author: HOBSON, Justice.

text:
    FELLOWSHIP FOUNDATION, Inc., a corporation not for profit organized and existing under the laws of the State of Florida, Appellant, v. Cornelia S. PAUL, as Tax Collector of Volusia County, Florida, Warren Jackson, as Tax Assessor of Volusia County, Florida, and C. M. Gay, as Comptroller of the State of Florida, Appellees.
    Supreme Court of Florida. Special Division A.
    April 11, 1956.
    Millard B. Conklin, Daytona Beach, for appellant.
    Raymond, Wilson & Karl, Daytona Beach, for appellees.
   HOBSON, Justice.

This is an appeal by the plaintiff from a summary final decree for defendants.

In this.suit plaintiff sought to enjoin the assessment and collection of taxes upon its property located at Ormond Beach and known as “The Casements” on the theory that such property was being used exclusively for religious, charitable and educational purposes. The defendants, who were the tax collector and tax assessor for Volusia County, were temporarily enjoined from assessing and collecting taxes for the years 1952 and 1953. After the suit was filed, defendants took the deposition of one C. A. Maddy, vice president of the plaintiff corporation. The summary final decree was based upon this deposition and an affidavit in behalf of the plaintiff by one C. C. Erhardt. The chancellor found that the plaintiff did not use the property for charitable purposes and that there was no dispute as to any material fact. He dissolved the temporary injunction and entered judgment for the defendants.

At the hearing on defendants’ motion for summary final 'decree, it appeared that the original Maddy deposition had been in the possession of previous attorneys of record for the plaintiff, and could not be found. Counsel for defendants submitted a copy of the deposition to the court and suggested that it be used as a substitute for the original. The chancellor ruled that he would consider the copy of the deposition as the original if such were agreeable to the attorneys for all parties, whereupon counsel for the plaintiff and one of the attorneys for the defendants agreed that the copy of the deposition be substituted for the original. These facts are evident from the supplemental transcript of the record, which includes an affidavit by the chancellor.

.Appellant now contends that the copy of the Maddy deposition should not be considered by this court and should not have been considered by the chancellor. We think it abundantly established that the plaintiff consented to the use of this copy below and waived any objection which he might 'have- raised. -It is not contended that the copy do'es not truly represent the testimony1 as given. The objection is entirely technical, but the authorities relied upon are’ not in point and it must fail.

After the hearing on the motion for summary final decree the plaintiff filed several affidavits in opposition to the motion, but the chancellor recites in his findings that these affidavits were not considered because leave, of the court to file them was neither requested nor granted. Plaintiff contends that this ruling was error, but because of the view we take of the case it is unnecessary to resolve this question.

Appellant contends that it was error in any event to enter a summary final decree for the defendants because there were unresolved issues of material fact. As stated above, the summary final decree was predicated wholly upon the Maddy deposition and the Erhardt affidavit. Erhardt stated in his affidavit that he was at the time of making the affidavit and during the year 1952, an occupant of The Casements property and that Fellowship Foundation, Inc., the plaintiff, operated a school on the property during the year 1952, that the students of plaintiff’s school were housed and fed on the property, as was the staff of teachers, that classes were held, and that students were graduated from' the school in 1952. He further describes the personnel and curriculum, and goes on to say that students were accepted into the school on a charitable basis and that the school was operated not for profit and always operated at a loss. This affidavit is vague and of slight probative value in establishing the plaintiff’s case, but it contains no admissions which could be used against the plaintiff and in support of the summary final decree for defendants.

This leaves us to consider the Maddy deposition and exhibits thereto as the sole support for the summary final decree. We have considered this deposition and its exhibits at length: Apparently Maddy was deposed as an individual witness. It does not appear that the plaintiff corporation was deposed by and through Maddy as a corporate officer. We seriously doubt, therefore,' whether admissions made by Maddy in'the course of his deposition could bind the plaintiff corporation in any event. It has been held that a corporation is not bound by the declarations of its officers or agents while on the witness stand, on the ground that while testifying they are not acting for the corporation, but for themselves individually. Saltmount Oil Corp. v. Imperial Crown Royalty Corp., Tex.Civ.App., 98 S.W.2d 418; 20 Am.Jur., Evidence, Sec. 600, p. 514. But even if we pass over this point, we do not find it conclusively established by the Maddy deposition that there is no genuine issue of material fact remaining.

The case is to be distinguished from Lewis v. Lewis, Fla., 73 So.2d 72, where the record contained many highly relevant and controlling admissions made by an individual plaintiff upon deposition which proved conclusively that he had no case to be tried. We there held that he could not later, in opposition. to a motion for summary judgment made by the defendant, attempt to create issues of fact in disregard of admissions which he had previously made.

From the cold record, Maddy appears to have been an evasive witness and his testimony is vague and uncertain. He professed not to remember a good many salient features of the operation of the plaintiff corporation at The Casements property, although he apparently managed the plaintiff’s several enterprises. He was also short of memory when records were sought to be produced, but he never testified that no records were in existence. Obviously, if Maddy had testified in this manner for the plaintiff and the close of the plaintiff’s case had been reached, a judgment for defendants would necessarily follow. But we are here concerned with a summary judgment for defendants which must be differently based. The very vagueness of Maddy’s testimony which would render it insufficient to support a judgment for the plaintiff now works in the plaintiff’s favor through its insufficiency to support a summary' judgment for the defendants.

Generally the amended complaint alleged that The Casements property was purchased for the purpose of providing a location for plaintiff’s school, for the establishment of a retirement home for elde,rly Christian people, and for the carrying on of educational, religious and charitable activities, and that the property was so held and used from December, 1951, throughout 1952 (the year for which the taxes involved in this suit were levied), and during 1953 and thereafter. These allegations were denied in the answer. The complaint alleged that a school was operated upon the property during 1952 and the answer denied this.

The chancellor found that the property was operated as a retirement home under a plan whereby rooms were leased for life to the occupants at a fixed sum and that prices ran as high as $10,500 for such a lease. He further found that “the z-ec-ord does not disclose a single charity case, or the case of a person who obtained a room without paying for it.” But the record is not complete, and does not conclusively show that there were not charity cases. The fact that a charge was made for rooms is not necessarily fatal to the contention of the plaintiff. See Miami Battlecreek v. Lummus, 140 Fla. 718, 192 So. 211, wherein we held that a combination hospital, educational and scientific corporation might be tax-exempt even though patients who were able to pay were charged for services rendered, and Orange County v. Orlando Osteopathic Hospital, Fla., 66 So.2d 285, wherein we reaffirmed this holding. And F.S. Sec. 192.06(3), F.S.A., if its ‘ affirmative requirements . were met, would authorize the exemption claimed “•provided, not more than seventy-five per cent of the floor space of said building or property is rented and the rents, issues and profits of said property are used for the educational, literary, benevolent, fraternal or charitable purposes of said institution.” It does not appear from this record what percentage of the floor space was rented, or just what became of the proceeds.

Maddy testified that he had no “definite record” of people who were fed and housed at The Casements free of charge in 1952, but he testified there were many of such charity cases. Later in his deposition, however, he testified that a Miss Boland would know how many were fed but that “to the best of my knowledge” there was no record of people permitted to stay at The Casements overnight without paying anything. Maddy also testified that there was a long religious convention held at The Casements, probably in 1952. Maddy testified that “to date”, i. e., to the date of the taking of his deposition, he “presumed” that “roughly $160,000” had been taken in by the corporation for rooms at The Casements. He also testified that “we have paid more than $100,000 in cash besides insurance and taxes and upkeep and improvements out of these amounts and contributions that have conie in.” The chancellor found that the plaintiff was not able to produce any record of donations received for charitable purposes. Maddy testified, however, that such contributions had been received.

The chancellor found that the plaintiff operated an “alleged school on the property in question from January 14, 1952, until May of 1952 ,:* * * ”. Maddy’s testimony regarding this school was generally vague, but he did testify unequivocally that such a school was in existence. The chancellor found that this school could not be considered for tax purposes because the status of the property for assessment for taxes is determined as of January 1 of each year, and this school commenced on January 14, 1952. From the whole Maddy deposition, however, it appears that to the best of Maddy’s recollection the students either registered or commenced to take instruction on January 14th, although the school might have been ready for their attendance earlier than that. As plaintiff-appellant points out, the first week or weeks in January are generally counted as vacation time in a school. It appears that this school was transferred from Sanford. We do not consider the record on this point sufficiently complete to justify a finding that the school commenced using The Casements property only-after January 1, 1952. Although, as. the chancellor found, the school was not accredited, we do not consider this necessarily fatal, for the statute under which the exemption is claimed, F.S. Sec. 192.06(3), F.S.A. does not specify that a school must be accredited to become tax-exempt. The chancellor further found that “if there was a school, it was one in name only”. Maddy testified that there was an actual school. The finding of the chancellor tends to impeach Maddy’s credibility, which cannot be done upon the cold record of a deposition on an application for summary final decree.

In view of the issues raised by the amended complaint and answer thereto, we find that from the Maddy deposition and the Erhardt affidavit the chancellor could not have had sufficient information about the use to which The Casements property was put during the critical period to' conclude, as he did, that the “undisputed testimony shows that the plaintiff did-not use the property for charitable purposes.” It follows that under Orange County v. Orlando Osteopathic Hospital, supra, 66 So.2d 285; Miami Battlecreek v. Lummus, supra, 140 Fla. 718, 192 So. 211; and Lummus v. Florida Adirondack School, 123 Fla. 810, 168 So. 232, there are genuine issues of material fact to be tried. In making this determination we do not mean to suggest any view on the merits of the case.'' We mean only to hold that as a procedural matter it was error to grant the motion for summary final decree upon this record, in' that it was not conclusively made to appear,without a genuine issue remaining to be resolved, that the property' involved in this' litigation was not entitled to tax exemption-under F.S. Sec. 192.06(3), F.S.A.

