text:
    SHEFFIELD v. JEFFERSON PARISH DEVELOPERS, Inc.
    No. 19012.
    Court of Appeal of Louisiana. Orleans.
    Nov. 29, 1948.
    Writ of Certiorari Granted Feb. 14, 1949.

      Chaffe, McCall, Toler & Phillips and Leon Sarpy, all of New Orleans, for appellant.
    Leslie P. Beard, of New Orleans, for ap-pellee.
   McBRIDE, Judge.

Hubert S. Sheffield, individually and under powers of attorney from ten others, brought suit against Jefferson Parish Developers Inc., alleging that the defendant had overcharged them for rents during the period beginning September 10, 1942, and ending October 31, 1944, in amounts ranging from $83.60 to $250.00, making a total overcharge due to all of the tenants combined of $1865.50. The petition seeks to recover treble this amount as damages, plus a reasonable attorneys’ fee, under the Emergency Price Control Act of January 30, 1942, 56 Stat. 23, 50 U.S. Code Appendix, § 901 et scq., 50 U.S.C.A. Appendix, § 901 et seq.

Shelton W. Watts also brought suit against the defendant for $330.00, representing treble the amount of the overcharge which he alleges the defendant collected from him during the said period of time. Upon defendant’s motion, the suits were consolidated for trial.

Defendant filed an exception of misjoinder of parties plaintiff in the lower court, but the record does not show that the exception was passed upon, and as defendant’s counsel has made no mention of it in his brief or in oral argument, we consider that it has been abandoned.

Defendant denied that it received or accepted rental in excess of the maximum allowed by law; in the alternative, it alleged' that if overcharges did occur it was in good faith and should not be condemned for treble damages. Then, assuming the position of plaintiff in reconvention, defendant sought from each claimant a certain amount which it alleged they owed it for rent.

After a trial in the lower court, plaintiff’s-demands were dismissed; defendant’s re-conventional demand was dismissed as in the case of nonsuit.

Sheffield, on behalf of himself and his-principals, appealed to the Supreme Court from the judgment insofar as it dismissed their claims. No appeal was taken by Watts, nor did defendant appeal from that portion of the judgment which nonsuited the reconventional demand.

The Supreme Court (213 La. 799, 35 So. 2d 737) found that it would have no jurisdiction to entertain an appeal from a judgment based on any of the separate claims, and .that appellate jurisdiction cannot be extended by lumping the claims together by consent of the parties, when there is no community interest, and transferred the appeal to this court pursuant to the provisions of Act No. 19 of 1912.

The amount of rent collected by defendant is not in dispute, as we find in the transcript the following acknowledgement: “It is acknowledged between counsel that in paragraph 8 of the plaintiff’s petition, under the column ‘Rent Paid,’ the amounts stated therein are correct and are-the sums which have been paid to Jefferson Parish Developers, Inc., for the addresses and by the tenants as stated in said paragraph 8 of plaintiff’s petition.”

The overcharges, according to the petition, aggregated $1865.50, but counsel for plaintiff, in his brief, “voluntarily reduced” the amount claimed to $1736.60.

It appears that during 1942 (but after March 1) defendant erected nineteen defense-housing dwelling units, eleven of which are involved in this litigation, under, priority 7064-00191 issued by the National Housing Agency, through the War Production Board. The dwellings are situated in the Paris Park Subdivision in New ■Orleans, and within the New Orleans Defense Area as established by the Administrator, Office of Price Administration. Defendant completed the building project during the latter half of 1942.

The facts surrounding the approval of maximum shelter rentals are somewhat complicated. Harry B. Rainold and Archer G. Van Denburgh, two of the officials of defendant, who represented it in all ■negotiations hereinafter discussed, testified that the WPB priority was issued on the basis that the contemplated houses were to carry a maximum rental value of $45.00 per month, but that when the building plans and specifications were submitted to the Federal Housing Administration for approval for federal financing and insurance, that agency refused to give its assent to the project, for the reason that the contemplated houses, each of which was to contain 600 square feet, were entirely too small and not in keeping with sixty other units which had been previously built in the subdivision.

Defendant then submitted to the FHA new plans and specifications calling for houses of 800 or 900 square feet, which were subsequently approved by the FHA and the proper commitments for financing, etc., made. Rainold and Van Denburgh say that they then went back to the WPB and complained that, whereas, under the new plans and specifications, the houses were to be of larger dimensions than.thpse ■originally contemplated, and would necessitate increased building costs, the rent base of $45.00 would be inadequate and insufficient to permit defendant to repay the federal loan, insurance and other costs. The WPB adopted the position that it had no jurisdiction to increase the rent base, and Rainold and Van Denburgh were referred back to -the FHA. They testified that conferences were held with officials of the FHA, at which increased rentals were discussed, and that it was finally agreed that the rent base should be established at $55.00 for certain of the units and at $60.00 for the others. The witnesses state that applications for the increased rentals, as agreed upon, were filed with the FHA, and that defendant never, at any time, heard from the FHA as to what action had been taken on, or what disposition had. been made of, the request for the rent increase, and that it collected from the tenants the amounts which they anticipated would be officially established on the larger units which the FHA forced defendant to- erect.

Upon completion of the dwelling units, defendant registered the property with the local Rent Control Office of the Office of Price Administration, and the registration stated that the dwelling units had been newly constructed with a priority rating from an agency of the United States, and that the rent approved by this agency was $55.00 for some of the units and $60.00 for the others. 1 The local Area Rent Director received information indicating that the priority rent approved by the WPB was in reality $45.00 and $50.00 per month, and after an investigation, and acting under Sec. 5(d) of the Rent Regulations for Housing, issued orders on September 22, 1944, covering each of the eleven units, establishing the maximum rental as follows: 4312 Van Avenue, 4105, 4234, and 4334 Rayne Drive, $45.00 per month; 4303, 4306, 4307, 4309, 4310, and 4315 Van Avenue, and 4316 Rayne Drive, $50.00 per month; the orders, in part, read as follows :

“The Rent Director has duly considered the above matter and:
“Finds that the rent approved by WPB •under priority 7065-00191 was ($45.00 or $50.00) per month, which amount is the Maximum Rent for the above-described accommodations.” (Brackets ours.)

These orders were never appealed from. About October 25, 1944, defendant filed with the Rent Director, registrations showing that the priority rent approved by an agency of the United States was $45.00 and $50.00, as the case may be. About the same day, defendant filed a Landlord’s Petition for Adjustment of Rent, asking that the rent be increased under Sec. 5(a) (3) of the regulations, on the ground that there had been a substantial increase in the services, furniture, furnishings, and equipment. The Area Rent Director issued orders on December 2, 1944 (subsequent to the period for which overcharges are claimed), slightly increasing the rent on the eleven units, “for additional equipment and services, including garage.” These orders were not retrospective in effect, and defendant took no appeal from them.

Other proceedings were taken and other relief was sought by defendant within the OPA organization, which need not be recounted here, and the fact remains that the orders of September 22, 1944, and December 2, 1944, were never altered or revoked; on the contrary, these orders were ultimately affirmed by the Regional Administrator. ■

Notwithstanding the finality of the Rent Director’s orders of September 22, 1944, counsel for defendant insists that there were no overcharges, as the priority rent established by the WPB was based upon the assumption that the smaller houses would be erected, and that defendant had the right to collect an increased rent on the larger houses which were actually built. In short, his contention is that the priority rent as established by the WPB was not binding on defendant. In an effort to bolster defendant’s position, there was introduced, on the trial below, the testimony of certain governmental employees. Wade H. Sutton, Chief Underwriter of the FHA, testified that, “the houses as constructed were not the houses on which the priorities were applied for, therefore the rentals and the priorities didn’t apply.” A. A. White, Regional Rent Executive of the OPA at Dallas, Texas, whose testimony was taken by deposition, identified a telegram sent by him to defendant, in which he gave the following opinion: “ * * * Actual units constructed differed substantially from original specifications and resulted in increased construction costs and no shelter rents were set by WPB on actual units constructed. * * * ”

H. C. Happ, Regional Rent Attorney, .OPA, Dallas, Texas, in a telegram, stated that his opinion of the situation was: “ * * * The actual units constructed differ substantially from original specification and resulted in increased construction costs and no shelter rents were set by WPB on actual units constructed. ,iJi * * if *

The opinions of these witnesses, being entirely informal and not official, are without probative value or legal effect. See Fleming v. Hanscom, 9 Cir., 162 F.2d 164.

