author: HAWTHORNE, Justice.

text:
    213 La. 404
    STATE v. LE BLANC.
    No. 38720.
    Supreme Court of Louisiana.
    Feb. 16, 1948.
    Rehearing Denied March 22, 1948.

      Eugene Stanley, of New Orleans, for appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Cul-ligan, Asst. Atty. Gen., and Herve Raci-vitch, Dist. Atty., and Geo. McCullouch, and Alexander E. Ralston, Jr., Asst. Dist. Attys., all of New Orleans, for appellee.
   HAWTHORNE, Justice.

Defendant, Roland LeBlanc, aged 30, was charged with the crime of indecent behavior with juveniles, as denounced by Article 81 of the Louisiana Criminal Code. He was tried in the Juvenile Court for the Parish of Orleans and there convicted as charged and sentenced to serve six months in the parish prison. He has appealed. I

■ As his first assignment of error the defendant contends that the information filed in this case is fatally defective, and charges no offense known to the law of this state, because it does not allege, in the language of this article, that the defendant committed “any lewed or lascivious act upon the person or in the presence of any child under the age of seventeen”, but merely charges that the defendant intentionally and indecently exposed his person in the presence of minors under the age of 17 years, with the intention of arousing the sexual desires of the defendant.

This same contention is made in the case of State v. Saibold, 213 La. 415, 34 So.2d 909, and we find the contention has no merit for the reasons stated therein.

As-his second assignment of error the defendant contends that Article 81 of the Louisiana Criminal Code is unconstitutional, null, void, and fatally defective because it does not state whether it applies to a person over the age of 17 years, 17 months, 17 days, 17 minutes, or 17 seconds, and that it does not state whether it applies to a child under the age of 17 years, 17 months, 17 days, 17 minutes, or 17 seconds; that, when an act or statute atteinpts to legislate between persons of certain ages, it is necessary that the Legislature expressly fix the ages attempted to be covered and not leave this to be determined by the court.

This contention has been considered and found to be without merit in the Saibold case, supra, and for the reasons assigned therein we hold that the contention is without merit in this case.

The defendant contends in his third assignment of error that the verdict in this case is contrary to the law and the evidence for the reason that the testimony given by the witnesses for the State, if true, would prove only an obscenity by the indecent public exposure of his person, as condemned by Article 106 of the Criminal Code, since the State utterly failed to bear the burden of proving any intention on the part of the defendant to arouse the sexual desires of either himself or the juveniles.

We agree with the State that the act itself, when considered with all the facts and circumstances surrounding it, shows an intention on the part of the defendant to arouse his sexual desires. The testimony in this case shows that the defendant of his own free will, upon approaching these 16-year-old girls on the street, deliberately exposed his person to them. He did not expose himself until he was in the presence of these two girls. His actions were deliberate and intentional, and he could have had no other purpose for such an act than to arouse his sexual desires.

The comment to Article 81 of the Criminal Code shows that Article 81 was intended to cover such acts as the one committed in this case. As pointed out in State v. Davis, 208 La. 954, 23 So.2d 801, and in State v. Truby et al., 211 La. 178, 29 So.2d 758, it is proper and appropriate for us to consider the comments under the articles of the Code in our efforts to construe its provisions. The comment shows that the article was intended to apply to behavior which falls short of sexual intercourse, carried on with young children, and to cover indecent sexual displays in the presence of children under the age of 17.

For these reasons there was a sufficient showing of intent to justify conviction under Article 81 of the Criminal Code, and therefore the defendant’s contention in his third assignment of error is without merit.

Under the provisions of Article VII, Section 96, of our Constitution, all appeals from the Juvenile Court of the Parish of Orleans lie on questions of law and fact to this court. Pursuant to this mandate of the Constitution, it is necessary for us to consider the facts in the instant case, always bearing in mind the general principle of law that the accused is presumed to be innocent until his guilt has been established by competent evidence beyond a reasonable doubt.

In determining whether the guilt of a defendant in any case which is appealable to us from the juvenile court has been established, we have only the record as made up in the lower court and are deprived of the benefit of seeing the witnesses and observing their conduct and demeanor, while testifying either for the State or for the defense, and of observing the manner in which they give their testimony. The trial judge sees, hears, and observes all this, and therefore is in a better, position to determine the credibility of the witnesses and the weight to be given their testimony — all of which is denied us on appeal.

For these reasons, when the oral testimony is conflicting, we must give weight to the trial judge’s findings on questions of fact and to his determination of the credibility .of the witnesses and the weight to be given their testimony.

In the instant case, the State relies on certain witnesses for- the identification of the accused as the perpetrator of the offense, and the defense is that these witnesses are mistaken in their identification of the accused, and, further, that he has ah alibi. These being the issues, it is necessary that we consider the testimony of all witnesses,' with the above principles of law in mind.

According to the testimony offered by the State, on Wednesday, June 25, 1947, two 16-year-old girl students of the John Mc-Dohogh High School, located on Esplanade Avenue between North- Dorgenois and North Rocheblave Streets, were attending the summer session of this school. At' about 10:00 .o’clock-in the morning, during a. study period, they were walking on Esplanade Avenue toward North Broad Street and had reached a point about half a block from the school'on the opposite side of the street, between North Dorgenois and North Broad Streets, when they'observed the accused' approaching them coming from North Broad Street and proceeding along Esplanade " in the direction of the school. As this defendant came close to the two girls, he at that time opened his pants and exposed his person. Thereupon the two girls turned' back, crossed Esplanade, returned to the school, and reported the incident to the woman who was the principal of the school. Meanwhile the defendant continued along Esplanade, crossing over to the side óf the street where the school was situated. Upon receiving the' report from these students, the principal immediately left the school and followed the accused in an automobile. When he boarded an Esplanade bus, she followed the bus to the end of its route at City Park.

On Friday, June 27, two days later, the same two' girls observed the defendant walking up and down North Dorgenois Street in the same block in which the school' was situated but on the opposite side of the street. They called the principal, and the two girls, the: principal, and another teacher observed him for some time, walking up and down the street. • When he. crossed the street to the side:'of the school, the principal called the' police. ■ At- the request of the police she continued to watch the accused proceed' along Esplanade from North Dor-genois a distance of. one block toward. Broad, where he turned up Broad in the direction of Canal -Street. When the police arrived at the school, the principal and the two girls got into the police car and were driven in the. direction in -which the accused had gone,, overtaking him on Ursulines Avenue just off Broad, 'some four blocks away. At this time the principal and the two girls identified him to the police as the man whom they had,seen on Wednesday, and he was arrested.

The accused admitted being in the vicinity of the school on the-27th of June, stating that on this, occasion he. had left his home, some six blocks from the school, and was on his way to obtain certain items for his wife at a market, and for this reason it was necessary to pass in the neighborhood of the John McDonogh High School.

Although the defendant admitted that he was near the school on Friday, the 27th, it is his contention that on the- 25th, the date of the offense, he left the hotel where he was employed as a bellhop on the shift from 11:00 p. m. to 7:00 a. m., and reached his home about 7:30 in the morning. According to his testimony he went to a bakery and a grocery and purchased certain items, returned home for breakfast, put on his pajamas, went to bed about 8:00 o’clock, and remained in his house until he left for work that night at about 10:30.

In support of his. alibi, defendant called four witnesses — his wife, brother-in-law, mother-in-law, and landlady, who was also his next-door .neighbor. Their testimony, taken as a whole, corroborated .defendant’s own testimony that he was inside his own home before, after, and at, the actual hour of 10:00 a. m., which is the time the offense is charged as having been committed-

From what we have said, it can readily be seen that the oral testimony of' the State and defense witnesses is in' conflict, and in finding the accused guilty the trial judge must necessarily have -believed the testimony of the State’s witnesses.

As we analyze and appreciate the testimony, if the identification of the accused resulted from merely a casual or fleeting glimpse of the perpetrator of the crime or possibly from the word of one person alone, we should be inclined to reverse the conviction. However, the two young girls as well as the principal of the school were very positive and certain in their identification of the accused, basing this identification on the fact that on the day the offense occurred the two girls had ample opportunity to observe the man’s appearance and immediately pointed out the offender to the principal, who in turn had him under observation for some time. -Again, on -the 27th, the two girls were positive that the accused, who appeared near the school, was ■ the same man, and, due to the fact that he was acting- in a manner which seemed to them suspicious, that is, by walking up and down the block by the side of the school, they called the principal, and all three of them observed the accused for some time. When the police arrived, the principal and the two girls proceeded with the police in the direction in which the accused had gone, and, when they overtook him; all three identified him as being the perpetrator of the offense and as the same man who had been near the school just a short time before. There is no doubt whatsoever that they were correct in their identification of the accused as being the same individual who was close to the school shortly before he was arrested, for defendant himself admitted in his testimony that he had walked by the school on this occasion. This leaves only the question of whether these three witnesses were correct in their identification of him as the man they had seen on the date the offense was committed, and the trial judge must necessarily have believed that they were.

Considering all the testimony and bearing in mind the rule as to the weight to be given to the trial judge’s determination of the credibility of the witnesses and of the weight to be given their testimony, we cannot say that there is reasonable doubt of defendant’s guilt.

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

O’NIELL, C. J., absent.


source: Caselaw Access Project

author: McCALEB,- Justice.

license: Public Domain

text:
    213 La. 415
    STATE v. SAIBOLD.
    No. 38782.
    Supreme Court of Louisiana.
    Feb. 16, 1948.
    Rehearing Denied March 22, 1948.

      Eugene Stanley, of New Orleans, for appellant'.
    Fred S. LeBlanc, Atty. Gen., M, E. Culligan, Asst. Atty. Gen., and Herve Racivitch, Dist. Atty. and Geo. McCulloch and Alexander Ralston, Jr., Asst. Dist. Attys., all of New Orleans,- for appellee.