The judgment appealed from must be, and it is hereby, reversed and the cause remanded for further proceedings not inconsistent with this opinion.

DREW, C. J., THORNAL, J„ and MILLEDGE, Associate Justice, concur.


source: Caselaw Access Project

author: THORNAL, Justice.

license: Public Domain

text:
    FLORIDA LIVESTOCK BOARD, a Body Corporate, Appellant, v. W. G. GLADDEN, Appellee.
    Supreme Court of Florida. Special Division A.
    April 11, 1956.
    Halley B. Lewis, Arcadia,' Richard W. Ervin, A tty. Gen., and Fred M. Burns, Asst. Atty. Gen., for appellant.
    Wayne E. Ripley, Jacksonville, for ap-pellee.
   THORNAL, Justice.

The Florida Livestock Board appeals from a final judgment awarding a sum of money to Gladden for destruction of a herd of hogs afflicted with viscular exan-thema.

The sole question now here is whether the Florida Livestock Board, a state agency, is liable' under the facts and applicable statutes for interest on the judgment.

The original'judgment, dated October 26, 1953, in the amount of $12,562.46, was affirmed by this court in Florida Livestock Board v. Gladden, Fla.1954, 76 So.2d 291. After the mandate was filed, the Circuit Judge allowed the Board certain credits for previous -payments to Gladden and thereupon .entered- judgment against the Board for' $8,406.71, plus interest at the legal rate from October’ 26, 19f>3, the date of the original judgment, to February 8, 1955, the date of the judgment 'from which this appeal is taken. We hold that the Circuit Judge ruled correctly.

The appellant contends that the Florida Livestock Board aS an agency of-the state is, not liable for interest in the absence of a specific statute or a. lawfully binding-contract providing for interest. The ap-pellee contends that Section. 55.03, Florida Statutes, F.S.A., which authorizes six per cent interest on judgments,, applies to all judgments and makes no exception in favor of the state., . ■ '.

The conclusion we here announce is grounded upon the particular statute which we are called upon to consider in the matter before us. This statute is Section 585.03, Florida Statutes, F.S.A., and reads in part as follows:

“The said Florida Livestock Board shall be a body corporate, having the usual powers of a body corporate for all purposes necessary to further carry out the provisions and requirements of Chapter 585, including the right to contract and be contracted with, to sue and be sued, as well as all other rights and immunities usually enjoyed by bodies corporate. Said Board shall have a corporate seal to be selected by it.” (Emphasis added.)

While we pretermit any discussion of the-nature of the Florida Livestock Board as a state agency, it is clear from the quoted statute that the Board is specifically authorized “to sue and be sued”. When the Legislature authorized suit against the Livestock Board, it placed no restriction whatever on the nature of the suit or the amount of the recovery.

Under Article III, Section 22, of the Florida Constitution, F.S.A., the Legislature is empowered to authorize suits against the state or any of its agencies. When suit is authorized against a state agency without limitation as to interest, the authorizing statute may by reasonable intendment be construed to permit the award of interest against the state agency, as a legal incident to the judgment even though the payment of interest 'by the state is not expressly provided by the statute.' Where statutory authority to sue a state agency is given, payment of interest on a claim adjudicated under'the statute may be impliedly authorized when the nature of the claim and the object designed in permitting such suits against the state or its agency' warrant such implication. We are of the view that the ' implication is1 warranted' in the case before us.

This case is controlled by our decision in Treadway v. Terrell, 117 Fla. 838, 158 So. 512, 519. There the court was called upon to construe Chapter 15022, Acts of Florida 1931, F.S.A. § 341.25 note, authorizing suits at law and in equity against the State Road Department arising from contracts for work done. The statute did not specifically provide for recovery of interest on any such claim but it did specifically authorize a suit against the State Road Department on stated claims. It was there held:

“The statute authorizes suits against the state road department on any claim arising under contract for work done since June 7, 1923, and the contracts for road and bridge construction which the state road department is authorized to make may be of such a nature that the payment of interest on amounts due and unpaid by the state may be necessary to do complete justice between the parties; and, in the absence of a contrary statutory intent, it may be assumed that, in authorizing suits against the state road department, the statute intends that interest may be adjudged against the state in proper cases where it is necessary to do complete justice and to accomplish the purposes of the statute in authorizing suits against the state on any claim arising under contract for work done since June- 7, 1923.”

We see no reason,to apply a different rule to the situation now before us. ■ Ap-pellee’s hogs were destroyed in the public interest to prevent the spread of the disease. Destruction of his property was pursuant to the order of the State Board. Complete justice suggests that he shpuld have been paid long ago. The authorities cited by the appellant to support its position are adequately distinguished in Treadway v. Terrell, supra.

Finding no error, the judgment appealed from is

Affirmed. , .

DREW, - C. J., THOMAS, J„ and PRUNTY, Associate Justice, concur.


text:
    Charles BORINSKY and Leon Garfinkel, Petitioners, v. Joe COHEN, Realtor, Respondent.
    Supreme Court of Florida. Division A.
    April 11, 1956.
    Warren, Klein & Moore, Miami Beach, for petitioners.
    Mayerson, Greenberg & Cohen, Miami Beach, for respondent.
   THORNAL, Justice.

By petition for certiorari Borinsky and Garfinkel who were defendants below seek review of an order of the Chancellor transferring to the law side of the court a complaint in equity setting forth two separate alleged “causes of action” filed by the respondent Cohen as plaintiff below.

Cohen, a real estate broker, filed suit in equity alleging that one Jaffe had listed with him for sale his interest in a motel and had contracted to pay Cohen the usual commission for procuring a purchaser ready, able and willing to buy. Cohen alleges that the property was ultimately purchased by Borinsky and Garfinkel as the result of his efforts but that he was deprived of his commission because (1) Borinsky and Garfinkel wrongfully refused to permit him to perform under his brokerage contract as alleged in the first count, and (2) because the purchasers after receiving the services of Cohen dealt directly with the seller, Jaffe, purchased the property for some unstated price acceptable to Jaffe less the usual commission that would have been paid to the broker and “wrongfully, intentionally, fraudulently and maliciously informed the said” Jaffe that the plaintiff as a broker was not involved in the transaction. This was the substance of the second count.

Petitioners as defendants below filed a motion to dismiss, contending that the complaint failed to state a cause for relief, and also contending that there was an adequate remedy at law. The motion was addressed to the complaint as a whole and not to the alleged “causes of action” severally. The trial judge treated the motion to dismiss as a motion to transfer the cause to the law side of the docket but declined to dismiss the complaint. Petitioners, as defendants, were allowed twenty days within which to file an answer. A review of this order by certiorari is prayed.

We note that the seller was not a party to the cause. By the first count the broker alleged nothing more than that he had been employed to find a purchaser, that he had found a purchaser, that the transaction was closed agreeably to the seller, but that the broker had not been paid his commission. We find no basis for a cause of action against the purchasers in this count. The brokerage contract was between the seller and the broker and if the transaction was closed by the seller 'with the purchasers on terms according to the listing with the broker, then the broker still has his right of action, if any, against-the seller but not against the purchasers with whom he had no contract. This conclusion is adequately sustained by our decisions in Robertson v. Williams, 158 Fla. 163, 28 So.2d 114; and Nicol v. Bressler, 159 Fla. 668, 32 So.2d 457. As an equity cause this case is not even remotely similar to Moss v. Sperry, 140 Fla. 301, 191 So. 531, 125 A.L.R. 909.

As to the second count, however, the allegations are different in that this count specifically reaverred all allegations of the first count and adds allegations of tortious interference by the purchasers with the contractual right between the broker and the seller. It is generally alleged that the purchasers wrongfully and fraudulently informed the seller that the broker had nothing to do with the transaction and by such alleged fraud succeeded in purchasing the property for some unstated purchase price less the usual and customary real estate commission that otherwise would have been paid to the broker .for the service that he allegedly rendered. As we understand this count, respondent attempts to allege in substance that the purchasers had unjustly enriched themselves at the expense of the broker to the extent of the reduction in purchase price by fraudulently representing that the broker was not instrumental in bringing about the transaction. As so construed, the second “count” might conceivably be strengthened by allegations adequate to support a cause of action at law. .However, as set forth in this complaint 'the so-called “second cause of action” is fatally insufficient. See Ringler v. Ruby, 117 Or. 455, 244 P. 509, 46 A.L.R. 245; Allen v. Ramsey, 170 Okl. 430, 41 P.2d 658, 97 A.L.R. 1259; Keviczky v. Lorber, 290 N.Y. 297, 49 N.E.2d 146, 146 A.L.R. 1410; including Annotations to all three cases in A.L.R.

The complaint, therefore; does not state a claim for relief either in equity or' at law and the petitioners should not have been required to answer it. The prayer of the petition is, therefore, granted, the order appealed from is quashed, • and ■ the cause is remanded with directions to the trial court to dismiss the complaint, without prejudice to the respondent to institute such action at law as to him might seem appropriate.

DREW, C. J., and TERRELL and HOB-SON, JJ., concur.


author: TERRELL, Justice.

text:
    NATIONAL EXTERMINATORS, Inc., a Florida corporation, Theodore Bramson and Corinne Bramson, Appellants, v. TRULY NOLEN, Inc., a Florida corporation, Appellee.
    Supreme Court of Florida Division A.
    April 11, 1956.
    Morehead, Forrest, Gotthardt & Orr, and Melvin N. Greenberg, Miami, for appellants.
    Bernard B. Weksler, Miami, and Victor M. Cawthon, Tallahassee, for appellee.
   TERRELL, Justice.

