text:
    232 La. 178
    Carrie CRAWFORD, Wife of Grover C. AMOS, v. Grover C. AMOS.
    No. 42518.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    Lenfant & Villere, New Orleans, for plaintiff-appellant.
    Harry R. Cabral, Sr., Harry R. Cabral, Jr., King F. Nungesser, Jr., New Orleans, for defendant-appellee.
   FOURNET, Chief Justice.

The plaintiff, Carrie Crawford Amos, prosecutes this appeal from a judgment dismissing her suit against her husband, Grover C. Amos, for separation from bed and board, and awarding him a judgment of separation on his reconventional demand.

Counsel representing appellant contends the judgment is erroneous for (1) the “evidence and probabilities” of the case are with the plaintiff while (2) appellee’s evidence is unsupported and uncorroborated and reeks with improbability; in the alternative (3), that if plaintiff does not prevail, then it should be held “neither party proved her or his case with a reasonable preponderance of evidence,” and the suit should be dismissed both as to the original and the reconventional demand.

A perusal of the record will readily disclose that counsel cannot find support therein for his contention. Plaintiff rested her case upon her own uncorroborated testimony, which is not very impressive. The only other witness produced by her, a daughter by a previous marriage, stated most emphatically she knew nothing whatever of the status of affairs between the plaintiff and defendant, never having been present during any of their purported quarrels. The only testimony she gave that might be considered favorable to the plaintiff was that defendant sought her help in having the plaintiff placed in a mental institution, but this was not one of the causes for separation alleged in the petition. Additionally, the testimony of the plaintiff is' not only contradicted by the husband in every material aspect, but he is fully corroborated on many important phases by the plaintiff and by her daughter, as well as by the testimony of two disinterested witnesses and a daughter of his by a previous marriage.

We find from the record that both of 'the parties had been previously married and,’ at the time of the trial, the wife was 50 while the husband was around 61. They were married in 1949 and lived together— apparently in the same quarters she occupied prior to the marriage — until the incident of June 19, 1954, which culminated in their separation. Both were employed, the husband holding down four jobs at which he worked about 18 or 20 hours a day, i. e., a full-time job at the post office that required him to leave home around three in the morning, and three part-time jobs, — insurance agent and collector, preacher, and newspaper routeman. Much of the trouble between them seems to have stemmed from the fact that the defendant refused to sleep in a room away from the plaintiff so that she could get her rest; that in attempting to hold down four jobs the defendant was away from home much of the time; and that because of his part-time work as an insurance agent he received many calls plaintiff thought should have been directed to the office since she received no pay for answering them.

As pointed out in the first footnote above, the allegations are, for the most part, general in character. The only particularized cause for the separation is the incident of June 19, 1954, when, plaintiff claims, her husband struck her with his fist while they were having an argument. This incident also forms the basis of defendant’s reconventional demand, his averments being that on this occasion his wife shot at him with a gun.

On direct examination the plaintiff made no mention of the shooting until led by counsel, stating simply that on the night of June 19, after she had fixed her husband’s supper, they got into an argument and he struck her with his fist and left the house, returning later with two police officers. It was only when led by counsel that she added her husband had picked up a vinegar bottle and that she "shot at him to scare him” when he drew back like he was going to hit her. (Emphasis supplied.)

On the other hand, the husband’s version of what occurred at this time is that when he arrived home on the night of June 19 his wife began arguing with him, the argument continuing through supper and while he was undressing for bed. When he knelt to say his prayers, she ordered him to- get up off his knees, stating he was “going to judgment” that night. All during this time she was armed with a gun, which she had in her pocket, her purpose being to taunt him into doing something that would give her a cause to kill him in self-defense. To this end she not only threw a bottle at him, hitting him in the head, but threatened him with another, spit in his face, and stepped on his toes. As he attempted to get in bed when she told him not to, she shot at him.

It is clear from her own statement that she shot at her husband to scare him, not in self-defense, not being, at the time, in fear of her life. Having .reached this conclusion, the holding in Dejoie v. Dejoie, 224 La. 611, 70 So.2d 398, is controlling, although the facts are not absolutely identical. We do not deem it necessary, therefore, to further detail and analyze all of the remainder of the testimony in the record for the purpose of pointing out the various discrepancies in the version of the wife and the corroboration given the husband.

From the foregoing it is obvious that we are not justified in anywise disturbing the conclusion of the trial judge.

The judgment appealed from is affirmed, at the cost of appellant.

HAMLIN, J. ad hoc., recused.

      . The allegations of the petition are, for the most part, general, and to the effect that the plaintiff was mistreated mentally and physically in that she was denied love and affection and subjected to contempt and sarcasm as well as to telephone calls from other women; not supported adequately; and struck with fists and a hammer. The only particular allegations have reference to events oc-eurring on the night of June 19, 1954, when, plaintiff asserts, the defendant struck her. with his fist and threatened her with a bottle. It was on this night the separation occurred which forms the basis of the action.

      . In his answer the defendant, in addition to denying categorically plaintiff’s allegations, except such as were qualified by his answer, reconvened, seeking a separation on the ground that his wife had made an' attempt on his life, deliberately shooting at him on the night of June 19, 1954, with a gun.

      . There is no mention of the shooting incident in plaintiff’s petition.

      . She first stated the bottle was on the sink and then, under correction by her counsel in his question, that it had been on the table.

      . The defendant also testified, in accordance with his answer, that his wife shot at him several months previous thereto, in April of 1954, and although plaintiff denied the shooting, she did state she told her husband at that time she was going to “hurt him” if he hit her again with his fist. Yet under cross-examination she admitted he had not then hit her with his fist, and, when pressed, she could not even remember when he had last hit her, stating that in her estimation it had been “About two summers ago, I imagine.” (Emphasis supplied.)


source: Caselaw Access Project

author: FOURNET, Chief Justice. McCALEB, Justice

license: Public Domain

text:
    232 La. 184
    STATE of Louisiana v. Sidney Paul REVERE.
    No. 43077.
    Supreme Court of Louisiana.
    Feb. 25, 1957.

      Jack P. F. Gremillion, Atty. Gen., M. E„ Culligan, Asst. Atty. Gen., Leon D. Hubert, Jr., Dist. Atty., Phil Trice, Asst. Dist. Atty., New Orleans, for appellant.
    Eugene Stanley, Clem H. Sehrt, New Orleans, for defendant-appellee.
   FOURNET, Chief Justice.

The state is appealing from the judgment of the district court quashing an indictment returned by the Grand Jury for the Parish of Orleans charging the defendant, Sidney Paul Revere, with perjury as denounced by RS 14:123, on the ground that one Edward Stevens, an unauthorized person, had been present in the grand jury room during that body’s investigation of the case against the accused.

According to the record it appears that the grand jury during the month of January 1953 had for investigation alleged irregularities in connection with the operation of the Louisiana State Museum under the directorship of the defendant, and, as a result thereof, that several indictments were returned against him on February 11, 1953, one being Indictment No. 141-214, which was allotted to Section “A” of the Criminal District Court for the Parish of Orleans and charged him with perjury.

It was during the trial of the defendant in Section “E” on one of the other indictments (No. 141-209) that defense counsel first learned Edward M. Stevens had been present in the grand jury room as monitor ■of a machine being used to record the proceedings before the grand jury which resulted in the return of. this indictment, and they, on June 6 following, filed a ' motion to quash the indictment in the instant case on that ground.

On trial of the motion Stevens, the only witness, testified that at the time the indictment was returned he was serving as an investigator in the office of the district attorney for the Parish of Orleans, to which office he had been assigned by the police department of the City of New Orleans in the fall of 1952, having served for some 5 years prior thereto as a desk sergeant for that department. He further testified he was called by the District Attorney to monitor the “Soundscriber” machine being used to record the testimony of the witnesses appearing before the grand jury in connection with the investigation of the Louisiana State Museum, and that after having been administered the oath of secrecy by the foreman of the grand jury, he did monitor the machine and later made a typed transcript of the proceedings from this recording. He stated that although he was a typist, he was unable to take shorthand, and, further, that prior to the investigation of the case by the grand jury he had participated in the investigation of the accused that finally resulted in the return of the indictment.