       Section 10 of Article I of the Constitution provides: “In all criminal prosecutions, the accused shall be informed of the nature and cause of the accusation against him; * *

   McCALEB,- Justice.

Appellant was charged, tried and convicted of violating Article 81 of the Criminal Code, Act No. 43 of 1942, - which denounces ’ indecent behavior' with juveniles. He was sentenced to serve six months in the Parish Prison and is appealing from the conviction and sentence on various grounds, set forth in two bills of. exception taken to the action of the trial judge in overruling a motion in artest of judgment and a motion for a new trial.

The motion in arrest of judgment is levelled at the sufficiency of the charges contained in the bill of information and the constitutionality of the statute. Three contentions are made by appellant as bases for the maintenance of the motion.

The first contention is that the bill of information merely states a conclusion of law and does not allege the offense denounced by Article 81. That Article reads in part: “Indecent behavior with juveniles is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, with the intention of arousing or gratifying the sexual- desires of either person. * * *”

The bill of information, in substance, charges “that one Carl G. Saibold (w), being over the age of seventeen years, * * * on the first day of June 1947, * • * * did then and there violate Article 81 of the Louisiana Criminal Code, relative to indecent behavior with juveniles, by placing his hands on the person of one Marline Menner (w) 11 yrs. with the intention of arousing the sexual desires of him, the said Carl G. Saibold, * * * contrary to the form of the statute * * *

It is said that, since the gravamen of the crime is the commission of a lewd or lascivious act upon the person or in the presence of any child, no offense is stated in the bill because it does not allege that appellant committed a lewd or lascivious act.

The proposition does not impress us. The bill sets forth the act committed by appellant and charges that it was violative of the statute. This is proper pleading. It is not sacramental that the indictment or information be phrased in the language of the statute if it states every fact and circumstance necessary to constitute the offense. See Article 227, Code of Criminal Procedure.

The next point raised by appellant is that Article 81 is unconstitutional because the age limit “seventeen” used therein is so indefinite and meaningless that it is impossible to determine whether the law applies to persons over the age of seventeen years, months, days or seconds.

The contention is without merit.- It would be absurd to hold that the lawmaker, in speaking of the commission of an offense by anyone “over the age of seventeen” upon any child “under the age of seventeen”, was referring to anything other than the age in years of those involved. While criminal statutes are strictly construed so as not to include persons or acts not specifically set forth, this does not mean that the court will blind itself to the obvious.

To sustain the provision of appellant would require complete disregard of the provisions of Article 3 of the Criminal Code, which declares: “The articles of this Code can not be extended by analogy so as to create crimes not provided for herein; however,- in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.”

Appellant’s chief assault upon the constitutionality of Article 81 is that the statute fails to define the crime of indecent behavior with juveniles — that is, it does not explain the meaning of a lewd or lascivious act, thereby requiring the court to define it and thus usurp the function of the Legislature. Our recent decision in State v. Truby, 211 La. 178, 29 So.2d 758, is relied on as complete authority for his position.

In the cited case, we were confronted with an attack on Article 104 of the. Criminal Code which defined the crime of keeping a disorderly house as “the intentional-maintaining of a place to be-used habitually-for any illegal or immoral purpose.” We found that, insofar as the Article sought to prohibit the maintaining of a place used habitually for an “immoral” purpose, it was unconstitutional forasmuch as the word “immoral” was of such broad-import that, standing alone or in association with the word “purpose”, it was impossible to declare, with any degree of certainty, the type of conduct the Legislature sought to prohibit. We recognized that vast differences of opinion exist as. to the sort of behavior which might be considered immoral and, hence, in each case the judge or the jury would be required to apply his or its own conception of morals to the facts involved; thus stepping out of their judicial roles to assume legislative powers.

But the opinion in the Truby case does not sustain appellant’s attack upon Article 81 for the reason that we view the language of the statute to be sufficient to define the offense therein denounced. It is true that the word “lewd”, when used alone, is of a very broad scope. It is defined by Webster’s New International Dictionary as “lay; * * * unlearned; unlettered; * * * wicked; lawless; bad; vicious; worthless; báse” but it is also defined to' be “lustful; libidinous; lascivious; unchaste * * * And the word “lascivious” is 'defined as “wanton; lewd; lustful * * * tending to produce voluptuous or lewd emotions”. Hence, it is seen that when the term “lewd” is associated with the word “lascivious” it connotes actions oi gestures of a lustful and lecherous nature.

The statute specifies indecent behavior to be the commission of a lewd or lascivious act “with the intention of arousing or gratifying the sexual desires” of either the actor or the juvenile. The necessity that the act he committed with the intention of arousing sexual desires gives to the words “lewd or lascivious” an even more confined meaning if, indeed, any added explanation were required. And, to settle any possible doubt, the drafters of the Code have succinctly stated in a footnote the type of conduct the article is designed to cover. The comment states: “The article is intended to apply to behavior which falls short of sexual'intercourse, carried on with young children. It is broader in scope than the former statute, [Act No. 65 of 1926] in that it includes children of both sexes, and the- offender could be of either sex. The language is taken in part from the Proposed Illinois Penal Code (1937) § 32. The article also covers indecent sexual displays in the -presence of children under the age of seventeen.”

We hole! that Article 81 of the Criminal Code is invulnerable to attack on the ground of unconstitutionality.

In a motion -for a new trial, appellant asserts (1) that there was no proof offered to show that,he was a person over seventeen years of age; (2) that the State failed to prove. his guilt beyond a reasonable doubt; (3) that the -lower court erred in accepting the testimony of the eleven year old girl involved, as her statement is so contradictory as to warrant the conclusion that she is unworthy of belief; (4) that the court erred in permitting a six year old child to testify as a witness when it was manifest, from her age and appearance, that she 'was incompetent; (5) that the court ■ erred in no); believing his testimony in which he denied the acts charged .against him and (6) that it erred in refusing to give full credit to evidence of his good moral character.

Although set forth as six different grounds of error of fact and law committed by the trial judge, all of the complaints contained in the motion for a new" trial, except Nos. 1 and 4, are really the same and may be considered as one — that' is, that the judge erred in believing the witnesses for the State and in resolving that guilt had been proven beyond a reasonable doubt. Accordingly, we turn immediate attention to grounds 1 and 4 before discussing the facts of the case.

The first ground, that there was no proof offered to show that appellant was a person over seventeen years, is wholly without' merit. Testifying in his own behalf, appellant stated “I have lived here in New Orleans since 1918 * * * ” and it is further shown by the evidence that he. has two sons, one married and the other serving with the occupational forces of the United States in Germany.

We find it rather strange that counsel for appellant complains, in the fourth ground for a new trial, that the court erred in permitting the six year old child, Vita Rose Cantrelle, to testify as a witness. We say this because an examination of the record discloses that, when the child was placed on the stand and the judge was examining her with respect to her ability to understand the nature of an oath and the consequences thereof, counsel for appellant objected to her being permitted to testify on the ground that her answers disclosed that she was incompetent. This objection was sustained by the judge. However, as soon as the judge made the favorable ruling, counsel withdrew his objection stating “I want the Court to hear all of the facts in this case; let her testify.”

Disposal of these contentions leads "us to a discussion of the facts of the case. At the outset, it is well to observe that, under Section 96 of Article VII of the Constitution, as amended, our jurisdiction in appeals from the Juvenile Court for the Parish of Orleans extends to questions of fact as well as matters of law. Consequently, we are charged with the duty of examining the facts in criminal cases appealed from that court and of discerning from the record whether the State has proved the guilt of an accused beyond a reasonable doubt. However, in our review of the record on disputed questions of fact, we are bound, of necessity, to accord considerable weight to the conclusion reached by the trial judge on the facts as he has the advantage of seeing the witnesses, hearing them testify and observing their demeanor on the stand. See State v. LeBlanc, - La. —, 34 So.2d 905.

Appellant is the uncle by marriage of Marline Menner who was in her twelfth year at the time the offense was allegedly committed. He resides on St. Maurice Avenue in the City of New Orleans and Marline lives with her widowed mother on Royal Street, near appellant’s home. Marline testified, in substance, that, on Sunday June 1, 1947, at about 3:00 o’clock p. m., she was going to the grocery store with her little cousin, Vita Rose Cantrelle; that, on the way back home, she stopped by her Uncle Carl’s house; that he was sitting on the front steps; that he asked her to sit on his lap, which she did, and that, after he had her on his lap he put his hand under her dress and pants, placing it upon her private parts; that he also played with her breasts and that she requested him to stop — telling him that she was going to tell her aunt (his wife) about it; that finally, when she was able to break away from appellant, she went into the house and told her aunt of the occurrence; that her aunt said that she (Marline) was trying to make trouble; that she left the house but before leaving repeated to appellant that he would have to stop his conduct with her; that appellant, who was then in the shed in the rear of the house which he used as a- radio room, placed his hands to his ears as though he did not want to hear her and that she thereupon ran home and reported the affair to her mother, who immediately called the policé.' She further asserts that the occasion of Sunday, June 1, 1947 was not the first time that appellant had attempted to become familiar with her; that, about six weeks prior thereto, she spent the night at appellant’s house sleeping in the same room with appellant but ih a different bed; that, early in the morning, after appellant’s wife had dressed and departed for the grocery store, appellant jumped in bed with her, hugged her and that, hearing the footsteps of his wife returning, he hurriedly retreated to his own bed. She says that she did not tell anyone about that occurrence because her father was very ill at the time (he subsequently died) and that she was afraid that news of this sort might kill him.

Marline’s six year old cousin, Vita Rose Cantrelle, corroborates her story as to the incident in question, stating that appellant told her to go" home and that," just as she was leaving, she saw him put his hand under Marline’s dress.

