author: COFER, Justice, for the Court:

text:
    Stephen PARCELL v. STATE of Mississippi.
    No. 52195.
    Supreme Court of Mississippi.
    Nov. 12, 1980.

      Russel D. Moore, III, Scott Stuart, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   COFER, Justice, for the Court:

The appellant, Stephen Parcell, was in the Circuit Court of the First Judicial District of Hinds County indicted and convict-' ed of murder and received a life sentence. He has appealed, assigning errors condensed into these issues in his brief:

A. The court should have ordered further psychiatric and psychological evaluation of the defendant prior to trial.
B. The patrolman’s testimony as to the confession given by the defendant should have been excluded because it was not given freely, voluntarily and intelligently.
C. The court should not have excluded defendant’s proposed instruction No. 6.

Concluding that these assignments of error are without merit, we affirm the conviction and sentence.

The appellant, then recently arrived in Jackson, had formed a liaison with the victim, the separated but undivorced mother of four children, one of whom witnessed the slaying of its mother.

About five thirty a. m. on June 18, 1978, appellant went to the bus station in Jackson, where his victim was, engaged in a brief conversation with her, and stabbed her multiple times with a butcher knife, from which wounds she died.

Various pleadings touching upon the mental competency of appellant were submitted between the indictment and the trial. On September 12, 1978, such a petition was filed praying that he be taken to St. Dominic Hospital for psychiatric examination and evaluation. This request was granted, and, on appellant’s motion, his trial was continued to a later date so that results of that examination could be made available. On November 8, 1978, pursuant to a sworn motion therefor, an order was entered ordering appellant’s return to St. Dominic Hospital “. .. for such period of time as is necessary ... to determine his sanity at the time of the commission of the alleged crime and at the present time.”

There appears in the file, the agreed exhibit on the hearing, a signed motion reciting that the psychiatrist’s report had just been received and moving for continuance. This motion is not dated and shows no filing date, and no order granting the motion . appears. There next appears an order, established as having been entered on March 28, 1979, granting a continuance because of incapacitation of defendant’s counsel for medical reasons. On July 10, 1979, he moved for an endocrinological examination, on medical advice, to determine the existence or not of a physical disability which might cause “the black out episodes during the alleged crime.” This motion was, on July 23, 1979, granted and order was entered for such examination by the University Hospital on July 30, 1979. On September 27, 1979, his attorney moved on his behalf that appellant be committed to Mississippi State Hospital for a “full and complete battery of psychological examinations.” Hearing on this motion was had on September 28, 1979, wherein no proof was offered, and the motion was denied.

The record reflects that the defendant had had a difficulty with a “girlfriend” earlier in his life, exact nature of which is not shown, resulting in his undergoing mental testing in New York. In the series of examinations, Dr. Hilsman had diagnosed his condition as being an antisocial personality, although he did recommend full psychological testing for him. There was also, in the several examinations to which he was subjected in this cause, a conclusion that he was mentally capable of undergoing trial.

His defense was based upon a “black out” on his part causing total failure to recall the tragic event. However, the record reflects that he had bound a butcher knife to his lower limb by use of elastic bands, to carry it to the bus station, that he drove to the murder scene, argued with his victim, committed the fatal act, fled the scene, returned to his dwelling place where he undertook to hurt himself seriously, and then called the police and reported his efforts at suicide. His brother was at the apartment when the police arrived, and. this brother did not testify in the case. During the trial, his telephone bill for the relevant period was put in evidence, and appearing thereon, unexplained, are three calls to Brooklyn, New York, 5:20 A.M., 12:45 P.M., and 1:04 P.M. on the day of the occurrence.

At the conclusion of the testimony, appellant’s attorney put into the record this statement:

Let the record show that counsel for the defendant represents and states to the Court on behalf of the defendant and with his agreement just received in the presence of co-counsel and Father Abram that the issue of legal insanity under the present McNaughton rule is not raised by •the defendant.

On this statement, one of the mental physicians who examined the defendant did not testify, though present and ready to be so used.

Courts in trials such as here, are, by statute and case law, committed to the requirement that mental examination be afforded the defendant to determine his ability to make defense, where such person’s mental condition is brought into question. Mississippi Code Annotated, section 99-13-11 (1972); McGinnis v. State, 241 Miss. 883, 133 So.2d 399 (1961); and Bell v. State, 360 So.2d 1206 (Miss.1978).

We conclude that the sound discretion of the trial judge was not abused in his refusal to order the further mental study of the defendant.

The appellant asserts that a confession given to a police officer as they were in an ambulance on the way to the hospital was not free, voluntary and intelligent.

The officer and the appellant were in the ambulance en route to the hospital for eight to fifteen minutes, during which time the officer gave to appellant the Miranda warning and appellant confessed to the stabbing, was crying, sorry he did it, and hoped she survived. There were not threats or abuse at all, so the officer testified, and he did not want an attorney.

Along the way, appellant asked the officer what the victim’s condition was, and he told him that she was in “bad shape.” The present error, according to appellant, arises from the fact that the officer, at the scene of the crime, had undertaken to find the victim’s pulse and could find none, and the officer did not tell him she was dead. However, the officer testified that oftentimes where there has been considerable loss of blood, a pulse may not be found and that this does not necessarily mean that the victim has expired.

It is further argued that the officer’s conversation with the appellant as to his need to get himself into a proper relation with God amounted to his taking an advantage of appellant. It is argued that this approach impaired the admissibility of the confession. The argument may be valid where applicable. The overall thrust of the officer’s testimony is that the confession took place in the ambulance on the way to the hospital, and that the spiritual consideration never arose until appellant and the officer had reached the hospital.

The appellant argues that a combination of the officer’s failure to advise him that the victim was dead and his conversation with him about getting into a right relationship with God effectually deprived the confession of the free, voluntary, and intelligent nature required of admissible confessions. We conclude that there was no misleading of the defendant as to his victim’s physical condition and that the spiritual injection took place after the confession had been given, and that these severally or together did not influence or impair the admissibility of the confession, and there was no error in its admission.

The final error argued is the court’s refusal of an instruction on “heat of passion” which, if believed by the jury, would operate to reduce the crime to manslaughter within the meaning of Mississippi Code Annotated, section 97-3-35 (1972). In addition to the argumentative nature of the instruction, we are of the view that the manslaughter theory was amply presented to the jury and that the defendant was not entitled to the instruction, nor prejudiced by its refusal.

No error having been found, we affirm the conviction and sentence.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.


source: Caselaw Access Project

author: WALKER, Justice, for the Court:

license: Public Domain

text:
    Billy Frank GEORGE v. Brenda S. GEORGE.
    No. 52177.
    Supreme Court of Mississippi.
    Nov. 12, 1980.
    Eugene A. Perrier, Travis T. Vance, Jr., Conerly & Vance, Vicksburg, for appellant.
    Lee Davis Thames, H. M. Yoste, Jr., Ramsey, Bodron, Thames & Robinson, Vicksburg, for appellee.
    Before PATTERSON, C. J., and WALKER and BROOM, JJ.
   WALKER, Justice, for the Court:

Billy Frank George appeals from a decree of the Chancery Court of Warren County granting Brenda S. George a divorce and awarding a lump sum of $10,000 as alimony, and the exclusive use and possession of their home. He assigns as error the following:

(1) The lower court erred in granting a divorce because there was no evidence that the parties had consummated a common-law marriage in Georgia; and

(2) The amount of alimony is grossly excessive and unsupported by the facts.

The record shows that the parties were lawfully married on Septembér 4, 1970, and were lawfully divorced by the Chancery Court of Jackson County on December 6, 1972. The appellant, a pipe fitter whose work requires him to travel extensively from job-to-job, subsequently moved to the State of Georgia. On July 23, 1973, the appellee joined him in Georgia, where they began to live together. It is undisputed that the appellee continued to live with Mr. George until he left her in August of 1977. During this time they lived in various states, including Georgia, Alabama, Louisiana and Mississippi. After Mr. George left the appellee, he ceremonially married another woman on September 12, 1977. The appellee filed for divorce on January 24, 1979, and the divorce was granted on July 17,1979. Mr. George appeals with superse-deas from that decree.