The rationale of the trial judge’s reasons for his ruling in quashing the indictment may be succinctly stated to be that “The legislature has prescribed what persons may be permitted to attend the sessions of the grand jury,” and although a stenographer is an authorized person, inasmuch as Sergeant Stevens is not a stenographer and was, during the session, listening to the machine and not to the witnesses themselves, he “could not have been sworn before the grand jury in this capacity,” and, therefore, “was not one of the persons authorized by law to be present.” He further states that “To deviate in any degree from rules of procedure laid down by the statute opens the door to the possibility of abuse and prejudice,” since “The statute regulating grand jury proceedings and prescribing what persons shall attend its sessions is designed to insure that no undue influence is exerted on members of the grand jury to the prejudice of either the state or the defendant,” and “The secrecy of the grand jury proceedings makes it impossible to inquire into or to determine in any case whether its members have been subjected to undue influence.”

The state contends, however, (1) that “the presence of Stevens during the grand jury session was in the capacity of a stenographer as contemplated in RS 15:-215,” arguing that this section merely lists those given specific permission to be present without forbidding the presence of others, and (2) that even though he was not an authorized person this, in the absence of a showing of prejudice or injury, “is not sufficient basis for vitiating the indictment” under the law generally prevailing in this country.

So far as we can determine, the exact issue presented for our determination under the first contention has never been squarely passed on by any court. In order that it may be intelligently and properly considered for decision, therefore, we must first review the function of the grand jury against the contributing historical factors that have given added significance to that body as we know it in America in modern times.

We find that while the actual origin of the grand jury is veiled in obscurity and cannot be traced with exact certainty, since it arose silently and gradually out of the usages of a state of society that has forever passed away, there can be no doubt that it is of medieval origin and antedates by centuries the criminal and civil trial juries that eventually evolved from it. It is generally conceded by serious students that the usage of a jury in the royal courts for the purpose of discovering and presenting to the king persons suspected of serious crime has its inception in one main root — the old Carlovingian inquisitio of Frankish origin that was adopted in Normandy by its kings and brought to England, being employed by William the Conqueror as early as 1066 for the purpose of having a designated number of men summoned by a public officer to discover and present certain facts in answer to inquiries addressed to them. This was the machinery used extensively by William in the compilation of his Domesday Book around 1081-85, which contained the results of his inquest or survey of the lands of England. Thus it was that when Henry II, as a part of his general reformation of the law, and motivated by a desire to increase the detection and trial of crimes in the kingdom, issued his Assize of Clarendon in 1166, the first statute to institute the accusatory procedure as we know it today, he drew not on Anglo-Saxon precedents but on this medieval Frankish legal custom of calling together a body of neighbors to give upon oath a true answer to some questions that had a century previously been employed by the Conqueror. The accusatory body thus formed closely resembled the modern grand jury in personnel, duties, and powers, its members being from the first neither exactly accusers nor exactly witnesses, but designed to give voice to common repute and report. See 2 Pollock & Maitland, History of the English Law, 639, 642; Kenny, Outlines of Criminal Law 487, Section 718; Vanderbilt, Judges and Jurors 52; Orfield, Criminal Procedure from Arrest to Appeal 135— 193; 1 Stephen, A History of the Criminal Law of England 244, 253; Holdsworth, A History of the English Law, Vol. 1, pages 312-350; Vol. 2, pages 197, 198, 256, and 257; Vol. 3, pages 608 and 609 ; 28 C.J. 763, Section 4; 38 C.J.S., Grand Juries, § 1 c, p. 982 ; 24 Am.Jur. 833, Sec. 3; 12 RCL 1014, Sec. 2; 38 Journal of Criminal Law and Criminology 43; 10 Oregon Law Review 101; 16 Fordham Law Review 131; Charge to Grand Jury by Mr. Justice Field, U.S.C.C.A., Fed.Cas.No.18,255, 2 Sawy. 667; State ex rel. Porter v. District Court of First Judicial District, 124 Mont. 249, 220 P.2d 1035.

By a curious inversion this jury, established in order to make easy, and thus multiply, accusations of crime, became one of revising and, thereby, diminishing such accusations. It was deemed, in time, the very essence of an Englishman’s liberty and his greatest protection against invasion of his life and liberty from unwarranted persons and motives; from unfounded accusations and groundless prosecutions, whether engendered by partisan passions or private enmity; and from political persecutions and governmental tyranny in the centuries when absolute monarchs on the Continent did not hesitate to interfere with the subject’s freedom by imprisoning him without accusation or hearing^ So much was this true that it was one of those great and firmly entrenched rights whose preservation was wrung from the king to secure the subject against oppression and incorporated in the Magna Charta of 1215, and so sacred did it become to the Englishman that a mere attempt by the Crown to dictate to grand juries hastened the downfall of the Stuarts in 1688. Brought to this country by our forefathers, it was preserved in the charters of the original colonies and in our national Bill of Rights (Fifth Amendment to the Constitution) when this nation was founded, and, also, in many state constitutions, the Louisiana provision being Sections 2 and 9 of Article I of the Louisiana Constitution of 1921. And, lying, as it does, at the very foundation of our government, it is recognized today not only as an important tool in the enforcement of criminal law, but also as the last stronghold of the layman’s initiative and shield in this field. Kenny, Outlines of Criminal Law 487; Vanderbilt, Judges and Jurors 52; 38 Journal of Criminal Law and Criminology 43; Hurtado v. People of State of California, 110 U.S. 516, 4 S.Ct. 111, 292, 28 L.Ed. 232, both the original opinion and the dis-sénting opinion of Mr. Justice Harlan; Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849; Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652; In re Opinion to the Governor, 62 R.I. 200, 4 A.2d 487, 121 A.L.R. 806; Charge to Grand Jury, U.S. C.C.A., Fed.Cas.No.18,255, 2 Sawy. 667; People v. Naughton, 7 Abb.Pr.,N.S., 421, 38 How.Pr.,N.Y., 430; Commonwealth v. Harris, 231 Mass. 584, 121 N.E. 409, 410.

Not only has the grand jury been, traditionally, an inquisitorial body charged with determining whether probable grounds for suspicion of-a crime exists, but, from its very- beginning, its sessions have been surrounded by a cloak of seclusion and secrecy that has been jealously guarded and preserved during the intervening centuries as -the only means of insuring that it be permitted the freedom of action necessary for a vigorous and effective discharge of its duties. The reasons underlying this necessity for secrecy are manyfold. Among them •are: (1) It promotes freedom in the disclosure of crime; (2) prevents coercion of grand jurors through outside influence and intimidation and thus permits a freedom of deliberation and opinion otherwise impossible; (3) protects the safety and freedom of witnesses and permits the greatest possible latitude in their voluntary testimony; (4) prevents perjury by all persons appearing before the grand jury; (5) prevents the subornation of perjury by withholding facts that, if known, the accused or his confederates might attempt to disprove by false evidence and testimony; (6) avoids the danger of the accused escaping and eluding arrest before the indictment can be returned; and (7) keeps the good names of the persons considered, but not indicted, •from being besmirched. Thus it may be ■ seen that the secrecy that has from time immemorial surrounded the grand jury sessions is not only for the protection of the jurors and the witnesses, but for the state, the accused, and, as has been said, for society as a whole. 8 Wigmore on Evidence, 2d Ed., 716, Sec. 2360, etc.; Green-leaf on Evidence, Sec. 252, etc.; 24 Am. Jur. 865, Sec. 47; 28 C.J. 763, Sec. 4, etc., 38 C.J.S., Grand Juries, § 1 c, p. 982; 10 Oregon Law Review 101-118; 1 Edward Livingston’s Introductory Report to the Code of Criminal Procedure, Works Edition, 1872, page 370; Orfield, Criminal Procedure from Arrest to Appeal, 167-175; People v. Naughton, 7 Abb.Pr., N.S., 421, 38 How.Pr., N.Y., 430; In re Gardiner, 31 Misc. 364, 64 N.Y.S. 760; People v. Dunbar Contracting Co., 82 Misc. 174, 143 N.Y.S. 337; Ward Baking Co. v. Western Union Telegraph Co., 205 App.Div. 723, 200 N.Y.S. 865; In re Attorney General of United States, 160 Misc. 533, 291 N.Y.S. 5; Latham v. United States, 5 Cir., 226 F. 420, L.R.A.1916D, 1118; United States v. Amazon Industrial Chemical Corp., D.C., 55 F. 2d 254; Goodman v. United States, 9 Cir., 108 F.2d 516, 127 A.L.R. 265; In re Atwell, D.C., 140 F. 368; Commonwealth v. Mead, 12 Gray, Mass., 167; In re Opinion of Justices, 232 Mass. 601, 123 N.E. 100; State v. District Court of First Judicial District, 124 Mont. 249, 220 P.2d 1035; dissenting opinion in People v. Minet, 271 App.Div. 345, 66 N.Y.S.2d 391, which was upheld on appeal, see 296 N.Y. 315, 73 N.E.2d 529; State v. Watson, 34 La.Ann. 669; State v. Fox, 122 Ark. 197, 182 S.W. 906; Misso v. State, 61 Tex.Cr.R. 241, 135 S.W. 1173.