The above mentioned orders of the Area Rent Director are the only official establishment of ceiling rents contained in the record. We are bound by them, and whether said orders were correctly issued, and the causes which provoked their issuance, are questions which we are not privileged or have authority to examine. Jurisdiction to ascertain the validity of those orders is vested solely in the Emergency Court of Appeals at Washington, D. C. The Emergency Price Control Act of 1942, supra, Sec. 204(d), provides: “The Emergency Court of Appeals, and the Supreme Court upon review of judgments and orders of the Emergency Court of Appéals, shall have exclusive jurisdiction to determine the validity of any regulation or order issued under section 2, of any price schedule effective in accordance with the provisions of section 206, and of any provision of any such regulation, order, or price schedule. Except as provided in this section, no court, Federal, State, or Territorial, shall have jurisdiction or power to consider the validity of any such regulation, order, or price schedule, or to stay,' restrain, enjoin, or set aside, in whole or in part, any provision of this Act authorizing the issuance of such regulations or orders, or making effective any such price schedule, or any provision of any such regulation, order, or price schedule, or to restrain or enjoin the enforcement of any such provision.”

In the case of Beers v. Peters, La. App., 29 So.2d 611, 613, we said: “It has been held in many cases that power to consider the validity of any regulation or order of the Office of Price Administration is solely vested in the Emergency Court of Appeals. Henderson v. Burd, 2 Cir., 133 F.2d 515, 146 A.L.R. 714; Bowles v. Meyers, 4 Cir., 149 F.2d 440; Bowles v. Wheeler, 9 Cir., 152 F.2d 34; Bowles v. Nu Way Laundry [Co.], 10 Cir., 144 F.2d 741. And the exclusive jurisdiction of said court applies not only in the case of a regulation of general applicability but also in the case of an individual order. Bowles v. Willingham, supra [321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892]; Yakus v. United States, supra [321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834].”

It is not disputed that a lessor who charges a higher rate of rental than is fixed by the Rent Director renders himself liable to statutory damages. Section 205(e) of the act, 50 U.S.C.A. Appendix, § 925(e), provides in part as follows: “If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, the person who buys such commodity for use or consumption other than in the course of trade or business may, within one year from the date of the occurrence of the violation, except as hereinafter provided, bring an action against the seller on account of the overcharge. In such action, the seller shall be liable for reasonable attorney’s fees and costs as determined by the court, plus whichever of the following sums is the greater: (1) Such amount not moré than three times the amount of the overcharge, or the overcharges, upon which the action is based as the court in its discretion may determine. * * * Provided, however, That such amount shall be the amount of the overcharge or overcharges * * * if the defendant proves that the violation of the regulation, order, or price schedule in question was neither wilfull nor the result of failure to take practicable precautions against the occurrence of the violation. For the purposes of this section the payment or receipt of rent for defense-area housing accommodations shall be deemed the buying or selling of a commodity, as the case may be; and the word ‘overcharge’ shall mean the amount by which the consideration exceeds the applicable maximum price. * * * ”

Defendant, in the alternative, contends that if the finding of the court be that overcharges of rent occurred, such was not willful, in view of the peculiar circumstances of the case; that there was utmost good faith on defendant’s part, and, therefore, no penalty should be assessed against it. Section 205(e) of the act does provide that if a violation of a regulation, order, or price schedule was neither willful nor the result of failure to take practicable precautions against the occurrence of the violation, the judgment should be only for the amount of the overcharge.

But, a most careful study of the record convinces us that defendant’s violation of the act was willful, and that defendant’s managing officials lacked that good faith which would have been necessary to exculpate defendant from the penalty of multiple damages. There are several significant facts which absolutely destroy the protestations of good faith. The registrations of the houses with the Rent Control Office contained the statements that base rents had been established by an agency of the United States at $55.00 and $60.00 per month, when the defendant knew, or should have known, that such statement was false. Also present is the fact that defendant collected from the tenant in 4315 Van Avenue, $50.00 unit, rental at the rate of $64.00 per month during the period in question. From the tenant in 4105 Rayne Drive, a $45.00 unit, there was collected $75.00 per month, or an overcharge of $30.00. Defendant exacted from these two tenants an amount even greater than the rental which it contends should have been correctly established on the larger housing units.

As we construe Sec. 205(e) of the act, in the event the price violator does not show both absence of willfulness and the presence of care to prevent the occurrence of violations, the court has discretion to determine the amount of the judgment in excess of the amount of the overcharge, however, not exceeding treble thereof. Bowles v. Krodel, 7 Cir., 149 F.2d 398; Porter v. James Henry Packing Co., 9 Cir., 155 F.2d 764; Porter v. Gray, 9 Cir., 158 F.2d 442.

Being lodged with such discretion, our conclusion is that the judgment should be twice the amount of the overcharges, or $3473.20. And, considering the time and industry devoted to the prosecution of this action by counsel for plaintiff, we believe that twenty per cent of the amount of the judgment would constitute a reasonable attorneys’ fee.

Since the institution of the suit, Jefferson Parish Developers, Inc., has been placed in voluntary liquidation proceedings, and Harry B. Rainold and Archer G. Van Denburgh havq been nominated and named as extrajudicial liquidators to liquidate and wind up the corporate affairs, and upon motion of plaintiff’s counsel we have issued an order making said liquidators parties to this appeal.

The judgment appealed from is reversed, insofar as it dismissed plaintiff’s demands, and it is now ordered, adjudged and decreed that plaintiff, Hubert S. Sheffield, on his own behalf and on behalf of his ten principals, have judgment against Harry B. Rainold and Archer G. Van Denburgh, in their’ capacities of liquidators of Jefferson Parish Developers, Inc., for the full sum of $3473.20, with legal. interest from judicial demand until paid, and with twenty per cent thereon as attorneys’ fees; in all other respects, the judgment appealed from is affirmed; costs of the lower court and of this court are to be borne by the liquidators.

Reversed in part; affirmed in part.


source: Caselaw Access Project

author: O’NIELL, Chief Justice. HAMITER, Justice McCALEB, Justice

license: Public Domain

text:
    214 La. 317
    STATE v. WILSON.
    No. 38558.
    Supreme Court of Louisiana.
    Nov. 8, 1948.
    Lubin F. Laurent and F. Irvin Djunond, both of New Orleans, for defendant-appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Culli-gan, Asst. Atty. Gen., and John E. Fleury, Dist. Atty., and Frank H. Langridge and L. Julian Samuel, Asst. Dist. Attys., all of Gretna, for appellee.
   O’NIELL, Chief Justice.

The appellant stands convicted of murder and sentenced to be electrocuted.

The record contains eleven bills of exception, but we find it not necessary to consider any but the two bills which were reserved to the judge’s admitting in evidence, over the defendant’s objection, two typewritten documents signed by the defendant and purporting to be his free and voluntary confessions. The first of the two alleged confessions was signed in the presence of six officers, namely, the sheriff of the Parish of St. Charles, in which parish the crime was committed, and three of his deputies, and two sergeants of the state highway police. That confession was made at the headquarters of the state highway police, in Jefferson Parish, near New Orleans. It was made during the night of the 15th and early morning of the 16th of July, 1946. The questioning of the defendant by the police officers commenced about or soon after 11:30 p. m., on July 15, on the arrival of the officers at the police headquarters with the defendant in their custody; and the obtaining of the confession was proceeded with until 5 :00 o’clock the next morning, at which time the defendant signed the document which was typewritten and transposed into narrative form by one of the deputies who took part in the questioning of the defendant. The crime concerning which the defendant was questioned had been committed a month before, that is, on the night of June 15 or early morning of June 16, 1946. There was no one present except the defendant and the six officers having him in custody at the time of the making or signing of the alleged confession. After the defendant had signed the confession, that is, about 6:00 a. m., on July 16, 1946, he was taken by the officers to the parish prison in New Orleans and locked in a cell.