The appellant maintains that the evidence does not support the lower court’s finding that the parties had consummated a common-law marriage in Georgia. However, a review of the record indicates there was abundant evidence to support this finding. It is undisputed that Brenda lived with Billy George for the last five or six months in Georgia in 1973. Brenda George testified that after she joined the appellant in Georgia they slept together, ate together, traveled together, and acted in all ways as husband and wife. She testified that he told her, “Bren, we are man and wife.” Brenda’s mother, Mrs. Donna Shepherd, testified that the appellant often discussed with her the possibility of remarriage and reconciliation with Brenda. She testified that she visited them in their home in Georgia, and during one of these visits the appellant told- her he had remarried her daughter. At that time they were holding themselves out to the public as man and wife and were acting just like any man and wife. Brenda’s brother, Jerry Shepherd, testified that he stayed with Billy and Brenda George about a month while they lived in Georgia. During this time, he testified, Billy always called Brenda “my wife,” they shared the same bedroom, ate together, slept together, and traveled together. All this evidence supports the chancellor’s finding that a valid common-law marriage was contracted in the State of Georgia.

Although common-law marriages are no longer recognized in this State, Mississippi Code Annotated section 93-1-15 (1972), they are recognized in Georgia. Brown v. Brown, 234 Ga. 300, 215 So.2d 671 (1975). Further, if a valid common-law marriage was celebrated in Georgia, it will be recognized in this State. Walker v. Matthews, 191 Miss. 489, 3 So.2d 820 (1941); Bunkley & Morse, Amis on Divorce and Separation in Mississippi § 17.01(1) (1957).

The essential elements of marriage in Georgia are enumerated in Georgia Code Annotated section 53-101, as follows:

(1) The parties must be able to contract;
(2) There must be an actual contract; and
(3) There must be consummation according to law.

Concerning the first element, it is undisputed that both parties had the capacity to enter into a valid marriage contract in 1973. Similarly, there was more than sufficient evidence on the third element, consummation of the marriage; i. e., cohabitation as husband and wife. Mr. George does not dispute the sufficiency of the evidence on either of these elements. His main contention is that there was no actual contract of marriage.

This was a question of fact for the chancellor to decide, based on the conflicting testimony of the parties. Brenda testified that the appellant told her, “Bren, we are man and wife.” Appellant testified that he asked her to remarry him ceremonially, and she told him, “No, I will not marry you.”

This conflict in testimony is not surprising. Where the existence of a common-law marriage is in dispute between the parties, there will often be one party testifying to the contract and one party testifying that such a contract does not exist. In this case the chancellor had before him, in addition to the appellee’s testimony and that of her mother and brother, certain documents executed by the appellant in which he referred to Brenda as his wife. These included a warranty deed which conveyed property to the parties as husband and wife, dated May 9,1975; a promissory note and deed of trust given by the parties as husband and wife, dated July 1, 1976; a warranty deed and deed of trust by which they conveyed property as husband and wife, dated October 24, 1974; a life insurance policy signed by Mr. George listing as beneficiary Brenda George, wife, dated April 28, 1975; and an application for membership in a power association signed by the appellant, listing Brenda as his spouse, dated August 22, 1977. This evidence tends to show that Billy George held Brenda out to the public as his wife during the time they lived together in Mississippi. Standing alone, it would not prove that they entered into a common-law marriage in Georgia. But considered in conjunction with the testimony of Brenda, her mother and her brother, it clearly supports the chancellor’s finding that a valid contract of marriage existed.

The appellant has set forth several contentions in his brief which may be joined together as one single argument. He argues that the parties were only temporary residents of Georgia in 1973, and could not have consummated a common-law marriage as long as their fixed domicile remained in Mississippi. Although the appellant puts forth a plausible argument, the question has already been decided adversely to him in Walker v. Matthews, supra. The appellant’s argument ignores the basic right of all persons to choose their place of marriage. As long as they follow the requirements of the law of the state of celebration, the marriage is valid in most jurisdictions. See generally, Restatement of Law, Conflicts of Laws § 129; 52 Am.Jur.2d Marriages § 86; 55 C.J.S. Marriages § 4b.

The appellant next argues that the award of alimony was grossly excessive and unsupported by the facts. The lower court awarded the appellee alimony in the sum of $10,000, together with the added alimony in the form of the exclusive use and occupancy of their residence in Jackson County, Mississippi.

We have carefully reviewed the record in this case, and are unable to say that the amount of alimony awarded represents an abuse of judicial discretion.

Therefore, for the reasons stated above, it is our decision that the chancellor’s decree should be, and hereby is, affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ. and SUGG, BROOM, LEE, BOWLING and COFER, JJ., concur.


author: HAWTHORNE, Justice.

text:
    214 La. 831
    STATE v. DAVIS.
    No. 38968.
    Supreme Court of Louisiana.
    Jan. 10, 1949.
    Rehearing Denied Feb. 14, 1949.
    Rudolph F. Becker, Jr., of New Orleans, for appellant.
    Eugene Stanley, of New Orleans, amicus curiae.

      Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen. and Herve Raci-vitch, Dist. Atty. and Guy Johnson, 1st Asst. Dist. Atty., both of New Orleans, for appellee.
   HAWTHORNE, Justice.

About two o’clock in the afternoon of January 27, 1947, the accused, who was proceeding east on U. S. Highway 90 in a Plymouth automobile, picked up Charles McSorley, a hitchhiker, somewhere in the vicinity of the Higgins Industries plant, a few miles east of New Orleans. McSor-ley’s destination was Miami, Florida, and the defendant Davis’s avowed destination was Jacksonville, Florida. Davis stopped the car somewhere near the Louisiana-Mississippi state line and purchased some lubricating oil. Thereafter the two men continued driving east on Highway 90 for about 15 minutes, crossing into Mississippi, when the defendant informed McSorley thát he wanted to relieve himself, and suddenly turned the car off the highway and proceeded a short distance into a thickly wooded section. Upon returning to the car, Davis confronted McSorley with a .32-cali-ber automatic pistol, compelled McSorley to leave the car, robbed him, forced him to strip, shot him twice, once in the arm and once in the back, and left him prostrate and apparently lifeless.

Davis returned to the highway and turned west toward New Orleans, the direction from which he had come. Unable to find his clothes, McSorley proceeded to the highway and sat upon its edge, naked and bleeding, until he was picked up by two motorists, Robert Meyer and Franklin Parks, the operators of a traveling carnival, who were going in the direction of New Orleans.

They encountered Officer Cyril Reichert, a member of the Mississippi State Highway Patrol, who offered to clear the right of way in order that Meyer might rush McSorley into New Orleans for medical aid. After crossing into Louisiana and the Parish of Orleans, McSorley observed that the man who had shot him was in a car ■that they were passing. This information was conveyed to Officer Reichert, who made an unsuccessful attempt to block Davis’s passage. Davis fired at Officer Reichert as he sped past him, and Officer Reichert returned the fire. After a considerable chase down the highway Davis’s car finally came to a stop. In Officer Reichert’s effort to apprehend him, Davis shot the officer in the left shoulder, continued to fire until he had emptied his own gun, and then grabbed the gun from the fallen officer’s hand, and fired one more shot into him.

Meyer and Parks then grappled with Davis, who attempted to shoot Meyer also, threw him to the ground, and disarmed him, He was brought to New Orleans and taken into custody. Officer Reichert was admitted to Charity Hospital in New Orleans and treated for two gunshot wounds, one in the right side of the abdomen and the other in the left shoulder. He remained under treatment until February 5, 1947, when he died.

