author: HAMLIN, Justice ad hoc. SIMON, Justice

text:
    232 La. 700
    CITY OF LAFAYETTE v. Wilfred ELIAS.
    No. 43340.
    Supreme Court of Louisiana.
    April 1, 1957.
    Dissenting Opinion April 25, 1957.
    Rehearing Denied May 6, 1957.
    Albert M. Karre, Lafayette, for appellant.
    J. Minos Simon, Lafayette, Gravel, Hum-phries, Sheffield & Mansour, Alexandria, for defendant-respondent.
   HAMLIN, Justice ad hoc.

In the exercise of our supervisory control (Article VII, Sec. 10, Louisiana Constitution of 1921, LSA), we granted writs to review a judgment of the City Court of the City of Lafayette, which quashed an affidavit charging the defendant with violating Ordinance 316 of the City of Lafayette, in that he sold a beverage of a low alcoholic content to a minor.

The facts of record show that the defendant, operator of Blue’s Bar, was charged by two affidavits with violating Ordinance 316, Section 13, of the City of Lafayette, Louisiana, in that he opened his establishment and place of business on Sunday, September 2, 1956, and unlawfully sold therefrom seven cans of Jax Beer to a person under the age of twenty-one years —a juvenile sixteen years of age.

The defendant filed a motion to quash the affidavits on the grounds that Ordinance No. 316 of the City of Lafayette was an attempted usurpation of a field of legislation already occupied by the State, and that the enactment of said ordinance exercised a power superior to that of the State of Louisiana on the same subject matter, contrary to the law and Constitution of the State of Louisiana. Alternatively, the defendant averred that Ordinance 316, as applied to the present prosecution, had been legally and judicially overruled and repealed. Defendant then filed an amendment to the motion to quash, averring that the City of Lafayette, by the two prosecutions, was attempting to split up a crime and prosecute it in parts. He prayed that the City of Lafayette be ordered to elect which of the two crimes it intended to prosecute.

Ordinance No. 316, Section 13, of the City of Lafayette, reads:

“That it shall be unlawful for any dealer, manufacturer, wholesale dealer, jobber or retail dealer to sell any of said liquors or beverages to any person below the age of 21 years, or to sell any of said liquors or beverages between the hours of midnight of Saturday and midnight of the following Sunday.”

The trial judge upheld the ordinance, insofar as it restrained the sale of liquor on Sunday — a violation of which was the subject matter of one affidavit — but he quashed the affidavit which charged the defendant with having sold seven cans of Jax Beer to a minor. He held that in forbidding the sale of liquors or beverages to a person under twenty-one years of age, the ordinance contravened the limitation of LSA-Revised Statutes 26:285, which provides :

“No person holding a retail dealer’s permit and no servant, agent, or employee of the permittee shall do any of the following acts upon the licensed premises:
“(1) Sell or serve beverages of low alcoholic content to any person under the age of eighteen years.”

The City of Lafayette reserved a bill of exceptions to the ruling of the trial judge.

The only question presented for our determination is — Can a municipality validly enact a penal ordinance prohibiting the sale of beverages of a low alcoholic content to all persons under the age of twenty-one years, when the State law forbids such sales only to persons under the age of eighteen years ?

The Charter provisions of the City of Lafayette, Act 310 of 1914, Sec. 4, amended by Act 52 of 1936, recite:

“That the Board of Trustees * * * shall have full power to adopt all ordinances that may be deemed proper:
“a. To regulate and preserve the peace and good order of the city, to exercise the police power, and to provide and maintain its cleanliness and sanitary condition.
“j. To regulate and prescribe limits for tippling shops, saloons, barrel houses, dram shops, and gambling houses.” (Italics ours.)

The grant of police power to the City of Lafayette in its charter is very broad. Its governing authorities are delegated the right to regulate and prescribe limits for tippling shops and saloons without any qualification or limitation. Our organic law has recognized that the business of selling intoxicating liquors is a lawful calling, but, because of its attendant evils, it has seen fit to delegate to municipalities wide powers for its regulation. State ex rel. Galle v. City of New Orleans, 113 La. 371, 36 So. 999, 67 L.R.A. 70. In the very recent case of City of Baton Rouge v. Rebowe, 226 La. 186, 75 So.2d 239, 241, this Court stated:

“The proposition is generally accepted that there is no inherent right in a citizen to sell intoxicating liquor, and the business may be permitted under conditions such as will limit to the utmost the evils associated therewith. It is recognized that municipalities have authority, under the police power generally delegated to them by the Legislature, to enact ordinances for the regulation of the retail liquor business to the extent necessary for the protection of the public health, morals, safety and peace. State v. Gardner, 198 La. 861, 5 So.2d 132; City of DeRidder v. Mangano, 186 La. 129, 171 So. 826; * * *” See, City of New Orleans v. Smythe, 116 La. 685, 41 So. 33, 6 L.R.A.,N.S., 722.

In LSA-Revised Statutes 26:494, we find:

“Except as limited by the provisions of this Chapter the various subdivisions of the state may regulate but not prohibit, except by referendum vote as provided by Chapter 3, this Title or by legally authorized zoning laws of municipalities, the business of wholesaling, retailing, and dealing in alcoholic beverages. However, no parish or municipality shall, in the exercise of its police power, regulate the business of selling such beverages more than is necessary for the protection of the public health, morals, safety, and peace. Local subdivisions, in adopting these regulatory ordinances, may provide, in addition to the ordinary penalties authorized by law for their violation, provisions which subject the permittee to having his permit suspended or revoked in the manner provided by law for the suspension or revocation of permits.”

We have held that a municipality cannot, by ordinance, permit what a statute forbids or forbid what a statute expressly permits. State ex rel. Sutton v. Caldwell, 195 La. 507, 518, 197 So. 214; City of Baton Rouge v. Rebowe, supra; City of Lafayette v. Deep, 160 La. 5, 106 So. 654. However, in State ex rel. Sutton v. Caldwell, supra, we also held:

“ * * * a municipality with subordinate authority to legislate on the subject may make such new and additional regulations in furtherance of the purpose of the state law as may seem fit and appropriate to the necessities of the locality and be not in themselves unreasonable. * * *” [195 La. 507, 197 So. 218.]

The City of Lafayette contends that the judgment of the City Court of Lafayette, as rendered, constitutes a limitation upon the regulatory authority of municipalities acting pursuant to the authority delegated to them by the Legislature of the State of Louisiana; and, that if this interpretation is to be accepted as a correct one reflecting the true intent of the legislative will, it would, in effect, render every municipality helpless and impotent to enact ordinances for the general welfare of its people.

The City of Lafayette further avers that if a municipality has within its power the right to regulate the time at which such places may operate, the location of such establishments, and the age of persons that may be employed therein, it logically follows that a municipality may regulate the age of persons to whom intoxicating beverages may be sold — where such ordinance has for its purpose the protection of the public health, morals, safety, peace, and good order of the community. It relies on the cases of City of Baton Rouge v. Rebowe, supra; City of Lafayette v. Deep, supra; City of De Ridder v. Mangano, 186 La. 129, 171 So. 826; and Corporation of Minden v. Silverstein & Dittmer, 36 La.Ann. 912.

The City of Lafayette has an institution of higher learning, Southwestern Louisiana Institute, within its geographical limits. Thousands of boys and girls from within and without the State are attracted to this institution each year, in quest of knowledge to prepare them for their life’s work. When these students are sent so Southwestern Louisiana Institute there becomes imposed upon the City of Lafayette a duty not only to the students but to their parents. The majority of young men and women presently enrolled at this institution are below the age of twenty-one years. They arrive free from the influence of their families and churches, and their decisions become their own. They are suddenly thrown together, with naturally different dispositions and characters, and there is incumbent upon the City of Lafayette the duty to see that they are not exposed to anything that will affect their health, morals, safety, peace, or good order.

It has been repeatedly held that there are evils connected with the sale of liquor. City of Baton Rouge v. Rebowe, supra; City of De Ridder v. Mangano, supra; City of New Orleans v. Smythe, supra; State ex rel. Galle v. City of New Orleans, supra.

We find that Ordinance 316, Sec. 13, of the City of Lafayette, is a regulation appropriate to the necessities of the locality and that it is not in itself unreasonable. State v. Morton, 182 La. 887, 162 So. 718; State ex rel. Sutton v. Caldwell, supra. In view of the provisions of the Charter of the City of Lafayette, hereinafore discussed, reason dictates and justice demands this finding in the instant case and under these circumstances, in order that the public health, morals, safety, peace, and good order of the students at Southwestern Louisiana Institute and of the City of Lafayette shall be insured.

For the reasons assigned, the judgment of the trial court quashing the affidavit filed against the defendant, Wilfred Elias, is reversed and set aside, and it is now ordered that the cause be remanded for trial.

SIMON, Justice

(dissenting).

The question here presented for determination is whether a municipality can validly enact a penal ordinance prohibiting the sale of beverages of a low-alcoholic content, to wit, beer, to all persons under the age of 21 years, when the State law permits sale of such beverages to persons 18 years and over.

The City of Lafayette was incorporated by Act 310 of 1914, as amended by Act 52 of 1936. The charter specially empowers the governing board of trustees to adopt all ordinances that may be deemed proper to regulate and preserve the peace and good order of the City, to suppress nuisances, maintain its cleanliness and sanitary condition, and to exercise all legislative police powers pertaining to the government of the City. It also specially authorizes the board of trustees to regulate and prescribe limits for tippling shops, saloons, barrel-houses, dram shops, and gambling houses.

Acting under the powers thus granted, the board of trustees adopted Ordinance No. 316, Section 13 thereof reading:

“That it shall be unlawful for any dealer, manufacturer, wholesale dealer, jobber or retail dealer to sell any of said liquors or beverages to any person below the age of 21 years, or to sell any of said liquors or beverages between the hours of midnight of Saturday and midnight of the following Sunday.”

