author: O’NIELL, Chief Justice. FOURNET, Justice.

text:
    212 La. 846
    Succession of ADDISON et al.
    No. 38265.
    Supreme Court of Louisiana.
    April 21, 1947.
    On Rehearing Nov. 10, 1947.
    Parker, Seale & Kelton and R. F. Walker, all of Baton Rouge, for appellants Hosea Lea Addison, W. H. Addison, Lavinia Jane Addison, Annie Lea Addison Alford, Eva Hayes Addison Husser, Elizabeth Addison, Julius Addison and Minnie Addison.
    Reid & Reid and Henry A. Mentz. Jr., all of Hammond, for defendant-appellant H. Kirby Addison.
   O’NIELL, Chief Justice.

H. H. Addison, a resident of St. Helena Parish, died intestate in 1900, survived by the widow in community, Martha Jane Addison, and five sons, namely, W. H. Addison, Amos Addison, R. R. Addison, H. Kirby Addison, and Hosea Lea Addison. The estate of the decedent consisted of a tract of land of about 400 acres, which was his separate property, and two tracts of land comprising about 292 acres, which were community property.

In 1918, Amos Addison, one of the five children, died intestate, leaving as his heirs at law his mother and four brothers. The mother then bought the undivided interests in the three tracts of land of two of her sons, namely, Hosea Lea Addison and R. R. Addison. Thereafter, R. R. Addison also died intestate, leaving several children who are among the plaintiffs in this suit.

H. Kirby Addison, the defendant in this suit, never married, but remained on the farm with his mother, aiding her in the cultivation of the place, and in a general way attending to her personal and business affairs, in her declining years. In 1931, Mrs. Addison, fearing that her finances might be affected adversely by the failure of a bank at Osyka, made a simulated transfer of her interest in the real estate above mentioned, and in litigation here, to H. Kirby Addison. The deed was properly recorded, but at the same time H. Kirby Addison executed in favor of his mother a counter letter which recited that the transfer was for business reasons only and was not intended as a transfer of the property. Mrs. Addison kept the counter letter in her possession, unrecorded, until the time of her death, in 1936. On her deathbed she gave it to H. Kirby Addison.

After Mrs. Addison’s death, H. Kirby Addison remained in undisturbed possession of the farm. But, in 1937, one ofp the grandchildren of Mrs. Addison, while visiting on the farm found the counter letter and gave it to her mother, who had it recorded. Thereafter, in 1939, H. Kirby Addison, on the advice of an attorney, R. T. Carter, recorded an instrument which he claimed was executed by Mrs. Addison on Janu'ary 23, 1933, purporting to transfer to him, H. Kirby Addison, her undivided interest in all of the real estate above mentioned, and all of her “household goods and personal property”, for a cash consideration of $2,160. The deed did not purport to be signed in the handwriting of Mrs. Addison, but purported to be signed by the making of a cross mark between the names “Martha Jane” and the name “Addison” and by writing the word “her” over the cross mark and the word “mark” beneath it.

Before recording this deed H. Kirby Addison had an affidavit signed by one T. J. Bridges, before a notary public, in Mississippi, stating that the deed was executed in the presence of the affiant, who was one of the subscribing witnesses, and in the presence of the other subscribing witness, Elton Bridges, by Mrs. Addison, by the making of her mark on the day and date stated in the deed, and for the objects and purposes therein stated.

In 1944 this litigation was commenced by the heirs of Mrs. Addison, all except H. Kirby Addison, petitioning the district^ court to have the succession of their parents H. H. Addison and Martha Jane Addison opened, and to have the petitioners recognized as the heirs at law of the deceased. The petitioners obtained a rule on H. Kirby Addison to show cause why the relief which they prayed for should not be granted: In answer to the rule H. Kirby Addison claimed title to the property of the succession of his mother by virtue of the deed dated January 23, 1933. By a supplemental petition the plaintiffs alleged that their mother had not signed the deed but that her mark thereon was forged.

After a trial of the case, in which a large volume of testimony was heard, the judge apparently found that the deed under which the defendant H. Kirby Addison claimed title was not forged, but that Mrs. Addison had signed it by making her mark, as indicated on the deed. The judge decided however that the deed was null, for two alternative reasons, first, that it was a simulation, and, second, that if it was not a simulation it was intended to have effect only after the death of Mrs. Addison and was therefore null because not made ira one of the forms required by law for a last will and testament.

In addition to the real estate the plaintiffs claimed that the estate of Mrs. Addison owned also a mortgage note for $489, some gold coins amounting to $135, the implements on the farm, a pair of mules, about forty head of cattle, an automobile of 1929 model, etc. The judge determined that all of these items belonged to H. Kirby Addison, with the exception of the mortgage note. He found that the note belonged to the estate of Mrs. Addison.