August 9, 1950, National Exterminators, Inc., Theodore Bramson and Corinne Bramson, hereinafter referred to as “National,” sold to T. N. Insecticides, Inc., certain fumigating equipment and supplies. August 9, 1950, National Termite Control Company, Inc., sold its fumigation business in Dade County to T. N. Insecticides, Inc. December 1, 1951, T. N. Insecticides, Inc., transferred all its right, title and interest in the aforementioned agreements to appellee, Truly Nolen, Inc., hereinafter referred to as “Nolen.”

August 11, 1954, Nolen filed complaint in the Circuit Court of Dade County praying for injunction and other relief against National for breach of the agreements of August 9, recited in the preceding paragraph. August 24, 1954, the court entered the following injunctive order:

“Ordered, adjudged and decreed: That the Defendant, National Exterminators, Inc., and its agents, servants and employees, and each and every of them, be and they hereby are enjoined and restrained from in ’any manner continuing, engaging, or being interested or employed in, either directly or indirectly, in conducting a fumigation (otherwise known as 'gassing’) business and soliciting or interfering with fumigation customers or prospective customers of the plaintiff within Miami, Florida, Miami Beach, Florida, or any place within a radius of ten (10) miles therefrom, and thát this injunction pen-dente lite be in full force and effect until the final hearing and determination of this cause.”

Answer was seasonably filed by National and August 31, 1954, stipulation for injunction was entered into by Nolen and National pursuant to which a final decree imposing permanent injunction was entered. ■ June 30, 1955, motion for rule to show cause why National should not be held in contempt for violation of the decree of August 31, 1954, was filed by Nolen. Order to show cause was duly entered, to which National filed its answer. At a hearing on the merits, the chancellor entered the following contempt order:

“Ordered, adjudged and decreed that the said National Exterminators, Inc., a Florida corporation, Theodore Bram-son, and Corinne Bramson are guilty of contempt of court in violating the Final Decree of August 31, 1955, and it is further
“Ordered, adjudged and decreed that in lieu of a commitment or a punitive or compensatory fine or other con-. tempt measures, the period of injunction is extended for a period of one (1) year from August 9, 1955, to and including August 9, 1956, with all other terms and provisions of said Final Decree to remain unaltered, and it is further
“Ordered, adjudged and decreed that this court shall retain jurisdiction of this cause and the parties.”

July 26, 1955, the court entered an order modifying this contempt order of July' 12, 1955, as follows:

“Ordered,, adjudged and decreed that National Exterminators, Inc., a Florida corporation, Theodore Bramson and Corinne Bramson are guilty of contempt of this court in violating the Final Decree of August 31, 1954, as above, set forth; and it is thereupon further
“Ordered, adjudged and decreed that the period of injunction set forth in the aforementioned Final Decree of August 31, 1954, go into effect again April 23, 1956 and until July 9, 1956, in accordance with the terms and provisions of said Final Decree; it is further
• “Ordered, adjudged and decreed that the defendants pay to Bernard Wek-sler, attorney for the plaintiff, the sum .of $750.00 ás and for attorney’s fee and that the defendants pay to the Registry of the. Court the sum of $1,-000.00 to be -held in the Registry ,6f the Court' pending the, further order of this court. Both of the aforementioned sums are to be paid within five days of the date hereof. Except as here stated the order of July 12, 19S5, remains unchanged and is effective * % * if

The first point with which we are confronted is whether or not the evidence was sufficient to adjudge National guilty of contempt for violating the final decree of August 31, 1954.

It is contended this question should have a negative answer because (1) none of the acts and conduct of National constituted a violation of the injunction of August 31, 1954; (2) even if some of the acts and conduct of National may be construed to be in violation of the injunction of August 31, 1954, there was no “intent” on the part of National to violate the injunction. It appears that appellant was enjoined from “in any manner continuing, engaging, or being interested or employed in, either directly or indirectly, in conducting a fumigation (otherwise known as ‘gassing’) business and soliciting or interfering with fumigation customers or prospective customers of the plaintiff within Miami, Florida, Miami Beach, Florida, or any place within a radius of ten miles therefrom.”

The court based his contempt order on the fact (1) that appellant National listed itself in a Miami telephone book as one doing termite proofing in such manner that ten percent of the calls elicited by the advertisement concerned fumigation; (2) appellant responded to fumigation inquiries by submitting bids and estimates on the work and advising that it could do it after August 9; (3) appellant submitted bids on fumigation work knowing that appellee was bidding for the same work. These and other findings which we do not detail are ample to show a violation of the injunctive order. In view of sec. 38.22, Florida Statutes, F.S.A.; Ex Parte Earman, 85 Fla. 297, 95 So. 755, 31 A.L.R. 1226; Fernandez v. Kellner, Fla., 55 So.2d 793; Seaboard Air Line R. Co. v. Tampa Southern R. Co., 101 Fla. 468, 134 So. 529; McComb v. Jacksonville Paper Co., 336 U.S. 187, 69 S.Ct. 497, 93 L.Ed. 599, the court was warranted in imposing the contempt order. We think these cases conclude the question of the court’s power to adjudicate the sufficiency of the evidencepas 'well as whether or not there was intent to violate the injunctive order. The statute and the cited cases vest the court with a liberal discretion in the matter.

The second question is in resistance to that part of the order of July 26, 1955, directing that the injunction set out in the final decree of August 31, 1954, go into effect again April 23, 1956, until July 9, 1956, and directing defendants to pay $750 attorney’s fees to Nolen’s counsel and to pay $1,000 punitive fine into the registry of the court.

Appellants charge error in this because (1) they say an expressed contract was the basis for the injunctive order and being so, it may not exceed the scope of the contract; (2) a court has inherent power by contempt to punish for violating an injunction but the punishment is limited to fine or imprisonment; (3).the injunction granted by the order of July 12, 1955, as modified by the order of July 26, 1955, did not comply with Section 64.01, F.S.A.

There is substance to the contention of appellants on this point. The terms of the contract were the predicate for the injunctive order and the parties were bound by them. They provided for a five year term commencing August 9, 1950. The effect of the contempt order was to extend the effective period of the contract into 1956. In our view the chancellor was devoid of power to do this, even as punishment for contempt. Giehler v. Ward, Fla., 77 So.2d 452.

We do think the trial court has power to punish for contempt by imposing a compensatory finé on the contemnor. The amount of such a fine may be measured by the damages, if any, suffered by the party in whose favor the injunction is granted. It is his burden, however, to prove the amount and extent of the damages which should be reasonably certain of measurement.

It follows that the judgment appealed from is affirmed in part and reversed in part.

DREW, C. J., and HOBSON and THORNAL, JJ., concur.


author: PER CURIAM.

text:
    R. E. SHARPE, Arthur Childers and H. A. Lee, surviving directors as trustees of Bayshore Court, Inc., a dissolved Florida corporation, Appellants, v. PALMCO, Inc., a Florida corporation, Appellee.
    Supreme Court of Florida. Special Division A.
    April 11, 1956.
    George Nichols and M. S. Marlin, Miami, for appellants.
    Ward & Ward, Miami, for appellee.
   PER CURIAM.

This cause came on to be heard on the motion of the appellee to affirm the judgment appealed from pursuant to 30 F.S.A. Rule 38 of the Rules of this Court and it appearing to the court from an examination of the record that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument;

It is accordingly ordered, adjudged and decreed that the motion to affirm the judgment appealed from be and the same is hereby granted and the judgment is

Affirmed.

DREW, C. J., and TERRELL, HOBSON and BUFORD, JJ., concur.


author: ROBERTS, Justice.

text:
    The BOARD OF PUBLIC INSTRUCTION OF DUVAL COUNTY, Florida, Appellant, v. CITY OF JACKSONVILLE, a municipal corporation, Appellee.
    Supreme Court of Florida. Special Division B.
    April 18, 1956.
    McCarthy, Lane & Adams and Elliott Adams, Jacksonville, for appellant.
    William M. Madison and Claude L. Mul-lís, Jacksonville, for appellee.
   ROBERTS, Justice.

This case involves an interpretation of Section 235.34, Fla.Stat.1955, F.S.A., enacted in 1953 as Chapter 28266, Acts of 1953. The precise question here presented is whether this Act empowers the City of Jacksonville to construct a sidewalk adjacent to a public high school in Duval County and assess the cost thereof against the County Board of Public Instruction of Duval County (the “County Board”) without the consent and approval of the County Board. The question arose in a suit for declaratory relief filed by the City against the County Board, after the County Board had refused to approve the construction of the proposed sidewalk by the City. The lower court held that the City could do so, and the County Board has appealed.

The Act in question has to do with the construction of special improvements, such as sidewalks, street and sanitary improvements, for the benefit of school plants or “other state boards or agencies”, and declares in Section 1 thereof that “in the case of school plants and facilities such improvements are necessary for the safety and health of the students and others using such school plants and facilities.” Section 2 of the Act reads as follows:

“The county boards of public instruction of the state and other boards and agencies of the state which have the handling and disposition of public monies derived through the collection of .taxes, be, and each of them is hereby authorized, from the funds in their hands or control, and coming into their hands and control, to expend such portion thereof as may be necessary for the purpose of paying off and discharging lawfully imposed encumbrances upon school properties, or properties of other state agencies or boards, which encumbrances have been lawfully imposed thereon for special or local assessments for street improvements, sidewalk improvements, sanitary improvements and like special benefits.”