In the recent case of State v. Viator, 229 La. 882, 87 So.2d 115, 116, the defendants therein were criminally charged with having sold and delivered “intoxicating and spirituous liquors, to-wit: beer to * * * a person 18 years of age, * * *” in violation of LSA-R.S. 14:91, the pertinent prohibition under which a conviction was obtained reads: “ * * * the selling, or otherwise delivering for value by anyone over the age of seventeen of any intoxicating or spirituous liquors, * * * to any person under the age of twenty-one * *

On appeal we reviewed and analyzed the several definitions of various types of alcoholic beverages employed by the Legislature in LSA-R.S. 26:241, and we concluded that the said statute having defined “beer” as a “malt beverage” of low alcoholic content, including ale, stout, porter, and the like, did not designate beer as a “liquor.” Liquor is defined to be “all distilled or rectified alcoholic spirits, brandy, whiskey, rum, gin, and all similar distilled alcoholic beverages, including all dilutions and mixtures of one or more of the foregoing, such as liquors, cordials, and similar compounds.”

By no construction, translation or interpretation did we hold, expressly or impliedly, that beer was not an intoxicating beverage. To so interpret our opinion would constitute a distortion and misinterpretation thereof. We resolved the sole and only question presented by holding that beer was a “malt beverage” and not a “spirituous liquor” as clearly defined in LSA-R.S. 26:241, and that the prohibition against the sale of liquors denounced by LSA-R.S. 14:91, under which the prosecution was conducted, did not include a prohibition against the sale of beer, a malt beverage, to a person 18 years of age or over. Thus, we concluded that beer, not being a liquor as defined in LSA-R.S. 26:-241, the sale thereof to a person 18 years of age and over, having been sanctioned and declared lawful by LSA-R.S. 26:285, was not an offense in violation of LSA-R.S. 14:91. Necessarily, had the sale of beer been made to a person under the age of 18 years, the penalties prescribed under LSA-R.S. 14:91 would be applicable.

If there was ever any doubt or uncertainty as to the intent of the Legislature in defining beer as contra-distinguished from liquors the seeming confusion was definitely, concisely and precisely set at rest by the enactment of Act 123 of 1956, LSA-R.S. 26:241, Sec. 5, which provides:

“ ‘Malt beverages’ means beverages obtained by alcoholic fermentation of an infusion, or concoction, of barley or other grain, malt, and hops in water, including, among other things, ale, beer, stout, porter and the like. Malt beverages are exclusive of all ‘liquors’ whether they be defined as intoxicating or spirituous liquors, or as alcoholic, vinous, or malt liquors, or however otherwise defined as liquors.”

It seems deliberately significant that at its 1956 session the Legislature also amended and reenacted LSA-R.S. 14:98 by Act 122 of 1956 so as to delete from the original context the words “while under the influence of intoxicating liquors * * * ” to insert in lieu thereof the words “under the influence of alcoholic beverages * * * Obviously the amending statute had the single purpose of denouncing as a crime the operation of a motor vehicle, et cetera, while under the influence of any alcoholic beverage, including beverages of low alcoholic content, such as beer, ale, porter, et cetera. Without said amendment and reenactment strong dissension would have been raised as to whether a person who had consumed beer to the extent of adversely influencing his normal mental and physical process would have become amenable to the crime originally denounced. There is no doubt now that one who operates a motor vehicle, et cetera, while under the influence of any alcoholic beverage shall be held amenable to the law.

It is a basic principle of law that the control and regulation of the traffic of liquor is an inherent police power of the State which can never be abridged or surrendered. La.Const.1921, Art. 19, Sec. 18, LSA. However, it is within the province of the Legislature to delegate this power to political subdivisions of the State. This is not deemed a surrender of the powers of the State for the Legislature can thereafter at any moment change, alter, or recall the power so delegated. Hence, under’LSA-R.S. 26:494 the State delegated powers to its various subdivisions and thus authorized the adoption of local regulatory ordinances in respect to alcoholic beverages, providing as follows:

“Except as limited by the provisions of this Chapter the various subdivisions of the state may regulate but not prohibit except by referendum vote as provided by Chapter 3, this Title, or by legally authorized zoning laws of municipalities, the business of wholesaling, retailing, and dealing in alcoholic beverages. However, no parish or municipality shall, in the exercise of its police power, regulate the business of selling such beverages more than is necessary for the protection of the public health, morals, safety, and peace. Local subdivisions, in adopting these regulatory ordinances, may provide, in addition to the ordinary penalties authorized 'by law for their violation, provisions which subject the permittee to having his permit suspended or revoked in the manner provided by law for the suspension or revocation of permits.”

Notwithstanding the fact that the business of selling alcoholic beverages is a lawful one, it is subject to control and regulation by the State, by virtue of its constitutional police power, and by the political subdivisions of the State, by virtue of the power delegated by the Legislature.

In the instant case, the powers granted to the City of Lafayette under its charter in respect to the business of alcoholic beverages is to regulate and prescribe limits for tippling shops, saloons, barrel houses, et cetera. Nowhere in this specific grant of authority is there power to prohibit said business in any of its aspects.

The City of Lafayette unquestionably is granted the power of regulation. It has not been granted the power of prohibition, save and except under our local option laws and this only by an affirmative expression of the electorate. Manifestly, having only the power of regulation, the municipality can neither be heard to say that it has power of prohibition by implication nor can it effect prohibition under the appearance of regulation, especially when the attempted prohibition is squarely in conflict and inconsistent with State law.

I have examined a large number of cases dealing with the vexed question of when a local ordinance must be held to he inconsistent with and repugnant to the general laws of the State or held to be valid enactments necessary to protect the general welfare.

Generally speaking, the laws of the State operate within the corporate limits of every municipality. An ordinance must not he repugnant to, but in harmony with, the general policy and laws of the State and cannot authorize what a statute forbids, or forbid what a statute expressly permits.

On the other hand, a municipality, when expressly authorized by the Legislature to exercise a designated portion of its police power, has the right to enact ordinances for the regulation of businesses dealing with alcoholic beverages, provided the regulations are consistent with the constitution and laws of the State. City of De Ridder v. Mangano, 186 La. 129, 171 So. 826.

In the early case of State of Louisiana v. Burns, 45 La.Ann. 34, 11 So. 878, the City of New Orleans, under the provisions of its charter granting it the power to regulate and preserve the public peace and good order, enacted an ordinance intended to punish idle persons, prescribing therein the conditions which would constitute idleness.

Observing that the State had enacted a general statute dealing with idle persons, we held that, though the City had the power to punish idle persons or vagrants, it must be exercised under the general law of the State on this subject matter; and that the City, not being exempt from the effects of the general law could not enlarge upon it. The ordinance, being inconsistent and in conflict with said general law, was therefore declared to be illegal, null and void.

In the instant case the majority opinion cites and relies upon the City of Lafayette v. Deep, 160 La. 5, 106 So. 654, 655, in support of its holding that the City of Lafayette may regulate the age of persons to whom intoxicating beverages may be sold under the general welfare clause of its charter. However, I find that that case fully supports the views I here respectfully submit.

In the Deep case, supra, the municipality enacted an ordinance, comparable in all respects, except as to penalties, to the Hood Act (Act 39 of 1921, Ex.Sess.), prohibiting the selling of intoxicating beverages within its limits. At the time the ordinance was adopted the sale of intoxicants for beverage purposes, except as specially permitted, was prohibited not only in this State but nationwide. We accordingly upheld the ordinance as being well within the exercise of power by the City under its charter in regard to the welfare of its inhabitants and held that the power thus exercised was not abrogated or curtailed by the Hood Act.

We further observed that since the State and the nation had prohibited the sale of intoxicants, the municipalities, in the exercise of their police power could likewise prohibit. Moreover, the Hood Act did not, directly or indirectly, withhold the right thus exercised by the City.

In disposing of the issues in the Deep case we significantly said [160 La. 5, 106 So. 655] : “The reason the city of Lafayette could not declare the sale of liquors a nuisance and pass ordinances to suppress it prior to the Eighteenth Amendment [U.S. Constitution] and the laws enacted pursuant thereto, was because of the fact as already stated, that the state permitted such sale and the city could not prohibit that which the state licensed and permitted, except in the manner pointed out by the statutes — on a vote of the electors.” (Italics mine.)

In the case of City of Shreveport v. Brister, 194 La. 615, 194 So. 566, the City adopted an ordinance, known as the “Parking Meter Ordinance,” imposing a fee for the privilege of parking automobiles on the city streets. The State had previously enacted Act 10 of 1934, 1st Ex.Sess., providing that no municipality could impose, levy or collect any tax, license, or excise, of any character whatsoever, upon any property, business vocation, occupation, profession, or upon the exercise of any right or privilege, or upon the performance of any act whatsoever, not taxed by the State. It was conceded that the City was acting under its implied police powers as affecting the regulation of traffic within its limits. After observing the right of the Legislature under its police power to enact general laws limiting and restricting the police powers exercised by municipalities, we held that, the legislature having prohibited municipalities from imposing a tax or license on that which was not taxed 'by the State, the ordinance imposing such a tax was therefore ultra vires.

I readily recognize that under the power of regulation a municipality is authorized to exercise said power to regulate the time when such places engaged in the business of selling alcoholic beverages may operate, such as our Sunday Law and election days, Such ordinances have met with the approval of the courts for the obvious and logical reason that such enactments supplemented our general law, or covered a part of an authorized field on a subject matter not ■covered by general laws, furthered the purpose of the general law.