In due course George Davis was indicted by the Orleans Parish grand jury for the murder of Cyril Reichert, placed on trial before a jury, by the jury found guilty as charged, and by the court sentenced to death.

For reversal of the conviction and sentence, defendant through counsel relies on five bills of exception taken during the course of the trial in .the lower court and ■also on an “assignment of errors” filed in this court.

The first bill of exception was reserved to the trial court’s refusing to sustain counsel’s challenge for cause of the prospective' juror Fernand J. Dansereau, Jr. Counsel objected to the juror on the alleged grounds that he had a fixed opinion as to the guilt or innocence of the defendant and was prejudiced against him, and counsel urges that, since defendant was forced to accept this juror, having exhausted ail his peremptory challenges, he did not receive a fair and impartial trial before an impartial jury, as contemplated by the Constitution of this state and of the United States.

'Counsel strongly objects to isolated portions of the juror’s examination from which counsel concludes that the juror had formed a fixed opinion from his reading of the newspaper accounts of the crime, and that the opinion of the juror was so fixed as to the guilt of the accused that the only matter not fixed in his opinion was the punishment to be imposed.

The entire examination of this juror on his voir dire is found in the transcript. This examination discloses that the juror was not acquainted with the accused or the deceased or any member of their respective families, and that, although he had formed an opinion from his reading of the newspapers, it was not a fixed opinion or deliberately formed, but was a mere transient one and one that would yield to the evidence heard by him during the course of the trial.

Article 351 of the Code of Criminal Procedure sets forth the proper causes for which a juror may be challenged. One of these causes is that the juror is not impartial, the cause of his bias being immaterial; but an opinion as to the guilt or innocence of the accused which is not fixed or has not been deliberately formed or which would yield to evidence or could be changed does not disqualify him as a juror.

In his per curiam the trial judge states: “Mr. Dansereau’s answers to questions propounded to him on his voir dire by counsel for the state, by counsel for the defendant and by the writer convinced the writer that although Mr. Dansereau entertained an opinion as to the guilt or innocence of the accused, which he had formed from reading newspaper reports, that opinion was transient, not fixed; had not been deliberately formed; that it would not influence his verdict, and that it would yield and be changed by evidence that he would hear during the trial.”

This court has stated that it is only where a prospective juror’s opinion as to the guilt or innocence of the accused is so fixed that it would influence his verdict that he may be considered disqualified because of such opinion and challenged for cause; that, even though he has formed an opinion as to the guilt or innocence of the accused from reading the newspapers, the prospective juror is competent if, having no prejudice against the accused, he can lay aside that opinion, and that a prospective juror’s competence or incompetence cannot be determined by isolated answers given during the course of the examination but must.be judged from his entire examination. See State v. Henry, 200 La. 875, 9 So.2d 215, and cases therein cited.

The opinion of the juror in this case was founded merely upon what he had read in the newspapers, and, since he did not have a fixed opinion but one which would yield to the evidence, and since he would require the State to prove the guilt of the accused beyond a reasonable doubt, we conclude that he was not disqualified. State v. Brown, 4 La.Ann. 505; State v. Schnapper and Malone, 22 La.Ann. 43; State v. Hugel, 27 La.Ann. 375; State v. Coleman, 27 La.Ann. 691; State v. DeRance, 34 La.Ann. 186, 44 Am.Rep. 426; State v. Foster, 36 La.Ann. 877; State v. Ford et al., 37 La.Ann. 443, overruled on other grounds, State v. Kellogg, 104 La. 580, 29 So. 285; State v. Dent et al., 41 La.Ann. 1082, 7 So. 694; State v. Vogel, 49 La.Ann. 1057, 22 So. 308; State v. Hebert, 104 La. 227, 28 So. 898; State v. Howard, 120 La. 311, 45 So. 260; State v. Addison, 134 La. 642, 64 So. 497; State v-. Schuermann et al., 146 La. 110, 83 So. 426; State v. Birbiglia et al., 149 La. 4, 88 So. 533; State v. Henry, 200 La. 875, 9 So. 2d 215; State v. Frazier, 209 La. 373, 24 So.2d 620.

Considering the entire examination of the juror on his voir dire, we are of the opinion that he was fully qualified to serve as a juror, and that the trial judge-was correct in overruling defendant’s challenge for cause.

During the trial the State called as a witness Charles McSorley, the hitchhiker, who was brought into court in a wheel chair with his left arm -bandaged and his left leg extended on a support from the wheel chair and covered. Counsel for the -accused objected to the witness’s appearing before the jury in this condition and moved to declare a mistrial on the ground that his presence before the jury prejudiced the accused.. The judge overruled the objection and refused to declare a mistrial, and counsel, reserved Bill of Exception No. 2.

This bill recites that the presence of the witness prejudiced the defense for the reason that the witness was not permanently injured, had been up and walking- around from January 27, 1947, the date of the alleged offense, until some two weeks before the trial, at which time the witness had an operation on his leg to remove a piece of bone therefrom and transfer it to his left arm, and that in another 10 days or two weeks from the date of the trial his leg would have been 'healed from this operation, and he could have walked into court; that the district attorney knew at the time he fixed the . case for trial on November 17 that the witness would have to be brought into court at that time in a wheel chair, and that his presence in court in a wheel chair would create sympathy in his behalf in the eyes of the jury trying the case and would prejudice the defendant.

We have carefully examined the ■entire testimony of this witness taken in connection with, and made a part of, this bill. McSorley, in answer to a question as to the cause of his physical appearance, •stated -that he was in a wheel chair because ■of an operation performed on his arm and leg; that a piece of bone was taken from 'his leg and transferred to his left arm; •that this was necessary due to a gunshot -wound in that arm which did not héal •properly. The witness was present when the homicide for which the defendant was being tried was committed, and the fact •that he himself received serious wounds from which he had not recovered at the time of the trial in no manner disqualified bim as a witness, and there was no duty on the State to the defendant to postpone or -delay the trial until the -complete recovery •of this witness.

There is no evidence whatsoever to support counsel’s contention that, at the time the case was fixed for trial on -November 17, this date was fixed for the deliberate ■purpose of producing tfiis witness in a wheel chair to arouse the sympathy of the jury and prejudice the accused, or that the district attorney himself knew the physical ■condition of the witness in question.

It is well settled that the judge presiding over the trial of a homicide case is charged with the duty of guarding the rights of the defendant and seeing that the issues are presented to the jury in such a way that they, the jury, will not be prejudiced; that defendant is entitled to trial free of any extraneous influences which might be to the prejudice of his rights, and that it is the duty of the court to see that such extraneous influences on the jury are eliminated and are not permitted.

We are not of the opinion that the judge in the instant case failed to discharge that duty imposed upon him, for we are unable to understand how the appearance of this witness in a wheel chair prejudiced the rights of the accused, and the record does not disclose that any unfair advantage was taken by the district attorney in presenting the issues to the court and the jury.

Bill of Exception No. 3 recites that, after the close of the case—the defendant not having testified and the defense not having put any witnesses on the stand or offered any evidence—, the assistant district attorney in his argument to to the jury made the following statement:

“The argument is on this basis. The state cannot anticipate what defense is to be offered, therefore, some of our proof might not have been necessary. It is a simple explanation of the evidence. The state cannot anticipate any possible defense, and they prove their case as they see their case.”

The defendant requested the court to instruct the jury to disregard this statement or remark of the assistant district attorney and moved the court to declare a mistrial. The court refused thus to instruct the jury, and overruled counsel’s motion. This bill of exception was then reserved.

This bill does not disclose the basis of counsel’s objection to this statement of the assistant district attorney. The minutes of the court reflect that counsel contended to the trial judge that the statement was prejudicial, but the record does not disclose in what manner counsel considered the remark prejudicial, and does not disclose the reasons for his objection.