One of' the earliest recorded oaths of jurors, in 1250, was to the effect that they .pledged themselves “to conceal what they had heard,” and this .secrecy has come to be so much a matter of public policy in our day that it has been held: “It is manifest an examination of witnesses by the grand jury in the presence of others, witnesses, bystanders, or judges, necessarily and inevitably subjects the accused to a public trial without right to testify in his own behalf or to be represented by counsel or attorney. It is, equally plain such procedure destroys the force and vital principle of the oath which enjoins the grand jury to keep secret ‘the commonwealth’s counsel, your fellow’s and your own.’ ” Commonwealth v. Harris, 231 Mass. 584, 121 N.E. 409. See, also, Orfield, Criminal Procedure from Arrest to Appeal 167; 10 Oregon Law Review 116.

' At the very beginning the secrecy was so impregnable that no one other than witnesses for the prosecution were permitted to invade the jury room. All others were excluded, including the defendant, his witnesses and counsel, and even counsel for the crown, although the absence of the government’s officer might result in the possibility that a hill would be ignored through some misapprehension of the law. Kenny’s Outlines of Criminal Law 487, Section 718. Since that time, thi9 secrecy ■has been invaded in only rare instances, and then either through legislative authorization or when it was deemed that the one admitted to the jury room was absolutely essential to the proper functioning of that body. The problem of relaxing the secrecy of the gkand jury proceedings is incapable of rule-of-thumb solutions. A court faced with the question of determining whether to or not should recognize that if the secrecy requirement is regarded lightly it may foster the very practices which the grand jury functions to avoid, and, on the other hand, that if it is swept away entirely, the jury may feel hindered and tend to overcautiousness. Conway v. Quinn, Mo. App., 168 S.W.2d 445; In re Lebowitch, 235 Mass. 357, 126 N.E. 831; United States v. Heinze, C. C., 177 F. 770; Latham v. U. S., 5 Cir., 226 F. 420; L.R.A.1916D, 1118; Schmidt v. U. S., 6 Cir., 115 F.2d 394. See, also, 27 New York University-Law Review 319-329.

The proper administration of justice requires impartial and unobstructed conduct at every phase of the criminal process, including the proceedings in the grand jury sessions. To risk having these proceedings divulged may not violate any spe- 1 cifically written constitutional right of the individual named, but it would most certainly violate every elementary rule of civil liberties and due process of law. The accused is not permitted to attend the sessions of the grand jury either with or without counsel, as a general rule, nor to know anything of the matters that occur there. Since he has no right in so far as that body is concerned except the right to ’ have it duly impaneled and conducted according to law, his right in this respect should be rigorously protected.

In the light of the foregoing, it is obvious that if we are to preserve the traditional grand jury and its background in principle and theory we must answer the first contention posed adversely to the argument advanced by the state. Our - statute (RS 15:215) not only makes , it mandatory that the sessions of the grand . jury be secret, but specifically enumerates the only persons authorized to appear before that body. A “monitor” or “operator” of a recording machine is not one of those enumerated, and we must conclude that until provision is made in our law for the presence of such persons, it is not the province of the court to hold they are included. ■

On the second point urged by the district attorney, i. e., that even though Stevens was an unauthorized person the indictment still cannot be quashed under the majority view prevailing in this .country in the absence of a showing of prejudice or injury, we find a very extensive treatise on this subject in the annotation at 4 A.L.R.2d 392 entitled “Presence in grand jury room of person other than grand juror as affecting indictment,” and in the discussion of the general rules and factors involved therein we find, at page 395, the following: “Although it appears well established that an indictment returned by a grand jury will be quashed or abated where the presence of an authorized person during the grand jury proceedings results in prejudice to the accused, there is a decided difference of opinion as to whether the mere presence of an unauthorized person, without a showing of prejudice, is a sufficient ground to set aside the indictment. The prevailing view, apart from statutes expressly affecting the question, is that the presence o-f an unauthorized person during the grand jury proceedings is, at most, a mere irregularity, not sufficient to constitute a ground for setting aside the indictment returned, by the grand jury, unless prejudice to the accused is shown. * * * Qn the other hand, the view has been taken that the appearance of an unauthorized person before a grand jury is a sufficient ground for setting aside an indictment without a showing of prejudice to the accused.” (Emphasis supplied.)

The majority- view -is based largely on the fact that judges are loathe and reluctant to delay justice and feel, further, that criminals should not be allowed to take advantage of a technicality in the law and thereby escape the consequences of their acts. .But it would appear that this reluctance actually springs from the fact that the judge in the particular case could see no reason for invalidating an indictment for what was, in the-mind of the court, a mere trivial irregularity.

However, an analysis of the cases sustaining the majority view discloses they are, for the most part, decided under certain broadly written statutes, or, in some instances, from jurisdictions having no statutory direction in the matter at all; further, that even in some of the jurisdictions lacking statutory provision, an indictment will be invalidated upon the mere proof that an intruder was present during any stage of the grand jury proceedings, the only persons not being considered as intruders being those that are inherently necessary, such as interpreters. In the jurisdictions having strictly drawn statutes, the presence of an unauthorized person at any time is considered fatal. An analysis will also disclose further distinguishing reasons for the holdings, such as, for example, that (1) in some cases where it is suggested from the language that the “prejudice test” was applied, reliance was actually placed on the fact that the particular individual objected to was a de facto member of some group of authorized persons, (2) that the court’s refusal to set aside the indictment turned on the fact the motion was considered after the accused had been tried and convicted, the judicial sentiment here being that there existed little justification for then setting aside the violation, or (3) that the motion came too late after arraignment and plea to the indictment, which was considered in the nature of a waiver of any irregularities in the body returning it. See, annotation at 4 A.L.R.2d 392; 38 C.J.S., Grand Juries, § 40, etc., p. 1039; dissenting opinion of Judge Love in People v. Minet, 271 App. Div. 345, 66 N.Y.S.2d 391, at page 399, and the opinion upholding that view on appeal* at 296 N.Y. 315, 73 N.E.2d 529; In re Lebowitch, 235 Mass. 357, 126 N.E. 831; Latourette v. State, 91 Ark. 65, 120 S.W. 411; and the discussion and analysis of many of these cases and laws at 48 Columbia Law Review 682.

1'he minority view, on the other hand, is based on the concept that the setting of such a precedent imperils the very structure of the grand jury and would destroy the common law and statutory protection that has been placed around the secrecy of that body for centuries. For this reason, the jurisdictions adhering to the, minority view tenaciously hold that the secrecy of the grand jury room is for the protection of complaining witnesses, the jurors themselves, those charged or accused, the state, and society as a whole.