The second one of the alleged confessions was signed by the defendant in the parish prison in New Orleans on July 18, 1946, in the presence of a lieutenant and a sergeant of the state highway police and a deputy sheriff of the Parish of St. Charles. The sergeant of the state highway police and the deputy sheriff had witnessed also the signing of the first confession. In fact the deputy sheriff had typed the first confession, as it was alleged to have been made by the defendant. Captain Meredith, of the New Orleans police force, being the one who brought the defendant from his cell into the room where the second confession was obtained, was in and out of the room from time to time during the making of the confession. He, in his testimony, according to the judge’s per curiam, corroborated the statement of the deputy sheriff and the two state troopers that the confession was made freely and voluntarily. The second confession also was typewritten by one of the three officers who were present and signed the confession as witnesses.

The defendant’s objection to the introduction in evidence of the alleged confessions was that they were not made or signed freely or voluntarily but that the defendant’s signature was obtained by the officers by putting him in fear and by threats and acts of violence on their part. The testimony on that subject was heard by the judge in the absence of the jury before the confessions were allowed to be introduced in evidence. But the evidence concerning the manner in which the confessions were obtained was not reduced to writing.

Inasmuch as we have not the benefit of the testimony which was heard by the trial judge before he allowed the confessions to be introduced in evidence, we must base our decision of the question of admissibility of the confessions upon the per curiam of the judge, together with such facts as are admitted in the state’s brief.

The crime was committed sometime during the night of the 15th or early morning of the 16th of June, 1946. The defendant, a colored man in his early thirties, lived in the neighborhood in which the crime was committed, and had lived there for some years, perhaps from the time of his birth. The crime was a gruesome one. It consisted of the clubbing to death of a man and his wife while they were asleep in their bed, and the ravishing of the woman. They were in their home, in a small settlement called New Sarpy, in St. Charles Parish. They were of the white race. The commission of the crime was discovered early on the morning of June 16. There was no eyewitness to the crime. The defendant, Wilson, was indicted separately for the two crimes of murder and for the crime of rape, but is being prosecuted in this case only for the murder of the woman. The two other indictments are yet pending.

Wilson had had a fight with a colored woman in that neighborhood early in the night or evening of June IS. Several days after the discovery of the crime the woman with whom Wilson had had the fight made an affidavit against him for assault in connection with the fight. The affidavit had no reference to the crimes of murder and rape. The affidavit was sent to the office of the sheriff of St. Charles Parish, in Hahnville, and afterwards was turned over to a deputy sheriff, E. M. Guidry, for the arrest of Wilson, who was then working in a sawmill at Hammond, Louisiana, about fifty or sixty miles from the place where the crime had been committed. Guidry went to Hammond to arrest Wilson, on July IS, 1946, that is, a month after the crime had been committed. He arrived in Hammond about 9:00 o’clock that night, and accompanied by two police officers of the City of Hammond, arrested Wilson and brought him to the city police station. Guidry then went to the telephone in the police station and called the sheriff of St. Charles Parish, at Hahnville, the parish seat, about fifty miles away. While Guidry was conversing with the sheriff on the long-distance telephone, one of the two police officers, who were questioning Wilson, struck him for failing or refusing to answer their questions. Guidry then came from the telephone and prevented the officer from striking Wilson again.

Immediately after Guidry’s long-distance telephone conversation with the sheriff, he, Guidry, with two companions, left with Wilson in their custody and conveyed him to the headquarters of the state, highway police, in obedience of the instructions which the sheriff had given to Guidry on the long-distance telephone. The party arrived at the headquarters of the state highway police, in the Parish of Jefferson, near New Orleans, late on the night of June 15, perhaps sometime near or after 11:30 o’clock. The sheriff and his deputies and the police officers, whom we have mentioned, began questioning the defendant with the view of obtaining a confession from him if he was willing to make one, soon after their 'arrival with him at the state police headquarters; and, as we have said, the procedure continued until about 5:00 o’clock the next morning, when the defendant signed the confession. About an hour later he was taken to the parish prison in New Orleans.

The present Constitution of Louisiana goes further in protecting an accused person against being compelled to give evidence against himself than any previous constitution went. In Section 11 of the Bill of Rights there is added, after the provision in the former constitutions that no person shall be compelled to give evidence against himself in a criminal case or in any proceeding, that may subject him to criminal prosecution, this provision: “No person under arrest shall be subjected to any treatment designed by effect on body or mind to compel confession of crime; nor shall any confession be used against any person accused of crime unless freely and voluntarily made.”

In fhe Code of Criminal Procedure, in Article 451, it is declared: “Before what purposes [purports] to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.”

This court has construed that article of the Code of Criminal Procedure to mean that before what purports to be a confession can be introduced in evidence it must be shown, not only affirmatively but by proof beyond a reasonable doubt, that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. State v. Henry, 196 La. 217, 198 So. 910; State v. Graffam, 202 La. 869, 13 So.2d 249; State v. Ellis, 207 La. 812, 22 So.2d 181; State v. Ross, 212 La. 405, 31 So.2d 842, decided in May, 1947, and rehearing refused in June 1947. In State v. Henry, 196 La. at pages 239, 243, 198 So. at page 917, after quoting Article 451 of the Code of Criminal Procedure, the court proceeded thus: “If there were any reasonable doubt that the confessions of the accused were free and voluntary, they should have been excluded. 20 Amer. Juris., Evidence, par. 538, and State v. Garvey et al., 25 La.Ann. 191. The law cannot measure the force or effect of the influence upon the mind of the accused, and therefore excludes the declaration if any degree of influence has been exerted. State v. Young, 52 La.Ann. 478, 27 So. 50; Bram v. United States, 168 U.S. 532, 549, 18 S.Ct. 183, 42 L.Ed. 568.”

In State v. Graffam, 202 La. at pages 887, 890, 13 So.2d 249, 255, the court quoted from Section 11 of the Bill of Rights of the Constitution of 1921, and quoted Articles 451 and 452 of the Code of Criminal Procedure, and proceeded thus: “The question presented in this case is whether defendant’s confession was freely and voluntarily made. In order to determine the question, the facts and circumstances surrounding and entering into the making of the confession should be considered. The question is not to be determined by the mere conclusions or statements of the police or other officers that the confession was made freely and voluntarily. State v. Newton, 173 La. 382, 137 So. 69.”

“Apart from the conflicting interpretations placed upon the hospital record by Dr. Cole and Dr. May, if their testimony can be considered, reason and common sense indicates that the state of mind of one situated as the defendant was when the confession was made is not such as to induce the belief that his statements were free and voluntary. In any event, under the circumstances disclosed by the record, there is a reasonable doubt as to whether defendant’s confession was freely and voluntarily made. This being so, the doubt must be resolved in favor of the defendant, thereby forcing the further conclusion that the trial judge erred in admitting his confession over the objection of defendant’s counsel.”

In State v. Ellis, and again in State v. Ross in June 1947, the court repeated the doctrine of State v. Henry and State v. Graffam, thus [207 La. 812, 22 So.2d 182]:

“Furthermore, if there is any reasonable doubt as to whether the confession was free and voluntary, it must be excluded. 20 American Jurisprudence, verbo, Evidence, par. 537, p. 456; State v. Garvey, 25 La.Ann. 191; State v. Henry, supra.
“The force or effect of influence upon the mind of the accused cannot be measured, and where any degree of influence has been exerted, the confession must be excluded. State v. Young, 52 La.Ann. 478, 27 So. 50; State v. Doiron, 150 La. 550, 90 So. 920; State v. Lanthier, 201 La. 844, 10 So.2d 638.”

State v. Henry, State v. Graffam and State v. Ellis, were all unanimous decisions.

According to the law of this state, therefore, which we have quoted, and which appears to be well settled, if there is a reasonable doubt that either of the confessions which were offered in evidence in this case was a free and voluntary confession, the verdict and sentence must be set aside and a new trial granted.

A decision rendered by the Supreme Court of the United States on January 12, 1948, in Haley v. Ohio, 68 S.Ct. 302, 92 L. Ed. -, is very appropriate to the present case. The circumstances under which a confession of the crime of murder by a Negro boy 15 years of age was rejected by the court, as being obtained in violation of the 14th Amendment, were very similar to the circumstances in which the confession was obtained in the present case. The principal difference between Haley’s case and the present case is that in the confession made in the present case the defendant states his age to be 31 years, whereas Haley was said to be only 15 years of age.