The trial judge’s per curiam to this bill in part reads thus:

“This court finds no merit in defendant’s contention that the statement complained of in any manner prejudiced the jury against the defendant, especially in view of the fact that counsel for the defendant while examining the jurors on their voir dire explained to them exhaustively that the burden of proof was on the state to make out its case against the defendant beyond any reasonable doubt in order to justify a conviction, that the defendant did not have to become a witness in his own behalf, and, also, that he was not required to offer any testimony whatever. Furthermore, the court in its general charge to the jury instructed them along the same lines as counsel, for the defendant had questioned them.
“Therefore, the court is of the opinion that i't did not err in overruling defendant’s motion for a mistrial based on the complained of remarks made to the jury by First Assistant District Attorney Guy Johnson, Esq.
“The writer is of the opinion that the law and the evidence of the case have established the guilt of the accused beyond any reasonable doubt, and he has had a fair and impartial trial.”

It is well settled that a bill of exception must state the grounds of objection and point out specifically the error complained of in order that an opportunity may be given the trial judge to correct it. If not sufficiently specific, it will not avail the party raising it. State v. Green, 36 La.Ann. 185; State v. Carroll, 160 La. 199, 106 So. 782; State v. Keife, 165 La. 47, 115 So. 363; State v. Ricks, 170 La. 507, 128 So. 293; State v. Antoine, 189 La. 619, 180 So. 465.

In argument and brief filed in this court, counsel for defendant takes the position that the remark of the assistant district attorney was made for the express purpose of doing indirectly what the law forbids doing directly, that is, that the remark was a comment on the fact that the defendant did not take the stand in his own defense.

We entertain some doubt as to the propriety of our consideration of this bill, but, inasmuch as this is a capital case, we shall resolve that doubt in favor of the defendant. We do not think, however, that there is any merit in counsel’s contention, and, although we have considered the remark of the assistant district attorney in the light most favorable to the contention of the accused, we are unable to read into it any comment on the part of the district attorney on the fact that the accused did not take the witness stand in his own defense.

In connection with this bill, the State cites the case of State v. Antoine, 189 La. 619, 622, 180 So. 465, 466, and quotes the following very pertinent language therefrom:

“The next alleged error complained of is incorporated in bill of exception No. 2, which was reserved to the overruling of defendant’s objection to the following remark of the assistant district attorney: ‘How has the defense combatted or met the case of the State?’ The basis of this bill of exception was that the statement was an indirect comment on the fact that the defendant did not take the stand.

“ ‘Unless the district attorney makes the direct statement, or the inference is plain that he intended to bring to the attention of the jury the fact that the defendant had not testified, there is no ground for complaint.’ State v. Lewis, 156 La. 985, 101 So. 386, 387, and cases therein cited. See, also, State v. Glauson, 165 La. 270, 115 So. 484. In the language of this court in the case of State v. Lewis, supra, ‘We find nothing in the language complained of violative of either the letter or the spirit of the law. An accused may through different sources, other than by taking the stand himself, establish a defense or offer extenuating circumstances in mitigation of the crime charged.’

“We conclude that the language complained of here cannot be fairly construed to refer to the failure of the defendant to testify, nor does it tend to create any presumption -against him for his failure to do so.”

The State urges also that there is no law in this state either in the Constitution or in the statutes which sanctions the rule that the district attorney and the judge must not discuss or comment on the defendant’s failure to testify. In support of this contention the State has presented to the court a most interesting and lucid discussion of the historical basis for the rule in England and its evolution in this country, and a logical argument for the contention that the rule does not exist in this state. However, inasmuch as we consider that the statement of the assistant district attorney was not a comment on the failure of the accused to testify, we do not decide the case on the basis of this contention.

Counsel for defendant filed a motion for a new trial, which was overruled by the court, and Bill No. 4 was reserved. Since the motion for a new trial merely reiterates the errors complained of in Bills Nos. 1, 2, and 3, it is unnecessary for us to discuss Bill No. 4.

Bill No. 5, taken to the overruling by the trial court of defendant’s motion in arrest of judgment, presents for our consideration two questions.

The first question is whether the lower court committed reversible error in failing to name Dr. C. Grenes Cole, coroner for the Parish of Orleans, as a member of the lunacy commission appointed to examine into the mental status of the defendant as of the date of the alleged offense.

Under Article 267 of the Code of Criminal Procedure, as amended, whenever on a prosecution by indictment or information the existence of insanity or mental defect on the part of the defendant at the time of the alleged commission of the offense charged becomes an issue in the cause, the court may appoint one or more disinterested physicians, not exceeding three, to examine the defendant. Should the court make such appointment, the coroner of the parish shall be one of the phyicians appointed. Should it appear, however, that the coroner is disqualified by reason of interest or is unable to serve for any other reason, the court may appoint some other disinterested physician to serve in his place.

Defendant contends that under the provisions of this article it is the mandatory duty of the judge to appoint the coroner a member of the lunacy commission.

The facts and circumstances giving -rise to this contention are these: On March 26, 1947, the defendant through his attorney filed an application for the appointment of a lunacy commission to examine into the mental condition of the defendant as to present insanity and also as to insanity at the time of the alleged offense. The lower court overruled that part of the application for the appointment of a lunacy commission to examine into the present mental status of the defendant, but granted that part of the application for a lunacy commission to examine into the mental status of the defendant at the time of the alleged offense. As members of this commission the court appointed Dr. C. S. Hol-brook and Dr. H. R. Unsworth. This commission so appointed in due course, on August 4, 1947, filed its report, finding the accused sane and responsible on the date of the commission of the alleged offense. The case was then set for trial on the merits for November 17, 1947.

On this question as presented in this bill, the trial judge has this to say in his per curiam:

“The second [first] ground on which the motion in arrest of judgment is based is the fact that when the court appointed a lunacy commission to examine into the mental status of the accused at the time he allegedly committed the crime charged in the indictment it appointed Doctor C. S. Holbrook and Doctor H. R. Unsworth and did not appoint Doctor C. Grenes Cole coroner of the Parish of Orleans.
“The court pretermits its reasons, (except as it may be implied from what is stated hereunder), for not appointing the Coroner of the Parish of Orleans on the lunacy commission, because the defendant’s objection comes too late after trial and verdict. He did not raise the issue of insanity at the trial. Furthermore, when the court appointed Doctor C. S. Holbrook and Doctor H. R. Unsworth on the commission, counsel for defendant, although notified by the court, acquiesced thereto, because Doctor C. Grenes Cole, the Coroner of the Parish of Orleans, had previously expressed an opinion adverse to the accused as to his mental status.”

Article 267 of the Code of Criminal Procedure, as amended, makes it plain that, if the coroner is disqualified by reason of interest or is unable to serve for any other reason, the court may appoint some other .disinterested physician to serve in his place. Certainly this provision, when construed with the provision relied upon by counsel to the effect that the coroner shall be a member of such commission, gives the trial judge some discretion in appointing the personnel of the commission, and there is no abuse of this discretion on the part of the trial judge in the instant case, since, prior to the appointment of the commission, the coroner had expressed an opinion adverse to the accused as to his mental status.

Furthermore, the question of insanity at the time of the commission of the alleged offense, being a question for the jury to determine, was not raised during the trial before the jury and was not an issue in the case, the defendant apparently accepting the report of the commission finding him sane, as he did not urge insanity as a matter of defense.

Since we have concluded that the trial judge did not abuse his discretion in appointing the members of this lunacy commission, it is unnecessary for us to discuss the question of whether defendant’s objection raised by this motion in arrest of judgment comes too late — that is, after trial and verdict.

We now come to the second question presented in defendant’s motion in arrest of judgment. Before the filing of his application for the appointment of a lunacy commission, the defendant with permission of the court withdrew his plea of not guilty, and thereafter was never re-arraigned. He contends that, since he was placed on trial without rearraignment, the verdict rendered by the jury is illegal, null, and void, and should be set aside.

