The opinion
DIXON, Justice
(concurring).
I concur in the majority opinion, but would add observations concerning Specification of Error “B.” The defendant complained that there was error in denying his motions to the district attorney and others to produce copies of income tax returns, etc. The possible substantial complaint which can be noted in the bills relative to Specification of Error “B” relates only to the failure of the defendant in his efforts to obtain a subpoena duces tecum .ordering accomplices of defendant to produce their income tax returns.
A request was made during the trial to order an accountant to produce income tax returns. Such information in the hands of an accountant is privileged. R.S. 37:85.
Other requests were made in advance of trial for production at trial. Because of the argument of the district attorney, and the rulings of the judges in the trial court (different judges presided from time to time at pre-trial hearings; one judge presided at the trial on the merits) it is appropriate to note the procedure for obtaining a subpoena duces tecum.
*491 In the Code of Criminal Procedure article 731 provides:
“The court shall issue subpoenas for the compulsory attendance of witnesses at hearings or trials when requested to do so by the state or the defendant. Clerks of court may issue subpoenas except as provided in Articles 739 and 740.”
Article 732 provides:
“A subpoena may order a person to produce at the trial or hearing, books, papers, documents, or any other tangible things in his possession or under his control, if a reasonably accurate description thereof is given; but the court shall vacate or modify the subpoena if it is unreasonable or oppressive.”
The issuance of a subpoena duces tecum is mandatory, and not discretionary. Subpoenas shall be issued by the court or by the clerk. It is true, as argued by the district attorney, that the defendant did not order a subpoena duces tecum from the clerk. It would have been vain, and possibly reprehensible, for him to have done so, the judge having previously refused the request. The relevance of the documents sought to be brought into court is not open to inquiry, unless the subpoena requested is obviously unreasonable or oppressive. If an unreasonable or oppressive subpoena issues, the judge is required to vacate or modify it.
Nevertheless, denial of the defendant’s request for a subpoena duces tecum to produce income tax returns of the defendant’s accomplices was harmless error-Code of Criminal Procedure article 921:
“A judgment or ruling shall not be reversed by an appellate court on any ground unless in the opinion of the court after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right.”
Defendant was not denied the presence of any witness sought. If we assume that the income tax returns sought by the defendant represented the illicit income of his accomplices, it remains a fact that such information would lack substantial probative value. At issue was the guilt or innocence of the defendant. The wrongdoing of the accomplices was by them admitted. Regardless of what their income tax returns showed, each testified that he participated in obtaining funds illegally, in which the defendant shared. If a witness-testifies under oath that he stole, his failure to report the stolen funds on his income tax return would not weaken his confession in court, under oath; reporting stolen funds in full would not show that he did not share them with another person. Defendant has not been substantially prejudiced by his failure to obtain the income tax returns of his accomplices.