The minority view finds much substance and merit when we consider that among the inalienable rights of our citizens in Louisiana is the one guaranteeing in our Bill of Rights that “No person shall be deprived of life, liberty or property, except by due process of law,” and that “Prosecution shall be by indictment or information * * * provided, that no person shall be held to answer for capital crime unless on a presentment or indictment by a grand jury * * * ” (Sections 2 and 9 of the First Article of the Constitution of 1921), and, further, the difficulty one encounters in attempting to show what transpired in the grand jury room because of the sanctity and secrecy that has been placed around that body, as well as the restrictions of law guaranteeing the seclusion of its proceedings. Our statutes demand that grand jurors, witnesses, and all authorized persons be administered the oath by which they swear to keep secret the proceedings of the grand jury and that secrecy cannot, thereafter, be invaded. RS 15:204, 212, 213, 215, 470, 471; State v. Jones, 8 Rob. 616; State v. Watson, 34 La.Ann. 669; State v. Lewis, 38 La.Ann. 680; State v. Britton, 131 La. 877, 60 So. 379; and State v. Taylor, 173 La. 1010, 139 So. 463.

The important point that is frequently overlooked in similar instances is that the mere presence of an unauthorized person in the grand jury room is violative of a substantial right of the citizen and cannot, if we are to preserve the safeguards of our heritage in grand jury proceedings, be abridged through the subterfuge of shifting to that citizen the burden of proving such an invasion of his substantial right was prejudicial. “The contention,” the highest court of Massachusetts points out, “that the burden is upon the defendant to show he was injured by action of the grand jury is unsound, because in the nature of things it would be impossible to prove the fact if true before the jury trial and because the wrong complained of is the violation of a 'substantial right guaranteed by the Bill of Rights, and is not a mere failure of the grand jury to observe technical requirements and formalities.” Commonwealth v. Harris, 231 Mass. 584, 121 N.E. 409, 410. Or, as put by the United States Circuit Court of Appeal in Latham v. United States, 5 Cir., 226 F. 420, 424, L.R.A.1916D, 1118, “The right of the citizen to an investigation by a grand jury pursuant to the law of the land is invaded by the participation of an unauthorized person in such proceedings, be that participation great or small. It is not necessary that ■participation should be corrupt, or that unfair means were used. If the person participating was unauthorised, it was unlawful. And this would be an unlawful invasion of the right of the citizen, and unless this unlawful invasion is rectified by a proper tribunal at the instance of the citizen, it becomes a justified illegality; and, in the words of Judge Hough: ‘A justified illegality, however trivial of itself, is of the highest importance.’ ” And we think most appropriate here the observation in United States v. Rosenthal, C.C., 121 F. 862, 873, that “Every citizen is amenable to the secret inquisition of the grand jury, and he may demand justly that his essential rights be guarded by the wholesome preservation of settled systems and policies, that give greater certainty to legal proceedings * * *. The inconvenience of resubmitting the matter to the grand jury is temporary; the injustice of denying the defendants investigation pursuant to the law of the land would be perpetual.” (Emphasis supplied.)

Another point frequently overlooked is that it is not the fact that prejudice actually resulted that is of primary and vital concern, but that an opportunity was made possible to exert prejudice and influence on members of the grand jury that must be guarded against. United States v. Edgerton, D.C., 80 F. 374; Latham v. U. S., 5 Cir., 226 F. 420, L.R.A.1916D, 1118; State v. Watson, 34 La.Ann. 669; Lewis v. Board of Commissioners, 74 N.C. 194; Commonwealth v. Harris, 235 Mass. 584, 121 N.E. 409.

The instant case furnishes its own best example. The record does not reveal whether Stevens appeared before the grand jury as a witness in this case, but he admitted he had taken an active part as a member of the police department assigned to the office of the district attorney in the investigation of the matter under consideration before the grand jury. And while he denied he had in any way conducted himself in a manner that would have prejudiced the rights of the accused while in the grand jury room, the defendant has no way of contravening that statement under our statutory restrictions. In these circumstances we think most appropriate the following discussion by the highest court of New York in reversing a decision of the lower court in People v. Minet, supra [296 N.Y. 315, 73 N.E.2d 532], that had approved the presence in the jury room of the sister of the prosecuting witness in a rape case, who was nervous:

“Where the Legislature has wished to make prejudice a material determinant it has so provided * * *. We should not write it into section 313. That is for the Legislature to do if it is to be done at all. It is true that in some jurisdictions it must he shown that the grand jury was influenced and the defendant prejudiced in his substantial rights before the indictment will be invalidated by reason of the presence of an unauthorized person. * * * We do not think that that distinction should be made under our statute. Except in the clearest situations it would be practically impossible to show influence or prejudice. Even an inspection of the minutes, which it is difficult for a defendant to obtain since it is granted only in order to enable him to move to set aside the indictment * * * would not show it in all probability. A change in expression, a pressure on the hand or a warning glance would not be shown upon the minutes but might well influence, suppress or alter testimony to the prejudice of the defendant. There may have been prior expressions or conversations between the two witnesses which the one then giving testimony might well hesitate to repudiate or modify in the presence of the other. The District Attorney here contends, and we are told that defendant’s counsel conceded on the argument of the motion to dismiss, that defendant suffered no prejudice by the joint presence of the. two sisters, but as was said in United States v. Edgerton, supra, D.C., 80 F. at page 375: ‘The court cannot know that this suggestion represents the fact.’ We think the practice offers too great a possibility for the exercise of undue influence to be condoned. Approval of it would open the door to grave abuses and jeopardise safeguards with which the cumulative wisdom of our legislators, lawyers and judges has surrounded the institution of the grand jury. It is an institution which protects both the community and the individual. It is a serious matter for any individual to be charged with crime whether the charge be true or false. As was said in Matter of Gardiner, 31 Misc. 364, 375, 64 N.Y. S. 760, 767: ‘ “It is as important to a person that he be fairly and justly accused of crime as that he be fairly and impartially tried therefor.” ’ ” (Emphasis supplied.)

We therefore conclude that the presence of Stevens in the grand jury room during the investigation of the defendant was not a mere irregularity, but a substantial violation of the defendant’s rights, and that the trial judge, therefore, properly maintained the motion to quash.

For the reasons assigned, the judgment is affirmed.

HAWTHORNE, J., absent.

HAMITER, J., concurs in the decree.

McCALEB, Justice

(dissenting).

The majority opinion in this case is not only admittedly contrary to the prevailing view throughout this country on the question of the effect of the legality of grand jury proceedings when persons, other than the grand jurors, are present in the grand jury room — it is in discord with previous holdings of this Court, which are not mentioned in the opinion.

For my part, I see no merit in the contention that, because Officer Stevens operated the “Soundscriber” machine, which recorded appellee’s testimony before the grand jury, and later made a typed transcript of the testimony from this recording, he was an unauthorized person in the grand jury room within the meaning of the law or that his presence, if unauthorized, is a sufficient predicate for vitiating the indictment.

The two statutes pertinent to this case are R.S. 15:19 and 15:215. R.S. 15:19 forbids the presence of persons, other than members of the grand jury, during the deliberations of the grand jury on their findings. However, R.S. 15:215, after declaring that the sessions of the grand jury shall be secret, provides that the district attorney “shall have free access to said sessions; * * * ” and “ * * * may cause the testimony taken before the grand jury to be reported by a stenographer who must be first sworn by the foreman of the grand jury; * * *

In my view, Stevens was nothing more nor less than a reporter of the grand jury proceedings and, as such, came within the purview of the statute. It is clear that the statute, while declaratory of secrecy in grand jury proceedings, specifically recognizes the necessity and desirability of an accurate report of such proceedings which remains available to the proper lawful enforcement officers and, to this end, it was provided that the testimony be reported by a stenographer, who shall be sworn to secrecy. But, in stating that the testimony should be reported by a stenographer, the Legislature was merely indicating the type of person who, during 1928 when the Code of Criminal Procedure was originally enacted, usually reported court proceedings. This provision is descriptive and it strikes me as unreasonable to conclude that the word “stenographer”, as written in the Act, was intended to apply only to persons who write shorthand and that, if the person used to report the testimony did so in longhand or by stenotype or by recording machine, as in this case, the entire proceedings of the grand jury would be void.