The trial judge’s per curiam answers defendant’s contention thus:

“Defendant’s allegation that he was not rearraigned is true, but the failure to formally arraign a defendant .can not be questioned after he has announced his readiness for trial and the case has proceeded to verdict. Section 3 of Act No. 31 of 1926; State v. Jacobs, 195 La. 281 [196 So. 347]; State v. Broussard, 202 La. 458 [12 So.2d 218].
“When the accused was called for trial, he announced his readiness through his counsel, and the trial proceeded to its termination by verdict without objection as to arraignment.
“Therefore, the court finds no merit in defendant’s contention that the trial has been invalidated because he was not re-arraigned.”

The authorities cited by the trial judge support his ruling.

In State v. Jacobs, 195 La. 281, 196 So. 347, 349, this court said:

“Error No. 1 assigned by the defendant is to die effect that the defendant was arraigned without the benefit of counsel. The copy of the minutes in the record shows the defendant went to trial without objection. After the defendant announced his readiness for trial the failure to formally arraign him cannot be questioned. Article 637, Louisiana Code of Criminal Procedure.”

From State v. Broussard, 202 La. 458, 12 So.2d 218, 221, we quote the following:

“The last Bill of Exceptions was reserved to the overruling of the defendant’s motion in arrest of judgment, the basis of which is that the defendant was never re-arraigned after he withdrew his plea of not guilty in order to file a motion to quash the indictment.
“The legislature changed the rule of law ‘The conviction and sentence must be set aside, where defendant was never rear-raigned, after being permitted to withdraw his plea for the purpose of moving to quash the information; no issue having been joined’ * * * by its adoption of Act No. 31 of 1926. The provisions of this act are that ‘in all criminal cases arising under state laws and parish ordinances the defendant shall be entitled to a formal arraignment, which shall consist in reading to said defendant the indictment, information or affidavit and the ascertaining of his plea; provided that in no case shall more than one arraignment he necessary’ (Section 1), and that ‘a failure to formally arraign such a defendant shall not be questioned after he has announced his readiness for trial.’ (Section 3.) (Italics ours.)
"Since the enactment of this legislation, the legislature has adopted a Code of Criminal Procedure. Therein it is provided that the ‘defendant must plead when arraigned; and if he refuse, or stand mute, the plea of not guilty shall be entered for him’ (Article 255), but that ‘if the defendant voluntarily enters upon the trial without arraignment it shall be considered as if he had pleaded not guilty’ (Article 256).”

The trial judge’s overruling of the motion in arrest was correct.

The assignment of errors filed in this court reiterates the objections embodied in the various bills of exception, all of which we have heretofore discussed, and raises only one new issue, that is, “That the Trial Judge in his charge to the Jury, did not charge the Jury, upon the law of ‘Attempted Murder, Attempted Manslaughter, or Attempted Negligent Homicide’

So far as the record shows, no bill of exception was reserved or objection made to the charge to the jury given by the trial judge. Article 391 of the Code of Criminal Procedure provides that every objection to the charge given or to a refusal to charge as requested shall be by means of a bill of exception reserved before the jury shall have retired to deliberate upon its verdict, and that the bill of exception shall be accompanied by such a statement of facts as shall show the error in the charge given or in the refusal to charge as requested.

In State v. Stracner, 190 La. 457, 182 So. 571, 576, the defendant, although he had failed to request certain charges of the judge and had failed to except to the omission of the trial judge to give such charges, filed an assignment of error in this court after the transcript was lodged here, in which he complained of the charge as given. This court refused to consider the assignment of error, and, after quoting Article 391 of the Code of Criminal Procedure, said:

“This rule was in effect prior to the adoption of the Code of Criminal Procedure. The reason for the rule is that it is not considered proper that the defendant should be permitted to sit idly by while the judge is making an erroneous charge to the jury, take his chances upon the verdict, and, if against him, then by assignment of error or motion in arrest take advantage of it. State v. Daleo, 179 La. 516, 154 So. 437.
“As the judge’s charge is not a part of the record, an assignment of error relating to the charge cannot be considered on appeal, since an assignment of error must be based on errors patent on the face of the record. Code Cr.Proc. art. 560; State v. Daleo, supra. For these reasons the court cannot consider the assignment of error.”

In State v. Daleo, 179 La. 516, 154 So. 437, 441, the defendant also filed in this court an assignment of errors relating to the judge’s charge to the jury. In that case we stated:

“Within due time, after the filing of the transcript of appeal in this court, defendant filed an assignment of errors. These errors all relate to the judge’s charge. As the judge’s charge is not a part of the record, the assignment of errors does not reach it, for an assignment of errors, like a motion in arrest of judgment, must be based on errors patent on the face of the record. Code Cr.Proc. art. 560.”

The transcript as filed in this court did not contain the lower court’s charge to the jury. After the order of appeal had been granted and the transcript lodged here, appellant filed a motion in the district court and, over the opposition of the State, obtained the following order: “It is ordered by the court that the Honorable Edward A. Haggerty, clerk of the Criminal District Court for the Parish of Orleans, or one of his deputies, make and file with the Supreme Court of Louisiana, (if that court permits it), three certified copies of the charge I delivered to the jury at the trial of the accused George Davis.” Pursuant to this order, the judge’s charge to the jury was filed in this court on September 22, 1948.

The State argues that we cannot consider this charge in connection with the assignment of errors for the reason that the lower court was without jurisdiction to render such an order under Article 545 of the Code of Criminal Procedure, which provides that, after an appeal has been granted, no further action in the case can be taken by the trial judge, provided that as to matters ministerial or not in controversy the trial court may render interlocutory orders and definitive judgments, and under the rule of this court in State v. Brown, 214 La. 18, 36 So.2d 624, in which we held that this court could not consider the judge’s per curiams to various bills of exception taken in that case for .the reason that the per curiams were not filed by the district judge until after he had granted to the defendant the order of suspensive appeal, the basis of this ruling being that the lower court lost jurisdiction of the case and could take no further action therein after the order of appeal had been granted.

The argument of the State may be perfectly sound and meritorious, but as to this it is unnecessary for us to decide. The law of this state is well settled that, even though the charge itself is in the record or transcript, any objection thereto cannot be considered by this court not made at the time the charge was given and before the jury retires to deliberate upon its verdict. State v. Bradford, 167 La. 827, 120 So. 382; State v. Henderson, 168 La. 487, 122 So. 591; State v. Abeny, 168 La. 1135, 123 So. 807; State v. Louviere, 169 La. 109, 124 So. 188; State v. Ricks, 170 La. 507, 128 So. 293; State v. Johnson, 171 La. 95, 129 So. 684. The contention set forth in the assignment of errors in the case at bar is therefore without merit.

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

O’NIELL, C. J., not participating.


author: McCALEB, Justice. PONDER, Justice MOISE, Justice FOURNET, Justice

text:
    214 La. 856
    BLESSING v. LEVY.
    No. 39296.
    Supreme Court of Louisiana.
    Feb. 14, 1949.

      Rivet & Blum and Chas. J. Rivet, all of New Orleans, for appellant.
    Henry B. Curtis, George Piazza, Robert A. Ainsworth and Fishman & Reuter, all of New Orleans, for plaintiff and appellee.
   McCALEB, Justice.

Appellant was elected in 1940 to one of the judgeships of the Juvenile Court for the Parish of Orleans for the term beginning January 1, 1941, and ending December 31, 1948. Under Section 96 of Article VII of the Constitution, as amended by Act No. 322 of 1944, appellant’s successor was required to be elected at the Congressional election fixed by law on Tuesday November 2nd 1948. Accordingly, the Orleans Parish Democratic Committee, acting under the State Primary law, Act No. 46 of 1940, met and ordered a primary election for the office of Judge of the Juvenile Court, fixing August 31st 1948 as the date on which said primary would be held.