All parties have appealed from the judgment.

The question of whether Mrs. Addison placed her mark on the deed, executed in 1933, or whether her mark was forged, produced the bulk of the testimony in the district court. We will state the material facts as we have determined them.

The deed was prepared at the request of H. Kirby Addison in the law office of R. T. Carter, an attorney, who was dead at the time of the trial. It was written with pen and ink, and contains the usual language found in a sale of real property, including a detailed description of the property. It was signed by H. Kirby Addison, T. J. Bridges, and Elton Bridges. These last two named persons, who were the brother and nephew, respectively, of Mrs. Addison, signed the instrument as witnesses.

The two Bridges, who reside in Mississippi, were examined as witnesses by means of written interrogatories and cross-interrogatories. They testified that, in their presence Elton Bridges wrote the name “Martha Jane Addison” on the deed and that she then placed her “X” thereon with full knowledge of the contents of the instrument and after it had been read to her. They further stated that the attorney, R. T. Carter, was present at the time when the deed was executed. To this .extent, they verify exactly the story as told by H. Kirby Addison, However, in answer to one question, both witnesses stated that the deed was typewritten, although T. J. Bridges stated that due to the lapse of time he did not remember the appearance of the deed too well.

There is also the testimony of R. F. Barbier to support in some measure the contention of the defendant that the deed is valid. Barbier was a friend of the attorney, Carter, and accompanied him to the Addison home some time in 1933 to be a witness to the signing of some “papers.” On their arrival there, they were informed that Barbier’s presence as a witness was not needed since there were already two people inside the house who were going to witness the signing of the “papers.” Thus, while Barbier could not say positively that Mrs. Addison signed the deed, he did testify that on a day in 1933, which apparently was the day on which the alleged transaction took place, some papers were signed in the Addison home, that the attorney Carter was present, that he, Barbier, who remained in the automobile, saw Mrs. Addison moving about inside the house, and that after the signing was completed, H. Kirby Addison brought two men out to the automobile, who were introduced to Bar-bier as being Mrs. Addison’s brother and nephew. These men evidently were the Bridges, who were the subscribing witnesses to the deed.

The plaintiffs urge as evidence of the forgery the fact that Mrs. Addison could sign her name, and on several occasions did so in signing other documents. However, from other testimony and documents offered at the trial, it appears that Mrs. Addison was whimsical or eccentric when called upon to sign her name. On some occasions she would write her name on the document, at, other times she signed only by making her mark, and at still other times she would direct her son, H. Kirby Addison, to sign her name for her.

The plaintiffs contend also that the testimony of T. J. Bridges and of Elton Bridges, as taken by depositions is false. The evidence does not sustain this contention. • The testimony of these men is unequivocal on the vital question of who placed the mark by Mrs. Addison’s name, and appears to be true in every other respect, except insofar as the witnesses believed that the document was typewritten, when in fact it was written in pen and ink. Actually, this discrepancy in their testimony neither adds to nor detracts from the weight of it. From the fact that they were unable to describe exactly the document which they witnessed, it might be argued that they had never signed it; but the plaintiffs are not contending that the Bridges did not sign the instrument as witnesses, or that their signatures were forged, but are contending that it was Mrs. Addison’s signature that was forged. Therefore, we do not consider this discrepancy in the testimony of the two Bridges to be a matter of great importance.

The plaintiffs also offered the testimony of two of Mrs. Addison’s grandchildren that at several times after the alleged sale in 1933 Mrs. Addison referred to the land as “my land,” and also that she had told them that she wanted some of the money which they would inherit from her to be ■used for placing a tombstone on the grave •of their deceased father, Mrs. Addison’s ■son. While this evidence casts some doubt •on whether Mrs. Addison actually made the sale of her interest in the land, it is not enough to destroy the proof that she did make it. Assuming that she believed that she still owned a large interest in the land after the sale in 1933, it might have been that she had become forgetful in her old age. It must be remembered that even after the sale, she continued to live on the farm with her son, H. Kirby Addison, and it would be understandable for her to continue to refer to it as “my land.”

After a careful consideration of all ■of the evidence we find the weight of it to be in favor of the defendant on the issue of whether Mrs. Addison signed the deed in 1933. The circumstantial evidence to the contrary is destroyed by the testimony of the two eyewitnesses to the signing of the instrument, plus the corroborating testimony of the witness, R. F. Barbier. We conclude, therefore, that Mrs. Addison did sign the deed by placing her mark on it. This conclusion seems to be in accord with the finding of the judge of the district court.