No useful purpose would be served by discussing the wisdom of a legislative policy that would vest in city officials the discretion of deciding when public school funds should be diverted from other more vital school purposes — such as teachers’ salaries, classroom supplies, repair and maintenance of the school plant, and the like — to the construction of a street or sidewalk adjacent to the school building, because we have the view that such was not the legislative intent. As originally introduced in the Senate by Senate Bill 880, the Act- in question provided in Section 2 thereof, supra, that “The county boards of public instruction * * * and each of them is hereby authorized and directed * * * ” to use funds in their 'hands to pay off “lawfully imposed” special assessments '. for street improvements and the like. But the italicized words were deleted by an amendment offered' by the Senate Committee on Cities and Towns, and adopted by the Senate. In these circumstances, it cannot seriously be contended that the Legislature intended not only to authorize the county boards of public instruction to discharge such encumbrances but also to direct them to do so. ''

Moreover, it must be assumed that the Legislature had a specific purpose in mind when it used the words “lawfully imposed” in describing the encumbrances which school boards “and other boards and agencies of the State of Florida” were authorized to 'discharge;, and we think these words may fairly be interpreted as referring to the provisions ,of Section 192.08, Fla.Stat.1955, F.S.A., relating to special assessments “lawfully imposed upon lands or other property owned by the said state or by its agency” for special improvements, and requiring the approval of such special assessment by the state agency or department whose .property is specially improved.

We hold, therefore, that the Act in question authorizes a county board of public instruction to use public school funds (or, at least, district school funds as distinguished from the County School Fund, see City of Miami v. Board of Public Instruction, Fla. 1954, 72 So.2d 901) to pay for special improvements, but that it does not require the board to do so where the improvement is made without the board’s consent and approval; and we hereby recede from City of Miami v. Board of Public Instruction, supra, 72 So.2d 901 insofar as it holds to the contrary.

For the reasons stated, the decree appealed from should be and it is hereby

Reversed.

DREW, C. J., THOMAS, J., and PRUNTY, Associate Justice, concur.


author: DREW, Chief Justice.

text:
    Sara GUNTHER, Appellant, v. Edward F. GUNTHER and Hialeah-Miami Springs Bank, a corporation, Appellees.
    Supreme Court of Florida. En Banc.
    April 18, 1956.
    Jeptha P. Marchant and Joseph A. Perkins, Miami, for appellant.
    O. B. White, Miami, for appellees.
   DREW, Chief Justice.

The sole question presented in this appeal, is whether the complaint for divorce contains equity. We are of the view that the allegations. contained in the complaint aro sufficient to withstand a motion to dismiss. The decree appealed from is, therefore, re yersed with directions to reinstate the cause and for further appropriate proceedings.

TERRELL, THOMAS, ROBERTS, THORNAL and O’CONNELL, JJ., concur.

SEBRING, J., dissents.


author: TERRELL, Justice. DREW, Chief Justice

text:
    BRINSON CONSTRUCTION CO., Appellant, v. Mary Lucille LEACH, Appellee.
    Supreme Court of Florida. Special Division A.
    April 18, 1956.
    Barton & Enwright, St. Petersburg, for appellant.
    William J. Castagna, Clearwater, and B. Nathaniel Richter, Philadelphia, Pa., for appellee.
   TERRELL, Justice.

Appellee; Mary Lucille Leach, hereinafter referred to as Leach, and one Eleanor May Holmes, hereinafter referred to as Holmes, brought separate actions to recover judgments against appellant for personal injuries. The cases were combined for trial, at the conclusion of which the jury returned a verdict for defendant as to each plaintiff. A new trial was granted as to Leach but motion therefor was denied as to Holmes. We are confronted with an appeal challenging the correctness of the order granting the new trial as to Leach.

The trial court prefaced his order granting Leach a néw trial with the finding that consolidation of the two cases for trial made it extremely awkward to charge the jury properly and then gave the following reasons for his order:

“The Court has carefully studied the transcript of its charge and is convinced that through awkwardness of phraseology and infelicity of expression its charge could well have confused the jury. The Court is also of the opinion that its charge in several respects and in several places was erroneous in placing upon this plaintiff the legal responsibilities which the evidence did not justify.”

The cases grew out of an automobile accident which took place near the intersection of State Road 686 and U. S. Highway 19, March 29, 1952. The automobile was owned and driven by Holmes. Leach was her guest at the time. They were driving eastward from Largo on State Road 686. As they approached U. S. Highway 19, there was a traffic island parallel to and dividing the highway, the western end of which for about 40 feet was of dirt, was seeded in grass and was approximately on the same plane with the road. (As to some of these facts the testimony is in conflict.) The Holmes’ automobile struck the earth portion of the island, the wheel sank in the dirt slightly, but the car bounced along the pavement for some distance, catapulted through the air over or about two other concrete islands, surrounded by curbs about nine inches high, turned over several times and came to rest right side up on the driveway of a filling station, at 1:40 a. m., 315 feet from where it first struck the safety island. The occupants are alleged to have suffered serious injury from this early morning venture.

Appellant had a contract with the state dated January 16, 1951, to widen and improve State Road 686 and U. S. Highway 19 for 9.3 miles at the intersection. Said contract also included installations of the traffic island. The state furnished plans for construction of these improvements and it appears that. they were constructed according to specifications. The contract required defendant-contractor to supply “all necessary barricades, lights, danger signals and signs” to protect the public during construction but it did not require the erection of permanent traffic or warning signs, nor the painting of traffic control signs or warnings on the highway. This was to be done by the state when the work was accepted. The contractor was also required to keep State Road 686 open for traffic at all times and at the time of the accident, March 29, 1952, all the primary construction at the intersection in question had been completed and opening of the road for traffic approved. In May, 1952, the project was completed and accepted conditionally for maintenance by the state.

It appears undisputed that State Road 686 on which the accident took place was open for traffic, that the work on it was substantially completed and that there was a “slow” sign and a “stop” sign to warn those approaching U. S. Highway 19. As to whether or not there were other required warning signs, the evidence is not clear. In his order granting a new trial, it is pointed out: “The Court is also of the opinion that its charge in several respects and in several places was erroneous in placing upon this plaintiff the legal responsibilities which the evidence did not justify.” Except for this language, there might be reason to reverse the judgment appealed from, but in the face of such a pronouncement, we do not think reversal would be proper because it is not possible for us to tell exactly what the court had in mind.

The language in the order granting a new trial for Leach indicates that the trial judge presumably had in mind, among other things, the following portion of his charge:

“If you should find that this was just one of those unfortunate things, nobody’s fault, just one of those unfortunate catastrophes that occasionally happen, then, of course, you should bring in a verdict for the defendant. Because the defendant is not liable unless the defendant wás the sole, proximate cause — unless the defendant’s negligence was the sole proximate cause of the accident complained of.”

Such a charge might lead to the conclusion that if the evidence pointed to Brin-son’s and Holmes’ joint negligence as the proximate cause of the accident, Leach could in no event recover.

The jury evidently considered that Holmes and Leach were both guilty of contributory negligence and denied them relief. Absent something not obvious to us but may have been to the trial judge, there is reason for the conclusion reached by the jury. Unless Leach can show that she in some way warned Holmes of the dangerous manner in which she was driving or attempted in some way to exercise control over the car and the driver, the negligence of Holmes may be attributable to her (Leach) and she cannot recover. There were points in the case on which the evidence was in conflict but it appears that every one connected with it got misled, confused or messed up in about the same manner admitted by the trial court, for which the ends of justice require a new trial.

There is another matter that we cannot refrain from calling attention to. The only point for decision is whether or not the court committed error in granting a new trial, yet we are confronted with almost 100 pages of brief, approximately 500 pages of record and exhibits. The rule as to preparation of questions on appeal pointed out in Kneale v. Kneale, Fla., 67 So.2d 233, Theus v. Theus, 119 Fla. 190, 161 So. 76, and as to preparation of the record pointed out in Rubinow v. Rubinow, Fla., 40 So.2d 561, was overlooked or ignored, imposing an extra burden on the court and unnecessary expense to the litigant.

The judgment appealed from is therefore affirmed.

Affirmed.

DREW, C. J., concurs specially.

THORNAL, J., and PRUNTY, Associate Justice, concur.

DREW, Chief Justice

(concurring specially) .

I agree in all respects with the foregoing opinion and judgment. We are concerned here with an order granting a new trial — an order that we are justified in vacating only where it is erroneous on its face or obviously and patently constitutes an abuse of discretion and authority. Cf. Ward v. Hopkins, Fla., 81 So.2d 493.


text:
    Raymond E. FEINER t/a Feiner’s Insurance Agency, Petitioner, v. SUN RAY DRUG CO. OF FLA., Inc., Respondent.
    Supreme Court of Florida. Special Division A.
    April 18, 1956.

      Morris Berick, Miami Beach, for petitioner.
    Perlmutter & Lehrman, Miami Beach, for respondent.
   DREW, Chief Justice.

The Civil Court of Record of Dade County awarded a summary final judgment to Raymond E. Feiner, trading as Fciner’s Insurance Agency, and against the Sun Ray Drug Co. of Florida, Inc., a Florida corporation, in the amount of $1,394.41 and court costs. Appeal was prosecuted to the Circuit Court of Dade County and that Court, in the exercise of its appellate jurisdiction, reversed the cause, finding “that the factual dispute was one for a jury’s determination.” The judgment of the Circuit Court was that the cause be “reversed and the cause is remanded for further proceedings consistent with our. expressed view.”

We are asked to issue common law cer-tiorari to review the actions of the Circuit Court.

The effect of the Circuit Court’s judgment was to vacate and set aside the final summary judgment of the Civil Court of Record and to remand the cause for further proceedings in conformity with the Court’s view. This order required the Civil Court of Record to submit the issues to a jury for determination. Under such circumstances, there is no final judgment and, therefore, nothing for us to review. 5 Fla.Jur. 495 (paragraph 11).