In State ex rel. Sutton v. Caldwell, 195 La. 507, 197 So. 214, 217, the City of Shreveport enacted an ordinance having for its purpose the promotion of the efficiency of its Fire Department personnel. In the light of Act 61 of 1920, LSA-R.S. 33:1961 et seq., affecting all fire departments in cities having a population in ■excess of 10,000 or more inhabitants, except New Orleans, we observed that:

" * * * there is nothing in the ordinance opposed to the provisions of the statute. The only reasonable interpretation of the statute is that it prescribes minimum requirements for promoting the efficiency of fire departments. The State is not concerned otherwise in the matter of regulating the operation of any city’s fire department. A municipality cannot permit by ■ordinance what a statute forbids, or forbid what a statute expressly permits, but it may supplement a statute or cover any part of an authorized field of local legislation that is not covered by State legislation. Power v. Nordstrom, 150 Minn. 228, 184 N.W. 967, 18 A.L.R. 733, 738. When the legislature has assumed to regulate a given course of conduct * * * a municipality with subordinate authority to legislate on the subject may make such new and additional regulations in furtherance of the purpose of the state law as may seem fit and appropriate to the necessities of the locality and be not in themselves unreasonable. Mann v. Scott, 180 Cal. 550, 182 P. 281.”

In the case of City of Minden v. David Bros. Drug Co., 195 La. 791, 197 So. 505, 508, under the general welfare clause of its charter, the City adopted an ordinance regulating the practice of prescribing intoxicating liquors as medicines by physicians and the sale thereof by registered pharmacists. The City had availed itself of the local option law and accordingly adopted an ordinance prohibiting the sale of intoxicating liquor for medicinal purposes without, aside from other regulations, obtaining a permit from the City. The ordinance was enacted in spite of the fact that a State statute authorized the sale, in dry territory, of intoxicating liquor for medicinal purposes by druggists or pharmacists. The defendant drug company was criminally charged by the City with selling intoxicating liquor as medicine without first having obtained a permit from the City. We declared that the only right granted the City under the general welfare clause insofar as intoxicating liquor was concerned, was the right to regulate its sale for beverage purposes, subject to the restrictions imposed thereon by State and Federal laws; and in holding the ordinance illegal and of no effect, we said:

“It is fundamental that a municipality can not adopt ordinances which infringe the spirit of state law, or are repugnant to the general policy of the State. It is also fundamental that a statute granting a municipality the right to exercise a designated portion of the police power must be strictly construed, and any fair and reasonable doubt of the existence of the power must be resolved against the municipality.”

In the case of City of Baton Rouge v. Rebowe, consolidated with City of Baton Rouge v. Messina, 226 La. 186, 75 So.2d 239, 241, an ordinance prohibited the sale of certain alcoholic beverages between the hours of 1:00 A.M. and 6:00 A.M. weekdays, and between midnight Saturday and 6:00 A.M. Mondays following. Licensed establishments were ordered to be closed and remain closed continuously between 2 :Q0 A.M. and 6:00 A.M. on weekdays and between midnight Saturdays and 6:00 A.M. Mondays following, but the permittee and his employees were allowed to remain within the licensed premises for one hour after midnight Saturdays for cleaning purposes. The word “closed” was defined to mean the building locked, all lights extinguished and no person inside the premises. The defendants charged with violation of said ordinance contended that the term “closed” as used therein was in apparent conflict with the like term as used in the State Sunday closing law, LSA-R.S. 51:191.

With Chief Justice Fournet as author in the case of City of Baton Rouge v. Rebowe, 226 La. 186, 75 So.2d 239, we again recognized the authority of municipalities, under the police power generally delegated to them, to enact ordinances for the regulation of the liquor business to the extent necessary for the protection of the public health, morals, safety and peace. We also observed that under LSA-R.S. 26:494 the City of Baton Rouge, by the terms of its charter, was specially delegated the authority “ * * * to close * * * places for the sale of intoxicating liquors when the public safety may require it.” We accordingly held that since the City had been specifically delegated the authority to “close” such places as public safety required, and that since the provisions of the ordinance in question were not in direct conflict with the provisions of any State law upon the same subject matter, (citing the Caldwell case, supra) the City had full authority to supplement the State statute and to make such regulations as would be in furtherance of the purpose of the State law.

Confronted with these legal principles I believe that there exists a conflict between the city ordinance and the general law of the State necessitating that the ordinance fall, yielding to the paramount law of the State.

On the subject matter of alcoholic beverages, the Legislature has recognized and sanctioned the sale of beverages of low alcoholic content to any person 18 years of age or over. LSA-R.S. 26:285. Ale, beer, stout, porter and the like are defined as malt beverages of low alcoholic content, containing not more than six percent alcohol by volume. LSA-R.S. 26:241, as amended by Act 123 of 1956. In the Viator case, supra, we recognized and held that beer is not a “spirituous liquor” as defined by LSA-R.S. 26:241 and that the sale thereof to persons 18 years of age and over was not an offense chargeable under and violative of LSA-R.S. 14:91, which prohibited the sale of liquors to minors.

Hence, as opposed to our State law and jurisprudence, the ordinance of the City of Lafayette prohibits the sale of all alcoholic beverages to persons under the age of 21 years. The municipality has declared unlawful that which the State and this Court have declared to be lawful. The ordinance prohibits that which is affirmatively authorized by state law insofar as beer and other beverages of low alcoholic content is concerned. It follows that a municipality cannot effect prohibition under the appearance or guise of regulation, for the power to regulate is not the power to prohibit and it must -be further conceded that the power to suppress or prohibit is not the power to license or regulate.

I am in full accord with the laudable and well-intentioned purposes which prompted the City of Lafayette in enacting the ordinance in question. But the mere fact that it has such a commendable purpose in seeking to promote the peace, good order, morals and health of the community is not sufficient in itself to sustain its validity.

I respectfully submit that the ordinance insofar as it seeks to prohibit that which our law sanctions and permits is ultra vires and should be declared illegal and of no effect.

I respectfully dissent

      . In City of Lafayette v. Deep, 160 La. 5, 106 So. 654, 655, this Court stated: “Moreover, there was no necessity for special and particular legislative grant to enable the city to pass the ordinances in question, since it had the authority under its inherent police power to suppress the sale of intoxicating liquors within its limits. * * * ”

      . There the Supreme Court upheld the validity of an ordinance making it unlawful for the proprietor of a barroom to employ or permit a woman or girl to work in the barroom.

      . The syllabus of this case correctly states: “A legislative grant to a municipal corporation to ‘pass all such ordinances, rules and regulations as they may deem necessary for the police and government of the said town,’ and ‘to have exclusive control of the license and sale of Spirituous or intoxicating liquors,’ implies as a necessary incident thereto the power to pass and enforce an ordinance to prohibit the sale of liquors within corporate limits on Sunday, as a police regulation. The exercise of such power is not amenable to the constitutional inhibition against the establishment of any religion by law, or to any other constitutional limitation to legislation.”


source: Caselaw Access Project

author: SIMON, Justice.

license: Public Domain

text:
    232 La. 725
    STATE of Louisiana v. Dale E. BIRDSELL.
    No. 43322.
    Supreme Court of Louisiana.
    April 1, 1957.
    Rehearing Denied May 6, 1957.
    Jack N. Rogers, Baton Rouge, for defendant-appellant.
    Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., J. St. Clair Favrot, Dist. Atty. Ralph L. Roy, Asst. Dist. Atty., Baton Rouge, for appellee.
   SIMON, Justice.

The defendant, Dale E. Birdsell, was charged by bill of information, tried and convicted for the violation of Title 40, Sec. 962, Subd. B of the LSA-Revised Statutes, which reads as follows:

"It is unlawful for any person, except a dealer in surgical instruments, apothecary, dentist, veterinarian or nurse, attendant or intern of a hospital, sanatorium or institution in which persons are treated for disability or disease, at any time to have or possess a hypodermic syringe or needle unless such possession be authorized by the prescription or the certificate of a physician issued within the period of one year prior thereto. Provided that this sub-section shall not be held to apply to syringes or needles for the treatment of fowl or livestock.”

Following his conviction he was sentenced to imprisonment for seven years in the Louisiana State Penitentiary.

During his trial the accused reserved four bills of exception which form the basis of this appeal.

Bill of Exception No. 1 is predicated on an adverse ruling by the trial judge on a motion to quash the bill of information on the ground that no crime known to our law was charged therein. Bill of Exception No. 2 was reserved to the ruling on an objection to a statement made by the District Attorney in his opening statement to the jury, which defendant submits was highly prejudicial. Bill of Exception No. 3 is grounded on the refusal by the trial judge to permit the defendant to offer evidence which he deemed pertinent to his defense. Bill of Exception No. 4 was reserved to the overruling of a motion for a mistrial based on alleged highly prejudicial remarks of the District Attorney in his cross-examination of a character witness.

In view of what we consider to be the pivotal complaint as reflected by Bill of Exception No. 3, we are constrained to hold that the ruling sustaining the objection by the state was highly prejudicial to and a denial of the substantial rights of the defendant, thus warranting a reversal of the conviction and sentence.

The defendant was charged with the violation of the statute, supra, “in that he had or possessed a hypodermic syringe and needle.” By the provisions of said statute these articles may be legally possessed under certain given circumstances, that is, certain named persons are exempt from its prohibitions or one who is authorized by a prescription or a certificate of a physician issued within the period of one year prior thereto. Under the proviso, this sub-section does not apply to syringes or needles when used for the treatment of fowl or livestock.

It further appears that in his opening statement to the jury the Assistant District Attorney stated that, in order to prove the criminal intent and guilty knowledge of the defendant in possessing the syringe and needle, he would offer evidence showing that a barbiturate, the possession of which is prohibited, was also found in the box containing the syringe and needle. Objection to this statement as being highly prejudicial was overruled. The barbiturate referred to was subsequently offered in evidence by the state in connection with proof of the case in chief. Needless to say, the defendant was not charged with the possessing of narcotics nor with being a user thereof or an addict thereto.

The record discloses that the defendant testified in his own behalf, and on direct examination was asked the following question: “Q. ‘Now Mr. Birdsell, have you ever used that syringe and needle for narcotics ?’ ”

The state objected to the question on the ground of its being immaterial and irrelevant. This objection was sustained by the trial judge on the ground that since the defendant was not charged as a user of narcotics such evidence was immaterial and irrelevant.

At the outset we must observe that an objection of irrelevancy is recognized by us ás being the weakest of. all objections. State v. Fontenot, 48 La.Ann. 305, 307, 19 So. 111; State v. Primeaux, 104 La. 365, 29 So. 110; State v. Labry, 124 La. 748, 50 So. 700.