The remaining and perhaps most important question is whether the sale in contest was a simulation, that is to say, whether the price or consideration stated in the deed was actually paid by H. Kirby Addison to his mother. In this connection, it must be rememberfed that the deed was not an authentic act, but was sworn to- by one of the subscribing witnesses before a notary public six years after the deed was made; and three years after the death of Mrs. Addison. Addison and one of the subscribing witnesses to the deed, Elton Bridges, testified that $160 was paid in cash by Addison to his mother at the time of the execution of the deed. The other subscribing witness, T. J. Bridges, did not remember seeing the money pass from Addison to his mother during the transaction. For the balance of the purchase price, Addison gave his check for $2,000 drawn on a local bank, signed by him and made payable to “Mrs. M. J. Addison”. He produced the cancelled check on the trial of this case. It bears the endorsement “M. J. Addison”, but there is no proof that the endorsement is in the handwriting of Mrs. Addison. The check is endorsed also by one Jos. M. Sit-man, who, according to the evidence in the case, was the proprietor of a grocery store, in Greensburg, Louisiana, near the farm on which the deed was ■ executed. The perforation on the check shows that it was cashed by the bank of Greensburg, on which it was drawn, on January 25, thus: “Paid 1.25.33”. Sitman, who admitted that he was a close friend of Addison, testified that he cashed the check and received or retained the proceeds, $2,000, as a' loan from Mrs. Addison. He testified that he repaid the loan before her death, in this way: That at Mrs. Addison’s request he paid two notes which her son, Hosea Lea Addison, owed the bank, one for $200 and the other for $100; that he gave her a draft amounting to approximately $900; and that the balance of the $2,000, approximately $800, was credited to the account at his grocery store.

The testimony of Sitman is not convincing. In the first place he admitted that the account to which he credited the sum of $800 was an account against H. Kirby Addison, and in the second place he admitted that he was unable to produce the can-celled draft or any evidence of a draft for $900 which he said he had given to Mrs. Addison. Fie testified that at the time when he received the $2,000, proceeds of the check which FI. Kirby Addison had given to Mrs. Addison, dated January 23, 1933, he, Sitman, gave, a promissory note for $2,000 to Mrs..’Addison to represent a loan made by her to him for that amount. But he was unable to produce the cancelled note or to account for his inability to produce it. It is obvious that the district judge was not impressed favorably by the testimony of Sitman, otherwise the judge would not have decided that the transaction between Mrs. Addision and H. Kirby Addison was a simulation.

This issue as to whether the consideration for the sale was paid by H. Kirby Addison to his mother, is entirely an issue of fact, for the solution of which we defer largely to the finding of the district judge.

In that respect the argument advanced for the defendant is mainly that the plain-tiffs did not plead in their supplemental petition that the transaction by which Mrs. Addison transferred her property to the defendant was a simulation, or that the price- or consideration was not actually paid. The allegation, stated exactly, in the supplemental petition is “that H. Kirby Addison forged and fraudulently executed” the instrument in question. Our opinion is that that allegation necessarily includes the implication that there was no consideration paid by Addison for the deed which he is charged with having forged and fraudulently executed. Besides, no objection was made during the trial of the case to the testimony indicating that Mrs. Addison did not receive the price or consideration stated in the deed. On the contrary Sitman was a witness for the defendant.

We do not consider the testimony that Mrs. Addison received $160 in cash from her son at the time of the transaction as a matter of much importance. There is no explanation as to why that comparatively small part of the price stated was paid in cash instead of being included in the check for the larger portion of the price. Nor is there any proof that Mrs. Addison retained the $160 cash, or that she had any special use for that amount of cash at the time.

Insofar as the ownership of the movable property is concerned, i.e., the mortgage-note, the gold coins, the livestock, etc., the issues are entirely questions of fact, and the testimony is contradictory and confusing. The judge who heard the testimony is better qualified than we are to judge of its credibility.

The judgment is affirmed.

On Rehearing

FOURNET, Justice.

This proceeding was instituted by all of the heirs of H. H. and Martha Jane Addison with the exception of their son H.. Kirby Addison, who was made a party defendant. In it the petitioners are seeking-to have themselves placed' in possession of the estates of the decedents.

Answering, H, Kirby Addison claimed' that with the exception of a small percentage owned by his brother, Harvey Addison,, he was the sole owner of the estates of: both his father and mother by virtue of a. deed dated January 23, 1933, wherein his. mother transferred to him, in addition to-ller half of the community property, those portions of her husband’s community and. separate estates that she had acquired from, her children, by both purchase and inheritance. His co-heirs thereupon filed a. supplemental and amended petition wherein they alleged that H. Kirby Addison, who-had never married but had lived with his. mother and managed her affairs following, the death of H.' H. Addison in 1900, took possession of and concealed all of his mother’s property, real and personal, following-her death in 1936. in order to defraud them of their rights in and to her succession.. They specifically alleged that the deed under which he claimed to have acquired her-property was fraudulently executed and was. a forgery, disavowing her signature. They prayed that inasmuch as their co-heir had. concealed the property in his mother’s succession, his right to inherit from her be decreed barred and that they be placed in possession of her entire estate.