Appellant, appellee and another qualified as candidates for the nomination to the juvenile judgeship at the Democratic Primary election held on August 31st 1948. Appellee received a plurality of the votes cast in the election and appellant was second in the tabulations. As a consequence, a second primary was ordered. In that primary, appellee received a substantial majority of the votes and was, in due course, certified as the nominee of the Democratic party. Thereafter, at the Congressional election held on November 2nd 1948, he was elected without opposition fGr a term of eight years beginning January 1st, 1949, as successor to appellant.

Following the promulgation of the election returns by the Secretary of State, the Governor, on December 3, 1948, issued a commission to appellee and, on December 13, 1948, appellee qualified for the judgeship by taking the oath prescribed by law.

Prior to January 1, 1949, appellant indicated her intention to retain possession of the office to which appellee was elected by filing an injunction suit in which she claimed title. She secured a restraining order and, while the matter was pending, appellee, proceeding under Act No. 39 of 1873, Dart’s Statutes, Sections 2849 through 2852, instituted the instant summary action for recognition of his title and for a permanent injunction restraining appellant from performing the functions of the office. Appellant resisted the demand on two grounds:

(1) That appellee’s election was a nullity because the people had adopted, on the same day on which the election was held, a Constitutional amendment extending her term of office for eight years from the date said amendment became effective, and

(2) In the alternative, that appellee is ineligible to hold the office as he has not been practicing law in the State during the period required by the Constitution.

After a hearing in the District Court, there was judgment in appellee’s favor recognizing the validity of his title to the office but denying to him injunctive relief. Hence this appeal, which appellee has answered seeking an amendment to the judgment by the issuance of the injunction prayed for.

The first proposition depended on by appellant is that appellee’s election was nullified by the adoption of Act No. 513 of 1948, amending Section 96 of Article VII of the Constitution. The pertinent portions of the amendment read as follows :

“There shall be a Juvenile Court for the Parish of Orleans * * *.
“There shall be two judges of the Juvenile Court for the Parish of Orleans * * *. The terms of office of said judges shall be eight years. * * * The successors to the judges of said court in office at the time of the final adoption of this amendment to the Constitution shall be elected at the respective nearest Congressional elections preceding the expiration of the respective terms of office of such judges.”

It is argued on behalf of appellant that,, •since this amendment became a part of the Constitution on December 10, 1948, (after its adoption by the people at the elections on November 2, 1948), it necessarily invalidated appellee’s election and extended appellant’s term for eight years from the-effective date because the words “shall be,”' as used throughout the amendment, refer exclusively to future action. Thus, it is. said that the provision that the successors to the judges of the Court in office at the time of the final adoption of the amendment “shall be elected at the respective nearest Congressional elections preceding the expiration of the respective terms of office of said judges” can be construed only to mean that appellant has been given another eight years in office, as she was-in office at the time of the final adoption of the amendment; that the term of her office was fixed therein at eight years and that the nearest Congressional election preceding the expiration of her term refers-necessarily to an election in the future, or eight years hence in her case.

The argument'does not impress us. While it is the general rule that a Constitution should operate prospectively, this-doctrine is inapplicable where a consideration of the legislation as a whole makes it clear that such a result was not intended. In the instant case, appellant would make it appe'ar, by employing a prospective construction, that the people have extended the terms of the juvenile judges for the Parish of Orleans for a period of eight years dating from the adoption of the amendment. This contention overlooks, and ignores the purpose for which the amendment was proposed. The reason why the Legislature of 1948 enacted Act No. 513 was to (1) extend the jurisdiction of the court to include capital offenders, under fifteen years of age; .(2) specify the qualifications of the judges of the court; (3) change the jurisdiction of the Supreme Court on appeals from the Juvenile Court in certain cases and (4) grant to this court the right to assign judges or lawyers to sit on the Juvenile Court when one or more of the judges are unable to hold court for any cause. In accomplishing this aim, the Legislature made specific 'provisions for the foregoing changes and merely reenacted the other provisions, relative to the number of judges, their salaries and the choosing of their successors, in exactly the same language as that contained in the section as it stood prior to the amendment. See Section 96 of Article VII of the Constitution, as amended by Act No. 322 of 1944 and compare with Act No. 513 of 1948.

Consequently, by the simple process of applying the fundamental rule of statutory construction stated in Article 18 of the Civil Code, it is manifest that the Legislature did not, in proposing Act No. 513 of 1948, intend to submit to the people a proposition to extend appellant’s term for eight years — or for any period at all. To hold otherwise would be to permit the niceties of grammar to override the intention of the Legislature and attribute to the people motives which did not exist, as it hardly can be said that the voters could have fathomed, from a reading of the act, that they were extending the term of office of the Juvenile Judges. Indeed, adoption of appellant’s construction would result in unseemly and absurd consequences — a construction to be always avoided. State v. Wiltz, 11 La.Ann. 439; State v. Caldwell, 170 La. 851, 129 So. 368.

The next contention of appellant is that appellee is ineligible to hold the office of Judge of the Juvenile Court because he, allegedly, does not possess the constitutional qualifications for said office in that he has not practiced law in the State for a period of five years.

Before we are able to consider this contention, we must first determine whether appellant has a right to question appellee’s eligibility for the office — -for, counsel for appellee timely objected to the admission of any evidence respecting appellee’s qualifications on the ground that the Court, in a proceeding of this sort, is concerned only with title to the office. The judge overruled the objection, being of the opinion that appellant had a right to assail appel-lee’s eligibility under the authority of State ex rel. Williams v. Cage, 196 La. 341, 199 So. 209.

We think that the judge erred in his ruling. Act No. 39 of 1873, under which this suit is brought, is an intrusion into office statute and the jurisprudence relative to ouster proceedings is applicable thereto. It is well settled that the only issue determinable in proceedings under the intrusion into office laws, Revised Statutes §§ 2593-2597, Act 102 of 1928, Dart’s Statutes, Sections 7712-7716, is title to the office and, under Act No. 39 of 1873, whenever the plaintiff offers his commission in evidence, “such commission shall be prima facie proof of the right of such person to immediately hold and exercise such office.”

In State v. Miltenberger, 33 La.Ann. 263, from which we quoted with approval in State ex rel. Williams v. Cage, supra, the Court, in discussing the issue involved under the intrusion into office statutes, observed :

“In a proceeding under the same act, by the State, on the relation of an ‘interested person’, the first inquiry is: Has the relator a muniment of title to the office held by the defendant? If he have, the court passes at the threshold upon its sufficiency and effect; and if it establish a prima facie right to the office, the next inquiry is into the right of tenure of the defendant; * *

Applying this rule to the instant case, it will be at once seen that appellee made out a prima facie case when he offered in evidence his commission signed by the Governor, which was issued as a result of his election by the people on November 2nd 1948. Since we have found that Act No. 513 of 1948, amending Section 96 of Article VII of the Constitution, did not extend appellant’s term of office and thus nullify appellee’s election and the commission issued to him by the Governor, it follows that the legality of the election and the commission cannot be seriously disputed. Hence, forasmuch as we hold that appel-lee’s muniment of title establishes in him a prima facie right to the office, our next inquiry is into appellant’s right of tenure. Since her term has expired, appellant can only claim as a hold over under Section 6 of Article XIX, providing:

“All officers, State, municipal and parochial, except in case of impeachment or suspension, shall continue to discharge the duties of their offices u'ntil their successors shall have been inducted into office.”

Her title, under the above quoted section, is, of course, inferior to appellee’s title as he is her successor and the presentation by him of his commission is adequate authority to displace appellant unless it be that she has the right to inject into this litigation her contention respecting his ineligibility to hold the office, as distinguished from his legal title thereto.