“An ordinary judgment of reversal remanding a cause for new trial is not usually deemed final. Simple directions that the trial court take further proceedings in the case do not inject finality into the judgment. Nor do directions to take further proceedings not inconsistent with the appellate court’s decision effect finality.” 5 Fla.Jur. 499. See also Grodin v. Railway Express Agency, 116 Fla. 378, 156 So. 476, and the cases cited in that opinion.

Certiorari denied.

TERRELL, ROBERTS and THORNAL, JJ., concur.


text:
    CITY OF FORT PIERCE, a Florida Municipal Corporation, Appellant, v. Hazel FRILAND, Appellee.
    Supreme Court of Florida. En Banc.
    March 7, 1956.
    Rehearing Denied April 18, 1956.
   PER CURIAM.

Affirmed.


text:
    CITY OF BARTOW, a Municipal Corporation, Appellant, v. Elmer GREENBERG and Sam Greenberg, doing business as Greenberg Fruit Company, Appellees.
    Supreme Court of Florida. Special Division A.
    March 28, 1956.
   PER CURIAM.

Affirmed.


text:
    JIM NOEL, Inc., a Florida Corporation, Appellant, v. JEFFERSON MORTGAGE CORPORATION, a Delaware Corporation, Authorized to Transact Business Within the State of Florida, James J. Gianolio and Marie Antionette Gianolio, his Wife, and James Gianolio and Marie Antionette Gianolio, Doing Business as Gianolio Dairy, Appelles.
    Supreme Court of Florida. Special Division B.
    March 28, 1956.
   PER CURIAM.

Affirmed.


text:
    George L. PAINTER and Ruby D. Painter, his Wife, Appellants, v. TOWN OF GROVELAND, Florida, Appellee.
    Supreme Court of Florida. Special Division A.
    March 28, 1956.
   PER CURIAM.

Affirmed.


text:
    W. L. RODGERS and his Wife, Nettle Lee Rodgers, Appellants, v. BOARD OF COUNTY COMMISSIONERS OF BAKER COUNTY, Florida, and Quitmon Herring, Appellees.
    Supreme Court of Florida. Special Division B.
    March 28, 1956.
   PER CURIAM.

Affirmed.


text:
    D. L. PATTERSON, Appellant, v. Mary Ann HELMS et al., Appellees.
    Supreme Court of Florida. Division B.
    March 28, 1956.
   PER CURIAM.

Affirmed.


text:
    Marion CHRISTMAS and Marvin M. Christmas, her Husband, Appellants, v. Walter Hardy SHIVAR, Appellee.
    Supreme Court of Florida. Special Division A.
    April 4, 1956.
   PER CURIAM.

Affirmed.


text:
    S. G. HAPPNEY, Individually, and as Father and Next Friend of Jack Happney, a Minor, Appellants, v. ENGINE AND ACCESSORY, Inc., Appellee.
    Supreme Court of Florida. En Banc.
    April 4, 1956.
   PER CURIAM.

Affirmed.


text:
    Isadora STRACHAN, Appellant, v. COAST CITIES COACHES, Inc., a Florida corporation, and Talbert C. Leach, Appellees.
    Supreme Court of Florida. Special Division A.
    April 4, 1956.
   PER CURIAM.

Affirmed.


author: HAWTHORNE, Justice.

text:
    229 La. 758
    STATE of Louisiana v. Harold F. MILLS and Lena Vernaci.
    No. 42663.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    Rehearings Denied March 26, 1956.

      David A. Neuhauser, Milo B. Williams, New Orleans, for Lena Vernaci, appellant.
    Byrnes & Wallace, New Orleans, for Harold F. Mills, defendant-appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Culli-gan, Asst. Atty. Gen., Leon D. Hubert, Jr., Dist. Atty., Adrian G. Duplantier, First Asst. Dist. Atty., Edward A. Haggerty, Jr., Asst. Dist. Atty., New Orleans, for appel-lee.
   HAWTHORNE, Justice.

Harold F. Mills and Lena Vernaci were convicted of the crime of gambling denounced by Article 90 of the Criminal Code. Mills was sentenced to pay a fine of $500 and to serve one year in the parish prison, and in default of the payment of fine to serve six additional months. Lena Ver-naci was sentenced to pay a fine of $305 and to serve six months in the parish prison, and in default of the payment of fine to serve three additional months.

For a proper understanding of the numerous bills of exception reserved we shall briefly summarize some of the facts in this case. In the early morning of October 22, 1954, Lena Vernaci was arrested by two police officers while she was alone in a room that she rented in a house at 1229 Simon Bolivar Street in New Orleans. At the time of the arrest the room contained a stove, table, chair, and light, but no other furniture. The arresting officers seized a large amount of lottery paraphernalia lying on the table, including two lottery lists giving the numbers drawn from the lottery wheel on Thursday, October 21, by a lottery company conducting lotteries called “Bag of Silver” and “Bag of Gold”; receipts to be issued to players; and record sheets showing plays or bets made by various players, some of which bore the date of October 22. During the trial a woman named Hattie Tucker who lived at 1229 Simon Bolivar Street testified without objection that Lena Vernaci had used the room at that address for “writing lottery”. Also, testimony and exhibits were offered by the State to prove that Harold Mills was the owner and operator of Gold and-Silver, a lottery company, and that Lena Vernaci was a lottery vendor for Mills on the date charged in the information.

Article 90 of the Criminal Code, R.S. 14:90, provides:

“Gambling is the intentional conducting, or directly assisting in the conducting, as a business, of any game, contest, lottery, or contrivance whereby a person risks the loss of anything of value in order to realize a profit. * * * ”

The pertinent part of the bill of information charging these defendants with violating this statute reads:

“Harold Mills and one Lena Vernaci * * * did commit the crime of gambling as defined by R.S. 14:90 in that each did unlawfully and intentionally conduct and directly assist in the conducting, as a business, at 1229 Simon Bolivar in the City of New Orleans, of a lottery, whereby a person risked the loss of a thing of value in order to realize a profit * * *.”

Mills and Vernaci each filed an application for a bill of particulars. When their applications were denied by the trial judge, each defendant reserved a bill of exception, and Vernaci also reserved bills to the overruling by the trial judge of her demurrer and motion to quash the information. These bills are designated as Mills Bill No. 1 and Vernaci Bills Nos. 1, 2, and 3.

In their motions for a bill of particulars these defendants asked the State to tell each defendant whether he or she was charged with conducting and operating a lottery, or only with assisting in the operation of a lottery; whether lottery operations were conducted at 1229 Simon Bolivar Street by each; what lottery operations each performed or took part in; where the lottery drawings took place; and other details with reference to the lottery operations.

The answer of the State, which the trial court deemed sufficient, informed the defendants that each was charged in the bill of information with conducting and assisting in conducting a lottery under the authority of R.S. IS :222, and that they were both charged as principals under the provisions of R.S. 14:24.

R.S. 15:222 provides that several distinct offenses, disjunctively enumerated in the same criminal statute, may be cumulate-d in the same count when it appears that they are connected with the same transaction and constitute but one act, but in that case they must be charged conjunctively. Under R.S. 14:24 all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

The primary function of a bill of particulars is to fully inform the accused of the nature and cause of the accusation against him so that he can adequately prepare his defense. However, a defendant in a criminal case is not entitled to particulars as a matter of right. The granting or refusal of such a bill is within the sound discretion of the trial judge, and his ruling will not be disturbed unless it is manifestly erroneous. Arts. 235 and 288, La.Code Cr.Proc., R.S. 15:235, 288; State v. Labat, 226 La. 201, 75 So.2d 333; State v. Simpson, 216 La. 212, 43 So.2d 585; State v. Poe, 214 La. 606, 38 So.2d 359; State v. Sheffield, 201 La. 1055, 10 So.2d 894; State v. Ezell, 189 La. 151, 179 So. 64.

In criticizing the denial by the trial judge of her motion for a bill of particulars, appellant Vernaci in brief in this court for the first time urges that she was entitled to know before trial the kind of lottery involved in the charge against her. We note, however, that she did not seek this information in her motion for a bill of particulars, and even if she had, it would be without merit. The word “lottery” as used in Article 90 of the Criminal Code and in the bill of information in this case is neither vague nor indefinite. It is found in our state Constitution, Article 19, Section 8, which provides that “Lotteries and the sale of lottery tickets are prohibited in this State”. Also, it is a commonplace word, and every layman knows exactly what is meant by the term “lottery”.

The other information sought by these defendants in their application for particulars was an effort on their part tc obtain through this bill the evidence which the State expected to offer on the trial of the case. It goes without saying that such a motion cannot be used for this purpose. The State is not required to reveal in advance of the trial the facts on which it will, rely in seeking a conviction.

We think that by the bill of information these defendants had been sufficiently informed of the nature and cause of the accusation against them to be able adequately to prepare their defense, and that therefore the trial judge did not commit error in denying their motion for particulars. Likewise there is no merit in V.er-naci’s demurrer and motion to quash. In these motions she erroneously contends that the bill of information filed against her is vague and indefinite and does not inform her of the nature and cause of the accusation against her. The information in the instant case charges the precise gambling operation in which these defendants were allegedly involved, that is — a lottery; it gives the exact date of the offense and the house number of the place where the offense took place; and in addition it tracks the language of Article 90 of the Criminal Code. Thus it fully meets the test which this court has laid down for determining the sufficiency of an information, that is: It fully informs the court of the offense charged so that it might properly regulate the evidence sought to be introduced; it informs the accused of the nature and cause of the offense with which he is being charged; and it is sufficient on its face to support a plea of former jeopardy. State v. Scheuering, 226 La. 660, 76 So.2d 921, and authorities therein cited.

