence; in effect asking the Court to 
pass sentence immediately upon his client. Under State vs. 

Woods 220 La. 162, 557 So. 2nd 902, cited in relator’s brief 
in order to constitute a waiver of the twenty-four hour 
delay between verdict and sentence it is not necessary that 

an accused must expressly request said waiver although 
merely standing mute does not constitute a waiver, how­
ever an accused may, through his counsel, make some dec­
laration or take some action indicating an intention to 

waive this twenty-four hour delay. The Woods case has 
said that this is an effective waiver of that right. It is 
respectfully submitted that the defendant, through his 
counsel and by his actions and declarations in insisting 

upon declaring his intention to apply for writs and in 
appealing, in effect, asked the Court to pass sentence, 
to do that which was necessary in order to make his actions 
effective which was done even after being admonished by 
the District Attorney. Some several days after this in­

cident of January 31st, 1962, relator’s counsel realized 
that by his actions he had forfeited certain rights such as 
the right to have the trial court in the appealable case sign 
bills of exception taken therein, that he had waived his 
right to file those motions which appropriately come after 
verdict and prior to sentence and it was at that time that 
relator’s counsel came into court in an attempt to regain 
those rights that he had previously forfeited by his actions.



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The only way to do this of course, is to do what he is at­
tempting to do in these proceedings, to have declared null 
and void the sentences imposed by the trial court. To grant 
him relief would be to state that an error by counsel or a 
mis judgment or miscalculation by counsel is the basis for a 
reversal. There is no question but that the minutes of Jan­
uary 31st, 1962, clearly show that relator’s counsel in in­
sisting upon declaring his intentions to apply for writs 
and in filing a motion for an appeal in effect informed the 
trial court that he must of necessity sentence his client 
which was done.

Respectfully submitted,

JACK P. F. GREMILLION, 
Attorney General.

M. E. CULLIGAN,
Assistant Attorney General.

SARGENT PITCHER, JR., 
District Attorney.

RALPH L. ROY,
Assistant District Attorney.



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CERTIFICATE OF SERVICE

I, RALPH L. ROY, Assistant District Attorney, in 
and for the Parish of East Baton Rouge, State of Lou­
isiana, hereby certify that a copy of this Original Brief 
filed on behalf of the State of Louisiana in opposition to 
the writs of certiorari herein granted has been mailed by 
U. S. mail, postage prepaid, to all of the Attorney’s of 
record for relator. Postage prepaid, properly addressed to 
their respective office.

RALPH L. ROY

2766-B, 6-62