In the recent case of State v. Johnson, 228 La. 317, 82 So.2d 24, we held that unlawful possession, where one is invested with some right of dominion, can be defined as a possession which in the ordinary course of human experience necessarily involves knowledge of the fact that one is possessing either rightfully or unlawfully as well as with knowledge of the criminal consequences which one should reasonably anticipate therefrom. We announced the principle that no crime can exist without the combination of a criminal act and a criminal intent, or an evil motive, or with a guilty knowledge of its consequences

In the instant case, unquestionably when the state offered in evidence the barbiturate, over the objection of the counsel for the defense, its purpose was to show the guilty knowledge and illegal intent of the defendant, as had been declared in the opening statement of the District Attorney.

Manifestly, the complaint by the defendant of a denial of his right to introduce evidence for the purpose of explaining his possession of these prohibited articles to an end to negate and repel the charge of guilty knowledge and illegal intent or motive is sound and meritorious.

The criminal intent or guilty knowledge of this defendant was necessarily a question of fact for the jury. In an effort to disprove or negate such intent the facts tending to sustain this hypothesis were clearly relevant, it being universally accepted that relevancy is to be determined by free logic and all facts that go either to sustain or impeach a hypothesis are admissible. Wharton’s Cr.Ev. (9th Ed.), Sec. 24.

By reason of logic, we must recognize that from the evidence adduced the suspicion that defendant was a user of narcotics was raised in the minds of the jury once the prohibited articles were offered in evidence. The natural abhorrence which the general public has for unlawful users and dealers in narcotics unquestionably was brought into play. Clearly all evidence, whether offered by the prosecution or by the defense, tending to show or prove the real intent with which defendant possessed these prohibited articles was competent, relevant and material and therefore admissible.

The defendant was entitled to prove that his intent was anything but that of violating the law. He was entitled to prove his good faith in possessing the prohibited articles, for it is well accepted that proof of the intent of a person can be made only by circumstantial evidence giving rise to inference. The evidence offered by the defendant is clearly admissible, not only as to affirmative facts, but to negative facts as well which prove or disprove the intent of a person. Under the question propounded the defendant had not only the right to disprove the inference of guilty knowledge or criminal intent but to show that the prohibited articles were in his possession as a result of mistake, accident, or from his own negligence, thus affording him the opportunity of explaining his possession and thereby possibly establish his innocence.

It is not for this Court nor was it for the lower court to say what effect the evidence if received would have produced on the jury. Had the defendant been afforded the opportunity of establishing the absence-of criminal intent, and if he had done so, it would have been the duty of the jury to acquit him. State v. Young, 41 La.Ann. 94, 6 So. 468 and authorities therein cited; State v. Méche, 42 La.Ann. 273, 7 So. 573; State v. Gebbia, 121 La. 1083, 47 So. 32; State v. Jenkins, 134 La. 185, 63 So. 869; State v. Creel, 152 La. 888, 94 So. 433; State v. Morgan, 211 La. 572, 30 So.2d 434.

Bill of Exception No. 3 is well taken and therefore a consideration of the merits of the remaining bills is unnecessary.

Accordingly, for the reasons assigned, the conviction and sentence are reversed, and the appellant is granted a new trial.


author: McCALEB, Justice. McCALEB, Justice.

text:
    232 La. 732
    J. B. LEWIS v. The DEMOCRATIC EXECUTIVE COMMITTEE OF EUNICE, Louisiana and Dr. J. J. Stagg.
    No. 43470.
    Supreme Court of Louisiana.
    Judgment and Decree April 18, 1957.
    Opinion May 6, 1957.

      Paul C. Tate, Momou, for appellant.
    Dubuisson & Dubuisson, A. Veazie Pavy, Opelousas, Jacque B. Pucheu, R. Nolan Moosa, Eunice, for respondents (contest-ees-appellees).
   McCALEB, Justice.

In compliance with the provisions of R.S. 18:364, requiring disposition of cases of this character within 24 hours after submission, we herewith hand down our decision — the reasons for which will follow in due course.

The judgment appealed from is affirmed.

PONDER, J., absent.

Opinion

McCALEB, Justice.

Following a primary election held on April 2, 1957 in the City of Eunice, St. Landry Parish, Dr. J. J. Stagg was declared the nominee of the Democratic Party for the office of Mayor of that City, the official promulgation showing that he received 2075 votes while his opponent, J. B. Lewis, the contestant herein, received 2043 votes.

Within the time prescribed by law, Lewis instituted this suit under the provisions of R.S. 18:364 contesting Stagg’s nomination and alleging that, but for various irregularities and illegal acts occurring during the election in one of the voting polls, specifically the 10th Precinct of Ward 6 (wherein Stagg received 455 votes against 338 for Lewis), he would have been nominated over his opponent. The particular allegations, which form the predicate for the charges of irregularity and fraud, are contained in Article 7 of the petition. They read:

“(a) Persons not qualified to vote at said precinct were permitted to cast their vote, said persons being listed on Exhibit A attached hereto and made a part hereof as fully as if reproduced herein in extenso.
“(b) Persons not qualified to vote at said primary election were permitted to cast their vote, said persons being listed on Exhibit B attached hereto and made a part hereof as fully as if reproduced herein in extenso.
“(c) An employee of the City of Eunice Police Department, Madella Hurst, in his police uniform, was in constant attendance at the door of said poll, actively electioneering, intimidating voters, and preventing said voters from exercising the free and honest expression of their respective wills, and more particularly that he laid his hands on voters and drove them towards the poll door, snatching out of the hands of contestants supporters the card bearing his name and voting number and shoving in their stead the card bearing the name and voting number of contestee.
“(d) Many persons milled around immediately outside the door of said poll in a loud and tumultous manner and, upon the arrival of prospective voters at the poll, said persons swarmed around the voters’ cars and reached inside said cars grabbing at said voters and forcing upon said voters columns of sample ballots, candidates cards, and number cards, all of which deprived said voters of the free and honest exercise of their right to vote.
“(e) An armed policeman, an employee of the City of Eunice, was in attendance immediately adjacent to the front door of said poll, ignoring his duty to the voters presenting themselves to protect them from intimidation and harassment and, in connection with the policeman named in ‘c’ above and other police officers of the City of Eunice presented a show of force inconsistent with the voters’ right and privilege to exercise their free will.
“(f) Wrapped papkages resemblng pint bottles were transported by a police automobile of the City of Eunice occupied by two and three armed policemen and said packages were delivered by said policemen to contestee’s supporters ‘working’ said poll, said packages believed to contain bottles of whiskey or other intoxicating liquor, and said liquor believed to be used to influence or bribe the voters at said poll.
“(g) Many persons drank whiskey and liquor around said polling place and within five feet of said poll.
“(h) At 6:00 a.m. on the date of said primary, the commissioners and other poll officials entered said poll and remained locked therein until 7:00 a.m. when the poll was finally opened and voting begun, all of which acted to discourage the early voters who presented themselves to cast their votes, many of whom left the poll without voting.
“(i) After the said poll closed at 8:00 p.m., the door thereto was locked, excluding the public, and remained locked for a considerable time and the reading of the machines was not in public view; the door was once opened by one of the election officials who ran to an automobile nearby and talked to the occupants thereof, said door being immediately locked again after this official had passed through, in contravention of the election laws of this State.
“(j) The voting machines at said precinct were not exposed to public view as required by law.”

Joined as defendants in the suit are the Democratic Executive Committee of the City of Eunice and the contestee, Dr. J. J. Stagg. The relief prayed for by plaintiff is (1) that the poll in Precinct 10 of Ward 6 be declared null and void and that the votes cast therein be deducted from the total votes received by the contestant and contestee respectively; (2) in the alternative, that the entire primary election be annulled and (3) further in the alternative, that a recount of the votes cast in Precinct 10 of Ward 6 be ordered.

The defendants filed, among other pleadings, an exception of no right or cause of action to the petition. This exception was sustained and plaintiff’s suit dismissed. He has appealed.

Initially, we direct our attention to the relief prayed for by plaintiff. The alternative prayer for a recount of the votes in Precinct 10 of Ward 6 could not be granted for the reason that voting machines were used in the election and, obviously it is impossible to have a recount of the votes recorded on a voting machine. R.S. 18:1193 establishes the method in which votes cast on a voting machine shall be transcribed, providing that it shall be done by the parish custodian in the presence of the candidates or other representatives and that the total so transcribed shall become legal evidence of the number of votes cast for each candidate in such election “ * * * and accepted as such in any contest suit which may arise”. Of course, any candidate has the right to complain that the total shown on the machine does not tally with the poll list kept by the Commissioners but, once the votes are registered by the machine, it is not feasible to have such votes recounted. It therefore follows that the special provision of R.S. 18:364, which authorizes a recount of ballot boxes on allegations, made on information and belief, that the result of the election would be changed thereby, is not applicable when voting machines are used.

Counsel for plaintiff suggests that this result renders the voting machine law (R.S. 18:1161-1196) violative of Section 12 of Article 8 of the Constitution which requires the Legislature to provide by law for the trial and determination of contested elections.

We find no merit in this contention. The voting machine law was enacted to insure honest elections and does not in any way alter or curtail the right of a candidate for office to contest an election when he meets the requirements of R.S. 18:364.

Nor is plaintiff legally entitled to have the poll in Precinct 10 of Ward 6 declared null and void and the votes cast therein deducted from the total votes received by the contestant and contestee, for which he primarily prays in his petition. No matter how serious the charges may be, the elimination of all the votes cast in only a particular polling place would be tantamount to the disfranchisement of every legal voter of the precinct and this might well defeat the will of the people. Such a result is not to be countenanced. See Dumestre v. Fisher, La.App., 195 So. 25; State ex rel. Burg v. Folse, La.App., 17 So.2d 32.