R.S. 15:215 is declaratory of the preservation of secret sessions by the grand jury. Since Stevens was sworn to secrecy, there was no violation of the stated principle in this case. Nor is it shown that he did anything in the jury room other than act as reporter of the proceedings. In these circumstances, it appears to me that the ruling that Stevens’ presence in the grand jury room was unauthorized and that the sessions of the grand jury are thereby void is founded on an interpretation of the statute, which is not warranted in the light of the purpose of its enactment.

This Court in the past has not regarded an irregularity in grand jury sessions, if the one at bar can be classed as an irregularity, to be destructive of the validity of the proceedings. On the contrary, in State v. Firmatura, 121 La. 676, 46 So. 691, where a motion to quash the indictment was predicated on the fact that a deputy sheriff named Tony Patillo, who acted as interpreter for the grand jury, was also a witness and had taken an active part in the investigation of the case, the court found that, since there was no evidence that the accused was in anywise prejudiced by any of the irregularities charged and since said interpreter did not participate or attempt to participate in the deliberations of the grand jury, the motion was without merit.

In State v. Louviere, 165 La. 718, 115 So. 914, which was also decided prior to the enactment of the Code of Criminal Procedure (from which R.S. 15:215 has been adopted), the motion to quash the indictment was based on the presence in the grand jury room of a stenographer who reported the testimony taken before the grand jury. The Court held that the motion was not well founded because the stenographer left the grand jury room prior to the deliberations of the grand jury. In that case, the decision in State v. Watson, 34 La.Ann. 699 (which is cited in the majority opinion herein), was distinguished on the ground that, in the Watson case, an unauthorized clerk to the grand jury had access not only to the proceedings but to the deliberations of the grand jury. The Court said:

“We are of opinion that the mere presence in the grand jury room of a stenographer who confined himself to the taking down of the testimony of the witnesses in the presence of the grand jury and district attorney, and retired with the district attorney before the grand jury began its deliberations, was no more prejudicial to the accused than if the same testimony had been recorded on a phonograph or other mechanical device; and, surely, that would not prejudice the accused or suffice to vitiate the finding of the grand jury.”

The foregoing quotation, in my opinion, fits this case and should control the decision.

I respectfully dissent.

      . The charge of perjury is in connection with a statement allegedly furnished the defendant by the Hotel Bentley of Alexandria, Louisiana, and is on two counts, the first being that he knew no such statement had been furnished and the second that he knew he had .not paid the hotel attendant the sum of $34.06 in cash in settlement thereof, as sworn by him.

      . This indictment charged the defendant with the theft of $177 in United States currency belonging to the museum. It resulted in a mistrial.

      . R.S 15:215 provides: “The sessions of the grand jury shall be secret, but the district attorney, as their legal adviser, shall have free access to said sessions; the district attorney may cause the testimony taken before the grand jury to be reported by' a stenographer, who must be first sworn by the foreman of the grand jury; and whenever a witness is unable to speak the English language, the grand jury shall have the right, at its discretion, to employ an interpreter to translate the testimony of the witness, but such interpreter shall be first sworn to keep secret the proceedings of the grand jury-”

      . In the recent ease of State v. Howard, 230 La. 327, 88 So.2d 387, there was no unauthorized person in the grand jury room, it being conceded the .recording machine there used was operated by the district attorney. And, for the reasons hereinafter given in this opinion, the cases of State v. Louviere, 165 La. 718, 115 So. 914; and State v. Firmatura, 121 La. 676, 46 So. 691, will not be followed. Furthermore, the identical factual situation here presented was not there involved.

      . In Commonwealth v. Harris the court very, graphically expresses this thought thusly: “It was decided in Jones v. Robbins, 8 Gray, Mass., 329, that the clause in article 12 of the Bill- of Rights of Massachusetts which reads: ‘No subject shall be arrested, imprisoned, * * * exiled, or deprived of his life, liberty or estate, hut by the judgment of his peers, or the law of the land,’ made an indictment or-presentment of a grand jury essential to the validity of a conviction in cases of prosecution for felonies. In the opinion, delivered by Chief Justice Shaw, the court adopts the conclusion of Chancellor Kent that ‘the words by the law of the land, as used originally in Magna Charta in reference to this subject, are understood to mean due process of law, that is, by indictment or presentment of good and lawful men,’ and goes on to declare that: ‘The right of individual citizens to be secure from an open and public accusation of crime, and from the trouble, expense and- anxiety 'of a public trial, before a probable cause is established by the presentment and indictment of a grand jury, in case of high offences, is justly regarded as one of the securities to the innocent against hasty, malicious and oppressive public prosecutions, and as one of -the ancient immunities and privileges of English liberty.’ ”•

      . As has been very aptly said: “The inquisitorial power of the. grand jury is the most valuable function which it pos-sosses today, and, for more than .any supposed protection which it gives to the accused, justifies its survival as an institution. As an engine of discovery against organized and far-reaching crime, it has no counterpart. Policy emphatically forbids that there should be any curtailment of it except in the clearest cases.” In re Grand Jury Proceedings, D.C., 4 F.Supp. 283, 284.

      . The senate of Massachusetts proposed legislation permitting the presence in the grand jury room of “a police officer or other person who has been engaged on the preparation of the ease,” and asked the court to rule on the constitutionality of such a provision. The court, in reply, said: “The attendance of a police officer would afford opportunity for subjecting witnesses to fear or intimidation, for preventing freedom of full disclosure by testimony, and for infringing the secrecy of the proceedings.” In re Opinion of Justices, 232 Mass. 601, 123 N.E. 100.

      . On this subject we think the following comment, made by Holdsworth, the most eminent of modern authorities on the history of the criminal law of England, in 1933 is most appropriate: “Ever since 1681, when the ignoramus of a grand jury saved Lord Shaftesbury from a trial for treason, it is clear that the grand jury is capable of being a real safeguard for the liberties of the subject. These liberties need safeguards even more today than they did in 1681 * * * because bureaucrats * * * have established a more effectual and more oppressive tyranny than the Stuarts ever succeeded in establishing. We cannot in these days afford to lose one of our few remaining securities for freedom of speech and action.”


author: JANVIER, Judge. McBRIDE, Judge

text:
    Joseph M. PERDOMO v. SEARS, ROEBUCK & CO.
    No. 20834.
    Court of Appeal of Louisiana. Orleans.
    April 15, 1957.
    Milton L. LeBlanc, Jr., New Orleans, for plaintiff-appellee.
    Clarence F. Favret and Clarence F. Fav-ret, Jr., New Orleans, for defendant-appellant.
   JANVIER, Judge.

Plaintiff, having purchased from defendant an automobile battery, brought this suit against defendant alleging that certain clothes which he wore had been ruined by acid which leaked from the battery because the battery had been placed in an upside down position alongside him on the seat of the taxicab which he used to convey himself and the battery from the store to his residence.

There was judgment in favor of plaintiff for $88.50 and defendant has appealed.

The defendant contends that there are so many strange circumstances about the occurrence that we should not accept the testimony of plaintiff and his witnesses as evidencing the true facts.

We do find certain things quite remarkable. It is very difficult to understand why plaintiff did not notice that the battery was placed alongside him on the seat of the taxicab in an upside down position. He said that he knew nothing about batteries and that therefore he did not know what was the top and what was the bottom.

It is hard to understand why he did not realize that all of the lower portions of his several garments were saturated with acid from the battery until their condition was called to his attention when he reached home.

Furthermore, in spite of the evidence to the contrary, if the acid escaped to the seat of the taxicab and from the seat was absorbed by his garments, we have no doubt that damage to the seat would have been at least as great as was the damage to his garments, and the record shows that no complaint by the owner of the taxicab was made either to him or to defendant.

We consider as significant that plaintiff says that his body was in no way burned by the acid. If it was acid which caused the holes in the several garments, we cannot understand why it did not also affect his own skin. It is true that he says that he bathed as soon as his attention was called to the condition of his garments, but we think that in spite of this bath the acid would have had a serious effect on his skin if he was burned by it.

Then, too, the holes in the various garments, if they were partially caused by acid, were obviously manually enlarged later. This was called to the attention of counsel for plaintiff during the argument and he readily admitted that he himself had cut off some pieces of the garments in order that tests might be made. No evidence of any such tests was produced.