Appellant admits that he was on his front steps on the day in question and that Mar-line sat on his lap but denies the act charged against him. In addition to his own statement, he produced witnesses who testified that the neighborhood in which appellant lives is thickly populated; that his house is directly across the street from a Catholic church and near a school and that there is a picture show, grocery and drug store in the vicinity. His wife denied that Marline told her that appellant was playing with her private parts, declaring that the child merely said that appellant was tapping her on the shoulder. Appellant also produced four character witnesses, including a Luthern minister, who stated that his morals were good.

■ Counsel for appellant argues that the testimony of the - young girl is unworthy of belief because she contradicted herself in a number of particulars. It is true that Marline’s statement is not entirely consistent in all of the details. But .this does not provide a valid reason for concluding that she is unworthy of belief. In fact, it is rather difficult to conceive that a child of her age would concoct such a disgusting tale for the purpose of injuring an elderly man.

Moreover, it appears that some of appellant’s evidence is none too impressive. For instance, his wife’s statement that the child did not tell her of the commission of any lascivious act but that she merely reported that appellant was striking her on the shoulder does not ring true when considered in connection with the assertion (found in another part of her testimony) that “I told her, I said listén your Uncle Carl is too much of a nice man, ’why do you want to make trouble in my house on a big Sunday.”

Then, too, there is another circumstance which may have some bearing on the credence of appellant’s denial. Mrs. Menner, the child’s mother, stated that, after Mar-line reported the occurrence, she went to appellant’s home and called him but that he would not come out. Appellant does not attempt to explain his refusal to answer the call of the child’s mother; in fact, he does not even allude to it in his testimony.

Counsel for appellant argues that the evidence does not sustain guilt beyond a reasonable doubt as it is quite unlikely that anyone would be brazen enough to commit such an act as that charged in public view on a Sunday afternoon in a thickly populated neighborhood. Our answer to this contention is that the time and place of the offense is circumstance to be given consideration but it is not, of itself, a sufficient reason to cast doubt on the credibility of the testimony of the girl. As a matter of fact, it is not unreasonable to conclude that, with the little girl on his lap, appellant felt that he could conceal his act from the eyes of passers-by.

After a careful consideration of the record, we conclude that the trial judge was justified in holding that the evidence establishes appellant’s guilt beyond a reasonable doubt.

The conviction and sentence are affirmed.

O’NIELL, C. J., absent.

       Except, perhaps, those cases of debauchery and lustfulness falling within the solid area (as Professor Morrow refers to it in his comment on the Truby case, 21 Tulane Law Review, 545) as to which no divergency of opinion prevails.

      This court has heretofore determined that the word “lewd”, when applied to dancing, is very well and generally understood to mean indleeent, lascivious, lecherous or the kind of dancing tending to excite lustful thoughts. See State v. Rose, 147 La. 243, 84 So. 643.

       Box steps — a type quite common in many sections of the city of Now Orleans.


author: McCALEB, Justice.

text:
    213 La. 429
    DAVIS et al. v. HORNE LUMBER CO. et al.
    No. 38388.
    Supreme Court of Louisiana.
    March 22, 1948.
    J. Reuel Boone, of Many, for defendants-appellants.
    Fraser & Fraser, of Many, for plaintiffs-appellees.
   McCALEB, Justice.

The original plaintiffs in this suit, J. T. Davis and Mrs. Mary Armstrong, were co-owners of a dwelling which was des^ stroyed by fire on December 12, 1945. Claiming that the fire was caused by sparks emitted from smokestacks of a sawmill owned and operated by a partnership doing business under the name of Horne Lumber Company, plaintiffs demanded from said partnership and its individual members compensatory damages for the loss of the residence and personal property therein contained- and also for the mental anguish, physical pain and discomfort sustained by them individually.

The defendants filed answer admitting the fire but denied that it was caused by sparks from its smokestacks. Upon this issue of fact, a hearing was had which resulted in a judgment in favor of plaintiffs in the sum of $2000 for the destruction of their dwelling and $750 to Mrs. Mary Armstrong and $199.50 to J. T. Davis for loss of their respective household goods and personal effects. Defendants have appealed from the adverse decision.

Subsequent to the trial, but prior to judgment, J. T. Davis died at the age of 93 and his heirs were substituted as parties plaintiff. Andj following the appeal, the other original plaintiff, Mrs. Mary Armstrong, died at the age of 89. Her heirs have been substituted by proper motion and order granted here.

As above indicated, the sole question involved in this case is one of fact. In consequence of the decision below, the burden is upon defendants to demonstrate that' the decision of the trial judge is obviously incorrect and not justified by the preponderance of believable evidence. Certain facts of the case are admitted and others have been established by plaintiffs without contradiction. Indeed, the only important question in conflict is whether the sparks or embers thrown out by the smokestacks fell upon the roof of the house and started the conflagration. .

The dwelling was located on the outskirts of the town of Many, Louisiana. It was a simple, unpainted, six room structure about 40 years old, without the modern convenience of electricity. The main portion of the house, which faced north, was rectangular in shape, having four rooms, two on each side, separated by a hall. To the rear of the rooms on the east side was an ell extending- south, consisting of two rooms, a dining room and kitchen. This ell was covered partly with wooden shingles and partly with composition roofing.

The defendants’ sawmill plant was east of the dwelling and the smokestacks were but 300 feet away. One of these stacks extended 100 feet above the boilers and the other 90 feet. The shorter stack was equipped with a spark arrester but the taller one was not and the undisputed evidence shows that, while the boilers to which they were attached were in operation, sparks and burning embers were emitted therefrom. The sparks thus ejected from the smokestacks, when blown by the wind, constituted a fire hazard to property within the vicinity of " the sawmill so much so, that the mayor of Many, at the insistence of persons affected/complained to the State Fire Marshal about the dangerous condition. Following an examination of the premises, the fire marshal informed the defendants on September 10, 1945 that the flying embers discharged from the boilers constituted a serious fire hazard and ordered the company to immediately provide spark arresters for all smokestacks. Despite these warnings, the company did not comply. Instead, it advised the fire marshal that, due to the shortage of materials, spark arresters could not be obtained. Apparently, it did not see fit to reduce its operations to any extent but negligently permitted the dangerous condition to continue.

It is further shown by the undisputed evidence that, on two previous occasions, plaintiffs’ dwelling was set afire by sparks emanating from defendants’ property and that fences surrounding plaintiffs’ land and other property within the near vicinity were ignited by sparks effused from the mill.

The principal argument of counsel for defendants in this court is that, notwithstanding the ever present fire hazard resulting from operations at the sawmill, plaintiffs have failed to show with reasonable certainty that the conflagration which destroyed the dwelling on December 12, 1945 is attributable to sparks and burning embers emanating from the smokestacks. He correctly states that, since no one actually saw a spark or ember from the smokestacks fall upon the roof of the house and ignite it, plaintiffs must rely upon circumstantial evidence in proof of their demands.

In support of his contention that the evidence does not preponderate in plaintiffs’ favor, counsel points with confidence to the testimony of some fourteen employees of the sawmill and that of the Acting Fire Chief of the town of Many. All of these witnesses stated that, when they arrived at the fire, smoke was coming out from under the eaves of the roof over the kitchen and that there was no blaze whatever upon the roof itself. This evidence, if believed, would effectively destroy the converse statements of Mrs. Clara Davis, who discovered the fire, and Mrs. T. I. Andries, who lived in the house, that the fire originated in the wooden shingles on the southeast portion of the roof covering the kitchen about midway - between the flue' -and the' eaves.

The difficulty with counsel’s contention is that the trial Judge, who had the opportunity of seeing the witnesses and hearing them testify, was< of the opinion that the evidence of Mrs. Davis and her sister, being supported by certain proven facts and circumstances obtaining at the time of the fire, was entitled to greater weight than the contrary statements of the employees of the sawmill. And, with reference to the evidence of the Acting Fire Chief, the judge remarked that, while he had much confidence in his' integrity, he believed that he (Dees) was honestly mistaken in his testimony that the roof was not on fire at the time 'he reached the scene.

After a careful perusal of the record, we find ourselves unable to say that the trial judge committed error in his appraisal of the credibility of the witnesses and his conclusion accepting the testimony submitted by plaintiffs in preference to,that of defendants. The physical facts and circumstances point strongly in plaintiffs’ favor, i.e., the admitted. fire hazard created by sparks discharged from, the smokestacks.; a strong southeast wind blowing towards plaintiffs’ property from the direction of the sawmill, carrying with, it sparks and burning embers, which had ignited plaintiffs’ property on two previous occasions. Then, too, there is the fact that the house was not wired for electricity, eliminating any, hazard from an electrical source and other evidence showing that the flue from the stove in the kitchen had just previously been examined and found to be in a state of good repair. 'When all Of these factors are considered, there is no other sound hypothesis to account for the origin of the'fire except the theory advanced by plaintiffs. See Liukart v. Yazoo & M. V. R. Co. 148 La. 349, 86 So. 894; Prescott v. Central Contracting Co. 162 La. 885, 111 So. 269.

Finally, defendants alternatively contend that, if they are liable, the case should be remanded as plaintiffs have failed to produce evidence to support a, judgment, for any specific award of damages. .This contention is without merit as the record reveals that the award is founded upon the discretion exercised by the district judge in consideration of proof -submitted by plaintiffs of the value of the real and personal property destroyed.

The judgment appealed from is affirmed.


author: FOURNET, Justice.

text:
    213 La. 436
    ROBERTS et al. v. CADDO PARISH SCHOOL BOARD.

      No. 38797.
    Supreme Court of Louisiana.
    Feb. 16, 1948.
    Rehearing Denied March 22, 1948.

      Fred S. LeBlanc, Atty. Gen., Robt. G. Chandler and Francis R. Edwards, Sp. Assts. Atty. Gen. for defendant-appellant.
    Cook, Clark & Egan, of Shreveport, for plaintiff.
    Booth, Lockard & Jack, of Shreveport, for intervenors.
    Love & Bailey, of Shreveport, amicus curiae.
   FOURNET, Justice.