Mills Bills Nos. 2, 3, 5, 8, and 12 were submitted to this court without oral argument or discussion in brief, and without citation of authorities. Under this state of facts we would be justified in considering these bills abandoned, and probably will do so under similar circumstances in the future. In the instant case, however, we have examined each of these bills and find no merit in any of them.

Mills Bill No. 4 is not mentioned or discussed in brief filed by him in this court, and apparently this bill has been abandoned. It was reserved in connection with certain questions propounded to a witness the State was seeking to qualify as an expert on lottery operations, and to the ruling of the judge permitting this witness to testify as an expert. It is well settled that the trial judge determines whether witnesses offered as experts are entitled to be heard in that capacity, and his ruling will not be disturbed on appeal where no error appears. Art. 466, La.Code Cr.Proc., R.S. 15:466; State v. Carter, 217 La. 547, 46 So.2d 897; State v. Nicolosi, 228 La. 65, 81 So.2d 771.

Mills Bills 6, 9, 10, 11, 14, 15, and 16 were reserved to the trial judge’s permitting the State to file in evidence over the defendant’s objection State Exhibits 8 through 14.

Exhibits 8 and 9 are quarterly reports made to the Louisiana Department of Labor, Division of Employment Security, pursuant to the provisions of the Louisiana Unemployment Compensation Law, R.S. 23:1471-1713. Exhibit 8 is for the third quarter of the year 1954, and Exhibit 9 is for the fourth quarter of that calendar year. These reports are made on printed forms and show the employer’s name and business, and give the names, social security numbers, and wages of employees. Both of these documents are quarterly reports for Harold F. Mills, owner of “Gold and Silver”, and list Lena Vernaci as one of his employees. According to the testimony in this case, these reports were prepared by an accountant employed by Mills, under Mills’ direction and by his authority.

Exhibits 10 through 13 are tax returns and applications for registry made to the federal government pursuant to the Federal Wagering Tax Law, 26 U.S.C.A. § 4401 et seq., for the period July 19, 1954, to June 30, 1955, which period of time of course included the date of the offense charged in these proceedings. These returns show that the taxpayer is Harold F. Mills and that his business is “Gold and Silver”, and are signed by Mills. These returns list Lena Vernaci as one of the employees of Mills. The returns show that Mills was engaged in the business of accepting wagers on his own account, and show the amount of wagers accepted during each month of the period covered and the amount of tax due to the federal government.

Exhibit 14 is a certificate by the custodian of the original returns stating that the photostats of these returns are true copies.

The Federal Wagering Tax Law pursuant to which these returns were made requires any person engaged in gambling to pay a $50 occupational tax, file a registration form listing his name and address and those of his employees, and pay taxes on the gross amount of wagering done. See 26 U.S.C.A. §§ 4411, 4412, 4401.

The contention was made in the lower court that by filing these state and federal reports Mills was granted an implied promise of immunity from prosecution for gambling. In brief filed in this court Mills does not urge this contention, evidently because there is no merit in it. There is nothing in the law under which these documents were filed that carries any implication that compliance will be accompanied by an immunity from prosecution. Moreover, the federal statute specifically provides that the payment of any tax imposed thereby shall not be held to exempt any person from any penalty provided by a law of any state. See 26 U.S.C.A. § 4422. See also Irvine v. People of State of California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561.

Appellant argues at length in brief in this court, however, that these documents were improperly admitted in evidence because the use of such evidence in a criminal case violates the constitutional rights and guarantees against self-incrimination afforded by the Fifth Amendment of the United States Constitution and Article 1, Section 11, of the Louisiana Constitution.

This contention has been fully answered by the United States Supreme Court in United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754; Irvine v. People of State of California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561, and Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475.

In the Kahriger case it was contended that the wagering tax is unconstitutional because it is a denial of the privilege against self-incrimination guaranteed by the Fifth Amendment to the federal Constitution. In answer the Supreme Court of the United States said [345 U.S. 22, 73 S.Ct. 515]:

“Assuming that respondent can raise the self-incrimination issue, that privilege has relation only to past acts, not to future acts that may or may not be committed. 8 Wig-more (3d ed., 1940) § 2259(c). If respondent wishes to take wagers subject to excise taxes under § 3285, supra, he must pay an occupational tax and register. Under the registration provisions of the wagering tax, appellee is not compelled to confess to acts already committed, he is merely informed by the statute that in order to engage in the business of wagering in the future he must fulfill certain conditions.”

In the Irvine case the accused was prosecuted in a California state court for violating the state gambling law. Against objection by the accused a federal wagering tax stamp bearing his name and address and his return to the collector under the federal law were introduced into evidence. The accused was convicted, and the United States Supreme Court granted certiorari. The conviction was affirmed. In the course of the opinion the court said [347 U.S. 128, 74 S.Ct. 381]:

“Upon his arrest, petitioner had on his person a federal wagering tax stamp bearing his name, home address and the date, November 5, 1951. Against objection it and other documentary evidence from the office of the United States Collector of Internal Revenue was received to show petitioner’s application for the wagering tax stamp and his return to' the Collector under the. federal law. These documents were made pursuant to the Federal Act imposing wagering taxes, 65 Stat. 529, 26 U.S.C. (Supp. V) § 3285 et seq., 26 U.S.C.A. § 3285 et seq., held constitutional by this Court in United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754. The claim is made that it was error as a matter of federal law to admit this evidence and also that payment of the federal tax resulted in a federal license to conduct the wagering business. This statute does not make such records or stamps confidential or privileged but, on the contrary, expressly requires the name 'and place of business of each such taxpayer to be made public. 53 Stat. 395, 26 U.S.C. § 3275, 26 U.S.C.A. § 3275. Petitioner’s contentions are without substance or merit in view of the express provisions of the statute that payment of the tax does not exempt any person from penalty or punishment by state law and does not authorize commencement or continuance of such business. 53 Stat. 395, 26 U.S.C. § 3276, 26 U.S.C.A. § 3276; 65 Stat. 531, 26 U.S.C. (Supp. V) § 3292, 26 U.S.C.A. § 3292.”

In a footnote to this case the court commented :

“Petitioner’s question number 2, which challenges the State’s use of ‘compelled evidence’ obtained under the federal wagering statute, is answered in United States v. Kahriger * * *.''

The Lewis case, decided in 1955, is particularly in point. An information was filed in a municipal court of the District of Columbia charging Lewis with violation of the Federal Wagering Tax Law. The United States Supreme Court held'on certiorari that the act as applied to .petitioner in the District of Columbia did not contravene the Fifth Amendment’s prohibition against compulsory self-incrimination. In the course of this opinion it was stated [348 U.S. 419, 75 S.Ct. 417]:

“If petitioner desires to engage in an unlawful business, he does so only on his own volition. The fact that he may elect to pay the tax and make the prescribed 'disclosures required by the Act is a matter of his choice. There is nothing compulsory about it, and, consequently, there is nothing violative of the Fifth Amendment. If he does not pay the occupational tax, proceeds to accept wagers, and is prosecuted therefor, as in this case, he cannot be compelled to testify and may claim his privilege. The only compulsion under the Act is that requiring the decision which would-be gamblers must make at the threshold. They may have to give up gambling, but there is no constitutional right to gamble. If they elect to wager, though it be unlawful, they must pay the tax.”

In support of their position appellants cite and rely on Boynton v. State, Fla., 75 So.2d 211, decided by the Supreme Court of Florida in 1954. The Florida Supreme Court, however, decided that case before the decision of the United States Supreme Court in the Lewis case, supra, and made no mention of the Irvine case.

Of course the United States Supreme Court in the above cases was interpreting the Fifth Amendment to the United States Constitution and dealing with returns made to the U. S. Treasury Department under federal law. However, the reasoning used in these three cases is applicable here, and we are of the opinion that the introduction in evidence in the instant case of the quarterly reports made by Mills to the Louisiana Department of Labor and of the federal wagering tax returns in no way violated defendants’ privilege against self-incrimination guaranteed to them by Article 1, Section 11, of our state Constitution. See 14 Am.Jur., “Criminal Law”, Secs. 144 and 155.

It is also argued in this court by counsel for appellants that these state and" federal reports were improperly admitted in evidence because they are privileged and confidential.

Since it is the duty of every person to give all available evidence to a court, the privilege not to give testimony or to keep documentary evidence out of court is always strictly construed. See Wigmore, Evidence, v. 8, sec. 2285 (3rd ed. .1940). In Louisiana privileges are ordinarily granted by statute. See, e. g., R.S. IS :461 (husband and wife privilege); R.S. 15 :476 (physician-patient privilege).

As to the state records, appellants contend that their privilege is granted by R.S. 23:1660, which is a part of the law requiring that these reports be filed. The clause of this section upon which appellants rely provides :

“ * * * Information thus obtained, or 'obtained from any individual pursuant to the administration of this Chapter except to the extent necessary for the proper administration thereof, shall be held confidential and shall not be published or be open to public inspection (other than to public employees in the performance of their public duties) in . any manner revealing the individual’s or employing unit’s identity * *

The trial judge in his per curiam says:

“It will be noted that the statute excepts ‘public employees in the performance of their public duties’ from those against whom the prohibition of disclosure is aimed.
“Certainly the District Attorney of the Parish of Orleans, is a ‘public employee’. In the use of these exhibits in the present case, he was engaged in the- performance of his ‘public duties’.”