We also note that there is evidence to the effect that if the battery was turned upside down during the 25 minute ride from the store of defendant to plaintiff’s residence, all of the acid would have escaped from the battery, and we think it is shown that if this had happened the battery would have been serviceable only for a very few hours. Yet plaintiff says, that, though the battery was defective and did give trouble, he used it for a few days.

Another circumstance which we cannot overlook is that if the occurrence which plaintiff describes actually took place, he certainly would have reported the matter to defendant almost immediately. He knew on the next day that his clothes had been ruined and he knew that the battery was defective and yet he says that he did not report it to defendant for several days.

All of these circumstances we think throw doubt on the question of whether the occurrences related by plaintiff actually took place. However, in view of the finding below, we cannot say that the judgment was manifestly erroneous.

The judgment appealed from is affirmed at the cost of appellant.

Affirmed.

McBRIDE, Judge

(concurring).

I concur in the decree. I do not agree with the view of my colleagues that the circumstances mentioned throw doubt on the question of whether the occurrences related by plaintiff actually took place. I believe they did take place. The trial judge in well-considered reasons for judgment discussed and analyzed all of the testimony and she states she was impressed with the honesty and truthfulness of the plaintiff’s testimony, as well as that of his son. She points out that Turgeau and Tinney, who appeared for defendant, knew nothing about the pertinent facts of the case, and that the testimony of Blanchard left considerable doubt in her mind as to whether or not he was actually the employee who delivered the battery.

I attach no significance to the fact that plaintiff’s body was not burned by the battery acid. There is no expert testimony in the record which shows that acid from an automobile battery has a noxious effect upon coming in contact with one’s bare skin or that if the acid' has such effect the period of time required for its manifestation. Plaintiff’s statement is that after he arrived home he took a soap bath, and for all I know this was sufficient to remove all traces of the fluid which had permeated his clothing and reached his skin. I am fully convinced that plaintiff’s testimony, which the trial judge thought was truthful, is fully corroborated by circumstances, and to me there is nothing strange or remarkable about plaintiff’s version of the incident.


author: FOURNET, Chief Justice.

text:
    232 La. 213
    Succession of Arah Terrell GUILLORY.
    No. 42447.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    J. E. Oglesby, Winnfield for plaintiff-appellant.
    F. Jean Pharis, Pineville, for inter-venor-appellant.
    Hiram J. Wright, Winnfield, for defendant-appellee.
   FOURNET, Chief Justice.

The Citizens National Bank of Waco, Texas, as executor and trustee under the will of Mrs. Arah Terrell Guillory who, prior to her death on March 7, 1954, was a resident of Waco, filed a petition in the district court for Winn Parish seeking to have this ' will, previously ' probated and approved in Texas, recognized and, accordingly, to be sent into possession of the SE/4 and the SW/4 of the NW/4 of Section 24, T. 13 N., R. 3 W., Winn Parish, which property had 'been bequeathed to the bank to be held in trust “during the lifetime of Terrell Guillory, and at his death the naked ownership” as well as the possession being bequeated “to. the * * Baptist General Convention of the State of Louisiana” and not to be sold but kept so that the revenues derived therefrom might be used for the benefit of the Baptist denomination of the State of Louisiana.

Counsel representing the non-resident son, Terrell Guillory, excepted to this petition on the ground that it disclosed neither a cause nor a right of action inasmuch as (1) the petitioner bank is not qualified to act as a trustee in Louisiana under the provisions of RS 9:1871; (2) the will attempts to establish a trust for a period longer than ten years from decedent’s death and for that reason is null; (3) is further null under Louisiana law since it contains a prohibited substitution, bequeathing the property to one legatee to be held in trust by it for the benefit of decedent’s son, and, at his death, bequeathing this same property to another legatee; and (4) contravenes the public policy of Louisiana by barring any alienation of the property by the second beneficiary under the will and thus forever removing it from commerce.

The Louisiana Baptist Convention intervened in the suit asserting its interests are “antagonistic” to that of the bank as the beneficiary of the property, and, setting forth that the bank, as a foreign corporation, is not authorized or qualified to act as a trustee of realty in Louisiana, asked that the will be reformed to the extent “necessary for the appointment of a qualified trustee of the property,” and that, as thus reformed, it be executed and carried into effect.

The trial judge, without mentioning the intervention, rendered judgment sustaining the exceptions and dismissed the suit. The intervenor is appealing from that judgment, and counsel representing the executor of the will (the plaintiff bank who is also named trustee), joining counsel for the intervenor in brief, concedes, as he must, that the bank is not qualified to act as a trustee of immovable property in this state.

Under the will Mrs. Guillory left certain property to her son outright, including realty in Evangeline Parish. All of the remainder of her estate she gave, devised, and bequeathed to the Citizens National Bank “to be held in trust and managed” for the benefit of her son “so long as he may live,” the revenue therefrom to be paid him monthly in such sums as the bank might deem necessary to provide for his comfort and maintenance over and above what he earned. Mrs. Guillory also provided in her will that “At the death of my son * * * I give, devise, and bequeath to the Executive Secretary of The Baptist General Convention of the State of Louisiana” the property involved in this litigation, which consists of 80 acres of land in Winn Parish.

The bequest is clearly a pro hibited substitution, and, as stich, viola-tive of the public policy of this state as expressed in our basic and statutory law, Section 16 of the Fourth Article of the Constitution of 1921; Article 1520 of the Revised Civil Code; RS 9:1791, and even though such bequest may be valid in Texas, where the will was made, it will not be enforced in so far as it affects property in this state. Harper v. Stanbrough, 2 La.Ann. 377; Succession of Franklin, 7 La.Ann. 395; Weber v. Ory, 14 La.Ann. 537; and Succession of Herber, 128 La. 111, 54 So. 579. Consequently, the trial judge properly maintained the exceptions of no cause and no right of action.

For the reasons assigned, the judgment appealed from is affirmed at the cost of the appellant.

      . It is conceded by ail parties that Terrell Guillory is the only son and heir at law of the decedent.

      . RS 9:1875 provides: “If a trust is created and there is no trustee, or if the trustee * * * ceases for any reason to be trustee, and if the trust instrument provides no method of filling the vacancy, a trustee can be appointed by the proper court. * * * ”

      . Although plaintiff and intervenor both moved for an appeal in open court, only intervenor perfected the appeal by furnishing bond.

      . RS 9:1871 provides: “Individuals who are sui juris and citizens of the United •States, and banks and trust companies’ now or hereafter organized under the laws of Louisiana * * * may act as trustees * *

      .Decedent divided the property not willed outright to the son and provided that, at Ms death, the property in Winn Parish would go to the Baptist Convention and the remainder of the property to Baylor - University in Texas.


text:
    232 La. 218
    The RAPIDES PARISH SCHOOL BOARD v. Mrs. Mary M. NASSIF et al.
    No. 42315.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    Gravel, Humphries, Sheffield & Man-sour, Gus Voltz, Jr., Alexandria, for defendants-appellants.
    Ben F. Thompson, Jr., Dist. Atty., Edwin O. Ware, Asst. Dist. Atty., Dewitt T. Methvin, Jr., Alexandria, for plaintiff-ap-pellee.
   FOURNET, Chief Justice.

The defendant, Mrs. Mary M. Nassif, is appealing from a judgment of the District Court awarding to her the sum of $7,500 as the value of certain property in Alexandria, Louisiana, the result of an expropriation suit by the Rapides Parish School Board — the said property being necessary to complete acquisition by the Board of a site for a proposed new colored elementary school to be constructed on Square 26 of the Welch Addition to the city. The defendant complains that the plaintiff’s expert witnesses, in arriving at an evaluation of $8,000, made their appraisals on the basis of replacement costs less depreciation on the building, and the raw value of the land, but that the true value of her property can be arrived at only by taking into consideration the value of the business conducted thereon, and that the assessment, as demonstrated by the various methods of computation employed by her expert witnesses, should have been fixed at from $12,-000 to $15,000; also, that she should have been allowed the cost of moving, an amount shown as $753.25.