On the other hand, whereas the Primary Law (R.S. 18:364) gives a candidate the right to maintain an election contest upon allegations of specific fraud and irregularities if he is able to show that, but for such fraud and irregularities, he would have received a majority of the legal votes cast, see Bradley v. Neill, 174 La. 702, 141 So. 382 and Landry v. Ozenne, 194 La. 853, 195 So. 14, it has been recognized as an alternative proposition that, in the event the court finds that the frauds and irregularities alleged and proven are of such a grave nature so as to deprive the voters of the free expression of their will, it will annul the Primary and order the holding of another election. See State ex rel. Burg v. Folse, supra; Vidrine v. Eldred, 153 La. 779, 96 So. 566 and compare O’Keefe v. Burke, 226 La. 1039, 78 So.2d 165. Accordingly, if the petition in this case discloses that the alleged fraud and irregularities were so gross as to make it evident that the electors did not have an opportunity to freely express their will, plaintiff would state a cause of action for annulment of the entire election even though he might not be able to prove that he would have been nominated but for such frauds and irregularities. Let us, therefore, scrutinize the specific charges made by plaintiff in his petition, which are set out above.

In paragraph 7(a) of the petition it is charged that some 228 persons (who are named) were permitted to vote at Precinct 10 although they were not residents of that precinct and not qualified to vote therein. And it is further alleged, in connection with this and other specific charges, that plaintiff had no commissioners at said poll who could protect him from the above practices, or protest same.

While the voting of such a large number of persons, who were allegedly not entitled to vote at that particular precinct, constitutes a substantial irregularity, it is not sufficient to warrant the annulment of the entire election, particularly in the absence of allegations that plaintiff was unable to follow the procedure provided by law or otherwise made any protest anent the illegal voting. Plaintiff had the remedy of purging the registration rolls and, further, any one of his watchers or any qualified voter (he alleges that he had no commissioners at the poll) could have called the attention of the commissioners to this infraction of the law. See R.S. 18:341. Since plaintiff fails to allege that he challenged these voters, he has no cause for complaint. Landry v. Ozenne, supra, and Treadaway v. Plaquemines Parish Democratic Committee, La.App., 193 So. 609.

The same is true with respect to the allegations of paragraph 7(b), that 14 persons named in the petition were permitted to vote at the precinct although they were not residents of the City of Eunice. Even if all these persons voted for his opponent (which is not alleged), the result of the election would not have been changed.

The charge in paragraph 7(c) that a policeman of the City of Eunice electioneered and intimidated voters by manhandling them, snatching out of their hands cards bearing plaintiff’s name and shoving into their hands a card bearing the name of the contestee, states no cause of action. Here, again, plaintiff fails to allege that any of his supporters protested against the illegal electioneering on the part of the officer or that his conduct influenced any voter to change his vote or that it caused any person to refrain from voting. It is not charged that these infractions of the law occurred inside of the poll or that any of the voters were molested by the city officer after they had entered the poll or even that the election commissioners had knowledge of the acts of the officer.

The foregoing averments respecting the conduct of the election at the 10th precinct of the 6th ward seem to be the main ones and those specified in paragraphs (d), (e), (f) and (g), which are all kindred to the charge of improper electioneering at or near the polling place, do not show any substantial basis for a holding either that plaintiff was illegally deprived of a vote that he would have otherwise obtained or that Stagg obtained an illegal vote as the result thereof or that any voter was deprived of the right of suffrage.

The charge contained in paragraph 7(h) that the poll did not open until 7:00 a.m., or one hour later than it should have opened, and that this discouraged early voters, many of whom left without voting, also shows no ground for complaint since there is no allegation as to how many voters left the poll or that they failed to return and cast their vote for plaintiff. See Landry v. Ozenne, supra.

It is set forth in Paragraphs 7(i) and (j) that the voting machines at the precinct were not exposed to public view as required by law; that, after the polls closed, the doors were locked for a considerable time and that the reading of the totals on the machines was not made in public. Since it is not alleged that any voter was deprived of casting his vote or that the voting machines were tampered with after the polls were closed, or that plaintiff was deprived of a single vote as the result of any irregularity complained of, it is difficult to see that these paragraphs state a cause of action.

Viewing the petition as a whole, the best that can be said is that plaintiff makes charges of various irregularities and specifies unlawful conduct on the part of a police officer which he evidently failed to protest. The combined infractions set forth fall far short of exhibiting such a condition of irregular or illicit practices as would warrant a conclusion that, even if they were proven, the election should be annulled. For this Court to render such a drastic order, there must be a clear showing that a course of fraudulent conduct was employed which effectually prevented the electors from expressing their will.

In Landry v. Ozenne, supra, where the charges of irregularity and fraud were more numerous and detailed than those contained in the instant petition, this court, in affirming a judgment which dismissed plaintiff’s suit on an exception of no cause of action aptly remarked [194 La. 853, 195 So. 23]:

“There is nothing in plaintiff’s allegations that any defeated candidate could not set up after his defeat and thereby throw an election into the courts. If this were permitted it is easy to see that in every case in which a candidate was defeated by a small margin of the votes, two elections would inevitably be held — one at the polls and the other in the courts. Before a candidate in a primary election can be heard in the courts to attack the returns of the election, he must show by the clearness and particularity of the allegations of his petition that he has been deprived of the nomination by the fraudulent or wrongful acts of the election officials. To hold otherwise, would do violence not only to the provisions of the primary election law itself, but also to the interests of the voters, who have even a more vital stake in the result of an election than the candidates themselves.”

For convenience, we repeat herein the decree which was handed down by us in this matter on April 18, 1957.

The judgment appealed from is affirmed.

PONDER, J., absent.


author: HAMITER, Justice.

text:
    232 La. 747
    Douglas R. BUSH v. Lorraine Maxey BUSH.
    No. 43032.
    Supreme Court of Louisiana.
    April 1, 1957.
    Rehearing Denied May 6, 1957.

      Pickett & Pickett, J. S. Pickett, Many, for plaintiff-appellant.
    Durham & Haylon, George J. Haylon, New Orleans, for defendant-appellee.
   HAMITER, Justice.

Douglas R. Bush, a resident of Sabine Parish, instituted this action in the district court of that parish against his wife, Mrs. Lorraine Maxey Bush, to obtain a divorce and the custody of their minor child, he charging adultery on the part of the defendant. The latter excepted to the court’s jurisdiction ratione personae. The exception, after a trial thereof, was sustained and the suit dismissed. This appeal followed.

Plaintiff complains first of the judge’s permitting defendant to introduce evidence, over objections, showing her domicile to be in a parish other than Sabine in which he resides. We find no merit in this complaint. The exception alleged that defendant is a resident of the Parish of Orleans. In proof of that fact, as well as of her right to be so domiciled, the evidence was relevant and admissible.

Next, plaintiff assigns error to the court’s sustaining the exception to the jurisdiction ratione personae, he directing particular attention to provisions of the Revised Civil Code that “The wife is bound to live with her husband and to follow him wherever he chooses to reside * * *” (Article 120) and “A married woman has no other domicile than that of her husband * * * ” (Article 39).

Unquestionably, these provisions, which presuppose that the husband will-maintain a residence to which the wife can in good conscience go and is welcomed '(Revised Civil Code Article 120, partially quoted supra, also provides that “the husband is obliged to receive her and to furnish her with whatever is required for the convenience of life”), state the general rule which has often been recognized by this court. Stevens v. Allen, 139 La. 658, 71 So. 936, L.R.A.1916E, 1115; Pane v. Pane, 152 La. 415, 93 So. 246; McGee v. Gasery, 185 La. 839, 171 So. 49; Bruno v. Mauro, 205 La. 209, 17 So.2d 253. But an exception to the rule, many times also recognized in our jurisprudence, is that a wife is authorized to acquire a separate domicile for herself where she is abandoned or is compelled by reason of ill treatment to leave her husband. Smith v. Smith, 43 La.Ann. 1140, 10 So. 248; Stevens v. Allen, supra; State v. Fick, 140 La. 1063, 74 So. 554; George v. George, 143 La. 1032, 79 So. 832; Succession of Lasseigne, 143 La. 1095, 79 So. 873; Lepenser v. Griffin, 146 La. 584, 83 So. 839; McGee v. Gasery, supra; Zinko v. Zinko, 204 La. 478, 15 So. 2d 859; Bruno v. Mauro, supra; and Juneau v. Juneau, 227 La. 921, 80 So.2d 864.

With further reference to such general rule and the exception thereto the following observations of this court are pertinent: “The marital obligation imposed by article 120 of the Civil Code, that the wife is bound to live with her husband and to follow him wherever he chooses to reside, must be construed with reference to the obligations of the husband, and with reference to the right of the wife to put an end to the matrimonial relation for any one of the causes specified in article 138 of the Code.” Cuny v. Cuny, 146 La. 711, 83 So. 906, 907. (See also Champon v. Champon, 40 La.Ann. 28, 3 So. 397.) “ * * * The reason of the rule is founded on good morals; * * *. But where the husband abandons her, and chooses to go and reside with another consort, the reason for the rule disappears. The wife cannot follow him, and to hold that her domicile is in a place where good morals preJ vent her from residing would be to sacrifice the purpose of the rule in order to adhere to its words.” Succession of Lasseigne, supra [143 La. 1095, 79 So. 874], “ * * * The aphorism that the domicile of the husband is that of the wife does not express the law accurately. What is meant by the maxim is that, if there be a matrimonial domicile, it is also the domicile of the wife; for, if there be no matrimonial domicile, the husband and wife may have separate domiciles, or be subject each to a separate jurisdiction, ratione personae. * * * ” Clark v. Clark, 145 La. 740, 82 So. 875, 876. (See also Wilcox v. Nixon, 115 La. 47, 38 So. 890 and Mann v. Mann, 170 La. 958, 129 So. 543.)