Although the statute expressly provides ■ that information given in the reports and returns is to be held confidential and shall not be published or open to public inspec- ' tion, we think, as did the trial judge, that the district attorney in the performance of his public duties falls within the exception provided in the statute. As we have heretofore pointed out, the privilege to keep documentary evidence out of court is to be ’ strictly construed, and in the absence of an express and clear provision in a statute ■.giving this privilege it will not be recog- . nized. An example of such a clear and ex- . plicit provision is R.S. 22 ¡1120(B). That statute makes any communication from an insurer to the Secretary of State a privileged- communication which “shall not be used as evidence in any court action or proceeding”. See also’ R.S. 15:461, 15:475, 15:476, 15:477. There is no such provision in the statute upon which the .appellants rely, and therefpre they have no privilege.

The State in brief informs us that the purpose of the provisions of R.S. 23:1660 is perfectly clear when this section is read as a whole, saying:

“ * * * The State wishes to protect employers and their employees from inter-meddlers or competitors who would seek to use public records for their own private purposes. On the other hand the State wishes to make the records usable by public officials for public purposes. That is .exactly what the act accomplishes in clear terms.”

Appellants point out no federal statute providing that the federal tax returns are confidential and privileged, and we know of none. On the contrary, it appears that these returns are open to public inspection under the provisions of 26 U.S.C.A. § 4401 et seq.

Another objection made by appellants to the offering in evidence of these documents is that they are in substance confessions or admissions containing in-culpatory statements and as such were improperly admitted in evidence without the proper foundation’s being laid for their admissibility. In short, appellants contend that before these documents could be legally introduced in evidence, the State was obliged to show that they were freely and voluntarily given under the provisions of Article 451 of the Code of Criminal Procedure and the jurisprudence of this court.

The tax returns and reports .filed in evidence by the State in this case are required by law to be made to a governmental agency to provide the agency with suitable information of transactions which are subject to governmental regulation. They cannot be considered confessions or admissions containing inculpatory statements as these terms are used in Article 1, Section 11, of the Louisiana Constitution, Article 451 of the Code of Criminal Procedure, and in the jurisprudence of this court 'dealing with' incriminating statements for which a predicate must be laid before'their admission in evidence.

As said above, the United States Supreme Court has reasoned that the constitutional prohibition against self-incrimination is not applicable to such documents. See Kahriger, Irvine, and Lewis cases, supra. Under that reasoning we hold that the constitutional provision prohibiting the use of confessions unless freely and voluntarily made is likewise without applicátion to such evidence.

It was not the intention of the drafters of the Constitution or the Criminal Code of this state to require that quasi-public records such as these, filed voluntarily with a governmental agency pursuant to law, must be affirmatively shown to have been freely and voluntarily given before being introduced in evidence. In other words, we hold that the provisions of the Constitution and statutes of this state requiring the predicate for the admissibility of a confession to be first laid are without application to the documents in the instant case.

Appellants also objected to the admissibility of these documents because they relate to dates other than that of the offense charged in the information. They make no': argument in support of this objection in brief. This is understandable, as the objection was trivial. The crime here charged is gambling as a business, and this is a continuing offense. The documents were relevant to establish this fact. See infra.

Appellants also objected to the admissibility of the federal tax reports on the ground that since they were photostats of the originals, they''were not the best evidence. No argument is made in brief to rationalize this objection, and indeed none could be made. The State points out, and the trial judge tells us in his per curiam, that the original records were not available under federal regulations. The! documents offered, however, were certified 1 by the 'custodian of the originals, an officer •• of the United States Treasury. Moreover . these photostatic copies were compared ■ with the originals, and there was testimony to show that they were identical. Such photostatic copies were the best evidence-' available, and consequently were admissible under Article 436 of the Code of Criminal-. Procedure, R.S. 15:436. See also R.S. s 15:457; Wharton on Criminal Evidence ; (12th Ed.), Sec. 591. ¡

Mills Bill No. 7 was reserved to a question put to State’s witness Moran, who was asked to identify certain federal wagering tax returns. The witness replied that he had not prepared the documents and knew nothing about them. According to the trial judge’s per curiam the witness did not identify the documents, and the question was withdrawn. This bill therefore. presents nothing for us to review.

Mills Bill No. 13 and Vernaci Bill No. 5 were reserved to the admission in' evidence of State Exhibits 1 through 6, which are the lottery paraphernalia seized by the police officers at the time of the arrest' of the defendant Vernaci. As we have already pointed out in our summary of the ■ important facts in this case, these lottery paraphernalia included a list giving the re- • suits of a lottery drawing for Thursday,October 21, showing the numbers drawn from the lottery wheel on that date, as welb as other paraphernalia, some dated and ■ some undated.

Mills takes the position that these ex-' hibits. were improperly filed in evidence tinder a bill of information charging the defendants with gambling on October 22. The answer to this contention is that these defendants are charged with gambling as a business which by its very nature is a continuing transaction. Thus this evidence' was properly admitted to establish the charge of gambling as a business on October 22. See Art. 446, La.Code Cr.Proc.; State v. Behan, 113 La. 754, 37 So. 714; City of Shreveport v. Marx, 148 La. 31, 86 So. 602; State v. Wilde, 214 La. 453, 38 So.2d 72; State v. Jouvet, 224 La. 15, 68 So.2d 741, 742.

In State v. Jouvet, supra, a witness for the State was asked the question: “ ‘When you arrived in New Orleans on the 14th of January, did you play cards at the Gem Club?’ ” Objection was made to this question on the ground that the information alleged that the offense was committed on January 17 and not on January 14. The trial judge overruled the objection and held the question proper. This court in affirming his ruling said :

“ * * * The trial judge in his per curiam states that he admitted the testimony to show that the gambling was intentionally conducted as a business. The testimony is relevant for the purpose of showing the continuity of the offense, system, guilty knowledge and criminal intent. LSA-R.S. 15:445 and 15:446.”

In Bill No. 5 Vernaci contends that the lottery paraphernalia introduced by the State were not identified as her property and were never connected with her, and so were inadmissible. There is no merit in this contention. The paraphernalia were seized in the presence of Vernaci in the room which she leased and occupied, while they were in her possession and under her control. Moreover, the exhibits were identified at the trial as the identical paraphernalia seized on this occasion by the arresting officers. Appellant’s objection seems to us to go more to the weight to be given to the evidence than to the question of its admissibility.

Mills Bill No. 17 was taken to the overruling by the trial judge of Mills’ exception to the jurisdiction of the Criminal District Court for the Parish of Orleans. According to the trial judge’s per curiam this plea was presented to the court after all the evidence had been heard and the case submitted. The basis of the plea is that the evidence does not show that any offense has been committed by Mills in the Parish of Orleans, and that therefore venue of the case is improperly laid in that parish.

Since Mills did not avail himself of his right to have the question of jurisdiction tested before going to trial, but filed this motion only after the evidence had been adduced and the case submitted to the trial judge for decision, the question of jurisdiction became a question of fact, and the sufficiency of the evidence establishing it cannot be reviewed on appeal. It is only where no evidence at all is submitted to establish venue that it may be inquired into by this court. State v. Paternostro, 224 La. 87, 68 So.2d 767; Id., 225 La. 369, 73 So.2d 177; State v. Heiman, 227 La. 235, 79 So.2d 78.

In support of Bill No. 17 counsel for Mills argue that there are three essential elements of a lottery — consideration, prize, and chance — , and that the State must prove "in limine the situs of each element”. This argument does not merit serious attention. Counsel evidently overlook the fact that these defendants were not charged with the conducting or operation of a lottery os a crime. They were charged with gambling as a business denounced by Article 90 of the Criminal Code, in that they conducted a lottery at 1229 Simon Bolivar Street in New Orleans. There is evidence in the record in this case to show that Mills and Vernaci committed the offense at that place, within the jurisdiction of the trial court. Consequently the question presented — the question of the sufficiency of that evidence — is one of fact which we cannot review.

Mills Bill No. 18 was reserved to the overruling of a motion for a new trial. In this motion Mills alleges that the verdict is contrary to the law and the evidence. It is well settled that a motion for a new trial based on the allegation that the verdict is contrary to the law and the evidence does not present anything for review. Defendant also alleges in support of this bill that the State obtained the conviction solely on circumstantial evidence, that in order to convict on such evidence every reasonable hypothesis of innocence must be excluded, but that the evidence in this case fails to negative certain enumerated hypotheses of innocence. On this point the trial judge tells us in his per curiam, with which we fully agree, that “the contentions of defendant fall within the sufficiency of evidence rule”, and they therefore present issues which this court will not review. The other reasons advanced for the granting of a new trial have already been discussed and disposed of in the course of this opinion.

Mills Bill No. 19 was reserved to the overruling of his motion in arrest of judgment. All questions presented by this motion have been fully answered in this opinion, and no further discussion is necessary.

Vernaci Bill No. 4 was reserved in connection with a question asked of State’s witness Hattie Tucker. The question was: “Before October 22, 1954, the date these police officers arrested Lena Vernaci, how long had she been using that room before that date?” Counsel for defendant objected to the question, stating that the offense was charged on October 22. The court overruled this Objection, and this bill was reserved.

The trial judge in his per curiam tells us: “Proof of the length of time the defendant Lena Varnaci occupied the room, and any and all circumstances concerned with her occupancy was relevant. While neither the question, or the answer elicited from the witness, even remotely suggested criminality, even if it did, the testimony sought would have been relevant, to show that the defendant did engage intentionally in the conduct of gambling as a business at the address 1229 Simon Bolivar Street.” The judge cited numerous authorities which support his holding.

Vernaci Bill No. 6 was reserved to the overruling by the trial judge of her motion for a new trial, based principally on the allegation that there was no evidence to prove the offense. All of the testimony taken at the trial is in the record, which we have read. Contrary to appellant’s contention, there is evidence to support the charge against each of these defendants, and, as we have already said, if any evidence whatsoever on the issue of the guilt or innocence of an accused is adduced before the trial court, the latter’s judgment on its weight and sufficiency is final and not reviewable by this court.