The land expropriated has a frontage of 42 feet on Reed Street and a depth of 71 feet between -parallel lines; the improvements, which covered practically the whole area, consisted of a one-story frame building partitioned into two sections, half being rented to third parties for use as a cafe at a rental of $55 per month and the remainder being used by the defendant and her husband in operating a grocery store, meat market and liquor store. The business was patronized in the main by the negro employees of nearby industrial enterprises, many of whom also lived in the vicinity. In February, 1946, Mrs. Nassif, who had been a tenant, acquired the property for $3,600. The area was later classified as “Zone B residential,” in which by local ordinance the sale of alcoholic beverages is prohibited, but since Mrs. Nassif had sold liquor on the premises prior to the adoption of the ordinance she retained the privilege to continue such sales. The building’s encroachment on adjoining property had been the subject, on October 28, 1948, of a written agreement between the ■Nassifs and the adjoining owners by which the building was to remain as placed, but the Nassifs would acquire no rights by that fact and acknowledged title to the land in other named persons.

The five experts who testified in this case, real estate appraisers of reputation and many years’ experience in the locality, were not in great disagreement when the basis used in arriving at their estimates was the value of the land plus replacement costs of the improvements less depreciation, keeping in mind the best use to which the property could be put, i. e., commercial — their appraisals being in the neighborhood of $8,000. Certain variations in the estimates are attributable to the fact that some appraisers calculated a greater need for repairs on the building, while others, in an effort to meet the test of a voluntary sale between a willing seller and a willing buyer, took into consideration the encroachment on adjoining land and the cost of moving the rear portion and a side wall of the building to bring it within the bounds of defendant’s title. Through the defendant’s witnesses, two other methods of appraisal were developed from the viewpoint of the property’s revenue producing capacity; estimates were made of the market value for investment purposes between a willing buyer and a willing seller (a) on the basis of rental income or return, and (b) by reason of location, rental income, business income, and exclusive right to sell liquor in the immediate vicinity. In calculating by the former method, defendant’s witnesses estimated that a fair rental value for both portions of the building would be $110 per month, and based upon that rental revenue they computed a fair value of the property for investment purposes of $9,000 (in the opinion of two) to $11,000 or $12,000 (in the opinion of the •third). In calculating by the other, or latter, method it was assumed by the appraisers that the business produced a net revenue of $5,200 before salaries for Mr. and Mrs. Nassif and before overhead deductions; after such deductions, a business investment value was computed and that figure, when added to the physical value of the land and building, resulted, according to the calculations of defendant’s three experts, in a “fair market price” of $15,000.

The trial judge found no authority in the jurisprudence for allowing recovery on the basis of the value of the business as a going concern computed in the (last above outlined) manner used by defendant’s experts, stating that “The courts of Louisiana have uniformly considered the value of the business only in so far as it helps to determine the fair market value of the land and buildings.” In arriving at a valuation the judge noted that the experts for both plaintiff and defendant “almost uniformly agree” on the figure of $8,000 as the value of the land and of the building on a cost of replacement less depreciation basis, and observed that with respect to valuation of the property on the basis of fair rental return, the experts varied their estimates from $7,000 to $9,000, so that, all things considered, he thought the sum of $8,000 to be a fair price. Reimbursement for moving costs was not allowed; the deduction of $500 was made in an effort to settle equitably the problem of encroachment on adjoining land and the extent to which the price would be thereby affected in a sale of the property to a willing buyer.

The rule is well settled that the best guide in determining the market value to which the owner is entitled under the law in expropriation suits is evidence of sales of similar or comparable properties in the vicinity, Texas Pacific-Missouri Pacific Terminal R.R. v. Dittmar, 161 La. 444, 108 So. 877; City of New Orleans v. Noto, 217 La. 657, 47 So.2d 36, and that where the record contains no satisfactory evidence of sales comparable to that involved, ascertainment of the true value must be sought by a consideration of other factors and circumstances, Housing Authority of New Orleans v. Boudwine, 224 La. 988, 71 So.2d 541, and authorities cited therein; it is equally well recognized that rental income and value of the business are not sole criteria but are material to the extent that they assist in determining the fair market value, Housing Authority of New Orleans v. Persson, 203 La. 255, 13 So.2d 853; Louisiana Highway Commission v. Paciera, 205 La. 784, 18 So.2d 193; Housing Authority of New Orleans v. Boudwine, supra; and from our appreciation of the evidence we cannot say that the valuation of $8,000 by the trial judge is not fair and reasonable.

On the other hand, we fail to find substance in his deduction of $500 from that amount because of the building’s encroachment on adjoining land, and based on estimates to make a proper adjustment and correct the defect. The record is barren of anything to indicate a requirement or necessity for such an adjustment and the adjoining owners, who were cognizant of the situation, appear to have considered that their rights were sufficiently protected by the written agreement between Mrs. E. G. Cicardo and Mr. and Mrs. Nassif, dated October 28, 1948, wherein the Nassifs admitted the encroachment — which was described in detail; agreed that title to the land was in Mrs. Cicardo and her children, ■renounced the acquisition of any rights by “prescription, usufruct or otherwise,” and recognized the right of the owners to compel removal of the building “should occasion arise.” We cannot conjecture what adjustments would have been necessary in the event of the property being acquired by a willing purchaser from a willing seller.

The contention of counsel for the defendant that it was error for the trial judge, in making the award, not to consider the items of moving the store and equipment to another location, i. e., $506.25 for the necessary packing, crating, loading and unloading, plus a transportation cost of $247 for moving the same any distance up to seven miles, totaling $753.25, and the value of the permit to sell liquor in this particular residential zone without competition for an area of three and a half blocks, is without merit, for such claims are considered as damnum absque injuria, particular sacrifices which society has the right to ask for the public good. See McMahon v. St. Louis, Ark. & Tex. R. Co., 41 La. Ann. 827, 6 So. 640. In that case it was aptly observed: “Prior to the constitution of 1879 the organic law of this state, like that of all the states of this Union, simply provided that ‘private property shall not be taken for public purposes without adequate compensation,’ etc. Under this rule, in absence of other special provisions, a taking of the property was a condition precedent to liability, and the measure of compensation due was the value of the property taken. Mere consequential damage to property, when the property itself was not taken, was not recoverable, and much less any damages resulting to individual owners, in the way of discomfort, inconvenience, loss of business, and the like. All such injuries, inasmuch as they resulted only from -the exercise by another of his legal right, were damna absque injuria.

“The article 156 of the present constitution, in providing that ‘private property shall not be taken nor damaged for public purposes without adequate compensation,’ etc., only extended its protecting shield over one additional injury, and required compensation, not only for property taken, but also for property damaged.

“As in the case of a taking the measure of compensation is the value of the property taken, so in the case of damages the measure of compensation is the diminution in the value of the property.

“There is no warrant for extending the liability one whit beyond this. We are simply to inquire what damage has been done to the property, i. e., to its value for rental and sale. Mere consequential injuries to the owners, arising from discomfort, disturbance, injury to business and the like, remain, as they were before, damna absque injuria, — particular sacrifices which society has the right to inflict for the public good.” 41 La.Ann. at pages 829-831, 6 So. at page 641. (Emphasis supplied.)

For the reasons assigned, the judgment appealed from is amended by increasing the amount from $7,500 to $8,000 and, as thus amended, the judgment is affirmed at plaintiff’s cost.

      . Also named as defendant was Habib Nassif, the husband of Mrs. Mary M. Nassif; however, the judgment below decreed Mrs. Nassif to be the sole owner of the property as of the date on which suit was instituted, and she alone has appealed.

      . The District Court assessed the value of the property at $8,000 but deducted ¡¡55001 because of the fact that defendant’s building encroached on adjacent land.

      . Two were ealléd by the plaintiff, three by the defendant.

      . One of plaintiff’s witnesses also made this computation; estimating what could be anticipated by way of income to a purchaser of the property for investment purposes, he placed rental income from both sides at $90 per month, and after deduction of depreciation, upkeep, taxes and insurance, and possible loss of rentals, arrived at a fair market value of $7,000.