This suit was instituted by numerous citizens and property taxpayers of Caddo Parish to have the 'action taken by the Caddo Parish School Board on May 16, 1947, creating Consolidated School'District No. 2 declared.null and void and to .enjoin the issuance and sale of the bonds authorized by the taxpayers of the district in an election held on June 24, 1947.

The basic allegations of the petition are, substantially, that the Caddo Parish School Board by resolution of May 16, 1946, and without authority of law, purportedly created Consolidated School District No. 2, comprising School Districts Nos. 4, 5, and 9, as well as other property not embraced within any school district, and called a special election to pass upon the authorization of a $1,400,000 bond issue for the new' district; that at the election held on June' 24, 1947; this issue passed, in both numbers and value of assessments although at that time School Districts Nos. 4, 5, and 9 still existed not Only as political subdivisions of the state, with their power to issue bonds ánd levy taxes, but the outstanding bonded indebtedness of School District No. 4 at that time amounted to $25,000, the payment of which was insured by the levy of an ad valorem tax on all taxable property within the district; the outstanding bonded indebtedness of School District No. 9 amounted to $16,000,' payable out of a 4 mill tax levy; and the property taxpayers of District No. 5 had voted in 1944 to pay a 2 mill tax for a-period of 6 years for tlie support of their schools although there was then no outstanding bonded indebtedness in this district. The plaintiffs also attacked the constitutionality of the action of the school board in creating Consolidated School District No. 2.

It appears further that while this bond issue was carried in the entire district by a vote of 559 in favor and 402 against, with an assessment of $1,193,284.22 in favor to an assessment of $1,140,976.71 against, the vote in Districts Nos. 4, 5, and 9 were as follows: District No. 4, 28 property taxpayers with assessments totalling $83,305 voted in favor while 49 with assessments totaling $67,218 voted against; District No. 5, 8 property taxpayers with assessments totalling $8,320 were in favor of the issue while 52, with assessments of $98,-307.50, were against; District No. 9, 4 taxpayers with assessments of $2,035 were for and 106 taxpayers with assessments of $178,797.99 were against. Also, when the Caddo Parish School Board first created Consolidated School District No. 2 by resolution dated April 3, 1946, and proposed to the taxpayers that they assume the outstanding bonded indebtedness of the districts involved and authorize the issuance of additional bonds, this measure was defeated at the special election called for that purpose and at the meeting held on May 16, 1947, when the present Consolidated School District No. 2 was created, the board formally annulled and set aside the resolution creating the former consolidated district.

By way of special defense the school board urged (1) that the plaintiffs were without right to proceed by injunction in this case, their remedy being under the Intrusion Into Office Statute; and (2) exceptions of no cause and no right of action based on the contention that Act No. 149 of 1934, under which the school board acted in creating Consolidated School District No. 2, was not repealed by the adoption of. Act No. 190 of 1936, amending Act No. 152 of 1920; in the alternative, that if the court concludes Act No. 149 of 1934 was repealed, then (3) that Act No. 152 of 1920 as amended by Act No. 190 of 1936 is unconstitutional in that its object is broader than its title.

These preliminary pleadings having been overruled, the board answered admitting the allegations of fact contained in the petition and as set out hereinabove and it appealed to this court when the trial judge on the motion of the plaintiffs for a judgment on the pleadings rendered judgment decreeing the action of the board in creating Consolidated School District No. 2 illegal, null, and void, as well as the election authorizing the $1,400,000 bond issue, and enjoined the issuance and negotiation of these bonds.

-The first defense urged by the defendant is based on the holdings in the cases of Chicago, St. L. & N. O. R. Co. v. Town of Kentwood, 49 La.Ann. 931, 22 So. 192, and Soniat v. White, 155 La. 290, 99 So. 223, to the effect that the legality of a political subdivision of the state cannot be collaterally attacked, it being the defendant’s contention that Consolidated School District No. 2, if not in fact a de jure it is a de facto political subdivision, and as, such it is clothed with all of the power and authority of a de jure district until its; existence has been questioned by the state.through its proper officers under the Intrusion Into Office Statute, Act No. 102 of 1928.

The answer to this contention lies in the fact that under the provisions of subsection (n) of Section 14 of Article XIV of the Constitution, and Section 43 of Act No. 46 of the Extra Session of 1921, the absolute right is given to “any person in interest * * * for any cause” to contest the legality of any election, bond issue, or tax authorized under Section 14 of Article XIV of the Constitution within 60 days from the date of the promulgation of the results of the election held for that purpose, after which time the issuance of the bonds, the legality thereof, and the taxes necessary to pay the same shall be conclusively presumed and no court shall thereafter have the authority to inquire into such matters.

The plaintiffs, being; resident property taxpayers of the district in controversy, are persons at interest within the meaning and contemplation of the foregoing constitutional provision and are, therefore, entitled to contest the legality ■of the election and the bond issue ‘'for any •cause.” Furthermore, the plaintiffs in this case haVe specifically attacked the legality of Consolidated School District No. 2 on ■the grounds set out - above and in their prayer they ask that the district be held to have been illegally created and, as a consequence, that the election held in the territory to authorize the issuance of the bonds for its support be likewise held to be null and void and the issuance and negotiation of these bonds enjoined.

It necessarily follows that since the factual allegations contained in the petition bave been admitted by the defendant, we 'have only to determine whether the legal ■issues raised in connection with such facts .are well founded and support the conclusion reached by the trial judge that the district was illegally created and all proceedings thereafter are null and void.

In order to clearly understand the issues that are raised under the pleadings and the other pleas of the defendant it is necessary to give a brief history and analysis of the several acts adopted by the legislature of this state relative to the crea-. tion of school districts, their merger and consolidation.

In 1920 the legislature by its Act No. 152 j-epealed all laws on the subject matter in •conflict with the provisions of the new act and particularly Act No. 81 of 1918 and Act No. 17 of 1914, which acts gave the parish school boards the power to create [School districts at any time and to compose them of either an entire parish, a ward, two or more wards, parts of two or more •wards, part of an existing school district, parts of two or more existing school districts, or any other portion of a parish. Act No. 152 of 1920 authorized the parish school boards in connection with their powers of special taxation for school purposes to create school districts and constituted these boards the governing bodies of the districts created by them with exclusive power to order, conduct, and hold special school tax elections therein and to do all things necessary in the premises, but Section 2 of- this act specifically prohibits the creation of a district “embracing the whole or any part of the territory of another district.”

In 1922 the legislature adopted ■ its Act No. 33 which, according to its title, is an act “To provide for the merging or consolidating of School Districts,” and which, according to its provisions, so far as they are pertinent here,, it authorizes school boards “upon their own initiative to merge or consolidate two or more school districts into one,” (Section 1), and repealing all laws or parts of laws in conflict therewith. Section 2.

In the meanwhile, in March of 1922, the Winn Parish School Board created a new school district by embracing therein territory forming a part of other school districts and this court in 1924 held that such action was null- and void, being in contravention of Section 2 of Act No. 152 of 1920. Hinton v. Winn Parish School Board, 155 La. 666, 99 So. 523.

Subsequent to the passage of Act No. 33 of 1922, and in the face of its very clear provision permitting the merger or consolidation of two or more school districts into one, this court had occasion to review the action of the Bienville Parish School Board in enlarging a previously existing school district by .including, in addition to the territory of this previous school district, the territory of other school districts (Woodard v. Bienville Parish School Board, 169 La. 831, 126 So. 207, 209) and the court held that this could be done because Section 2 of Act No. 152 of 1920 had,' by implication, been repealed and superseded by the provisions of Act No. 33 of 1922. In this case the court observed: “In the Hinton case, supra, we construed the language to mean that the school board could not create new school districts within a parish school district where such newly created districts overlapped existing districts, in view of Act No. 152 of 1920. We would adhere to that interpretation of the statute of 1920 were the statute still in force.”

The legislature, nevertheless, in 1934 adopted its Act No. 149 empowering the parish school boards of the state “upon their own initiative, to create one or more school districts within their respective parishes, to be known as Consolidated School Districts, by including- therein two or more school districts, and they may also include therein such other territory as they may determine not embraced within the boundaries of any other school district,” Section 1.

At its very next session, however, in 1936, it adopted Act No. 190 which amended and re-enacted Section 2 of Act No. 152 of 1920 by tracking the identical language used in the previous section but adding the provision that “whenever there shall be a sudden increase in the population of a portion of a previously created school district, by reason of industrial or oil development, the Parish School Board of a parish, with the approval of the State Board and Tax Commission- may create a school sub-district, in which bond issues and special taxes may be voted as now provided by law for school districts; and after the creation of such school sub-district, the property therein, shall be subject to taxation for the retirement and payment of bonds and special taxes previously voted and levied in the old district, and such properties shall also be subject to taxation for the retirement and payment of bond issues and special taxes thereafter voted by the qualified voters of such school sub-district.” The repealing clause of this act provides that “all laws or parts of laws in conflict be, and the same are, hereby repealed.” Section 2.

It appears from the foregoing, therefore, that when the Caddo Parish School Board undertook to create Consolidated School District No. 2 by including therein School Districts Nos. 4, 5, and 9, as well as other property not then embraced in any school district, there was on the statute books of this state this law specifically prohibiting such action. Counsel for the defendant, however, both orally and in brief, argue that since the 1936 act does not specifically repeal the 1934 act this court, under the principle that repeals by implication are not favored, should construe the 1920 act as amended in such a way as to permit both it and the 1934 act to stand, particularly since the school boards throughout the state, availing themselves of the provisions of the 1934 act, have created many consolidated school districts that have issued bonds that are still outstanding. Counsel argue, according to their brief, that this can be done because “a careful reading of the 1920 statute shows that, in reality, it is not in conflict with the Act of 1934. We point out to your Honor that the literal language .of the 1920 act prohibits the creation of a school district embracing the whole or a part of the territory of an existing district. The school board in this case has attempted to do neither of those things. A part of the territory of no school district has been included in the new district. The whole of several districts have been consolidated so as to form the new district but the prohibition of the 1920 statute, as we understand it, does not apply to this situation. The purpose of the 1920 act was to prevent the creation of a new district superimposed on the structure ' of the old district. In other words, the intention of the 1920 Act was to prohibit the creation of sub-districts either by taking a portion of the existing district or, as we have said, by super-imposing the new structure upon the old.”