Our conclusion, from the record as made up, and without the benefit of the testimony on the question whether the confessions were free and voluntary, is that there is not sufficient proof that the first confession was free and voluntary.

The defendant filed in the district court a motion for a change of venue, averring that he could not obtain a fair and impartial trial in the parish in which the crime was committed. The judge, after hearing testimony on the motion, overruled it, and the defendant reserved a bill of exception; but the testimony on the subject was not reduced to writing; hence it is impossible for us to pass upon the question whether the defendant could or could not obtain a fair and impartial trial in the parish in which the offense was committed. Inasmuch as we must grant the defendant a new trial, he will have an opportunity, before entering upon the new trial, to renew his motion for a change of venue and to have the evidence reduced to writing and brought up for review in the event of another appeal.

The verdict and sentence appealed from are annulled and the case is ordered remanded to the district court for a new trial.

HAMITER, J., dissent and assigns written reasons.

McCALEB, J., dissents with written reasons.

HAMITER, Justice

(dissenting).

The per curiam of the trial judge, solely upon which our decision herein must be based since the testimony adduced was not transcribed, contains nothing that causes me to entertain a reasonable doubt that the confessions of the accused were free and voluntary. Rather, the analysis therein of the testimony offered is convincing that the State affirmatively showed, as it was obligated to do, that the confessions were freely and voluntarily given.

As to the circumstances surrounding the striking of the accused by the Hammond police officer, the per curiam explains: “The evidence showed that Wilson was not questioned about the murder of the Petro-lias at Hammond, and the questions asked him by the Hammond Police were absolutely foreign to the Petrolia murder, and the act of violence on the part of the Hammond policeman had no connection or anything to do with the confession that was later made by Wilson. As a matter of fact, whilst Wilson was at Hammond he was not asked a single question about the Petrolia murders.” This being true, the striking could not and did not influence the making of the confessions (concerning the Petrolia murders for which defendant was tried) so as to render them inadmissible. See State v. Rini, 151 La. 163, 91 So. 664; State v. Lamotte, 168 La. 837, 123 So. 591.

Nor does the per curiam disclose that the accused was interrogated for an unreasonably lengthy period of time, or in an otherwise unfair manner, such as might constitute the use of duress and intimidation in the obtaining of the confessions. It shows merely, regarding the matter of time, that he was arrested in Plammond at nine o’clock of the night of July 15, 1946, and signed the confession at five o’clock the next morning in the State Police Plead-quarters. As to when the interrogation commenced during that period and whether or not it was continuous and unduly severe are questions which the per curiam does not answer.

I respectfully dissent.

McCALEB, Justice

(dissenting).

I readily concur with all of the authorities cited and quoted from at length in the majority opinion to the effect that confessions must be shown to be free and voluntary and are not admissible if reasonable doubt exists to the contrary. However, I find nothing in the facts contained in the per curiam of the trial judge relative to the admissibility of the confessions (upon which we must base our conclusion) which leaves reasonable doubt in my mind that the confessions were wholly free and voluntary.

Indeed, the majority, after stating the incidents surrounding the movements of the accused and the law enforcement officers prior to the arrest and the conditions under which the confessions were obtained, merely conclude that “from the record as made up, and without the benefit of the testimony on the question whether the confessions were free and voluntary, * * * there is not sufficient proof that the first confession was free and voluntary”. Not one circumstance is adverted to in the opinion upon which the resolution of doubt based on the insufficiency of proof is predicated. Since we are controlled by the facts contained in the per curiam of the trial judge, the deduction that the proof in the record is inadequate to show that the first confession was free and voluntary appears not to be an answer to the question but, rather, a suggestion that either the trial judge has failed to set down all of the evidence upon which his ruling was based or that the State has more evidence to produce at the new trial.

The statement of facts surrounding the giving of the first confession contained in the majority opinion is fairly accurate with one exception — that is, the opinion fails to mention the very important finding of the district judge that, when the accused was struck by the city police officer in Hammond, he was not being questioned about the Petrolia murders. The trial judge states the striking incident in Plammond as follows:

“He, Wilson, and the Hammond Officers went into the Police Station, where Guidry proceeded to use the telephone to inform Sheriff’ Leon Vial of St. Charles Parish that he had Wilson in his custody and was bringing him in; and while he, Gui-dry, was using the telephone one of the Hammond officers struck Wilson once and he, Guidry, protested, and stopped him from striking him again. Guidry was on the phone at the time; and testified that the Hammond officer struck Wilson because he would not answer some questions.
“Wilson was placed on the stand, and corroborated Guidry to the effect that the Plammond Police Officer struck him, but stated that he was beaten up with billies and struck on the head and stomach (which was subsequently denied by Guidry on rebuttal) because he, Wilson, could not answer their questions about where, what places he stayed at, and where he hung around whilst in Hammond, and that because he couldn’t tell them, he was struck.
“The evidence showed that Wilson was not questioned about the murder of the Petrolias at Hammond, and the questions asked him by the Hammond Police were absolutely foreign to the Petrolia murder, and the act of violence on the part of the Hammond Policemen had no connection or anything to do with the confession that was later made by Wilson. As a matter of fact, whilst Wilson was at Hammond he was not asked a single question about the Petrolia murders.”

Since, as found by the trial judge, the blow received by the accused at Hammond had no connection with questions asked him concerning the Petrolia murders, this blow cannot be considered as a basis for a holding that it had any causal connection with the confession subsequently given at State Police Headquarters. The trial judge ruled accordingly, citing State v. Rini, 151 La. 163, 91 So. 664 and State v. Lamotte, 168 La. 837, 123 So. 591 to support his conclusion.

Eliminating the circumstance of the blow received by the accused in Hammond, the evidence is overwhelming to the effect that the confession signed by him at 5 :00 a. m. on July 16, 1946 was free and voluntary unless we are to accept Wilson’s testimony that he was beaten with “billies” by the state troopers and a deputy sheriff, in preference to the denials of those officers. The trial judge was convinced that the officers were telling the truth and I cannot find any circumstance to indicate why their testimony should not be believed. True, as pointed out by the majority, Wilson was arrested at 9:00 p. m. on July 15th and did not sign the confession until eight hours later, at 5:00 a. m., it thus being evident that he was questioned a considerable length of time before the confession was given. But this is not a circumstance which should cause doubt that the confession was voluntary and the opinion of the Supreme Court of the United States in Haley v. Ohio, 68 S.Ct. 302, 92 L.Ed.-, is not authority for such a conclusion.

The facts in the Haley case present the questioning by police in relays of a fifteen year old Negro boy for several hours and thereafter holding him incommunicado, despite the plea of his mother and counsel, for a period of three or four days. There is nothing in this case to show that the accused, (a grown man) ever requested counsel or that he was denied the right of communication with others.

I respectfully dissent.


author: FOURNET, Justice.

text:
    214 La. 334
    TEMPLETON v. INTERSTATE ELECTRIC CO. et al.
    No. 38070.
    Supreme Court of Louisiana.
    Nov. 8, 1948.

      W. T. Holloway, of Jonesboro, for plaintiff-appellant.
    Charles H. Morton, of Jonesboro, for defendants-appellees.
   FOURNET, Justice.

The plaintiff, Boyd Templeton, alleging that the Dixie Auto Lee Stores, Inc., and the Interstate Electric Company entered into a scheme or collusion with M. M. and Marshall Hearne for the purpose of inducing the latter two to breach their contract with him for the purchase of his business (including his stock and fixtures) then being operated in Jonesboro, Louisiana, under the trade name of Templeton Dixie Auto Lee Store, in order that the companies might sell the Hearnes new stock and fixtures, seeks to recover damages against the four in solido in the sum of $2,571.85.