The trial judge concluded the sale to H.. Kirby Addison under the deed of January 23, 1933, should be annulled and set aside, being convinced from all of the facts and. circumstances surrounding its confectiom and recordation that it was a simulation, pure and simple; that it had never beem Mrs. Addison’s intention that the property-would go to her son H. Kirby Addison until after her death and that since her bequest thereof was not in the form required! for dispositions mortis causa, it was void.. He concluded, however, that, with the ex— ception of a mortgage note for $489 which, with the accumulated interest thereon, had been paid into the treasury of the court by the mortgagor, Hosea Lee Addison, the petitioners had failed to show by a preponderance of the evidence the movable property allegedly forming a portion of Mrs. Addison’s estate had belonged to her at the time of her death. All of the parties appealed from this decision.

On our original hearing of this matter we affirmed the judgment of the trial judge, concluding that a forgery of the deed had not been established but that the transaction was a simulated one. We granted this rehearing primarily because of H. Kirby Addison’s insistence in his application that the issue of a simulated sale was never pleaded in the lower court and that inasmuch as the evidence upon which we concluded the sale was a simulation was relevant and admissible under the pleadings, the pleadings were not enlarged as a result of such admission and the evidence could not, therefore, support the judgment rendered.

On this phase of the case we commented in our original opinion that “the argument .advanced for the defendant is mainly that the plaintiffs did not plead in their supplemental petition that the transaction by which Mrs. Addison transferred her property to the defendant was a simulation, or that the price or consideration was not actually paid. The allegation, stated exactly, in the supplemental petition is ‘that H. Kirby Addison forged and fraudulently executed’ the instrument in question.” We concluded “that that allegation necessarily includes the implication that there was no consideration paid by Addison for the deed vvhich he is charged with having forged and fraudulently executed. Besides, no objection was made during the trial of the case to the testimony indicating that Mrs. Addison did not receive the price or consideration stated in the deed.”

We think the evidence forming the basis of our original judgment was relevant and material since it threw some light on the question of whether or not Mrs. Addison did execute the deed, as against the contention that it was a forgery. Consequently, under the well-established jurisprudence of this state such evidence could not have the effect of enlarging the pleadings (Succession of Dauphin, 112 La. 103, 36 So. 287; Tensas Delta Land Co. v. Ferguson, 128 La. 171, 54 So. 708; City of Shreveport v. Chatwin, 139 La. 531, 71 So. 791; Hope v. Madison, 192 La. 593, 188 So. 711), and the court has no power to grant relief for causes not prayed for. Derbes v. Rogers, 162 La. 49, 110 So. 84; Peters v. Norris, 191 La. 436, 185 So. 461; and Hope v. Madison, supra.

We not only think the evidence in the record as made up ample to sustain the conclusion we reached originally that H. Kirby Addison gave no consideration for the instrument in controversy, but we also think the evidence of the defendant is very unimpressive and strongly suggests that the instrument was fraudulently confected for the purpose of ultimately depriving his coheirs of their rights in and to the succession of Martha Jane Addison. It is our opinion, therefore, that the interests of justice would be best served by remanding the case so that all parties in interest may be given an opportunity to introduce additional evidence. Both sides are to be allowed to file such pleadings as their respective interests may require.

For the reasons assigned the judgment of the lower court annulling and setting aside the deed of January 23, 1933, is overruled and the case is now ordered remanded to the lower court for further consideration consistent with the views herein expressed. All costs are to await the final determination of this matter. The right to apply for a rehearing is reserved to the plaintiffs.

O’NIELL, C. J., concurs in the decree.


source: Caselaw Access Project

author: FOURNET, Justice.

license: Public Domain

text:
    212 La. 863
    STATE v. SMITH.
    No. 38639.
    Supreme Court of Louisiana.
    Dec. 15, 1947.
    Rehearing Denied Jan. 12, 1948.
    John R. Hunter & Son, of Alexandria, for defendant-appellant.
    Fred S. LeBlanc, Atty. Gen., and M. E. Culligan, Asst. Atty. Gen., Ben F. "Thompson, Dist. Atty., and Walter M. Hunter, Asst. Dist. Atty., both of Alexandria, for appellee.
   FOURNET, Justice.