We fail to appreciate the logic of this reasoning for it appears to us that when the legislature of 1936 adopted its Act No. 190 specifically, prohibiting the creation of any school district so as to embrace the whole or any part of the territory of another district unless the procedure set out in the amended Section was followed, necessarily superseded that part of the act of 1934 granting the school boards the power to create so-called consolidated school districts by including therein two or more school districts and also such other territory not embraced within the boundaries of any district as they might see fit.

The legislature of 1940, obviously recognizing the effect of the 1936 act and the illegal actions of the various school boards throughout the state in consolidating school districts under the 1934 act, adopted its Act No. 313 wherein it provided that “where the’ Parish School Board of any parish in the State of Louisiana, in contravention of the existing statutes, has heretofore created a school district in such parish, which school district contains within its boundaries an existing school district having outstanding existing bonded indebtedness, and where thereafter an election has been held in said newly created school district on the question of the issuance of bonds of said school district and the results of said election have been canvassed by said School Board and such election has been found to have resulted in favor of the issuance of such bonds and thé results of such election have been duly promulgated in a newspaper published in said school district or in said parish, the act of said School Board in creating such school district is hereby approved, validated and ratified, such school district is hereby recognized and declared to be a valid and legally existing school district, and said School Board is hereby authorized to proceed with the authorization, sale and issuance of such bonds in accordance with the pertinent statutes and such bonds when so issued shall be the valid and legally binding obligations of such school districts.”

The legislature did not, as claimed by the defendant, repeal Act No. 190 of 1936 or give the school boards the power to continue their practice of consolidating districts under the 1934 act by this legislature, for Act No. 313 of 1940 applies only to such districts as had been created prior to the adoption of that act.

This leaves for our consideration the defendant’s alternative plea, that is, that Act No. 152 of 1920 is unconstitutional because "the body of the statute is broader than its title,” in that the object of the act as expressed in its title authorizes the creation of school districts without restriction whereas in Section 2 in the body of the act there is contained “a prohibition against the creation of school districts in certain contingencies,” such object not being contained in the title, in contravention of Section 16 of Article III of the Constitution of 1921 providing that “Every law enacted by the Legislature shall embrace but one object, and shall have a title indicative of such object.”

Clearly there is no merit to this contention for all the constitution requires is that the title of an act in general terms be indicative of its object. It is not required that it be a complete index to every section' of the statute and whatever is germane or incidental to the purpose need not be embraced therein. Peoples Homestead & Savings Ass’n v. Masliñg, 185 La. 800, 171 So. 36; State v. Martin, 192 La. 704, 189 So. 109; Jackson v. Hart, 192 La. 1068, 190 So. 220; Peck v. City of New Orleans, 199 La. 76, 5 So.2d 508; and State v. Pete, 206 La. 1078, 20 So.2d 368. The object of the act here as expressed in its title is to authorize the school boards of the several parishes of the state in connection with their power of special taxation for school purposes to create school districts. The manner of their creation and the restrictions placed on the school boards with respect thereto are all matters that are germane and cognate to the subject matter and need not be stated in the title.

For the reasons assigned the judgment of the lower- court is affirmed.

O’NIELL, J., absent.


text:
    213 La. 451
    STATE v. LOGAN.
    No. 38604.
    Supreme Court of Louisiana.
    Feb. 16, 1948.
    Rehearing Denied March 22, 1948.

      Wellborn Jack and Ashley J. Gold, both of Shreveport, for defendant-appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Cul-ligan, Asst. Atty. Gen., A. M. Wallace, Dist. Atty., of Benton, and R. H. Drew, Asst. Dist. Atty., of Minden, for plaintiff and appellee.
   FOURNET, Justice.

The defendant, Clinton Houston Logan, is appealing from his conviction and sentence on a charge of simple kidnapping under subsection (1) of Article 45 of the Louisiana Criminal Code.

It appears that sometime between 4:30 and 5:00 p. m. on the afternoon of .October 15, 1946, Mrs. Irene Wood, the prosecuting witness, was walking down the road near the Premier Oil Refinery at Cotton Valley, Louisiana, when the accused stopped the truck he was driving and offered to give her a “lift” to her destination. Thinking she knew him, she accepted his offer and entered the truck. However, when she called his attention to the fact that he had passed the place where she had designated she wanted to get out, he stated he had forgotten and would let her out at the next street. Instead, he speeded up and passed the place, causing her to become frightened and insist- that he let her out of the truck. When they had also passed the road leading into Cotton Valley he speeded up still more and reached toward her as though to put his arm back of her shoulders. By this. time they were in front of a service station and she called to some men standing there for help. Fearing help would not arrive in time, however, she either jumped or fell from the moving truck in her effort to escape, the accused taking hold of her coat as she was about to leave the truck. She was seriously injured.

When the details of the manner-in. which the offense was alleged- to have been committed were set out by the state in a bill of particulars in response to the motion of the accused, he filed a motion to quash the indictment contending that as amplified by the bill of particulars it “did not allege any intentional and forcible seizing of Mrs. Irene Wood, and on the other hand showed that she voluntarily entered said car and for said reasons the indictment as amended [amplified] by the bill of particulars did not charge the crime of simple kidnapping or any other crime under the Louisiana Law.” (Brackets ours.)

This motion was overruled by the trial' judge and a bill of exceptions was reserved. After all of the evidence was introduced' on the trial of the case, the motion to quash was renewed by the defendant without avail, and this same issue was again raised! by way of a motion for a new trial.

The trial judge, in his per curiam to the-bill of exceptions reserved when he refused to grant this new trial, points out that it is true “the evidence does not disclose that accused laid hold of the witness except when she tried to, and did jump out of the-truck,” but he concluded, as stated in his per curiam to the bill reserved when he-refused to quash the indictment that “though the original control of the prosecuting witness was secured by her voluntary entry into the truck,”, his refusal “to stop the truck <md allow her t-o get out”’ constituted ai forcible seizure. (Italics-ours.)

The offense, of simple kidnapping that is-denounced in our law is to be found in the Louisiana Criminal Code (Act No. 43 of 1942) in Chapter 4, dealing with Kidnapping and False Imprisonment, chapter there are only three sub-divisions— Aggravated Kidnapping, Simple Kidnapping, and False Imprisonment — and we think that in order to get a clear picture of the intention of the legislature when it defined Simple Kidnapping to be “(1) The intentional and forcible seizing and carrying of any person from one place to another without his consent; or (2) The intentional taking, enticing or decoying away, for an unlawful purpose, of any child not his own and under the age of fourteen years without the consent of its parent or the person charged with its custody; or (3) The intentional taking, enticing or decoying away, without the consent of the proper authority, of any person who has been lawfully committed to any orphan, insane, feeble-minded or other similar institution”, Article 45, it should be read in connection with the preceding article, providing that “Aggravated kidnapping is the doing of any of the following acts with the intent thereby to force the victim, or some other person, to give up anything of apparent present or prospective value, or to grant any advantage or immunity, in order to secure a release of the person under the offender’s actual or apparent control: (1) The forcible seizing and carrying of any person from one place to another; or (2) The enticing or persuading of any person to go from one place to another; or (3) The imprisoning or forcible secreting of any person,” Article 44, and with the subsequent article, wherein it is provided that “False imprisonment is the intentional confinement or detention of another, without his consent and without proper legal authority.” Article 46. In this

It is to be noted in the general ■comment under Article 46 (which we are admonished to consider in connection with ■our interpretation of these articles of the code, State v. Davis, 208 La. 954, 23 So. 2d 801) that “This article is intended, to cover cases of false imprisonment, which ■are not included in the aggravated or simple kidnapping articles.” (Italics ours.)

Clearly under the facts of this case the prosecutrix was intentionally and forcibly seized and carried from one place to another within the meaning and contemplation of the statute under which the defendant is charged. We think, as did the trial judge, that the fact that the defendant did not lay hands on her until she endeavored to get out of the truck does not mean that force was not used in keeping her in the truck' for by keeping her in the' truck against her will while that vehicle was traveling at a rapid rate of speed constituted a forcible seizure just the same as if the accused had held her therein at the point of a gun without laying hands on her, and certainly no one would doubt that holding a person at the point of a gun does not constitute forcible seizure and detention. Consequently, when the defendant transported the prosecutrix under these conditions from the place where she wanted to get out of the truck, passed the road leading into Cotton Valley, to the point where she jumped or fell from the moving truck, all against her will, the added element of transportation makes this crime one of Simple Kidnapping instead of False Imprisonment, which latter crime counsel for the defendant so strongly argues is the only crime the defendant could be guilty of under the facts of this case. This conclusion is not only sound and in keeping with the intention of the legislature in adopting this code, but it is clearly within the purview of the definition they have given us of the crime of simple kidnapping.

In reaching this conclusion we have done so after carefully reading and analyzing all of the authorities from other jurisdictions cited in brief of counsel for the defendant, none of which are controlling or pertinent here. The statutes under which they were decided are entirely different from the one under which Logan was charged under our law.

For the reasons assigned the conviction and sentence appealed from are affirmed.

O’NIELL, C. J., absent.