The Hearnes denied the alleged scheme or collusion or that they were liable to the plaintiff, averring specifically that Dr. M. M. Hearne had no interest in the transaction other than to finance his son in the event the deal was consummated, and that inasmuch as it was never consummated, due to the plaintiff’s inability to comply with his agreement to secure the approval of the companies to the transfer of the franchise to use the name “Dixie Auto Lee Stores” to Marshall Hearne, neither was liable. The two companies likewise denied there was any scheme or collusion entered into for the purpose of inducing the Hearnes to breach their contract with the plaintiff, they averring they declined to transfer Templeton’s franchise to Hearne in the exercise of the discretion they had retained in the contract with Templeton and for good cause, i. e., the unpleasant and unsatisfactory business relations with him due to the small amount of merchandise he ordered, his purchase of merchandise from other sources, and his failure to promptly settle his account. They admitted the issuance of an independent franchise to Hearne. In reconvention, the Interstate Electric Company sought to recover from the plaintiff the sum of $707.25, with 8% interest from October 11, 1940, until paid.

From a judgment dismissing the plaintiff’s suit and the reconventional demand, the plaintiff has appealed.

It appears that the Dixie Auto Lee Stores, Inc., a Mississippi corporation, having acquired from the United States Patent Office the exclusive right to use* the trade name of Dixie Auto Lee Store,- and from the Interstate Electric Company, a Louisiana corporation domiciled in New Orleans, an exclusive sales agency, entered into a contract on May 21, 1940, granting the plaintiff, Templeton, a franchise authorizing- him to use this trade name in connection with his business in Jonesboro, Louisiana, Templeton obligating himself under this contract to use Interstate merchandise in his s*tore exclusively. In the early part of February, 1941, desiring to avail himself of an offer by Dr. M. M. Hearne to finance -the purchase of the business by his son Marshall, Templeton called on D. C. Whittle, the sales representative of Interstate at Alexandria, Louisiana, through whom he had obtained his franchise, since it was necessary, in order to consummate the transaction, to be sure that the franchise could be secured for Marshall. Accordingly, Whittle went to Jonesboro and met with the Hearnes and Templeton and assured them that once they had agreed upon the price to be paid the matter of securing the approval of the transfer of the franchise to Marshall would be a mere formality. The price having been agreed upon, the place of business was closed so that the inventory could be taken with the assistance of Whittle, and the keys were thereafter turned over to Marshall Hearne. A week and a half later, after Marshall, accompanied by his father and brother, had met in New Orleans with Leon Mattes, sales manager of -the Interstate Electric Company and supervisor of the Dixie Auto Lee Stores; Inc., and O. G. H. Rasch, secretary-treasurer of both companies, Hearne attempted to return the keys to Templeton with the explanation that he had not been able to secure the franchise, but Templeton refused to accept them. Subsequently, within four weeks of the time the Hearnes interviewed the company officials in New Orleans, Mattes and Whittle called on Marshall in Jonesboro and delivered a franchise to him. Under this franchise Hearne, some time during the middle of April, began doing business in a new location equipped with new fixtures and stock. At about the same time several suits were filed against the plaintiff, two by the attorney who is representing the defendants here. One of these suits, by -the Interstate Electric Company on an open account to recover $707.25, was dismissed shortly after the plaintiff reconvened to recover the amount being claimed by him in this suit. In another, the goods of the plaintiff were seized and sold and the proceeds thereof distributed. In the meanwhile, on March 18, the plaintiff was notified by registered mail to desist from using the trade name Auto Lee Store since his franchise to use this trade name had been cancelled.

Under the terms of the contract entered into by the plaintiff with the Dixie Auto Lee Stores, Inc., -the licensee, Templeton, is authorized to negotiate the transfer of his franchise, subject to the approval of the licensor, Dixie Auto Lee Stores, Inc., in which event the licensor is empowered to complete the negotiations; the franchise-is not subject to cancellation by the licensor for the causes set out in the answer of the companies filed here without the licensee being given 30 days prior written notice, by the licensor. The only causes for which the contract could -be cancelled without this notice are set out in Section 13 (failure to observe certain required trade practices) and in Section 17 (where both parties are given the right to cancel in the event of the insolvency, bankruptcy, etc.,of the other). Neither of these causes is pertinent here.

The record shows that soon after the meeting between the Hearnes and the representatives of the two companies, these companies, through Mr. Mattes, addressed a letter to the plaintiff on February 26 advising him of the meeting in New Orleans and its purpose. He stated the companies were unwilling to complete the negotiations for the transfer (1) until Templeton had liquidated his account with them, and (2) unless steel fixtures were used by the purchaser. On March 5 the plaintiff addressed a letter to Mattes advising him that while the Hearnes were willing to invest some $3,000 in the bus--iness, most of that was for new stock and they were unwilling to incur -the additional expense of acquiring new fixtures. He implored Mattes to assist the Hearnes in-securing this franchise since all parties concerned had entered into the contract in good faith and upon the assurance of Whittle that securing the franchise would be a mere formality; he particularly urged this since at that time his store had been closed for nearly three weeks. He further assured Mattes that upon the completion of the transaction, in accordance with his agreement with the Hearnes, the balance due Interstate would be paid in full.

Mattes promptly answered this letter on March 7 advising Templeton there was nothing that could be done for him; that his account was being placed in the hands of an attorney with instructions that suit be filed against him and his merchandise seized. In this letter Mattes states he thinks “it would be the best way out for everyone concerned if you were to see Dr. Hearne and arrange to make some fair settlement with him for the purchase of the fixtures and the merchandise, because, if we are obliged to sue and it goes into Court, and you are forced to sell your assets and merchandise at á forced sale, I know it will bring considerably less than if you were to sell it to a ready purchaser, who is going into some type of business;” further, that he understood “the Officers of our company have cancelled your Dixie Auto Lec-Store Franchise.”

From the tenor of this letter it appears to us that the plaintiff, instead of receiving the cooperation he was so earnestly seeking, was being met with every manner of coercion that an official of the company could exert in an effort to have him reduce the price agreed to between him and the Hearnes for his fixtures and merchandise. We fail to appreciate the object of this letter unless it was to assist Marshall Hearne in purchasing the plaintiff’s merchandise and fixtures at the lowest possible figure so that the new fixtures required by the defendant company could be purchased without the expenditure of any more money than was contemplated. There was no difference between the plaintiff and Marshall Hearne to settle since Marshall was obligated to purchase Templeton’s fixtures and stock at a stipulated price, in respect to which agreement the companies were without interest.

If there is any doubt as to the attitude of the companies in their dealings with the plaintiff with respect to this transaction, this is clarified by the subsequent action of the officials in issuing a franchise to Marshall Hearne under an independent contract, cancelling the plaintiff’s franchise without the required notice, and instituting suit against him on open account, resulting in the ultimate seizure and sale of his property, as he had been warned would be the outcome. This clearly shows the insincerity of the companies in their repeated protestations that their refusal to give consideration to the approval of the contract negotiated -by the plaintiff until he had first paid his account in full, since by their very actions the means of bringing about the most expeditious liquidation of this account was being thwarted by them. .

It is our concerted opinion, from a thorough study and analysis of the entire record, that the conclusion is inescapable that in accordance with a common understanding between Marshall Hearne and the officials of the companies he was induced to breach his contract with the understanding he would be given an independent contract or franchise. Under these circumstances we think he is liable. The fact that the plaintiff was unable to secure the approval of the company to the transfer of the franchise he had secured from the Dixie Auto Lee Stores, Inc., is immaterial under the facts here outlined. However, under the well settled law of this state that “one who is not a party to a contract is not liable in damages to one of the parties to the contract for inducing the other party to breach the contract” (Cust v. Item Company, 200 La. 515, 8 So.2d 361, 363, and the authorities therein cited), the defendant companies are not answerable in damages in this instance.

While we think the evidence clearly shows Dr. Hearne had knowledge, if he did not in fact participate in the common understanding that caused his son to breach the contract, the evidence fails to establish that he had any other interest in the transaction than to finance Marshall in this new venture, and therefore cannot be held liable.

As damages the plaintiff is claiming the sum of $2,571.85, being (1) the amount of the inventory, $1,596.85 ; (2) “rent accrued and pending at $35.00 a month for a period of eight months”, $280.00; (3) “storage of merchandise for 4 and % months pending litigation at $20.00 per mosth,” $95.00; and (4) “loss of wages and earnings at $200.00 per month for a period of three months,” $600.00.