The defendant, Levi Smith, is appealing from his conviction of simple battery on a charge of aggravated battery and his sentence thereunder.

The first error alleged to -have been committed during the course of the defendant’s trial and relied on by him for the reversal of his conviction and sentence occurred when the prosecuting attorney in his opening statement to the jury declared: “Furthermore, that approximately two weeks after the accident that I have outlined to you that the accused returned to the property under discussion, bringing with him a gun, stating that he had brought the gun along and would use it if necessary.”' This statement was objected to on the ground that it was improper, irrelevant,, and immaterial, and the court was asked to instruct the jury to disregard it. The trial judge did thereupon instruct the jury that the statement was not to be considered as evidence and he reserved the right to-rule on the admissibility of such evidence when sought to be introduced by the state.

It is the mandatory duty of the district attorney or his assistant to make an opening statement to the jury in all cases that are triable by a jury, explaining to-them the nature of the charge against the accused and the evidence by which such a charge is expected to be established. Article 333 of the Code of Criminal Procedure. The scope and extent of this statement is under the control of the trial judge- and this court will not set aside a conviction for an error in his ruling with respect to such statement unless the defendant was injured or his rights plainly violated as a result thereof. State v. Ricks, 170-La. 507, 128 So. 293; State v. McKee, 170 La. 630, 128 So. 658; State v. Nahoum, 172 La. 83, 133 So. 370; and State v. Tullos, 190 La. 184, 182 So. 321.

There is nothing in the record or in the brief submitted by defendant’s counsel warranting the conclusion that the defendant was injured or his rights prejudiced by the inclusion of the above quoted language in the opening statement. In the absence of such showing we are bound by the trial judge’s statement in his per curi-am that “The jury definitely understood, from the statement of the District Attorney ■and my instructions, that any statement made by the District Attorney was not evidence and was not to be considered as such.”

The defendant relies on another alleged error committed during the trial of his case, that is, the trial judge’s refusal to grant his request to specially charge the jury “that where a plea of self-defense is made by the defendant it is the duty of the State to prove that it was not self-defense,” in violation of the jurisprudence of this state. The cases cited by counsel include State v. Ardoin, 128 La. 14, 54 So. 407, Ann.Cas.1912C, 45 ; State v. Sandiford, 149 La. 933, 90 So. 261; State v. Scarborough, 152 La. 669, 94 So. 204; and State v. Disotell, 181 La. 149, 158 So. 825.

There would be merit to this bill if the trial judge had declined to grant this request because he considered there was no firm foundation therefor in law, as suggested by counsel in his brief, but a mere reading of the trial judge’s per curiam wherein he declares that he explained to the jury “that the burden rested on the state to make out its case and convince them beyond a reasonable doubt before they could convict and that the plea of self-defense interposed by the accused did not shift the burden on the state; that the accused did not have to prove he acted in self-defense, but if the plea raised a reasonable doubt in their minds they must give it to the accused and acquit him,” ■clearly shows that the defendant’s contention in this respect is not well-founded.

For the reasons assigned, the conviction and sentence are affirmed.


author: HAWTHORNE, Justice.

text:
    212 La. 868
    STATE v. SAIA.
    No. 38569.
    Supreme Court of Louisiana.
    Dec. 15, 1947.
    Rehearing Denied Jan. 12, 1948.

      Robert S. Link, Jr., and Alex W. Swords, both of New Orleans, for appellant.
    Felix W. Gaudin and Montgomery, Fen-ner & Brown, all of New Orleans, for Fair Grounds Corporation.
    Fred S. LeBlanc, Atty. Gen., M. E. Culli-gan, Asst. Atty. Gen., and Herve Raci-vitch, Dist. Atty., and Guy Johnson, 1st Asst. Dist. Atty., both of New Orleans, for appellee.
   HAWTHORNE, Justice.

John Saia, defendant-appellant, charged in a bill of information with the crime of gambling as defined and denounced by Article 90 of the Louisiana Criminal Code, Act No. 43 of 1942, has appealed to this court from his conviction and sentence to pay a fine of $350 or to serve 30 days in the parish prison.

The offense- is charged in the bill of information in the following language, to-wit:

“* * * that one JOHN SAIA late of the Parish of Orleans, on the thirtieth day of January in the year of our Lord, one thousand nine hundred and forty-seven with force and arms in the Parish of Orleans aforesaid, and within the jurisdiction of the Criminal District Court for the Parish of Orleans, did unlawfully and intentionally conduct and directly assist in the conducting, as a business, at 1839 Canal Street, of a game, contest, lottery and contrivance, in 'that he did encourage, promote and aid divers persons whose names are tmto your Assistant District Attorney■ aforesaid unknown, to bet <md wager upon the results of running, trotting and pacing horse races, by the operation of a betting book, at a place other than within the track or other enclosure where said horse races took place, whereby a person risked the loss of a thing of value in order to realize a profit, * * (Italics ours.)