The discussed exception to the general rule is, in our opinion, applicable to the instant cause. The evidence discloses that the persons involved were married April 8, 1951 in Sabine Parish. After living there for approximately seven months they moved to the Parish of St. Bernard and later to the Parish of Orleans. In the latter parish, which was the location of the last matrimonial domicile, the defendant was compelled to separate from plaintiff, he having committed a battery on her on May 28, 1954 for which he was convicted and given a thirty day jail sentence. On the occurrence of such incident she established a separate residence in the Parish of Orleans which continuously since has been maintained. As the district judge stated: “The wife was so fearful of further rough treatment from her husband that while he was in jail she moved from the apartment where they were living and obtained new quarters in the City of New Orleans and went under an assumed name to prevent her husband from finding her.” Plaintiff, on the completion of his sentence, returned to Sabine Parish where he instituted this suit approximately twenty-one months later.

In view of the mentioned ill treatment of the defendant, which clearly justified her leaving plaintiff, we conclude (as the trial judge held) that she had the right to establish and maintain a separate domicile in Orleans Parish. And, in accordance with Code of Practice Article 162 (“ * * one must be sued * * * before the judge having jurisdiction over the place where he has his domicil or residence * * *”), she was entitled to be sued at that domicile. Consequently, the district court of Sabine Parish was without jurisdiction ratione personae.

In their brief counsel for plaintiff quote excerpts from McGee v. Gasery and Bruno v. Mauro, both supra, which announced the general rule that a married woman has no other domicile than that of her husband. However, both cases also gave recognition to the aforediscussed exception. Particularly, in the former we said [185 La. 839, 171 So. 50]: “We do not mean to convey the impression that we think that a wife may not, under some circumstances, establish a separate domicile from that of her husband. This court has repeatedly recognized her right to do so under circumstances disclosed in the opinions. * * * ”

Counsel for plaintiff also cite and quote from Hymel v. Hymel, 214 La. 346, 37 So. 2d 813. Therein, the wife instituted suit against her husband in a parish in which he was not domiciled and we merely and correctly held that under Code of Practice Article 162 the district court there was without jurisdiction.

Finally, counsel suggest that application of the doctrine respecting the wife’s right to establish a separate domicile is restricted to cases (unlike the present one) involving the question of interstate jurisdiction. However, they assign no good reason for the restriction and we know of none. The doctrine is based solely on good morals and justice; and undoubtedly it should be appropriate, when justifiable circumstances are present, irrespective of whether the jurisdictional question be interstate or intrastate. Incidentally, it is noticed that in McGee v. Gasery, State v. Fick, Succession of Lasseigne and Bruno v. Mauro (all supra), which recognize the existence of the exception to the general rule, the jurisdictional ■question presented was intrastate.

For the reasons assigned the judgment appealed from is affirmed.


text:
    232 La. 755
    STATE of Louisiana v. Lil KENNEDY.
    No. 43317.
    Supreme Court of Louisiana.
    April 1, 1957.
    Rehearing Denied May 6, 1957.

      Joel E. Dickinson, Baton Rouge, for defendant-appellant.
    Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., J. St. Clair Favrot, Dist. Atty., Scallan E. Walsh, First Asst. Dist. Atty., Baton Rouge, for appellee.
   SIMON, Justice.

Lil Kennedy was indicted, tried and convicted for the murder of McKinley Robinson and sentenced to life imprisonment at hard labor. She has appealed to this Court from said conviction and sentence and relies on three bills of exception for the annulment thereof.

Bill of Exception No. 1 was reserved to-the ruling by the trial court on the motion, to quash the indictment and the general, venire. It is contended that the Jury Commission of the Parish of East Baton Rouge was illegally constituted and its action therefore null and void on the ground that one of the acting members of the Jury Commission,. Saint George Hines, was not a resident of the Parish of East Baton Rouge, having moved to the Parish of Pointe Coupee approximately eight years prior to the selection by the said Jury Commission of the-general venire from which was drawn the-Grand Jury which indicted and charged the-accused with murder, and from which was. also drawn the Petit Jury for the week of October 22, 1956 before whom the defendant was tried and convicted. Defendant argues, that, the Jury Commission being thus illegally constituted, its actions and the action* taken by the Grand Jury and the Petit Jury were illegal, null and void and that therefore the indictment upon which this prosecution was based should be quashed and the-accused discharged.

Trial of this motion was had pertaining to the qualifications of Mr. Hines as a member of the Jury Commission. An-examination of the evidence reveals that-Mr. Hines has been a member of the Jury-Commission of East Baton Rouge Parish-for approximately twenty-five years; that-he had been a registered voter of said Parish since 1901; that upon his recent re- - marriage he resided with his second wife in her home in Pointe Coupee Parish being semi-retired from business; that he operates a laundry located in the City of Baton Rouge, Parish of East Baton Rouge; that he owns in indivisión with his children of his first marriage a rooming house located in said City and Parish wherein a room is reserved by him for personal use as his residence. He testified that it was never his intention to change his legal domicile from East Baton Rouge Parish to Pointe Coupee Parish and, further, that he had never participated in an election in. the latter Parish, but has always been a registered voter in the former. Irrespective of this evidence it is unnecessary to determine whether Mr. Hines changed his legal domicile from the Parish of East Baton Rouge to the Parish of Pointe Coupee for even if Mr. Hines had legally established a new domicile in the Parish of Pointe Coupee he is and was at the time of the drawing of the Grand and Petit Juries in this case a de facto member of the Jury Commission of the Parish of East Baton Rouge and his acts as such are valid, if not otherwise illegal.

We have consistently held that where a jury commissioner is duly appointed and has qualified by taking the oath prescribed by law and is in actual possession of the office under color of right he is a jury commissioner de facto if not de jure, and the title to his office and his acts as such officer can not be collaterally inquired into. His acts as such are recognized as valid if they are not otherwise illegal. State v. Ferray, 22 La.Ann. 423; State v. Smith, 153 La. 577, 96 So. 127; State v. Mitchell, 153 La. 585, 96 So. 130; State v. Phillips, 164 La. 597, 114 So. 171; State v. Foster, 164 La. 813, 114 So. 696; State v. Cullens, 168 La. 976, 123 So. 645; State v. Broussard, 202 La. 458, 12 So.2d 218.

In the case of State v. Moreau, 153 La. 671, 96 So. 527, we said:

“Because an officer has committed some act, which in law operates as 'a- forfeiture of his office, but who nevertheless remains in possession thereof, does not render his acts invalid in so far as third persons and the public are concerned. Those acts are valid, if otherwise legal, as the acts of an officer de facto.”

We affirm the holding of the trial court was correct in overruling the motion to quash the indictment and the general venire and find no merit in Bill of Exception No. 1.

Bill of Exception No. 2 was reserved to the ruling of the trial judge in admitting in evidence the written confession of the accused. It is noted that when this objection was made and the bill reserved to the ruling thereon the objection was stated to be that the confession was not free and voluntary and for the reason that the officers in whose presence the confession was given were armed at the time it was made. However, the formal bill submitted to the trial judge for his signature reveals the objection to be not primarily based upon its free and voluntary nature as legally required, but upon the grounds (1) that the officer did not record everything the accused said, and (2) that the officers in whose presence the confession was made had guns on their persons.

In his brief counsel for defendant urges the additional objection that even in its alleged incomplete form, although it admits the fatal stabbing of the deceased, it justifies and vindicates her conduct and therefore cannot be considered a confession of guilt but rather an exculpatory statement.

It is axiomatic that before a confession may be introduced in evidence it must affirmatively appear that it was freely and voluntarily given and not made under the influence of fear, duress, intimidation, menaces, threats, inducement or promises. State v. Richard, 223 La. 674, 66 So.2d 589; State v. Palmer, 227 La. 691, 80 So.2d 374. However, the question of its admissibility is for the judge alone, its effect for the jury. State v. Cook, 215 La. 163, 39 So.2d 898.

An analysis of the record convinces us that the State has successfully shown that the confession here involved was freely and voluntarily made and its acceptance duly preceded by a full compliance with all legal requirements.

The contention that the officer who received the confession of the defendant did not record everything which was said by her is clearly untenable. The said officer positively testified that he wrote the confession of the defendant as it was recited to him. It appears that this confession was not obtained by questions and answers, but by the defendant being asked to state what had happened. After the confession had been signed by the defendant she was asked whether the deceased had been armed with any weapon. In order to incorporate her negative answer thereto it appears that a postscript was written to said confession and was signed by her. Prior to the signing of said confession the entire document was read to her, she not knowing how to read and write. On the other hand, there is no evidence which would show the failure on the part of the officer receiving the confession to have written all that was said by this defendant relative and pertinent to the homicide.

It is well recognized that a confession to be held admissible need not contain a full and exact recital of every word uttered by the defendant. In oral confessions it is likewise unnecessary that the officer repeat verbatim all that the accused said. All that the law requires is that the substance of the recital be reduced to writing and that it not be fragmentary portions thereof.

In State v. Desroches, 48 La.Ann. 428, 19 So. 250, we held that in order that a confession may be proven it is not necessary to repeat the exact words of the accused. It is enough if the substance of the confession is given. State v. Kellogg, 104 La. 580, 29 So. 285; State v. Allen, 111 La. 154, 158, 35 So. 495; State v. Gianfala, 113 La. 463, 470, 37 So. 30; State v. Jugger, 217 La. 687, 47 So.2d 46.

The second complaint that the officers who received the confession of the defendant were armed raises the implication that it was obtained through duress or intimidation. We find no merit therein. In State v. Holmes, 205 La. 730, 18 So.2d 40, we held that the fact that a deputy sheriff to whom the defendant made a confession was armed at the time it was made, as was another officer present, does not render it inadmissible unless there be affirmative proof showing that threats or other forms of intimidation were made against the defendant. In the instant case, there is not a scintilla of evidence which would indicate the existence of such a fact.

There is no merit in Bill of Exception No. 2.

Bill of Exception No. 3 was reserved to the ruling of the trial court on defendant’s motion for a new trial wherein she contends that the verdict of guilt is unsupported by any evidence which tends to show that the defendant is guilty of the crime of murder but that the evidence conclusively shows that she acted in self-defense.