Since the plaintiff’s entire stock and his fixtures were seized by the lessor for the nonpayment of rent and sold at sheriff’s sale, it not appearing in the record the amount realized from such sale nor the manner of its distribution, it is impossible for us to arrive at the actual loss the plaintiff suffered by Hearne’s failure to pay him the inventory price agreed upon as consideration for the sale. We do not think the plaintiff is entitled to the second and third claims if these amounts were paid out of the proceeds of the sale. Consequently, we will remand the case for the purpose of obtaining this information so that we may properly determine the actual loss.

Nor do we think the plaintiff is entitled to recover the amount claimed to have been lost in wages and earnings for three months, he having failed to establish this claim with that degree of certainty required by law. This claim is supported by the plaintiff’s simple statement that he was making between $200 and $250 a month in the operation of his store and filling station without any showing as to what portion was being derived from each. Furthermore, this simple statement, unsupported by any facts or records justifying the conclusion that his income monthly actually amounted to this figure, is entitled to little probative value.

We are powerless to entertain the claim of the Interstate Electric Company since the company did not appeal from the judgment dismissing its reconventional demand and did not answer the plaintiff’s appeal. That judgment is now final.

For the reasons assigned, the case is remanded to the lower court for the restricted purpose of ascertaining the amount realized from the forced sale of plaintiff’s assets and the distribution of these funds in order that the proper judgment may be entered in this matter.

O’NIELL, C. J., is of the opinion that the judgment appealed from should be affirmed.


author: HAWTHORNE, Justice.

text:
    214 La. 346
    HYMEL v. HYMEL.
    No. 39063.
    Supreme Court of Louisiana.
    Nov. 8, 1948.

      C. A. Blanchard, of Donaldsonville, for defendant and relator.
    Porteous & Johnson and Parnell J. Hy-land, all of New Orleans, for plaintiff and respondent.
   HAWTHORNE, Justice.

On application of relator, Wilson Hymel, this court granted writs to review a judgment of the Civil District Court for the Parish of Orleans, Division “B,” overruling his exception to the jurisdiction of that court ratione personae and ratione ma-teriae.

Respondent, Mrs. Irene Thibodaux Hy-mel, instituted suit for separation from bed and board in the Civil District Court for the Parish of Orleans on April 15, 1948. In her petition she alleged that she was a resident of Orleans Parish; that she was married to relator on March 7, 1930, at St. Martinville, Louisiana, and that they thereafter established the matrimonial domicile in Darrow in Ascension Parish, Louisiana, and lived together there until about July 19, 1947; that on this date, due to the cruel treatment of her husband, she left the matrimonial domicile and went to the home of her sister in New Orleans, where she had resided ever since. Citation issued, and in due course domiciliary service was had on the defendant at his domicile in Ascension Parish.

To plaintiff-respondent’s suit defendant-relator filed an exception to the jurisdiction of the Orleans Parish district court ratione personae and ratione materiae. The district judge sustained this exception and dismissed plaintiff’s suit. On respondent’s application a rehearing was granted, and the district court reversed its previous ruling and overruled the exception to the jurisdiction. Relator ' then applied to this court for writs, which were granted, and the matter is now before us under our supervisory jurisdiction.

In her motion for rehearing, plaintiff-respondent asserted that the district court overlooked the fact that it was the conduct of the defendant-relator which forced plaintiff to leave the matrimonial domicile, and contended that because of this fact she brought sufficient of the res to Orleans Parish with her to enable that court to assume jurisdiction of her marital status.

In support of her motion, she alleged that on May 22 (over 30 days after her suit was instituted) she returned to Darrow in Ascension Parish to see her children and while there was assaulted, beaten, and injured by her husband. She contended that, under these circumstances, she came within the exception to the rule that a married woman has no other domicile except that of her husband, the exception permitting a wife to acquire a separate domicile whenever it becomes necessary and proper that the wife should acquire a separate domicile, as when the misconduct of the husband compels her to leave him or when he abandons her; that she had a legal domicile as well as a residence in Orleans Parish when the suit was filed, and that she took with her to that parish the “res” or “thing” constituting the marital relationship, and that therefore the court of Orleans Parish acquired jurisdiction of said marital status regardless of the residence of the defendant.

We note that in plaintiff’s petition filed in the lower court she did not allege that she had established a bona fide separate domicile or residence in the Parish of Orleans due to the misconduct of her husband, the first allegation of this nature appearing in her motion for a rehearing based on facts alleged to have occurred subsequent to the date of the filing of the suit. Such pleading, in our opinion, would not be a proper foundation for application of the exception to the rule of domicile upon which respondent relies to establish jurisdiction. However, we choose to rest the decision on what we consider a sounder basis.

Since the defendant in the instant case is a resident of the Parish of Ascension, the exception to the jurisdiction filed by him should have been sustained under the general rule that in all civil matters one must be sued before his own judge— that is to say, before the judge of the place where he has his domicile or residence— and shall not be permitted to elect any other domicile for the purpose of being sued. Article 162, Code of Practice. Furthermore, according to the allegations of the petition, the matrimonial domicile of these parties was in Ascension Parish and the cause of action arose there; therefore, the court of that parish would have jurisdiction in the instant case.

To accept plaintiff’s contention would be tantamount to saying that, in many divorce or separation proceedings where both parties reside in this state and the cause of action arises herein, the wife instituting such suit could select or choose the jurisdiction in which to maintain her action. We have been unable to find any case in our jurisprudence holding that the wife can acquire a separate residence or domicile for the purpose of instituting suit for separation from bed and board or for divorce when both are residents of this state, when the matrimonial domicile is located in the state, and when the cause of action arises herein; nor did the trial court cite to us any in support of its ruling, and no case decisive of the issue here presented has been cited or called to our attention in brief filed by respondent.

For the reasons assigned, the writs issued herein are made peremptory, and it is ordered that the exception to the jurisdiction filed by relator be, and the same is hereby, sustained, and respondent’s suit dismissed at her costs.


author: O’NIELL, Chief Justice.

text:
    214 La. 351
    STATE v. KRAFT.
    No. 38931.
    Supreme Court of Louisiana.
    Nov. 8, 1948.
    W. C. Perrault, Acting Atty. Gen., M. E. Culligan, Asst. Atty. Gen., and Herve Raci-vitch, Dist. Atty. and Edward A. Hag-gerty, Jr., Asst. Dist. Atty., both of New Orleans, for the State, appellant.
    Hugh M. Wilkinson and James Wilkinson, III, both of New Orleans, for appellee.
   O’NIELL, Chief Justice.

The defendant is being prosecuted under a bill of information charging that he did “have in his possession, with intent to display .the same, indecent -print, and movie film entitled ‘Mom and Dad,’ ” etc.

The prosecution is for an alleged violation of the second -paragraph of article 106 of the Criminal Code, which denounces as a misdemeanor “obscenity,” and gi-ves four distinct definitions of the offense, in four separate paragraphs. In the second paragraph, under which the present prosecution is brought, the offense is defined thus:

“(2) Production, sale, -exhibition, possession with the intent to display, or advertisement of any indecent print, picture, written composition, model or instrument.”

The defendant filed a demurrer or motion to quash the bill of information -on the ground that it was unconstitutional, -being violative of section 10 of article 1 of the Constitution of Louisiana, and of Amendments V and VI and XIV of the Constitution of the United States, in that the bill of information failed to inform him of the nature and cause of the accusation -against him. He contended also in his demurrer or motion to quash that the -statute itself was unconstitutional for -the same reason, in that the word “indecent” was too broad and indefinite to inform anyone as to when or whether 'his conduct would constitute a violation of the statute. The judge decided that the word “indecent” was not definite or specific enough to describe any particular kind of “print, picture, written composition, model or instrument”, and hence that the statute itself, as well as the -bill of information, was unconstitutional. The -state is appealing from the decision.

Amendments V and VI of the Constitution of the United States, are applicable only to prosecutions in a Federal court, and not to prosecutions in a -State court. For that reason counsel for the defendant, of -course, does not rely upon either of these amendments, but rests his case upon the 14th Amendment of the Constitution of the United States and upon section 10 of article 1 of the Constitution of Louisiana, which section provides that in all criminal .prosecutions -the accused shall be informed of the nature and cause of the accusation -against him.