To this bill of information the defendant filed what he terms a motion to strike, in which he contended that the language of the information italicized above should be stricken from the bill of information for the reason that it was unnecessary, beclouded the issue, was redundant and mere surplusage. The trial judge overruled this motion, and Bill of Exception No. 1 was reserved.

We know of no provision in the criminal laws of our state authorizing or permitting a motion to strike, and under the plain provisions of Article 284 of the Code of Criminal Procedure every objection to an indictment shall be taken by demurrer or by motion to, quash. However, treating this motion as a demurrer or motion to quash, we think that there is no merit therein, and that the trial judge properly overruled it. The bill of information as drafted sufficiently informed the accused of the nature of the crime with which he was charged-in order to enable him to prepare his defense. It is definite and .'.gives every detail of the facts and elements constituting the offense and certainly is a bar to any further prosecution for the offense therein charged.

If the language complained of is redundant and mere surplusage, this fact would be of no avail to defendant-appellant for the reason that Article 240 of the Code of Criminal Procedure provides that all unnecessary allegations in an indictment shall be rejected as surplusage, provided that an offense is charged.

During the course of the trial, the State offered in evidence several books of tickets, which were found by the officers who made the arrest in a locked cage located in a rear room, admittedly not in use, in the establishment where accused was arrested. These books of tickets were identified by the arresting officers as “race horse tickets”, although they were not so marked and nothing was printed thereon to show their nature or identity, and the witnesses admitted that they simply assumed them to be such tickets.

To these offerings defendant objected on the ground that, since there was no testimony or evidence showing that he had any immediate connection with these tickets and no showing that he was the proprietor of the establishment,. and since the tickets were found in the back room, some 60 feet from where he was standing at the time of his arrest and out of his presence and not in his possession, such evidence was wholly irrelevant and immaterial. These objections, which were overruled by the trial judge, are the substance of Bills of Exceptions Nos. 2 and 3.

In his per curiam the district judge pointed out that defendant admitted to the arresting officers that he was one of the proprietors of the establishment where the arrest took place. The judge further pointed out that at the end of the trial he took the case under advisement and came to the conclusion that this evidence was in truth irrelevant and immaterial, and that he completely disregarded it in arriving at his verdict herein.

We are by no means sure that such evidence was irrelevant and immaterial. The fact that these tickets were found in an establishment of which defendant was admittedly a co-owner may have been relevant •to prove the offense charged, which is by its nature a continuing offense, that is, conducting and assisting in conducting, as a business, a game or contest whereby a person risks something of value in order to realize a profit. But, be that as it may, the admission of these tickets in no way prejudiced or injured the accused since they were not considered by the trial judge.

In State v. Cullens, 168 La. 976, 123 So. 645, 648, this court pointed out that it is not every error committed in the lower court which entitles a defendant in a criminal case to a new trial, saying “* * * appeals in criminal cases are not granted merely to test the correctness of the trial judge’s ruling, but only to rectify any injury caused thereby. * * *” See also Article 557, Louisiana Code of Criminal Procedure.

In State v. Davis, 208 La. 954, 23 So.2d 801, a case similar to this one, we held that, if certain tickets were improperly admitted, defendant was not prejudiced thereby for the very reason that they were not taken into consideration by the trial judge in arriving at his verdict.

Bills of Exception Nos. 4 and 5 were reserved to the trial judge’s refusal to strike from the record the entire testimony of three State’s witnesses, these three being all the witnesses called by the State, and also to strike from the record all “exhibits” (daily racing forms, sport news, etc.) offered by the State in connection with the testimony of these witnesses, defendant contending that the State had failed to prove the corpus delicti, that is, the body or substance of the crime; or, as further stated in the motion, that the State had failed to show the consummation of any bet if made, and that there was no evidence that gambling was conducted as a business, contrary to the provisions of Article 90 of the Criminal Code.

This motion was made at the conclusion of the testimony of the last witness called by the State, and, if the motion had been sustained, it would have been necessary for the trial judge to have discharged the defendant because the effect of sustaining the motion would have been to strike from the record all the testimony and all the exhibits offered by the State.

Insofar as we have been able to-ascertain, the Louisiana Code of Criminal Procedure does not provide for any such motion in the trial of a criminal case, but, since defendant-appellant has raised the same objection in his motion for a new trial, we will discuss this objection under these bills.