Vernaci Bill No. 7 was reserved to the overruling by the trial judge of her motion in arrest of judgment. All questions presented by this motion have been fully answered in the course of this opinion in our discussion of bills reserved either by Mills or Vernaci.

In understanding and answering the contentions raised by defendants’ many bills of exception, this court has been given able assistance by the per curianas of the trial judge. The judge set out and explained all the facts and circumstances in connection with each bill, and cited copious authority in support of his rulings on each point. These per curiams show careful study and hard work, and we are greatful for the help which the judge has thus afforded us.

The convictions and sentences are affirmed.

FOURNET, C. J., absent.

      . It is the view of the writer that the immunity from self-incrimination granted by the provisions of the Fifth Amendment to the United States Constitution cannot he claimed by defendant in a proceeding in a state court. See dissenting opinion in State v. Dominguez, 228 La. 284, 82 So.2d 12.

      . Moreover, in these paraphernalia there were record sheets showing lottery plays or bets bearing the date October 22, the date of tbe offense as charged in the bill of information.


author: MOISE, Justice. PER CURIAM.

text:
    229 La. 788
    STATE of Louisiana v. Frank BUTLER.
    No. 42624.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    Rehearing Denied March 26, 1956.
    J. Minos Simon, Lafayette, for defendant.
    Fred S. LeBlanc, Atty. Gen., M. E. Culli-gan, Asst. Atty. Gen., L. O. Pecot, Dist. Atty., Franklin, Knowles M. Tucker, Asst. Dist. Atty., New Iberia, Nathan A. Levy, Asst. Dist. Atty., Franklin, for appellee.
   MOISE, Justice.

The accused, Frank Butler, was charged in an Information, which reads:

“Frank Butler * * * on or about the 18th day of March, in the year of our Lord 1955, in the Parish of Iberia * * * did unlawfully possess, have under his control, sell and deliver a narcotic drug, to-wit: Marijuana, as defined by Louisiana Revised Statutes 40:961, in violation of the provisions of Revised Statutes 40:962 of the State of Louisiana: * * * ”

This defendant was tried, convicted, and sentenced, and he now prosecutes this appeal from the judgment of conviction and sentence.

Of the thirty-three Bills of Exceptions reserved during the trial, we question the correctness of Bill of Exceptions No. 2 and the ruling therein made. The specific information, which we think should have been furnished, is requested in defendant’s Motion for a Bill of Particulars, as follows:

V.
To what person does the indictment refer when it charges that defendant allegedly sold marijuana?
VI.
To what person does the bill of information intend to refer or mean when it charges that defendant allegedly delivered a narcotic drug?
VIII.
At what place in the Parish of Iberia did this alleged crime take place and at what time ?

In denying the Bill of Particulars, the trial judge stated that such information was in the nature of State evidence or advance factual information to which defendant was not entitled. He further stated that the Information gave the defendant all of the facts necessary for his counsel to properly defend him before the court. How could the defendant make any proof, unless he was given this information ? Particularly is this true if the accused desired to urge an alibi as a defense.

We feel that our Learned Brother below was in error. The cases he cited-State v. Brown, 226 La. 360, 76 So.2d 396, and State v. Ward, 208 La. 56, 22 So.2d 740-deal with the sufficiency of an indictment or information. His inadvertent error was in not distinguishing, in terms of law, the requirements of an Information or the exaction of a Bill of Particulars. In the instant case, we are not concerned with a test for the sufficiency of an indictment or information; we are merely concerned with the fact that this defendant requested a Bill of Particulars in advance of the trial and the trial judge refused to order the district attorney to furnish the desired information.

The general rule is that the granting of a Bill of Particulars is within the discretion of the trial judge. State v. Poe, 214 La. 606, 38 So.2d 359; State v. Shourds, 224 La. 955, 71 So.2d 340; State v. Michel, 225 La. 1040, 74 So.2d 207; State v. Labat, 226 La. 201, 75 So.2d 333. However, there will be found exceptions to the general rule, such as will be found in State v. Chanet, 209 La. 410, 24 So.2d 670, 671, which reads:

. “* * * While it is discretionary with the trial judge, yet, he cannot arbitrarily refuse to order the State to furnish essential particulars.” '

While it' is true that the Court had in mind Article 235 of the Code of Criminal Procedure, LSA-Revised Statutes 15:235, when it made the preceding statement, we believe that the same ruling applies in the instant case.

We reiterate that the matter of furnishing a Bill of Particulars rests largely in the discretion of the trial judge, and his discretion will not be disturbed unless there is error in the ruling complained of to the detriment or disadvantage of the accused. State v. Ezell, 189 La. 151, 179 So. 64; State v. Gould, 155 La. 639, 99 So. 490, 491. However, while it is discretionary with the trial judge, he cannot arbitrarily, refuse to order the State to furnish “essential particulars”. That is exactly what the trial judge refused to do in this case.

For the reasons assigned, the conviction and sentence are set aside, and the defendant is granted a new trial.

On Application for Rehearing.

PER CURIAM.

On application for rehearing the State cites numerous authorities supporting .its contention that it is not necessary to furnish in a bill of particulars information as to the time and place of the sale or the name of the purchaser. These authorities sup-' port its contention. However, this court must decide each case on the issues presented therein. In the instant case, after considering the language of the bill of information we were of the opinion that the accused was entitled to the information sought so that he could adequately prepare his defense, and that in refusing to order the State to furnish this information the trial judge ¿bused his discretion.

Rehearing refused.


author: HAV/THORNE, Justice.

text:
    229 La. 793
    STATE of Louisiana v. Jules CROVETTO and Claude Carbo.
    No. 42669.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    Rehearing Denied March 26, 1956.

      G. W. Gill and Andrew Búcaro, New Orleans, for appellants.
    Fred S. LeBlanc, Atty. Gen., M..E. Cul-ligan, Asst, Atty. Gen., Leon D. Hubert, Jr., Dist. Atty., Malcolm V. O’Hara, Asst. Dist. Atty., Edward A. Haggerty, Jr., Asst. Dist. Atty., New Orleans, for appellee.
   HAV/THORNE, Justice.

Jules Crovetto and Claude Carbo have submitted to us without oral argument their appeal from a, conviction of gambling as denounced by Article 90 of the Criminal Code, R.S. 14:90. In brief filed in this court counsel for appellants rely on seven bills of exception as grounds for a new trial. Although none of these bills has any merit, we will mention them briefly.

Bills Nos. 1 and 10 concern the admission in evidence of federal wagering tax returns; quarterly reports made to the State ¿f Louisiana, Department of Labor, Division of' Employment Security; and a certified check. The-theory of this objection is that these documents are privileged and confidential, and also that their admission violates appellants’ constitutional privilege against self-incrimination. These arguments are refuted in our opinion in State v. Mills and Vernaci, La.Sup., 86 So.2d 895.

Bill No. 2 was reserved to the overruling of Crovetto’s motion to quash the information charging him with gambling. As the information filed against Carbo and Crovetto in the present case is practically the same as that filed against Mills and Vernaci in State v. Mills and Vernaci, supra, our decision upholding the sufficiency of the information in Mills is controlling here.

Bills Nos. 5, 6, and 7 were reserved by defense counsel during the testimony of Lieutenant McDonnell, an expert on lottery operations. These bills are inconsequential and are without merit.

Bill No. 11 was reserved under the following conditions: At the close of the State’s case Crovetto moved for a directed verdict acquitting him of gambling in violation of Article 90. The court refused to grant the motion, and Crovetto reserved a bill of exception. The refusal to grant a directed verdict is something that we cannot review. Article 402.1 of the Code of Criminal Procedure, R.S. 15:402.1, which gives the accused in a criminal prosecution the right to move for a directed verdict after the evidence on either side is closed, also provides that “The judgment of the court in refusing to grant such motion by the defendant shall not be subject to review by any appellate court”.

During the trial Crovetto and Carbo reserved other bills of exception, but no. mention is made of them in appellants’ brief here. Although we would be justified under the circumstances in considering these bills abandoned, we have examined them, and 'find them without merit.

The conviction and sentences are affirmed.

FOURNET, C. J., concurs in the decree.


author: PONDER, Justice.

text:
    229 La. 796
    STATE of Louisiana v. Michael CALLIA and George Habeney.
    No. 42664.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    Rehearing Denied March 26, 1956.
    Byrnes & Wallace, George J. Gulotta, New Orleans, for defendant-appellant, Michael Callia.
    David A. Neuhauser, Milo B. Williams, New Orleans, for appellant, George Habeney.
    Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Leon D. Hubert, Jr., Dist. Atty., Edward A. Haggerty, Jr., Asst. Dist. Atty., James C. Garrison, Asst. Dist. Atty., New Orleans, for appellee.
   PONDER, Justice.

The defendants are appealing from a conviction and sentence under a bill of information charging them with conducting the business of gambling in violation of LSA-R.S. 14:90 by the operation of a lottery at 3703 Third Street in the City of New Orleans.

During the course of the trial, there were thirty-five bills of exception taken to the rulings of the trial judge. These bills of exception were taken to the overruling of a motion for a bill of particulars, a motion to quash, a demurrer, a plea to the jurisdiction, objection to the admission of evidence, a motion for a new trial and a motion in arrest of judgment.

All of the questions raised in these bills of exception were raised and passed on in the case of State v. Mills, 229 La. 758, 86 So.2d 895. It could serve no useful purpose to reiterate the questions raised and the conclusions reached by this Court because the same conclusions would necessarily have to be reached in this case.

For the reasons assigned, the convictions and sentences are affirmed.

POURNET, C. J., and MOISE, J., absent.