# State v. Barnes > Supreme Court of Louisiana · February 24, 1971 · 257 La. 1017 URL: https://www.frixlaw.com/law-library/cases/9679235 ## Case - **Full name:** STATE of Louisiana v. Kevin B. BARNES - **Court:** Supreme Court of Louisiana - **Decided:** February 24, 1971 - **Citations:** 257 La. 1017; 245 So. 2d 159 - **Precedential status:** Published - **Opinion:** Dissent by Dixon - **Judges:** Sanders, McCaleb, Tate, Dixon, Barham - **Cited by:** 24 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9679235 ## Opinion text DIXON, Justice (dissenting). In former times evidence was not -alcen down in a criminal trial. When a defense objection was overruled, the defendant then reserved a bill, the trial stopped, a reporter was called, and the evidence surrounding the bill was taken down. Under such circumstances, the rule became well established that the evidence surrounding the objection and the bill be included in the formal bill of exception. If the evidence was not there, within the bill, it was not in the record, supposedly. As time passed and the evidence began to appear in the record on appeal as a transcript of the entire testimony, the rule nevertheless received continued enforcement. After the intervention of the federal courts in post conviction remedy cases, the transcript of testimony became essential. (See Comment (d) Article 844, Code of Criminal Procedure). The statutory basis for including the evidence in the bill as a prerequisite for appellate review of the bill is now Article 844, subd. B, Code of Criminal Procedure: “A formal bill of exceptions shall contain only the evidence necessary to form a basis for the bill, and must show the circumstances and the evidence upon which the ruling was based. When the same evidence has been made part of another bill of exceptions, the evidence may be incorporated by reference to the other bill. Evidence as to guilt or innocence can only be taken down and transcribed as provided by law.” We need not interpret the first clause in 844, subd. B, C.C.P. as requiring the inclusion of all the evidence necessary to form the basis for the bill. This clause seems to fix a maximum for the evidence included in the bill; otherwise, the second clause, which does fix a minimum standard, would be redundant. The source article was 500 C.C.P. (1928) : “The bill of exceptions must show the circumstances under which and the evidence upon which the ruling complained of is based; and the accused is without right to have taken down any evidence except that which is necessary as a basis for his bill; he can not require that any evidence be taken down that appertains to guilt or innocence.” *1065 The source article, it is true, states that “the bill of exceptions must show the circumstances under which and the evidence upon which the ruling complained of is based; * * The current article also requires that the bill “must show the circumstances and the evidence upon which the ruling was based.” There is, however, more than one way to “show the evidence.” The circumstances and the evidence surrounding each bill of exceptions are clearly shown in the record before us. The record before us consists of two volumes of legal sized pages. Because of Rule I of this court, the first volume contains only 250 pages. The second volume contains pages 251 through 274. Bill of Exceptions No. 17 is on page 78. It is not considered by this court for the reason that the general charge to the jury is not made a part of the bill of exceptions. According to the index, the judge’s charge to the jury appears on page 33. The charge is on page33, continues to its completion on page 37 and appears again at pages 264-271. The requested charges of the defendant appear on page 31,' and are properly indexed. Bills numbered 14 and 16 this court refuses to consider because the bills do not show the evidence on which they are based. Each bill bears a heading, pursuant to the rules of this court (Rule I, Section '13), which refers-to a transcript page number. Bill No. 14 refers, in its heading, to transcript page number 231. The bill was reserved to the introduction of State Exhibit No. 1. 'Page 231 of the transcript shows the reservation of the bill of exceptions; immediately preceding the reservation of the bill is the testimony surrounding the introduction bf State Exhibit No. 1. As long as Bill 14 is in the record, a judge cannot hold it in his hand without holding all the testimony surrounding it. The exhibit itself is before us. Bill No. 6 was reserved to the overruling of a motion to suppress evidence. According to the index, the note of evidence taken on the motion to suppress begins at page 81. The index is correct. When the record indicates that a conviction should be affirmed, this court has not, to my knowledge, limited its inquiry to the evidence included in the bill. If the record is before us, and other evidence, not included in the bill, refutes the defense objection, we do not, and should not, hesitate to base our ruling on that other evidence. We only restrict our inquiry on appeal to evidence relied on by the appellant; our inquiry on behalf of the appellee is unrestricted. There is no longer any utility in the perpetuation of the rule that the''formal bill of exceptions must contain within it the evidence surrounding the fuling -complained of. The record before ús fs 'complete. It is correctly iand e-f ficiently in *1067 dexed. The only utility of the rstrictive rule is to trap the unwary civil lawyer unaccustomed to the perfection of appeals in criminal cases. The rule, in my opinion, is antiquated and outmoded, serving no useful purpose today. I find no reasonable relationship between the rule and its stated objective. I cannot subscribe to it. The rule should be changed to insure for the defendant a fair chance that his points on appeal will be reviewed. On the merits of the appeal, I subscribe to the views expressed by Justice TATE. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9679235. Public record. Not legal advice.