To us, defendant’s objection is to the effect that there was no legal evidence whatsoever adduced of necessary facts essential to a conviction, or that there was no evidence whatsoever to show that defendant was intentionally conducting or directly assisting in conducting as a 'business a race horse book whereby a person risked the loss of something of value in order to realize a profit. Defendant contends that not one single act of betting or wagering was proved, and that the testimony of the State’s witnesses does not show that he was directly assisting in the conducting as a business of a race horse book.

Under the provisions of Article VII, Section 10, of the Louisiana Constitution, this court has appellate jurisdiction in criminal cases on questions of law alone, and it is only where there is no evidence at all of some essential element of the crime charged that this court may set aside a verdict for insufficiency of evidence, for under these circumstances a question of law is presented.

The trial judge in his reasons for judgment and supplemental reasons for judgment has very carefully analyzed and weighed all the testimony and all the exhibits offered by the State which were properly admitted in the trial of this case, and after doing so concluded that defendant was guilty of directly aiding and assisting in conducting, as a business, a game, contest, lottery, or contrivance, to-wit, a handbook, where a person risked the loss of something of value in order to realize a profit. After reading all the testimony and examining the exhibits, we are convinced that some legal evidence, although circumstantial, was adduced of the facts essential to a conviction, and therefore, since no question of law is here presented to us, we cannot, under our appellate jurisdiction, pass on the sufficiency of the evidence.

Bill of Exception No. 6 was taken to the overruling of á motion in arrest of judgment. Defendant-appellant contends that the “book-making form of wagering,” or the operation of a handbook, has been legalized by a special statute, namely, Section 7 of Act No. 276 of 1940, and that this form of gambling ■ is thereby exempted from the provisions of Article 90 of the Louisiana Criminal Code, which defines and denounces the crime of gambling in general terms. He argues, however, that that portion of Act No. 276 of 1940 which purports to make wagering on horse races legal only when confined to certain areas, to be designated, licensed, and authorized by the Louisiana Racing Commission, is unconstitutional for the reason that these regulations and restrictions are discriminatory in their nature; thereby depriving the defendant of the equal protection of the law, in violation of the Fourteenth Amendment of the Constitution of the United States, and are an unreasonable exercise of the police power of the state, in violation of. both the Louisiana and Federal Constitutions, and, further, that said act is local or special legislation granting exclusive rights, privileges, and immunities, in violation of Section 4 of Article IV of the Constitution of Louisiana.

Defendant is not charged in the bill of information with the violation of any of the terms and provisions of Act'No. 2761 of 1940, but is charged with the crime of gambling as denounced ,by Article 90 of the Louisiana Criminal Code. We express grave doubt as to whether he has a legal right to attack collaterally Act No. 276 of 1940, but, inasmuch as the State cites no authority to support this proposition and shows in brief filed' herein that it relies chiefly on its argument that Section 7 of the statute is constitutional, we shall dispose of this bill on the question of constitutionality.

Act No. 276 of 1940 is an act to provide for and create the Louisiana State Racing Commission for the regulation, licensing, and supervision of horse racing and wagering thereon, and to prescribe its composition, appointment, powers; duties, etc. It must be observed that defendant-appellant in no way attacks the constitutionality of this act insofar as it permits pari-mutuel and the book-making form of wagering on horse races, and on this point we are not called upon to express our opinion. Defendant assumes, as he must under his contention, that that portion of the act which permits wagering on horse racing is constitutional. He contends, however, that the portion of section 7 of said act which provides that only persons receiving a license shall have the privilege of conducting this type of wagering, which shall be restricted to a space within the race meeting grpunds, and which makes illegal all other forms of wagering on the results of horse races outside the enclosure where such races shall have been licensed by the commission, is unconstitutional.

Section 7 of Act No. 276 of 1940 reads as follows;

“Said Racing Commission shall have full power to prescribe rules, regulations and conditions under which all horse races upon the results of which there shall be wagering, shall be conducted, within the State of Louisiana. The Commission shall make rules governing, permitting and regulating the wagering- on horse races under the form of mutuel wagering by patrons, known as. the ‘Pari-Mutuel Wagering’ and the ‘bookmaking form of wagering,’ both of which methods are hereby declared to be legal. Only such persons, associations or corporations receiving a license from the Commission shall have the right or privilege to conduct these types of wagering, and he, it, or they shall restrict and confine these forms of wagering to a space within the race meeting grounds. All other forms of wagering on the result of horse races shall be illegal, and any or all wagering on horse races outside the enclosure, where such races shall have been licensed by the Commission, shall be illegal.”