The defendant in -this case relies mainly upon the decision in State v. Truby, 211 La. 178, 29 So.2d 758, which was cited with approval in State v. Vallery, 212 La. 1095, 34 So.2d 329, 330. In State v. Truby, supra, the court held that article 104 of the Criminal Code was unconstitutional insofar as it failed to define specifically the term “immoral purpose.” The article denounces as a misdemeanor the keeping of a disorderly place and defines -the offense as ‘‘the intentional maintaining of a place to be used habitually for any illegal or immoral purpose.”

In State v. Vallery, supra, it was held that the term “any immoral act” was too indefinite to give validity to section 7 of article 92 of the Criminal Code, denouncing the crime of contributing to the delinquency of a juvenile. In that decision, which was rendered only eight months ago, and which was unanimous except that one member of the court was absent, the decision in the Truby case was cited with approval and -the doctrine of the case was expressly affirmed. The writer of the opinion in the present case dissented from the ruling in the Truby case on the ground that the use of the word “habitually” in the expression [211 La. 178, 29 So.2d 767], “to be used habitually for any illegal or immoral purpose” furnished a sufficiently specific definition of the offense. But there is nothing in the context of the statute which we are considering now, that is, the second paragraph of article 106 of the Criminal Code, to give the word “indecent” a definite meaning.

The word “indecent,” standing alone, has many different meanings, according to the standard of the individual using or defining the word. In Webster’s New International Dictionary the word is defined as “unbecoming or unseemly”; “indecorous, as indecent haste”; “morally unfit to be seen or heard”; “offensive -to modesty and delicacy, as indecent language”; “immodest”; “impure” ; “gross”; “obscene.”

We recognize, of course, that the requirement in section 10 of article 1 of the Constitution of Louisiana has reference particularly to the indictment or hill of information and to such specifications or particulars as a defendant may demand in a criminal prosecution — rather than to the statute under which he is prosecuted. But this doctrine has been extended so as to apply in some measure to the statute itself. A review of the earlier decisions on this subject is given in State v. Truby, supra, and need not be repeated here. It is sufficient to say that a criminal statute, in order to be valid and enforceable, must define the offense so specifically or accurately that any reader having ordinary intelligence will know when or whether his conduct is on the one side or the other side of the border line between that which is and that which is not denounced as an offense against the law.

The judgment is affirmed.


author: HAMITER, Justice.

text:
    214 La. 356
    STATE v. MUTUAL INV. CO., Inc.
    No. 39109.
    Supreme Court of Louisiana.
    Nov. 8, 1948.
    Frederick G. Veith and Robert J. Lacey, Jr., both of New Orleans, for intervenor-appellants.
    Chas. J. Rivet, of New Orleans, for Emile Bienvenu, receiver, appellee.
    Bertrand I. Cahn, of New Orleans, for the State, appellee.
   HAMITER, Justice.

Our present consideration of this cause, which involves a receivership proceeding commenced by the state against the defendant Mutual Investment Company, Inc., concerns only a motion to dismiss the de-volutive appeal that was obtained by persons not parties to the litigation in the district court.

On' March 27, 1947, Emile Bienvenu, the duly appointed and qualified receiver of Mutual Investment Company, Inc., petitioned the court for axtthority to sell certain described vacant lots belonging to the corporation, in accordance with the joint purchase offer of Hejo Realty Company, Inc., and York Realty Company, Inc., it proposing the payment of $1000 cash and the assumption by the purchasers of all state and parish taxes and paving liens (including a lien for $1000) assessed against the property.

In a formal judgment of April 18, 1947, the court authorized the making of the suggested sale, the reasons assigned therefor, to quote from that instrument, being:

“It appearing that proper notices have been entered upon the Receivership Order Book, due summons issued to the creditors, and the corporation duly cited; and that no oppositions have been filed; and considering also other evidence making due proof of all of the allegations of the Receiver’s petition establishing the advisability of the private sale prayed for, and the court being of the opinion that said property should be sold at private sale

On June 6, 1947, the receiver filed a final account showing a consummation of the authorized sale, listing the proceeds received therefrom, and proposing a method of distribution. Thereafter (June 18, 1947), the court rendered a judgment reading:

“Due proof having ^been made before this Court, that the account herein filed on the 6th day of June 1947, has been advertised according to law; that no opposition has been filed thereto, and that the legal delays for opposing the same have elapsed, and due proof having been also made of the correctness of said account.
“It is ordered that the said account be approved and homologated, and the funds be distributed accordingly.”

From the judgment dated April 18, 1947, which authorized the sale of the property, appellants obtained this devolutive appeal, the order therefor having been entered almost a year later or specifically on April 13, 1948.

Although not parties to the proceeding in which that judgment was rendered, appellants, in their petition for the appeal, alleged that they are the children and sole heirs of Henry J. Bonnabel, Sr., and his wife (both deceased), from whom they inherited stock in the Mutual Investment Company, Inc.; and, further, that “the said judgment is contrary to the law and the evidence and that petitioners are aggrieved thereby and desire to appeal therefrom devolutively to the Supreme Court of the State of Louisiana.” They prayed for no specific relief against the judgment; obviously, however, they seek to have it set aside and the Sale held under its authority annulled.

Persons not parties to a cause, of course, are entitled to appeal from a judgment rendered against them when it is shown that they have been aggrieved thereby. Code of Practice, Article 571. Their appeal, however, can not and will not be entertained where it presents for consideration purely moot issues, such as those a decision on which (even if favorable to apellants) would be ineffective. This doctrine is particularly applicable to devolutive appeals perfected from judgments under which sales have been consummated. In such cases the validity of the sales, made in execution of the judgments after they became executory, could not be affected by the subsequent reversal of the judgments on the appeals. Bank of La Fourche v. Barrios et al., 167 La. 215, 118 So. 893; Wetherbee v. Lodwick Lumber Co., Inc., et al., 194 La. 352, 193 So. 671; Unity Industrial Life Insurance Company v. DeJoie, 197 La. 38, 200 So. 813; Pettingill et al. v. Hills, Inc., et al, 199 La. 557, 6 So.2d 660, 662.

Many months prior to the obtaining of the instant devolutive appeal, the receiver for Mutual Investment Company, Inc., executed the assailed judgment and distributed, with the court’s approval, the proceeds of the sale made thereunder. From which it follows naturally that even should this court reverse the judgment, as appellants seek to have us do, our decree would be without effect.

As was said in Pettingill v. Hills, Inc., supra:

“It is the function of appellate courts to render judgments that can be made effective and not to give opinions on moot questions or abstract propositions from which no practical results can follow. So where it is impossible for the appellate court to undo what has already been done, the court will not determine the questions litigated in the court below, but will dismiss the appeal. This principle is one of general application. * * * ”

Fox the reasons assigned the appeal is dismissed.


text:
    214 La. 361
    WENDLING v. AUCOIN.
    No. 38659.
    Supreme Court of Louisiana.
    Nov. 8, 1948.
    Frank H. Langridge, of Gretna, for defendant and appellant.
    Connor, Durham & Clarke and Bert W. Clarke, all of New Orleans, for appellee.
   HAMITER, Justice.

The defendant is appealing from a judgment in favor of his wife, the plaintiff herein, decreeing a separation from bed and board on the ground of cruel treatment, granting to her the custody of their minor child, and condemning him to pay alimony in the sum of $56 per month.

Appellant urges here only an insufficiency of the evidence in proof of the wife’s charge of his excessive and extreme cruelty towards her.

While the record does not disclose the commission of any physical violence by defendant on his wife, it does contain evidence of certain conduct, occurring during plaintiff’s period of pregnancy and causing her (a person of highly nervous temperament) to endure repeated hysterical spells, which amounted to mental abuse and harassment. This included an attempt to physically carry plaintiff from th'eir home to a tourist court against her will, the making of unreasonable demands and the using of what is termed brutal force with reference to their sexual relations, and his constant criticism of her in the handling of family funds and in the performance of household duties.

Defendant, of course, denied any cruel treatment towards his wife; his denial, however, was qualified somewhat as follows: “Q. You heard her testify that you mistreated her in your marital relations. Is that true? A. No, I guess she took it the wrong way. I didn’t do it intentionally if I did.”