      . The basis of this computation was a so-called “pay back” of two and one-half times the net annual return from the property; this is said to be an accepted means of computing business value from an investment standpoint.

      . The trial judge noted certain discrepancies; in an analysis of the testimony he observed that while the defendant’s experts, in computing the value for investment purposes, estimated the business as a going concern to have netted an annual income of $5,200 a year, actually, based on Mrs. Nassif’s 1953 income tax return, of record, the net income, after deduction of overhead and of salaries in the amount of $2,400 for both Mr. and Mrs. Nassif’s services, would not have exceeded $923 per year from the business itself, exclusive of rent from the cafe. As to the latter item, the judge noted that the rental of $55 per month included the use of a beverage box, cash register, and large pedestal fan.

      .This valuation was reached after tha trial judge, at the request of both the plaintiff and the defendant, viewed the premises.

      . The description is: “ * * * on the front on Reed Avenue, our building extends a distance of approximately three inches on your property, going back a distance of about 39 feet. In the rear, our building is over on your line approximately two feet and two inches a distance of approximately 18 feet 7 inches.”

      . The reference is to the Constitution of 1879, the provisions of which were substantially the same as in the Constitution now in force, that of 1921, providing: “* * * Except as otherwise provided in this Constitution, private property shall not be taJcen or damaged except for public purposes and after just and adequate compensation is paid.” Art. 1, See. 2. (Emphasis ours.)


author: ELLIS, Judge.

text:
    J. Leon YATES et al. v. Jewel C. BOOTY et al.
    No. 4385.
    Court of Appeal of Louisiana. First Circuit.
    March 25, 1957.
    Ponder & Ponder, Amite, for appellants.
    France W. Watts, Jr., Franklinton, for appellees.
   ELLIS, Judge.

This is an action for the wrongful death of Mrs. Jennie Yates, brought by her seven children, J. Leon Yates, O. Gilbert Yates, Will J. Yates, Talmadge Yates, Mable Yates Wallace, Emmie Yates Brumfield, and Gertrude Yates. The death occurred on a gravel road known as the Penn Road which runs north and south in front of the home of the deceased.

Petitioners allege that on January 14, 1954 at approximately 6:30 < P.M. their mother was run down, severely injured and killed from the reckless operation of an automobile operated by Jewel C. Booty with Robt. L. Booty and O. J. Diddon being occupants of the automobile. The deceased met her death by being run over violently by an automobile traveling at an excessive rate of speed. Petitioners alleged that the doctrine of res ipsa loquitur applies. Pleading in the alternative, they further alleged specific acts of negligence as follows:

“A. In traveling at a speed in excess of 60 miles per hour on a country-road where children, livestock, automobiles and pedestrians frequent.
“B. In operating their automobile at a fast and unlawful rate of speed without having the same under control in order to enable the driver to stop by appearance of danger;
“C. In not seeing what he should have seen, or if in seeing, in failing to heed;
“D. In failing to keep the proper outlook and in not checking his speed in passing a parked automobile where pedestrians and occupants were stopped and talking;”

The occupants were alleged to be on a joint mission and venture and were guilty of reckless and wanton negligence in failing to see or to cause the driver to check his speed. The deceased was allegedly guilty of no negligence or, in the event she was found to be negligent, then petitioners pleaded that the doctrine of last clear chance applied and that defendants did or should have discovered the peril to deceased and could have, with reasonable care, avoided her death.

Answer was filed denying each allegation of plaintiffs’ petition and further alleging that the defendants, Robt. L. Booty and O. J. Diddon, were riding with Jewel C. Booty who was operating his vehicle in a northerly direction on Penn Road in a careful and prudent manner. They alleged that the automobile was in the proper lane and proceeding at a speed of approximately 30 miles per hour. A truck was parked on the west side of the road facing in a southerly direction with its lights burning. Jewel C. Booty requested • dimmers from the truck and slowed to 25 miles per hour to safely pass. When he had almost passed the truck the deceased, Mrs. Jennie Yates, ran out on the roadway from behind the truck and stepped directly in the path of the defendant’s automobile, without warning or giving him an opportunity to see and observe her. Defendants alleged that they were not negligent in any respect and alternatively that if they were found to be negligent that the deceased was guilty of contributory negligence.

Exceptions of no cause or right of action were filed by defendants. There was no trial or hearing of these exceptions and it is assumed that they were referred to the merits.

The lower court found that petitioners failed to carry the burden of proof, and also failed to definitely establish the primary negligence of defendants, and plaintiffs have appealed.

We conclude from a careful study of the record that the facts are as follows:

First, it was clearly shown that the deceased, Mrs. Jennie Yates, did in fact run into the road and the path of the oncoming automobile as her son Will was leaving. There was a conflict in testimony between witnesses for petitioners and defendants as to how far Will Yates’ truck had traveled when the deceased was struck by the Booty automobile. Talmadg.e Yates, the only eye witness offered by plaintiffs, testified substantially that his brother’s truck had entered the road and was moving in a southerly direction, after his brother had finished talking to his mother. The truck had traveled 125 feet when it passed the Booty auto traveling at around 60 miles per hour which was too fast to stop in time to avoid striking the deceased. Talmadge Yates further testified that his mother was knocked 100 feet by the impact and that the defendant’s auto skidded 100 feet before hitting a log pile where it stopped.

It was apparent after reviewing the entire testimony for both sides that Tal-madge Yates had greatly exaggerated the speed of the automobile, the distance his mother was thrown by the impact, and the distance that the Booty automobile skidded.

There were eleven witnesses produced by plaintiffs, yet none of them testified, although questioned on the subject, as to the distance from the point of impact to where the body lay or where the defendant’s automobile stopped. Defendants on the other hand testified positively that they skidded a total of 20 feet, fifteen prior to striking the deceased and only five feet after striking her. It follows that not only did the plaintiffs fail to bear the burden of proof but that the testimony was decidedly in favor of the defendants. The driver of the automobile testified that he was traveling at a rate of 30 or 35 miles per hour at the top of the hill. He saw the truck at the side of the road pulling onto the road with its bright lights shining. The truck was a distance of 150 feet as the automobile came over the hill and the driver testified that he applied his brakes, thus reducing his speed and “asked for dimmers” from the truck. He judged his speed to be around 20 miles per hour when he passed the truck and on seeing an object to his left he applied his brakes, skidding 15 feet. The automobile then struck the object and skidded five feet into a ditch just to the right, coming to rest against a log pile. Assuming that this defendant’s testimony is true, it is supported by a reference to charts made for judging ability to stop at certain speeds. The chart referred to is found in Blashfield’s Cyclopedia, Vol. 9, § 6237, and this chart, inter alia, shows that an automobile with good brakes traveling at a speed of 20 miles per hour is capable of stopping in eighteen feet.

The plaintiffs have strenuously urged in their brief that the defendants had the last clear chance of avoiding the accident. The cases cited by plaintiffs in support of this position are inapplicable on their facts. In none of the cases was the question of an obstruction, such as a truck and blinding lights, raised. Also, all of the cases cited by plaintiffs involved accidents occurring during daylight hours at intersections.

Plaintiffs cited Synigol v. Oury, 17 La. App. 163, 134 So. 324 as authority but the facts in that case are in no manner similar to those in the present case. A wagon had entered an intersection and almost crossed the intersection when its rear end was struck by the defendants. The accident occurred at 10 A.M. and there were no obstructions to defendant’s view. The Court ruled that had defendant maintained a proper lookout plaintiff’s wagon would have been observed and the accident avoided. The other cases cited by plaintiffs had similar facts to the Synigol case, supra, and are therefore inapposite. They are as follows: Payton v. Great American Indemnity Co., La.App., 83 So.2d 575; Cox v. Gross, La.App., 47 So.2d 102; O’Connor v. Chicago, R. I. & P. Railway Co., La.App., 40 So.2d 663; Moore v. Nola Cabs Inc., La.App., 70 So.2d 404; Prine v. Continental Southern Lines, La.App., 71 So.2d 716.

Under the facts and circumstances of the case under consideration the defendants cannot successfully be charged with the last clear chance.

For the above and foregoing reasons the judgment of the District Court is affirmed.