The contention is no more than a plea that the evidence was insufficient to convict the defendant, an assignment of error that is unavailing in this case. State v. Matassa, 222 La. 363, 62 So.2d 609; State v. Di Vincenti, 225 La. 689, 73 So.2d 806; State v. Palmer, supra.

This Court cannot rule upon the sufficiency of the evidence in a criminal case where there is some evidence adduced, no matter how little, upon which a verdict can be predicated, and the question of its sufficiency is exclusively one for determination by the jury. State v. Davis, 208 La. 954, 23 So.2d 801; State v. Mattio, 212 La. 284, 31 So.2d 801; State v. Matassa, supra.

Bill of Exception No. 2 is without merit.

Accordingly, for the reasons assigned, the conviction and sentence are affirmed.


author: McCALEB, Justice.

text:
    232 La. 766
    STATE of Louisiana v. Emile WESTON, Jr.
    No. 43314.
    Supreme Court of Louisiana.
    April 1, 1957.
    Rehearing Denied May 6, 1957.

      Joel B. Dickinson, Elmo Lear, Baton Rouge, for defendant-appellant.
    Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., J. St. Clair Fav-rot, Dist. Atty., Scallan E. Walsh, First Asst. Dist. Atty., Baton Rouge, for appel-lee.
   McCALEB, Justice.

Shortly before midnight on May 27, 1956, a 35 year old white female, while walking on North Baton Rouge Avenue to her home in Baton Rouge following a visit to a friend, was seized from behind by a Negro man who threw a red bandanna handkerchief around her mouth and dragged her down alongside a slough, or drainage canal, which runs under the street at this particular location. Thereupon the man began choking the woman and told her that she knew what he wanted and that, if she did not let him have it, he would kill her. She attempted to scream but her outcries were muffled by the red bandanna handkerchief which the man had placed over her mouth and she finally submitted and the man raped her. After consummating the act, the man again threatened her with death if she reported him. The victim then ran to her home and notified the police. Appellant, a 26 year old Negro, was arrested the next day and, after questioning, confessed the crime. He was thereafter indicted, tried and convicted of aggravated rape and sentenced to death by electrocution. He has appealed from his conviction and sentence, relying on nine bills of exceptions for a reversal.

Bill No. 1 was taken to the overruling of a motion to quash the indictment and the general venire which was predicated on the allegation that one of the Jury Commissioners, Mr. Saint George Hines, who selected the Grand Jury and Petit Jury venires, had vacated his office in that he had moved his residence from East Baton Rouge to Pointe Coupee Parish.

The motion to quash was properly overruled by the judge, as Mr. Hines’ title to the office of Jury Commissioner could not be challenged collaterally. He was in possession of the office and, having been duly appointed and qualified by taking the prescribed oath, he was a de facto, if not a de jure, commissioner, entitled to perform the functions of his office. It has been repeatedly held that the legality of the title of an officer and his authority to act is not a proper subject of inquiry on a motion to quash an indictment. State v. Moreau, 153 La. 671, 96 So. 527; State v. White, 156 La. 770, 101 So. 136; State v. Phillips, 164 La. 597, 114 So. 171; State v. Foster, 164 La. 813, 814, 114 So. 696 and State v. Broussard, 202 La. 458, 12 So.2d 218. The argument of defense counsel that an exception should be made to this rule, when the officer removes his residence to another parish and thus vacates his office, is not impressive.

Bills Nos. 2, 3 and 4 were reserved to the judge’s action in overruling challenges for -cause of three prospective jurors during their voir dire examination thereby causing appellant to use three peremptory challenges on these jurors. By reason of the exhaustion of all peremptory challenges before the qualification of the twelve jurors, appellant alleges that he was forced to accept an obnoxious juror which, under Article 353 of the Code of Criminal Procedure (R.S. 15:353), is ground for reversal, if the denial by the judge of the challenges for cause was erroneous.

The challenges for cause of the prospective jurors involved in these bills resulted from the answers given by them to questions propounded by counsel for appellant as to whether the jurors, in case the evidence sustained appellant’s guilt, could bring in a qualified verdict, that is, one which would not carry the death penalty. These questions of counsel were obviously patterned from our decisions in State v. Henry, 196 La. 217, 198 So. 910 and State v. Jackson, 227 La. 642, 80 So.2d 105, wherein it was held that it was reversible error for the trial judge to refuse to allow defense counsel to ask prospective jurymen on their voir dire examination whether they had any conscientious scruples against imposing a qualified verdict in a capital case in the event the evidence convinced them of the guilt of the accused.

In the Henry case we remarked that, since Article 352 of the Code of Criminal Procedure accords the State the right to have a juror tendered in a capital case excused for cause when he has conscientious scruples against the infliction of capital punishment, it was only fair and just that the accused be permitted to inquire of the prospective juryman whether he had any prejudice against rendering a qualified verdict or if he only favored the death penalty in the event of conviction.

Unlike the Henry and Jackson cases, the judge in the case at bar afforded defense counsel the privilege of fully examining the prospective jurors with respect to their beliefs both as to capital punishment and as to qualified verdicts. But, after considering the statements given by these jurors in response to the questions propounded by defense counsel and himself, the judge, being of the opinion that no one of the jurors entertained any prejudice against returning a qualified verdict in the event appellant was found guilty, overruled the challenges for cause.

In reviewing the judge’s ruling it is well to observe preliminarily that, under our law, the excusing of petit jurors for cause is within the discretion of the trial judge. Article 345, Code of Criminal Procedure (R.S. 15:345); 1 Marr’s Criminal Jurisprudence, 701, Sec. 462; State v. Kifer, 186 La. 674, 173 So. 169, 110 A.L.R. 1017 and State v. Hoover, 203 La. 181, 13 So.2d 784. Hence, the question presented under these bills is whether the judge abused his discretion in denying the challenges for cause.

An examination of the per curiams of the judge on Bills Nos. 2, 3 and 4, in connection with the questions propounded to, and the answers of, the prospective jurymen, discloses that the three jurors challenged, Mr. Stephen F. Arbuthnot, Mr. George D. Landry and Mr. A. A. Gaines, experienced some difficulty in comprehending the meaning of a qualified verdict and the exact nature of the information which defense counsel sought to elicit. For example, Mr. Arbuthnot was asked “If the circumstances justified, even though you felt that the accused was proven guilty, could you bring in a qualified verdict, which would not carry the death penalty?” In reply, the juror asked “If there was evidence that he was guilty?” Thereupon the judge, evidently realizing that the juryman did not understand the meaning of a qualified verdict, explained to him that it was within his discretion to vote for a verdict of guilty without capital punishment if he so desired. Defense counsel then asked him “Could you do that?”, to which the juryman replied “Yes, sir, if the majority —”. At this point the judge again interrupted, telling the juryman that the majority had nothing to do with it “It must be your verdict”. Counsel then propounded the question and the juryman queried “Just what is a qualified verdict?”. Upon counsel’s explanation that it was a verdict without capital punishment, the juryman answered that, if he thought appellant was guilty, he could not vote for a qualified verdict. Whereupon, the judge again explained to the juror that the law gave him the right to return a qualified verdict and, after further discussion, he was asked whether the only verdict he could render in the case would he a capital verdict even though he had been told that “you could qualify your verdict”, to which he replied “I could if the evidence was weak enough. In other words, if I wasn’t satisfied that he was guilty”. Following this answer, the judge said:

“Q. That is not the point at all. You miss the whole point. The man can be guilty but the law says even though you think he is guilty that you can qualify your verdict if you want to and keep him from going to the electric chair. You can do that if you want to, even though he is guilty, and he is asking you if you could do that; he is not asking you if you would do it, he is asking you if you could do it?”

To which the juror replied:

"A. Well, I could do it, yes sir.”

In holding that he did not consider the juror prejudiced against a qualified verdict, the judge observed that there was considerable interchange by counsel in his questions to the juror as to what he “would do” and what he “could do”. This no doubt served only to confuse the mind of the juror. In fact, the use of the verbs "would” or "could” in examinations of this sort are not strictly correct for it is highly improper to ask a juror if he would act in such a way under certain circumstances as such a question obviously endeavors to commit him in advance as to his verdict. And, to ask him whether he could do a particular thing would seem to require him either to state whether he has or has not the right to do it or whether he is able to do it, which again could tend to commit the juror as to his verdict before he hears the evidence. The pertinent inquiry is not what the juror would or could do but whether he has such a prejudice against the type of crime charged that he is conscientiously opposed, in the event of a finding of guilt, to a verdict other than one with capital punishment.

After a careful consideration of Bill of Exceptions No. 2, we conclude that the judge did not abuse his discretion in refusing appellant’s challenge of Mr. Ar-buthnot for cause.

Bills Nos. 3 and 4, pertaining to prospective jurors Landry and Gaines, are likewise not meritorious. Mr. Landry experienced the same difficulty as Mr. Arbuthnot with respect to the questions propounded anent qualified verdicts. However, after explanation by the judge, he finally stated that whether or not he would vote for a qualified verdict, in the event of guilt, depended upon the evidence. This answer fully justified the refusal of the challenge for cause.

Insofar as Mr. Gaines is concerned, the record does not contain his testimony as it is shown that the recording machine did not correctly report his examination. However, the judge informs us in his per curiam that Air. Gaines did not say that he could not qualify his verdict.

When the district attorney was making his opening statement, he informed the jury in some detail of appellant’s written confession and what it purportedly contained. Counsel for appellant objected to such a detailed reference to the confession and moved for a mistrial. The trial judge overruled the motion and simultaneously instructed the jury that the opening statement could not be considered as evidence in the case. Counsel then reserved Bill No. S and they insist that the judge committed fatal error despite the fact that the confession was admitted into evidence at the trial.

There is no substance in the bill for a number of reasons. However, it suffices to say that no prejudice resulted to appellant by the making in the opening statement of a detailed reference to a written confession which is subsequently admitted in evidence. State v. Cannon, 184 La. 514, 166 So. 485; State v. Wilson, 217 La. 470, 46 So.2d 738 and State v. Jones, 230 La. 356, 88 So.2d 655.