Act No. 276 of 1940 is statewide in its operation and in no manner makes it mandatory that an enclosure wherein the book-making form of gambling is permitted be restricted to any designated area or place, and is therefore not local in its nature. Any person, firm, or corporation may engage in the book-making form of wagering by complying with the terms and provisions of the act and the rules and regulations of the racing commission, such as the payment of licenses, the conducting of such wagering within the race meeting grounds, etc., and the act is therefore not discriminatory in its nature, for it applies to all persons in the same circumstances and conditions. State v. Mustachia, 152 La. 821, 94 So. 408. See also Louisiana Greyhound Club, Inc. v. Clancy, Sheriff, et al., 167 La. 511, 119 So. 532, affirmed 280 U.S. 525, 50 S.Ct. 87, 74 L.Ed. 593.

The Constitution of Louisiana in plain terms provides that gambling is a vice and the Legislature shall pass laws to suppress it. See Article XIX, Section 8, La.Const. of 1921. Under this mandate of the Constitution, no one could be heard to say that the Legislature, in the exercise of its police power, did not have authority and power to prohibit entirely pari-mutuel wagering or the book-making form of gambling. This being so, if we concede that the act is discriminatory in confining book-making to those who have a license and those who operate within the enclosure of the race meeting grounds, the business which defendant aided or assisted in conducting is not one that demands the consideration accorded to vocations which are necessary or useful to the community or harmless in themselves, and may be discriminated against, such discrimination not being prohibited by the Fourteenth Amendment of the Constitution of the United States. City of Shreveport v. Schulsinger et al., 113 La. 9, 36 So. 870, 2 Ann.Cas. 69.

As stated in Louisiana Greyhound Club, Inc., v. Clancy, Sheriff, et al., supra, the' good faith on the part of the Legislature is always presumed, and the universal rule is that, where a law is enacted under the exercise or pretended exercise of the police power and appears upon its face to be reasonable and not arbitrary, the burden is upon the party assailing such statute to establish that its provisions are so arbitrary and unreasonable as to bring it within the prohibition of the Fourteenth Amendment of the Federal Constitution.

In the instant case, defendant-appellant does not point out any sufficient reason for us to hold that that portion of Section 7 of the act which restricts bookmaking to the enclosure of a licensed race track is an unreasonable exercise of the police power of the state, nor does he cite any authority in support of his contention.

We therefore conclude that that portion of Section 7 of Act No. 276 of 1940 which restricts book-making to the enclosure of a licensed race track is not unconstitutional for the reasons advanced by defendant on his assumption that the portion of that section which permits such book-making form of gambling is in itself constitutional.

In the motion in arrest of judgment, in addition to the plea of unconstitutionality, defendant urges other grounds for sustaining the motion. All of these grounds were advanced in the first five bills of exception which we have already discussed, and this motion therefore presents nothing further for our consideration.

Bill No. 7 was reserved to the overruling of a motion for a new trial. This motion was based on all the objections made in the other bills of exception and needs no further comment or discussion by this court.

For the reasons assigned, the conviction and sentence are affirmed.

O’NIELL, C. J., absent.


text:
    212 La. 884
    STATE v. DE LA MONICA.
    No. 38620.
    Supreme Court of Louisiana.
    Dec. 15, 1947.
    Rehearing Denied Jan. 12, 1948.
    Robert S. Link, Jr. and Alex W. Swords, both of New Orleans, for appellant.
    Fred S. LeBlanc, Atty. Gen., and M. E. Culligan, Asst. Atty. Gen., Herve Racivitch, Dist. Atty., and Girard J. Fernandez, Asst. Dist. Atty., both of New Orleans, for appel-lee.
   FOURNET, Justice.

A. G. Rickerfor, surety on the appearance bond of Sylvester de la Monica, prosecutes this appeal from a judgment forfeiting the bond because of de la Monica’s failure to appear on the date set for his trial, it being Rickerfor’s contention that the judgment is illegal because the state failed to prove his signature on the bond.

There was no special denial of his signature by the appellant. Its genuineness was not, therefore, at issue. The bond is in the record and it appears on its face to have been signed and acknowledged under oath by the appellant in the presence of Julian M. Hogan, Chief Deputy Criminal Sheriff for the Parish of Orleans. As such it became an official act, the authenticity of which is presumed, and it makes full proof of itself. State v. Lewis, 7 La.Ann. 540. It is not necessary, therefore, that the signatures thereto be proved. State v. Gossin, 13 La. 96; State v. Boisseau, 1 Rob. 388; 1 Marr’s Criminal Jurisprudence 433, Section 290. Compare with Hughes v. Harrison, 8 Mart. (N.S.) 297; Miller v. Cohea, 1 La. 486; Hyde v. Brown, 5 La. 33; and Union Nat. Bank v. Succession of Lee, 33 La.Ann. 301.

For the reasons assigned, the judgment appealed from is affirmed.