In this


author: PER CURIAM.

text:
    CIGALI v. KAPLAN.
    No. 18985.
    Court of Appeal of Louisiana. Orleans.
    April 12, 1948.
    Felix W. Gaudin and James. J. Grevem-berg, .both of New Orleans, for plaintiff-appellee. . ,
    James David McNeill, of New Orleans, for defendant-appellant.
   PER CURIAM.

Plaintiff-appellee moved to dismiss defendant’s suspensive appeal. .The motion and order for the appeal were timely, but we are urged to dismiss the appeal because the bond was filed after the time allowed by law for the perfection of the suspensive appeal.

. The motion to dismiss cannot avail, as ,it was not filed within three judicial days after the transcript was lodged with us. Code Prac. art. 886. It is well settled that where the appeal bond is not timely filed, or even where there is no appeal bond furnished, such informality or irregularity, to afford a ground for dismissal of the appeal, must be taken advantage of by the appellee within three judicial days from the filing of the transcript. Hall v. Nevill, 3 La.Ann. 326; State v. Callac, 45 La.Ann. 27, 12 So. 119; De Bautte v. Weil Brothers Co., 12 Orleans App. 107; Greco v. Millano, 13 Orleans App. 134; Powell v. Christina, 7 La.App. 651; Bordes v. Bank of St. Bernard, 141 La. 144, 74 So. 884, 885. In the Bordes case the Supreme Court said: “We learn from the brief that the first of these grounds of dismissal is based upon the fact that the bond of appeal was filed more than 12 months after the date of the judgment. * * * But we will add that even if well pleaded they could not avail, as they are based on mere irregularities which in order to serve for the dismissal of an appeal would have had to have been called to the attention of the court within 3 days from the filing of the transcript; and the motion to dismiss in this case was not filed within that time. Coreil v. Town of Welsh, 120 La. [557], 558, 45 So. 438; Barton v. Burbank, 119 La. [224], 227, 43 So. 1014.”

The motion to dismiss the appeal'is denied.

Motion denied.


author: ELLIS, Judge.

text:
    WOOD v. BECKER WELDING SHOP et al.
    No. 2986.
    Court of Appeal of Louisiana. First Circuit.
    April 21, 1948.

      Ponder & Ponder, of Amite, for appellant.
    S. S. Reid, of Amite, and Reid & Reid, of Hammond, for appellees.
   ELLIS, Judge.

Plaintiff has instituted this suit against the defendant as a result of damages to plaintiff’s 1940 Buick four door Sedan automobile which caught fire and was partially burned while an employee was ,welding' a cross brace on said automobile. .Plaintiff alleges that he had delivered his automobile to the defendant’s shop for the purpose of welding a cross brace; that the work was to be performed by the defendant, his duly authorized servants, agents and employees, in the due course of the business of the said defendant; that while, the automobile was in defendant’s welding shop and being worked upon that one of the said employees of the said defendant unskillfully, recklessly, -negligently and incompetently permitted the welding torch or similar appliance to come in contact with the gasoline tank of petitioner’s automobile, causing the automobile to take fire and, as a result, the automobile was seriously damaged; that the damage amounted to $435.10; that the said damages and the resulting cost of repair were directly attributable to the lack of. skill, competency, care and caution on the part Of the said defendant and his said authorized employee.

Defendant, through its counsel, filed an exception o'f vagueness and also one of no cause or right of action. The exceptions were overruled by the Judge of the District Court and defendant thereafter filed its answer.

Defendants denied the allegations of plaintiff’s petition and further denied ■ that the plaintiff had or did at any time leave the automobile at defendant’s place of business fbr repair-for a consideration, but alleged, on the contrary, that plaintiff is a friend of one Jessie W. Lea who was at that time employed by defendants; that during the noon hour and while the said Jessie W. Lea was off for lunch, the plaintiff asked him to weld something about the automobile in question; that the said Jessie W. Lea, without any consideration whatever except through friendship, voluntarily spot-welded the cross bar off of the premises of the defendant. Defendants further ’ allege that the said Jessie W. Lea was not at the time of the performance of the job an employee of the defendants and was not working in the furtherance of the defendants’ trade and undertaking and, on the contrary, was doing a gratuitous act for a friend.

The case was duly tried and the District Court rendered judgment in favor of the plaintiff in the full sum of $359.42, together with legal interest from date of Judicial demand until paid and all costs of suit. The defendant, Becker Welding Shop, has appealed' from this judgment.

Defendant is urging its exception of no cause or right of action based upon the proposition that the insurance company has settled’ with the plaintiff and ■ that the plaintiff no longer has- any interest in the suit. On the question of the right of action of plaintiff; it has heretofore been explicitly held in Ayres v. Wyatt, La.App., 185 So. 84 at page 86: “Defendants are not concerned with and have no right to inquire into the transactions between the insured and insurer terminating in a settlement between them. Whether the amount of such a settlement be great of small does not to any extent modify or affect the liability of the tortfeasor; and, notwithstanding such a settlement and the legal subrogation or equitable assignment superinduced thereby, the insured retains the right to sue for the full amount of damages involved, especially where, as is true in the present case, the amount of insurance paid does not equal the amount of damages sustained.”

Again in the case of Clemons v. Southern Advance Bag and Paper Company, et al., La.App., 22 So.2d 68, the Court of Appeal of Louisiana for the Second Circuit cited with approval the ruling in Ayers v. Wyatt and held: “An automobile owner could sue in her own name to recover damages to her automobile in collision in which automobile was substantially destroyed, though insurer had paid her the value thereof less $50, under a $50 deductible policy, and though insured had given a written subrogation to insurer to extent of amount so received.”

Thus the exception of no cause or right of action was properly overruled by the District Court.

The facts in this case reveal that on or about June 15, 1944 the plaintiff brought his 1940 Buick four-door sedan to the defendants’ welding shop to have what is called a cross member welded. The testimony shows that plaintiff “brought the automobile there right at or just before 12 o’clock noon” and spoke to Jessie W. Lea, an employee of the defendant, who made these kind of repairs for the defendant. The employee stated to the plaintiff that he would do it as soon as he could eat lunch, and left the car at the rear of defendants’ shop. However, the testimony shows that it was on the premises of the Becker Welding Shop, under the .edge of the shed, when it was being welded and caught on fire.

While there is some testimony by the defendants’ employee that he did not intend to make any charge for this work, there is certainly no testimony that he informed the plaintiff of this fact before he did the job, and, also, there is some testimony that the employee returned from lunch about 12:30 and was therefore on his own time. The record also shows that the employee' receives time and a half when he works during his hour off. The employee of ihe defendant testified that he was a good personal friend of the plaintiff and that, on a little job like that, he always did it provided the customer came in work hours and was a good customer. The plaintiff did not even remember the employee’s name and testified that he was not a personal friend of his, that he just knew him. Be that as it may, there is nothing in the record to prove that this work was to be done gratuitously, and certainly we would not expect a bill to be presented after the car had been badly damaged by burning. We, therefore, see no reason to further discuss the effect of a gratuitous contract.

The testimony shows clearly that the employee allowed the electrode on the welding torch to come in contact with the gas tank, and, as a result, a hole was knocked in this tank and the car caught on fire. Mr. Bass, the owner of the Becker Welding Shop, in his testimony practically admits negligence on the part of his employee Lea in using the welding torch so near to the gas tank. He states : “If I had been there, I would not have let the boy weld the gas tank. I understand this piece is right under the back end.”

The employee testifies that the rod he was welding was within four to six inches of the gas tank and that, when the electrode touched the tank, it split it open.

Certainly' the testimony bears out plaintiff’s contention that Lea, the employee of the defendant, was careless and negligent with the welding torch and thus set fire to the automobile.

In the case of Marine and Motor Insurance Company v. Cathey, 8 La.App. 240, it was held that: “One who has received an automobile for the purpose of repairing same was liable to the owner for any damage caused by his negligence.”

Also, in the case of Gulf & Ship Island R. R. Co. v. Sutter Motor Co., 12 La.App. 495, 126 So. 458, it was held: “Where automobile was left in defendant’s garage in good condition and on next day found in garage in damaged condition, burden was on defendant, as bailee for hire, to prove that cause of damage was neither his negligence nor negligence of employees.”

While plaintiff prayed for judgment for $435.10, the principal amount, the record shows that counsel for the defendants agreed to admit, in lieu of testimony, the affidavit of Mr. P. W. Lindsley of the Lind-sley Motor Company as to tile amount of work he had done on plaintiff’s automobile and to show in the affidavit the amount of repair done as a direct result of the fire damage. This affidavit is in the record, showing repairs in the amount of $359.42 placed on plaintiff’s automobile as a direct result of the fire. The trial court used this figure in awarding judgment for the plaintiff, and, we think, correctly so, as the amount sued for is based upon an estimate of the damages.

It is therefore ordered that the judgment of the District Court be affirmed, all at the cost of the defendants, Becker Welding Shop.


author: LEE, Justice,

text:
    Willie THOMAS v. STATE of Mississippi.
    No. 49333.
    Supreme Court of Mississippi.
    Nov. 2, 1976.
    Richard E. Stratton, III, Brookhaven, for appellant.
    A. F. Summer, Atty. Gen. by John C. Underwood, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.
   LEE, Justice,

for the Court:

Willie Thomas was convicted of burglary by the Circuit Court of Lincoln County, was sentenced to serve seven (7) years in the state penitentiary, and he appeals to this Court.

Appellant assigns the following errors committed by the trial court:

(1) The verdict of the jury is contrary to the great weight of the evidence and requires an acquittal, or in the alternative, a new trial; and

(2) The trial court committed prejudicial error in admitting evidence of a separate and distinct crime.

On the night of January 25, 1975, Ricky Durr, Danny Oliver, and appellant got together at a beer joint in Pike County, and, after having drunk a number of beers each, they departed in Danny Oliver’s car. Several miles outside of Bogue Chitto, they stopped near the Price home, which was occupied by the owners only on weekends. According to Oliver, the car stopped about one and a half (IV2) courtroom lengths from the house. He testified that the purpose for stopping was to answer a call of nature.