If defendant actually committed during plaintiff’s period of pregnancy the above enumerated acts, it must be held that he was guilty of the cruel treatment which justifies a judgment of separation from bed and board. For as was said in Moore v. Moore, 192 La. 289, 187 So. 670, 671:

“Cruel treatment, under the jurisprudence of this state, is not confined to physical mistreatment, abuse, or injury, but can, likewise, result from mental harassment alone arising from conduct that is the ‘very refinement of cruelty/ without either force or blows. * * * ”

Whether or not the evidence adduced preponderately shows the unreasonable conduct attributed to defendant is a question that addresses itself to the weight to be afforded the testimony of the witnesses. Sampognaro v. Sampognaro, 211 La. 105, 29 So.2d 581. The district judge resolved this question in favor of plaintiff. We can not say that he manifestly erred in so ruling; he had the opportunity of observing the demeanor of the witnesses as they testified and could weigh better their conflicting testimony than can we from the transcript containing it.

The judgment is affirmed.

O’NIELL, C. J., dissents.


text:
    214 La. 365
    STATE v. STEWART et al.
    No. 39007.
    Supreme Court of Louisiana.
    Nov. 8, 1948.
    Alcide J. Weysham and James I. McCain, both of New Orleans, for defendants-appellants.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., and Herve Ra-civitch, Dist. Atty., Geo. McCulloch, and Alexander E. Ralston, Jr., Asst. Dist. Attys., all of New Orleans, for the State.
   HAMITER, Justice.

The defendants, Joseph M. Stewart and his wife, Mrs. Augusta Stewart, were tried and convicted, by the Juvenile Court of Orleans Parish, under a charge of having contributed to the delinquency of a juvenile by aiding a girl sixteen years of age to perform an act of sexual intercourse. Each was sentenced to pay a fine of $500 and to serve one year in the Parish Prison; the sentence given Mrs. Stewart, however, was suspended.

Joseph M. Stewart alone has appealed.

The provision of the Louisiana Criminal Code, Act No. 43 of 1942, allegedly contravened by appellant, and on which the charge in question was based, recited:

“Art. 92. Contributing to the delinquency of juveniles is the intentional enticing, aiding, or permitting, by anyone over the age of seventeen, of any child under the age of seventeen to:
******
“(7) Perform any immoral act; * * *."

In this court, to quote from its brief, the State presents only the following argument:

“Since the trial and sentence in this proceeding, the Supreme Court of Louisiana, in the case of State v. Vallery, [212 La. 1095], 34 So.2d 329 (1948), has held Section 7 of Article 92 [of the Louisiana Criminal Code] to be unconstitutional.
“The Legislature of Louisiana, at its Regular 1948 Session, apparently recognizing the Vallery decision, enacted Act 388 which amended Section 7 of Article 92, whereby the word ‘sexually’ was inserted before the phrase ‘immoral act’.
“In view of the foregoing, the State respectfully submits the matter.” (Brackets ours.)

Inasmuch as -appellant’s conviction and sentence were for the violation of an unconstitutional provision of law, necessarily they must be set aside.

For the reasons assigned the conviction and sentence of Joseph M. Stewart are annulled and set aside, and it is ordered that he be discharged.


author: MOISE, Justice.

text:
    214 La. 368
    STATE v. QUINN. In re QUINN.
    No. 39073.
    Supreme Court of Louisiana.
    Nov. 8, 1948.
    Watson & Willaims, of Natchitoches, for relator.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., and H. L. Hughes, Dist. Atty., of Natchitoches, for respondent.
   MOISE, Justice.

We granted a writ of certiorari in this case so that a review could be had on -the judgment of conviction of one Peter J. Quinn for having in his possession for sale for beverage purposes certain intoxicating liquors. The specific charge in the information is that the defendant “ * * * did wilfully, maliciously, feloniously and unlawfully have in his possession for sale for beverage purposes the following described intoxicating liquor * * * contrary to the provisions of Section 13 of Act 15 of the Legislature of Louisiana for the year 1934, as amended * * * The information closes with the stereotype clause “ ^ * * contrary to the form of the statute of the State of Louisiana, in such cases made and provided, and against the peace and dignity of the same.”

The defendant timely filed a motion to quash but after trial and conviction and before sentence his counsel filed a motion in arrest of judgment alleging substantial defects patent on the face of the record, to wit:

1. That the information in this case failed to allege that the defendant had in his possession for sale intoxicating liquors in Natchitoches Parish, where the sale of intoxicating liquors is prohibited by law.
2. That the information failed to allege in any place that Natchitoches Parish is dry or that there is any state law or police jury ordinance against the sale or possession for sale for beverage purposes of intoxicating liquors.

The motion in arrest of judgment was overruled and a bill of exception was reserved.

This prosecution is brought under the provisions of Section 13 of Act No. IS of 1934, as amended. The pertinent portion of said Section 13 reads:

“Whoever shall sell or keep for sale any intoxicating liquors for beverage purposes, in any parish, locality, ward, city, town or village of this State, where the sale of intoxicating liquors is prohibited by law or ordinance shall, on conviction, be punished by fine of not less than One Hundred Dollars nor more than Five Hundred Dollars or imprisonment of not less than thirty days nor more than six months; and, on failure to pay such fine, shall be imprisoned for not more than six months additional * * * provided, that nothing contained in this Act shall be construed to prohibit the sale of light beer, ale, porter, fruit juices and wine, containing not more than six per centum of alcohol by volume, in such subdivisions or municipalities of the State.”

Under this statute it is not unlawful to sell intoxicating liquors in those subdivisions of the State that have not outlawed the liquor traffic by a local option election pursuant to Act No. 17 of the First Extra Session of 1935. The sale of intoxicating liquors is unlawful only in those subdivisions of the State where the voters have voted that the parish is to be dry. It could be no penal offense to sell intoxicating liquor in New Orleans or Baton Rouge. The very essence of the crime is the sale of intoxicating liquor for beverage purposes in dry parishes.

Article 227 of the Code of Criminal Procedure provides that: “The indictment must state every fact and circumstance necessary to constitute the offense * * * The Supreme Court has held that:

“Indictments, under statutes, must set forth with' certainty all the facts and circumstances essential to constitute the crime, so as to bring the accused within the provisions of the statute. If any one of the ingredients of which the offense is composed be omitted, or misstated, it is ground for a motion in arrest of judgment. State v. Stiles, 5 La.Ann. 324; State v. Read, 6 La.Ann. 227; State v. Sheppard, 33 La. Ann. [1216], 1217; State v. Delerno, 11 La.Ann. 648; State v. Palmer, 32 La.Ann. 565.” State v. Rose, 125 La. 1080, 52 So. 165, 167.

See also, State v. Quinn, 136 La. 435, 67 So. 206; State v. Thibodeaux, 136 La. 935, 67 So. 973; State v. Halaby, 148 La. 553, 87 So. 270; and State v. Bolloch, 151 La. 593, 92 So. 127.

Since, under the law, there is no penal offense for the sale of intoxicating liquor for beverage purposes unless the parish or subdivision of the State is dry and such sale is prohibited by law or ordinance, such allegations should be specifically set out in the information in order to bring the offense within the definition of the crime charged. In the instant case, it is obvious that the failure of the information to contain the omissions pointed out in the motion in arrest of judgment constituted substantial defects patent on the face of the record and that the information is therefore fatally defective. Art. 517, Code of Criminal Procedure.

For the reasons assigned, the motion in arrest of judgment is sustained, the conviction and sentence imposed are annulled and set aside; and it is ordered that the accused be discharged.


text:
    214 La. 373
    STATE of Louisiana v. Thomas NORA. In re Thomas NORA.
    No. 39074.
    Supreme Court of Louisiana.
    Nov. 8, 1948.
    Watson & Williams, of Natchitoches, •for relator.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan Asst. Atty. Gen., and H. L. Hughes, Dist. Atty., of Natchitoches, for respondent.
   MOISE, Justice.

An examination of the record in this ■case reveals the fact that the issues presented are the same as those considered 'by us in the case of State of Louisiana v. Quinn, 37 So.2d 821. It is our opinion that the conclusions reached in that case are controlling here. Therefore,

For the reasons assigned in State of Louisiana v. Peter J. Quinn, Supra, the motion in arrest of judgment herein filed is sustained, the conviction and sentence imposed are annulled and set aside; and •it is ordered that the accused be discharged.