We think that appellant, holding merely until her successor presents a valid title to the office, is wholly without right to question appellee’s qualifications to hold the office. Reverting again to State v. Milten-berger, supra, where the Court found that title to the office was the only question determinable in an intrusion into office suit, it was declared:

“The law, as found in those sections, (Revised Statutes §§ 2593 and 2597) has already been subjected to legal analysis, and has received a judicial construction which establishes that' in a proceeding under it the courts are mithotot authority to go beyond an examination of the titles set up by the contestants to the office in controversy; and that the only power which they can exercise is to decide which, if any, of the litigants has a legal title to the office.” (Words in parenthesis and italics ours.)

See also, Collin v. Knoblock, 25 La.Ann. 263; State ex rel. Bonner v. Lynch, 25 La.Ann. 267 and State v. Dietlein, 2 La.App. 572.

Accordingly, we conclude that any matter respecting appellant’s eligibility to hold the office is foreign to this proceeding. An examination of our decision in State ex rel. Williams v. Cage, supra, will disclose that there is nothing contained therein which can be construed to sustain the ruling of the court below or, for that matter, that is. in anywise discordant with the views herein expressed. There, it appeared that Judge Cage, having reached the age of 80 years,, notified the Governor that he was compelled to retire under the mandatory provisions of the Constitution. On the date of the judge’s eightieth birthday, a little more than a year of his unexpired term still remained so that, under the provisions of Section 69 of Article VII of the Constitution, the Governor was required to call a special election to fill the vacancy. Instead of doing this, the Governor waited until less than a year had yet to run before the expiration of the judge’s term and appointed Williams to fill the vacancy. When Williams presented his commission to Judge Cage, who was retaining his office under the provisions of Section 6 of Article XIX of the Constitution, the Judge refused to surrender repossession taking the position that,, since the unexpired term of his office was more than one year at the time he reached eighty, the Governor was without right or authority to appoint his successor. In other words, Judge Cage contended that Williams’ commission was illegal. In this court, Williams maintained that Judge Cage was without right to defend possession of the office for the reason that the hold over provision was inapplicable to a judge compulsorily retired by reason of his age. This contention was rejected, our ruling being that Section 6 of Article XIX of the Constitution was applicable and that respondent “had the right to defend against this suit the possession of the office which he held, and hence to challenge the authority which the Governor assumed in appointing a successor to Judge Cage.” [196 La. 341, 199 So. 212] (Emphasis ours.)

In State ex rel. Williams v. Cage the respondent, as a hold over under Section 6 of Article XIX of the Constitution, was assailing the validity of the relator’s title. In this case, appellant, in the same position, is challenging appellee’s eligibility to occupy the office. This she cannot do as the inquiry in ouster proceedings is restricted to a consideration of title.

It is apt to observe that, if appellant believed that appellee was ineligible to hold the office of Judge of the Juvenile Court, she could have tested his qualifications before the Parish Committee and the courts under Section 28 of Act No. 46 of 1940, the Primary Law. Having elected not to ■exert this right, her belated complaint cannot now be entertained as appellee presents a perfect lega-l title to the office.

We are also of the opinion that the judge erred in refusing to grant a .permanent injunction to appellee, which was prayed for in his petition. The decree will '•be accordingly amended to this extent.

The judgment appealed from is supplemented to the extent that appellee is hereby ■granted an injunction forbidding appellant from performing the functions of the •office of Judge of the Juvenile Court for the Parish of Orleans and from interfering in ■any manner with the exercise of those functions 'by appellee. As thus amended, the judgment appealed from is affirmed at appellant’s costs.

■O’NIELL, C. J., does not take part.

PONDER, Justice

(concurring).

I concur in the decree affirming the judgment of the district court. I am of the opinion that there is no manifest error in the findings of the lower court.

MOISE, Justice

(concurring).

Our constitutional framers endeavored to •organize a government where the source of all power was reposed in the people. The legal principle of agency was invoked. The people were the principals and the three departments of government, the executive, the legislative and the judicial branches, the agents. A recent election was held in this municipality for a juvenile court judge. The successful candidate was to be an agent of the people to preside over and render justice in that court to the best of his or her ability and understanding. The source of all governmental power, the qualified electors, approved the power of attorney for Leo B. Blessing as judge of the Juvenile Court. They rejected the candidacy of the relatrix. In due course, the returns of the election were promulgated, Leo B. Blessing was declared elected to this office, a commission was issued to him and he qualified as a juvenile court judge by taking the oath of office. The relatrix having lost the battle of ballots now petitions the court. She declares that by the adoption of the recent constitutional amendment that the term of the Juvenile Court judge has been extended eight years- and further that the present commissioned and qualified judge is disqualified by the Constitution because he has not practiced law for five years.

The first ground of complaint is apparent on its face- — there was no extension of the term of relatrix’ office for eight years and this has no merit. The next ground is of disqualification by reason of the constitutional provision referred to above. The relatrix alleges that respondent is disqualified. She seeks the process of injunction to restrain the respondent from presiding over the Juvenile Court. She has offered no evidence to prove the disqualification. We have the testimony of the respondent. It is in the record and it remains unim-peached. The district judge dignified that evidence by holding that the respondent as an attorney had practiced law for five years. Argument has been made in this court upon the term used in the Constitution “practicing law.” What constitutes the “practice of law”? If this court knows what every layman knows, then this court should have knowledge. There are two types of practicing lawyers: Those who confine their activities to the trial of cases in the courts; the others, to activities entirely within their offices. The latter may never appear in court, although they are in ■the true sense of the word “practicing lawyers.” The Constitution .did not prohibit Mr. Blessing from being either the. one or the other type, and we take it that the rule of right requires a liberal interpretation of the terms “practicing law” and the rule of wrong would be a limitation to the practice by appearances in the courts. All men have a different standard of natural justice. That is why the Constitution has provided that this court be composed of seven members and it is the belief that a more exact rule of justice can best be obtained by the expression of the will of the majority of the members of this court. From my own standard of natural justice and considering’ all of the factors, all of the evidence, and the entire record herein, and further considering that respondent is holding a valid commission on its face as a judge of the Juvenile Court, I believe that his disqualification under the Constitution provision should be made by proof so clearly and so conclusively that there is no doubt of his lack of qualification.

For these reasons and with respect, I concur in the decree.

FOURNET, Justice

(concurring in part and dissenting in part).

While I concur in the construction the majority opinion places on Section 96 of Article VII of the Constitution of 1921, as amended in the general election of 1948 pursuant to Act No. 513 of 1948, I cannot subscribe to that portion of the majority opinion holding the trial judge erred in ruling the incumbent judge, Mrs. Levy, had a right to question Blessing’s eligibility to and qualification for office under the holding of this court in the case of State ex rel. Williams v. Cage, 196 La. 341, 199 So. 209

As po-inted out in the majority opinion, Mrs. Levy failed to receive the nomination for the office she had been holding since January 1, 1941 — Judge of the Juvenile Court for the Parish of Orleans — in the Democratic primary election held on August 31, 1948, one of her opponents, the plaintiff here, receiving this nomination in a second primary and being elected without opposition in the general election held on November 2, 1948. However, under the express provisions of Section 6 of Article XIX of the Constitution of 1921, Mrs. Levy was obligated to. continue to discharge the duties of that office until her successor was inducted into office. And this court, in the case of State ex rel. Williams v. Cage, supra, where Williams, as does the plaintiff here, held a commission from the Govern- or and sought to oust Cage through a quo warranto or intrusion into office suit contending that Cage under -this section and the authority of State ex rel. Ford v. Milten-berger, 33 La.Ann. 263 (which is the basis for the decision in the majority opinion), was without right to contest the commission held by Williams from the Governor, with the learned Chief Justice as the organ of the court, disposed of this issue as follows [196 La. 341, 199 So. 211]:

“The appellant contends first that the holdover clause, which is Section 6, in Article XIX of the Constitution, is not applicable to a vacancy caused by the retirement of a judge, under the provisions of Section 8' of Article VII of the Constitution. Hence-the appellant contends that Judge Cage had no right to question the legality of the appointment made by the Governor, as evidenced by the commission held by the appellant. He cites the case of State ex rel. Ford v. Miltenberger, 33 La.Ann. 263, where it was held that an individual who brought suit under the intrusion-into-office statute was obliged to exhibit an apparently valid muniment of -title, such as a -commission from the Governor; otherwise he could not inquire into the authority -by which the defendant holds the office. The converse of the proposition, of course, is that if the plaintiff or relator in such a case exhibits an apparently valid muniment of title, such as a commission from the Governor, the defendant must show his right to remain in office until a rightful successor demands possession of the office. When the defendant in such a case makes such a showing he has the right to inquire into the legality of the muniment of title exhibited by the plaintiff or relator, — even though it be a commission from the Governor,— and to require the plaintiff or relator to establish his right to be inducted into office.” (Italics mine.)