Rickey Durr, who was seventeen (17) years of age and the only juvenile of the three, testified he and appellant went up to the house, appellant kicked the door open, he (Durr) turned on the lights on, and they took a saw, blanket, fan and other items from the house. Further, according to Durr, they took the articles back to the automobile, drove away, and appellant took the fan home with him; they left the saw in Oliver’s car.

The next day, Deputy Sheriff Jordan went to the scene, after receiving a report that the house had burned. Price was notified of the loss, and, upon going to the scene, he found a cutting board in the yard outside the house. He knew the board had been locked inside the house when he was last there on the previous weekend, and he then made a list of articles known to have been in the house. After sifting the ashes, it was discovered that a fan and a saw had not burned and were missing. When Price left the house on the weekend, he tripped the multi-breaker, thereby cutting off the lights.

Acting upon information from a confidential informant that appellant had been in the Price house and that the Price fan was at appellant’s home, Deputy Jordan obtained a warrant for, and arrested, appellant. Thomas freely admitted that he had the Price fan, but explained his possession of it by saying Durr gave it to him.

Under the first assignment of error, appellant contends that the testimony of Durr constitutes no credible evidence because it was impeached and contradicted in the following particulars:

(1) Durr had been convicted of robbery and burglary on two previous occasions.

(2) Durr’s testimony that he turned on the lights in the house was contradicted by Price who testified he tripped the multi-breaker, and turned off the lights.

(3) Durr testified he carried a fan out of the house, and Willie Thomas carried a saw and blanket, yet, on July 21, 1975, Durr gave a written statement to Deputy Jordan wherein he said that, “I carried the blanket and the fan to the door.”

(4) Durr testified that Willie Thomas did not get back in the Oliver car until Durr and Thomas returned from the Price house, when Oliver testified that Durr got into the car last “a pretty good while” after Thomas got in the car.

(5) Durr testified that appellant was in the back of the house when he [Durr] turned off the front light, yet Oliver testified appellant got in and out of the car on two occasions.

As against this argument of the appellant, the following evidence corroborates the testimony of Ricky Durr:

(1) Durr testified that he and appellant went in the house. Oliver testified that Durr and appellant were out of the car “about fifteen or twenty minutes.”

(2) Durr testified that they brought the saw, blanket, and fan to the car. Oliver testified that those articles were put in his car.

(3) Durr testified that appellant took the fan home with him. Appellant admitted that he took the fan home and had it in his house.

(4) Durr testified that he turned on the lights in the Price house. Oliver testified that he saw a light in the house.

Oliver further testified:

“Q. Now when they came back to the car, what, if anything, did you notice?
A. Well, there was some stuff put in the car.
Q. What sort of stuff?
A. Well, that saw for one; and I guess that fan was; I couldn’t tell what it was because I didn’t turn around and look to see what was put in there.”

The law is settled in this state that the uncorroborated testimony of an accomplice will support a guilty verdict, but the rule requires that such uncorroborated testimony should be viewed with great caution and suspicion and that it must be reasonable and not improbable or self-contradictory or substantially impeached. Black v. State, Miss., 336 So.2d 1302, handed down September 7, 1976; Hutchins v. State, 220 So.2d 276 (Miss.1969); Cole v. State, 217 Miss. 779, 65 So.2d 262 (1953).

The trial court instructed the jury that the law looks with suspicion and distrust upon the testimony of an accomplice and requires the jury to weigh such testimony with great care and caution and to look upon it with distrust and suspicion. The jury was further instructed that they may disbelieve the testimony of the accomplice Durr altogether, they being the sole judges of the credibility of the evidence. It was also instructed that every reasonable doubt should be resolved in favor of the defendant and against the State.

Next under Assignment of Error No. 1, appellant contends that there was no probable cause for the issuance of an arrest warrant for appellant and that evidence of the fan was incompetent and should not have been admitted. The confidential informant, who had given truthful and reliable information about burglaries on three previous occasions, told Deputy Jordan that appellant went into the Price house and that appellant had the fan at his home. This information was corroborated by the fact that the fan was missing from the house. Deputy Jordan considered the information to be truthful and reliable, and, thereupon, obtained the arrest warrant.

In Wolf v. State, 260 So.2d 425 (Miss.1972), this Court quoted from United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), which stated: “ ‘A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.’ ([United States v. Harris, 403 U.S. 573] 91 S.Ct. [2075] at 2079, 29 L.Ed.2d [723] at 730).” 260 So.2d at 428.

In Strode v. State, 231 So.2d 779 (Miss.1970), in considering what constitutes probable cause, the Court said: “Probable cause is a practical, non-technical concept, based upon the conventional considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” 231 So.2d at 782.

We conclude that there was probable cause for the arrest of appellant.

Durr testified he and appellant broke into the house, took the fan away, and appellant carried it to his own home. Appellant freely admitted that he had the fan. In response to questions asked by his own attorney on the trial, he testified:

“Q. I’ll ask you to look at Exhibit ‘1’, and that’s a fan: Is that the fan to which you have reference?
A. Yes sir.
Q. How long did you have that fan?
A. Uh, well, since, since I, the 26th, I guess, until I got picked up.
* * * * sfc ‡
Q. Is that fan in the same condition it was when it was given to you by Ricky Durr?
A. Well I hadn’t never paid that much attention to it.
Q. Did you ever use it?
A. Uh, no sir.”

Even assuming there had been no probable cause for the issuance of the arrest warrant, when the testimony of Durr, Price, and Oliver relating to the fan is considered, there could be no reasonable possibility that appellant might be prejudiced by its introduction into evidence.

We are of the opinion that there was an issue of fact for the jury to determine the guilt or innocence of the appellant, and that Assignment No. 1 is without merit.

II.

Did the trial court err in admitting evidence that the Price house had burned, inferring that the crime of arson was committed?

There is no evidence or testimony in the record that appellant was responsible for the burning of the Price house, nor was there any attempt to incriminate the appellant on an arson charge. The investigation of the burglary necessarily involved the investigation of the house burning. The two matters were closely interrelated. The destruction of the house was a proper explanation for the jury as to why the investigating officer did not testify how and where the “breaking” of the house occurred and why he did not describe the place of entry.

In Brooks v. State, 242 So.2d 865 (Miss.1971), this Court stated:

Furthermore, at the outset of the trial, Mr. Price testified about the house having burned over the weekend of the burglary. This testimony was admitted without objection, and, at the time Deputy Jordan testified, evidence of the house burning had already been admitted. We conclude that there is no prejudicial error to the appellant resulting from the admission of Deputy Jordan’s testimony that the house had burned.

There being no prejudicial error in the record, the case must be and is affirmed.

AFFIRMED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER and BROOM, JJ., concur.


author: JAMES D. HESTER, Commissioner,

text:
    Thurman B. YOUNGBLOOD, Individually and as father and next friend of John David Youngblood, minor v. Hugh M. MONTEITH, Administrator of the Estate of Eugene Thornburg.
    No. 48951.
    Supreme Court of Mississippi.
    Nov. 23, 1976.
    As Modified On Denial of Rehearing Dec. 14, 1976.

      McClure, McClure & May, James McClure, Jr., Sardis, for appellant.
    Darden & Sumners, New Albany, Jack N. Tucker, Tunica, Lester F. Sumners, New Albany, for appellee.
    Before GILLESPIE, C. J., SUGG and BROOM, JJ., and HESTER, C.
   JAMES D. HESTER, Commissioner,

for the Court:

The jury’s verdict in the amount of Sixteen Thousand Dollars ($16,000.00) was set aside and appellee’s motion for judgment N. O. V. was sustained by the Circuit Court of Tunica County. From the judgment entered in favor of the appellee, Hugh M. Monteith, Administrator of the Estate of Eugene Thornburg, déeeased, Thurman B. Youngblood, individually and as father and next friend of John David Youngblood, a minor, appeals. We reverse.

The record reflects that on November 18, 1972, at approximately seven-thirty p.m., John David Youngblood, a minor, was riding as a passenger in a 1973 Ford Pickup truck driven by Eugene Thornburg in a southerly direction on Mississippi State Highway No. 3, approximately 0.3 of a mile south of Sledge, Quitman County, Mississippi. Youngblood was seated adjacent to the driver. John Pearson, Jr. was riding to the right of appellant, and Roger Gayden, the only eye witness to the accident who testified, was seated adjacent to the right window. The accident occurred at an intersection of a gravel road crossing Highway No. 3 at an angle from southeast to northwest, resulting in an intersection of approximately three hundred feet along Highway No. 3 between the southeast and northwest approaches to said highway. The speed limit on State Highway No. 3 was sixty-five miles per hour and the proper intersection sign was posted. A head-on collision occurred in the west half or southbound lane of Highway No. 3 between the Thornburg pick up truck and a 1966 Ford automobile driven by Albert Burts, who, along with his only passenger, was killed.

Roger Gayden testified that Thornburg was traveling approximately eighty-five miles an hour immediately before the accident and that he did not recall the brakes being applied or the vehicle being slowed down at any time before the collision. When he was questioned on cross examination as to how he knew the speed to be eighty-five miles per hour, he testified:

“A. Well, I recall looking at the speedometer.
Q. When did you look at the speedometer?
A. When we were going down the road, the highway, pavement.
Q. Just before the accident?
A. Yes, sir, I just glanced over there to see how fast we were going.”
And, process of leaning over there looking at the speedometer, did it come to the attention of Mr. Youngblood here that you were looking at the speedometer?
A. No, sir.”