During the cross-examination of the prosecutrix, she was asked by defense counsel whether she had made a written statement to police officers immediately after the commission of the offense. When she replied in the affirmative, counsel moved for the production of the statement. The district attorney voluntarily offered to comply with counsel’s request but only on condition that the statement first be read in its entirety to the jury. Counsel, not being apprised of what the statement contained, declined the district attorney’s conditional offer. The trial judge thereupon refused to order the production of the statement for inspection purposes and counsel reserved Bill No. 6.

In stressing this bill, counsel argue that a statement given by a witness immediately after a crime, when the facts are still fresh in the mind of the witness, should be more accurate than the testimony of the same witness several months later and, for this reason, appellant should have been given an opportunity to examine the written statement of the prosecuting witness and use it, if necessary, for purposes of impeaching the witness. No authority is cited by counsel for this proposition but some reliance is placed on the case of State v. Broussard, 217 La. 90, 46 So.2d 48.

It is difficult to see how counsel can get any comfort from the Broussard case where it was held that a similar bill was without merit for many reasons but principally because defense counsel admitted that he had a copy of the statement of the witness in his file.

We have undertaken an independent research on the question posed by this bill and find that the most recent authorities have declared, without qualification, that an accused is not entitled to production of any written statement of a state witness in the hands of the district attorney or the police department. State v. Vallery, 214 La. 495, 38 So.2d 148; State v. Williams, 216 La. 419, 43 So.2d 780 and State v. Labat, 226 La. 201, 75 So.2d 333.

However, in State v. Hodgeson, 130 La. 382, 58 So. 14, decided in 1912, the court flatly held that a written statement made by the prosecuting witness should have been produced and made available to the defense for use for purposes of impeachment. But, later in the same year, in State v. Simon, 131 La. 520, 59 So. 975, where counsel for the accused called on the State to produce the written testimony of a state witness given in the private office of the district attorney after said witness had admitted giving such a statement under cross-examination, the court, without referring to the Hodgeson case, held that the request was properly refused since the sole purpose for which counsel sought the statement was for impeaching the witness and that such purpose could not be pursued as no proper foundation had been laid by a showing that the statement was contrary to the sworn testimony of the witness. Similarly, in State v. Bankston, 165 La. 1082, 116 So. 565, where the accused’s co-defendant testified that he had made four statements concerning the robbery involved, it was held that defense counsel could not require the district attorney to produce the first state-merit, which was made under oath, for the purpose of cross-examination since it was not admissible as primary evidence for or against the accused nor for purposes of impeachment because no proper foundation had been laid.

Thus, it appears that State v. Hodgeson stands alone in our jurisprudence and must be considered as overruled by the later cases which are directly contrary thereto. On the other hand, the pronouncements in the Vallery, Williams and Labat cases that the defense is not entitled to production of any written statement of a witness in the hands of the district attorney, appear to be too broad and it seems to us that the exception recognized in the Simon and Bankston cases should obtain in instances where a proper foundation for the impeachment of the witness has been laid—for example, when the witness admits on the stand that his prior statement is contrary to his testimony.

The Supreme Court of the United States, in the comparatively recent case of Gordon v. United States, 344 U.S. 414, 73 S.Ct. 369, 97 L.Ed. 447, noted such an exception and it appears to be consonant with fairness and justice that the trial judge order production of a prior statement of a witness under -the circumstances above mentioned. But there were no circumstances in the instant case from which production of the prior statement of the prose-cutrix became essential and no attempt was made by defense counsel to lay the foundation to show that her written statement was contrary in any respect to her testimony given at the trial. Indeed, in making the request for production of the statement, counsel, as observed in State v. Simon, supra [131 La. 520, 59 So. 976], “ * * * were merely on a fishing expedition” and the judge correctly denied the request.

Bill No. 7 was reserved to the ruling of the judge in admitting the oral and written confessions of appellant in evidence over the objections of counsel that the confessions were not freely and voluntarily given. Our law provides that, before any confession can be introduced in evidence, the State must affirmatively prove that it was freely and voluntarily given and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. Articles 451 and 452,, Code of Criminal Procedure (R.S. 15:451,. 452) and Section 11 of Article 1 of the Constitution of 1921. And it is established by our jurisprudence that, before what purports to be a confession can be received in-evidence, it must be shown by proof which convinces beyond a reasonable doubt that it is voluntary. State v. Wilson, 214 La. 317, 37 So.2d 804; State v. Robinson, 215 La. 974, 41 So.2d 848; State v. Honeycutt, 216 La. 610, 44 So.2d 313; State v. Green, 221 La. 713, 60 So. 208 and State v. Michel, 225 La. 1040, 74 So.2d 207.

Two days after the commission of the offense, appellant was arrested by Deputy Sheriff Reeves and Lieutenant Henderson of the East Baton Rouge Police Force. He was placed in custody at 8:15 a. m. and' orally confessed at about 10:30 that night. A written confession was given shortly-thereafter which was signed by appellant at 12:10 a. m. The arresting officers declared that appellant was considered a likely suspect for the reasons that he had' previously been convicted on a charge of attempted rape of a white girl; that he lived in the vicinity where the crime was. committed and that, when they questioned, him at his home, he gave an untruthful, statement as to his whereabouts on the evening of the occurrence of the crime.. In addition, the officers found in his pocket a red bandanna handkerchief, which the-prosecutrix had told officers was used by her assailant to force her into a ditch or gulley near the street where the act took place.

After his arrest, appellant was brought to the Parish Court House where he was questioned until approximately 11:30 a. m., when he was placed in a separate cell from the other incarcerated persons, which was the regular procedure used in criminal investigations. After being given his noon meal, appellant was taken, at approximately 1:30 p. m., to the crime laboratory at State Police Headquarters where he took three lie detector tests, all of which were inconclusive. While at the State Police laboratory, the prosecutrix attempted to identify appellant but admitted that she was not sure that he was the man. Between 4:00 and 4:30 p. m., appellant was returned to the Parish Prison and given the evening meal. He was not again questioned until 7:30 or 8:00 o’clock that same evening and, during all periods of questioning, he was permitted to smoke and drink coffee. He was also told by the officers that he was entitled to counsel, if he so desired.

After being questioned for a couple of hours that evening, or at about 10:30 o’clock, appellant orally confessed to having attacked the prosecutrix. The police officers then asked him if he would take them to the scene and reconstruct the crime, which he consented to do. He was taken in a police car with the two investigating officers and another officer and appellant directed the driver to the scene of the crime wher'e he reconstructed the incident from the time he first sighted his victim walking alone toward her home to the time he attacked her after following her for some three blocks. The victim’s testimony completely corroborated appellant’s statement to the officers.

When he was brought back to the parish jail, appellant agreed to have his confession recorded in writing and he thereupon gave a detailed written statement which was taken down in longhand by one of the officers. Appellant read the statement and then signed it at about 12:10 that night.

All officers having anything to do with the giving of the confessions were produced by the State and they testified that appellant was not subjected to any sort of violence, threats, nor was he given any promises and that the confession was entirely voluntary on his part.

Appellant took the stand out of the presence of the jury for the limited purpose of traversing the testimony given by the officers in laying the foundation for the admission of the confessions in evidence. In his testimony, he admits that he was not subjected to any physical violence nor were third degree methods practiced by the officers. However, he suggests in his statement that the officers tried to trap him and that Lieutenant Henderson told him that he might as well confess as the boy (a nephew of appellant) told him everything they wanted to know. While his testimony is somewhat vague as to his reason for confessing (he says, in speaking of Lieutenant Henderson, “I wouldn’t exactly say he threatened me”), he declares that the officers told him that he was going to tell them something before he left the room and indicates that, inasmuch as he had been beaten by some officer (whose name he does not know) when he was charged with attempted rape of another white girl, he thought that he might be beaten in the present case if he did not confess.

It is manifest that appellant’s testimony does not cast any serious doubt as to veracity of the police officers’ statements that the confessions were entirely free and voluntary. Actually, he does not even contradict their evidence in any major particular, his reason for confessing being apparently brought on by a belief that he would receive the same treatment from the officers that he says was administered nine years previously while under arrest on a similar charge.

In addition to this, the circumstances surrounding the making of the confessions, which are of great importance in cases of this sort, see Fikes v. State of Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246, do not show any undue pressure against appellant’s power of resistance, either by reason of the point of time involved, the nature of appellant’s incarceration or the questions asked. Under such conditions, we think the trial judge was correct in his ruling that the confessions were admissible.

Bill No. 8, which was reserved to the overruling of appellant’s motion for a new trial, presents no question of law for review and is merely a reiteration of the complaints which we have already considered. And, Bill No. 9, which was taken to the overruling of a motion in arrest of judgment, is in the same category, as it relates only to the admission of the confessions, the overruling of the motion to quash the indictment and the overruling by the judge of numerous objections of defense counsel.

The conviction and sentence are affirmed.

HAMÍTER, J., concurs in the decree.

      . In State v. Dorsey, 207 La. 928, 22 So. 2d 273, it was field that the accused was entitled to a pre-trial inspection of a written confession alleged to have been made by him. Nevertheless, it was there pointed out that the ruling would be extended no further than to written statements of the accused himself and that pre-trial inspection would be denied of written statements of witnesses or police reports in the hands of the district attorney, sheriff, or police department. This rule was applied in State v. Mattio, 212 La. 284, 31 So.2d 801; State v. Simpson, 216 La. 212, 43 So.2d 585; State v. Martinez, 220 La. 899, 57 So.2d 888; State v. Haddad, 221 La. 337, 59 So.2d 411 and State v. Shourds, 224 La. 955, 71 So.2d 340.

      . In this connection, see Annotations 52 A.L.R. 207, 165 A.L.R. 345; 8 Wigmore, “Evidence” Sec. 2224 (3rd Ed.) and 1955 Supplement.

      . Later, lipstick of tlie type worn by the victim was found to be the same as that. on the handkerchief.