Credibility of Gayden’s testimony was attacked by defense witness Fletcher Powell, who testified that in order for one seated next to the right window to see the speedometer, he would have to be “pretty close to right behind the steering wheel.” Rebuttal testimony indicated that one seated as was Gayden would be able to tell approximately the speed registering on the speedometer if he leaned his head toward the center of the truck. Additionally, photographs introduced in evidence depicting the two wrecked vehicles, one practically cut in half by the impact, is corroborative of Gayden’s testimony as to speed of Thornburg. This evidence as to speed was sufficient to make an issue for the jury which, obviously, resolved that issue in favor of plaintiff.

Section 63-3-505, Mississippi Code Annotated (1972) reads as follows:

“The driver or operator of any motor vehicle must decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hazard exists with respect to pedestrians or other traffic . . .

In Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652, (Miss.1975), it is stated:

“The established rule is that when the court considers whether the defendant is entitled to a judgment as a matter of law, the court should consider the evidence in the light most favorable to plaintiff, disregard any evidence on the part of the defendant in conflict with that favorable to plaintiff, and if the evidence and reasonable inferences to be drawn therefrom would support a verdict for the plaintiff, the jury verdict should not be disturbed.”

When the testimony, as reflected by the record in this cause, is subjected to the rule above stated, it is abundantly clear that the jury was warranted in believing that the defendant Thornburg was driving at a rate of speed of approximately eighty-five miles an hour when he entered the intersection, and that he did not reduce his speed before colliding with the Burts automobile, and that his speed was a proximate contributing cause of the collision. Therefore, the trial court was in error in sustaining appellee’s motion for judgment n.o.v. Language found in McCorkle v. United Gas Pipeline Co., 253 Miss. 169, 175 So.2d 480 (1965), cited in the briefs that “[W]e have likewise held that a motorist who violates section 8176 [§ 63-3-505 in 1972 Code], supra, is guilty of negligence proximately causing a collision as a matter of law” (emphasis added) is an incorrect statement of law. Proximate cause is usually a jury question as was true here where that question was properly submitted to the jury and resolved against appellee.

It, therefore, follows that the judgment entered by the trial court in favor of the defendant should be vacated and judgment entered here for the appellant in the amount of Sixteen Thousand Dollars ($16,-000.00).

REVERSED AND RENDERED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.

      . Sitting pursuant to Chapter 430, Laws of 1976. The above opinion is adopted as the opinion of the Court.


author: SUGG, Justice,

text:
    Joseph Weeks GUESS et al. v. RIVERSIDE FARMS, INC.
    No. 48952.
    Supreme Court of Mississippi.
    Nov. 30, 1976.

      Brooks & Guyton, Otho E. Pettit, Jr., John D. Guyton, Kosciusko, for appellant.
    Thornton & Dorrill, George L. Dorrill, Kosciusko, for appellees.
    Before GILLESPIE, SUGG and BROOM, JJ.
   SUGG, Justice,

for the Court.

Complainant, Riverside Farms, Inc., filed suit in the Chancery Court of Attala County to confirm its title to a parcel of land described as “20 a. E. side W lh SW Vi E. River of Section 21, Town 15, Range 5, County of Attala.” Complainant’s title depends on the validity of a forfeited tax land patent issued by the State of Mississippi. Defendants answered, denied the validity of the tax sale on which the patent was based and filed a cross-bill seeking to confirm their title. The chancery court confirmed title in complainant and dismissed defendants’ cross-bill.

In 1907 J. A. Weeks purchased a large tract of land situated in Holmes and Attala Counties, including the land in controversy. The land in controversy was assessed for taxes in Holmes County as far back as 1907 and taxes were paid each year in Holmes County up to the date of the trial. In 1938 the land was assessed for ad valorem taxation in Attala County and described on the tax rolls as “20 A., more or less, E side W Vi SW Vi of Big Black R. Section 21, Township 15, Range 5.” The land was assessed to “unknown” as authorized by Mississippi Code Annotated section 27-35-55 (1972). Taxes for the year 1938 were not paid in Attala County and the land was sold to the state for unpaid taxes.

J. A. Weeks conveyed the land in controversy, along with other land, to defendant Eugenia Weeks Guess and reserved an undivided one-half interest in the minerals. The minerals were part of the residue of the Estate of J. A. Weeks and the residuary devisees were made parties to the suit. Eugenia Weeks Guess conveyed the land in controversy, along with other land, to the defendant Joseph Weeks Guess in 1966 and in 1974 executed a correction deed to her grantee to the W Vi SW Vi of Section 21. The correction deed described the property as being situated partly in Holmes County and partly in Attala County.

Defendants contend that complainant’s title should fail because complainant did not prove that the land was located in Attala County. Complainant relied in trial court, and relies here, on Mississippi Code Annotated section 13-1-115 (1972) which provides in part:

A conveyance made by a tax-collector to an individual purchaser of land at a sale for taxes, and the list of lands sold to the state at such sale, shall be prima facie evidence that the assessment and sale of the land were legal and valid.

Defendants correctly state that the presumption of the validity of a tax sale may be rebutted. Walker v. Polk, 208 Miss. 389, 44 So.2d 477 (1950); May v. Ellis, 210 So.2d 883 (Miss.1968). They argue that the presumption of the validity of the tax sale was rebutted because the land was assessed for taxation for 1938 in both Holmes County and Attala County and the 1938 taxes were paid in Holmes County. We do not agree with this argument because the presumption of section 13-1-115 applies to sales and assessments on which sales are based. It does not apply to assessments where no sale is made. We hold that the presumption of validity of a tax sale under section 13-1-115 includes the presumption that the land is located in the county where assessed and sold for delinquent taxes.

Defendants alleged as an affirmative defense that the land was not located in Attala County but was located and assessed in Holmes County. Defendants contend that, when this fact was raised as a defense, complainant was required to prove that the land was located in Attala County. This argument overlooks the fact that one who asserts an affirmative defense must go forward with proof of the affirmative defense. Defendants offered no proof that the land in question was located within Holmes County, other than the fact that it was assessed in Holmes County.

The answer of defendants was inconsistent in that they admitted in another part of their answer that the W Vi SW Vi was situated partly in Holmes County and partly in Attala County. The stipulation of the parties included the correction deed from defendant, Eugenia Weeks Guess, to defendant, Joseph Weeks Guess, to the W Vi of SW Vi and the correction deed described the land as being partly in Holmes County and partly in Attala County. The defendants did not meet the burden of proving their affirmative defense; instead, the admission in defendants’ answer and the recital in the correction deed support the fact that the land was located in Attala County.

Defendants next contend that the tax sale was void because the land was subjected to double taxation. It was stipulated by the parties that the land was assessed for taxation in both Holmes County and Attala County for 1938 and the 1938 taxes were paid in Holmes County. Defendants contend that this constitutes double taxation.

Double taxation did not result from the fact that two separate taxing authorities, Attala County and Holmes County, imposed taxes on the same land. The only county which has authority to impose a tax on property is the county in which the property is situated. Illegal double taxation consists of taxing the same property twice, for the same purpose, by the same taxing authority, during identical taxing periods. 84 C.J.S. Taxation § 39, at 131-132 (1954). These facts do not exist in this ease.

Mississippi Code Annotated section 27-35-49 (1972) requires every person owning land to deliver a list of any land owned by him to the tax assessor by April 1st of each year on a prescribed tax list showing the taxing district in which the land is located. This section clearly places the burden on the landowner to list his land for taxation with the tax assessor of the proper county. The burden is placed on the landowner rather than the tax assessor because this section does not require an assessor to examine every deed of record in his county to ascertain the owners of property. If a taxpayer’s land is assessed in the wrong county, he should call it to the attention of the taxing authorities.

Appellants also contend that the 1938 tax levy by Attala County was illegal because it failed to comply with Mississippi Code § 3227 (1930), as amended by Ch. 28, § 1 (1938) Miss.Gen.Laws 78. This statute provides that all tax levies for general fund purposes shall contain the items to be covered by the general fund levy and shall specify the rate of tax applicable to each item within the general fund levy. Although this statute was subsequently repealed, it was in force at the time of the 1938 tax levy.

The 1938 tax levy by the Attala County Board of Supervisors stated the rate of taxation for the general fund levy, but did not specify the rate applicable to each item. In an effort to comply with the statute, the Attala County Board of Supervisors amended the 1938 tax levy to provide the rate applicable to each item within the general fund levy. The amendment was adopted in 1939 before the sale of the land in controversy for delinquent taxes. Since the original 1938 tax levy by Attala County did not comply with the statute, the question presented by this issue is whether the subsequent amendment to the tax levy cured the original defect.

The rule is well established that a harmless error in a tax levy may be amended. Burke v. Legett, 118 Miss. 660, 79 So. 843 (1918). Where a levy substantially complies with the law, a formal defect in the levy may be cured by a subsequent amendment. 84 C.J.S. Taxation § 369, at 702 (1954):

An entire omission to levy a tax cannot be cured by amendment; nor can an amendment be made so as to make in effect a new levy, or to correct a failure to comply with the law in substantial particulars. Where, however, a levy has been made in substantial compliance with the law, but the record thereof is ineffectual because of some formal defects or irregularities, it may be amended to correct defects or irregularities, such as in respect of its failure to state the rate or amount and purposes of the tax, or to explain the meaning of terms used in the levy; and it has been held that such amendment, as a political act, may be made some years after the original levy.

The 1939 amendment supplied an omission in the original levy. The amendment did not change the rate of taxation, but itemized the original levy to comply with the statute. The tax levy as corrected was valid.

We have carefully considered the other issues raised by the appellants and have determined they do not merit discussion. For the foregoing reasons the decree of the chancery court is affirmed.

AFFIRMED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, WALKER, BROOM and LEE, JJ., concur.

      . Complainant’s title was confirmed subject to an oil and gas lease, a deed of trust and certain mineral reservations described in the decree. The rights recognized arose from instruments executed by complainant or its predecessor in title.