If I should entertain any doubt as to just what the court meant to say by the foregoing, I have only to read further into the opinion where the holding is stated in these words:

“Our opinion is that Judge Cage had the right to continue to discharge the duties of his office while he was awaiting its being claimed by his successor. He had the right therefore to question the authority of anyone who might claim to be his successor. In Section 6 of Article XIX of the Constitution there are only two exceptions to the rule- that every public officer at the end of his tenure shall continue to discharge the duties of his office until his successor is inducted into office. The only exceptions are ■cases of impeachment or suspension.” (Italics mine.)

The very act under which the plaintiff has brought his action, Act No. 39 of 1873, makes a commission from the Governor for the office of a judge of any of the •courts of this state, either through appointment or election, only prima fácie proof of the right of such person to hold and exercise such office. Of necessity, prima facie ■does not mean conclusive proof. And inasmuch as one of the constitutional qualifications for the office of a judge of the Juvenile Court for the Parish of Orleans is that in addition to being learned in the law the candidate “shall have practiced law in the State of Louisiana five years previous to their election,” article 7, § 33, it was not ■only Judge Levy’s right to continue in office until a duly qualified successor was •elected and inducted into office, but it was also her right and duty to remain in office and to refuse to relinquish it until one so qualified and elected was inducted into office.

For these reasons I respectfully dissent.

       The pertinent provision declares “« * * The successors to the judges of said court in office at the time of the final adoption of this amendment to the Constitution shall be elected at the respective nearest Congressional elections preceding the expiration of the respective terms of office of such judges.”

       This statute provides a special summary remedy to persons claiming to have been appointed or elected to the office of Judge of any court of this State and declares that, in cases where he has been commissioned, “such commission shall be prima facie proof of the right of such person to immediately hold and exercise such office.” It further provides that a rule to show cause shall issue returnable within 24 hours; that an appeal may be taken within three days from the rendition of the judgment and shall be made returnable within five days; that the case shall be taken up on appeal by preference over all other cases and that the judgment thereon shall become final after expiration of two legal days.

       “The universal and most effectual way of discovering the true meaning of a law, when its expressions are dubious, is by considering the reason and spirit of it, or the cause which induced the Legislature to enact it.”


author: TALIAFERRO, Judge.

text:
    A. J. HODGES INDUSTRIES, Inc. v. FOBBS.
    No. 7281.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 21, 1949.

      Makar & Murphy, of Natchitoches, for appellant.
    Fraser & Fraser, of Many, for appellee.
   TALIAFERRO, Judge.

This is a petitory action wherein plaintiff alleged that it is the owner of the North One-Half (N 1/2) of the Southeast Quarter (SE 1/4), Section 26, Township 4 North, Range 13 West, in Sabine Parish, and that the defendant, Mary Fobbs, widow of M. A. Fobbs, deceased, was in the actual, physical possession of seventy (70) acres of the tract. It is further alleged that defendant in so possessing the land, was a trespasser thereupon and that she has refused to surrender possession thereof to plaintiff, although having been requested to do so. Plaintiff prayed for judgment recognizing its title and ownership to the land, and ordering defendant to vacate same and deliver possession thereof to it.

Defendant, although personally served with process, did not answer. Issue was joined by default, which, after legal delays, was confirmed and judgment signed as prayed for by plaintiff. After the lapse of over three months, a writ issued under said judgment whereby the Sheriff was commanded to eject defendant from the land and to place plaintiff in possession thereof. A few days after issuance of the writ, defendant appealed devolutively to this court. Here, she has filed an exception, the gravamen of which we quote, to wit: "That plaintiff’s petition and proof submitted therewith as shown by the record herein disclose neither a cause nor a right of action in that title to the property involved herein is not adequately proved to sustain a petitory action.”

This exception, as appears on its face, is directed not only against the efficacy of the petition to disclose a right of action, but also against the adequacy of the proof submitted to sustain the action.

The petition’s allegations meet the indispensable requirements for a petitory action. It is affirmatively declared therein that plaintiff owns the land; that it acquired the same from A. J. Hodges, et al., on December 31, 1945, by deed recorded in Conveyance Record Book No. 91, page 504 of the official records of Sabine Parish; that defendant is in the physical possession of seventy (70) acres of the tract as a trespasser. Evidently, these allegations of fact are well founded since defendant did not controvert them by answer, nor does she in this court deny them.

There was no note of evidence made when the default was confirmed. We infer that appellant pins her hope for reversal of the judgment upon the fact that there is not in the record any documentary or other evidence, if such were introduced.

The minute entry of the proceedings had when the judgment was rendered and signed, reads as follows: “Case taken up and tried on confirmation of default. Evidence adduced and closed and judgment rendered in favor of plaintiff as prayed for, see decree, which was read, signed and filed.”

The preamble of the judgment reads is follows: “In this case the preliminary default herein entered not having been set aside the case was taken up on confirmation of default and the law and the evidence being in favor thereof:”

Plaintiff in a petitory action must make out his title. Code of Practice, Article No. 44. This sort of proof is required in all cases. Code of Practice, Article No. 312.

Preliminary default is a tacit join-der of issue and is equivalent to general denial or answer denying specifically each material allegation. Russo v. Aucoin et al., La.App., 7 So.2d 744-750.

It goes without saying that the trial judge was cognizant of these fundamental principles and observed them as a condition precedent to rendition of the judgment. While the judgment does not state that plaintiff made “due and full proof” of its demand, the equivalent, “the law and evidence being in favor” of the decree that followed is incorporated therein.

The recitals of a judgment rendered in the confirmation of a default are presumed to be correct and to have had as their basis legal and sufficient evidence before the court. See: Southern Athletic Club v. Foster et al., 1 La.App. 310; Goldman v. Thomson, 3 La.App. 469; Donaldson v. Sheridan 11 La.App. 498, 124 So. 193; State v. Nicol, et al., 30 La.Ann. 628; Succession of Moore, 42 La.Ann. 332, 7 So. 561; Durke and Broussard v. Crane, 112 La. 156, 36 So. 306; Henry Rose Mercantile & Mfg. Company, Ltd., v. Stearns, et al., 155 La. 696-698, 99 So. 533.

In Succession of Moore, supra, the court expressly held as appears from paragraph two of the syllabi, as follows [42 La.Ann. 332, 7 So. 561] : “Parties are neither required to have their evidence reduced to writing, nor to see to it that a note is made of the evidence which is introduced.”

When judgment has been rendered in a case, whether issue is joined by answer or default, and no note of the evidence was made at time of trial, the case being appeal-able, the party aggrieved and who desires to appeal is not entirely at the mercy of his adversary on that account. Articles 602 and 603 of the Code of Practice clearly point the way to be pursued in such a case, in order to present to the appellate court the evidence upon which the trial judge acted. Article 602 directs that the parties to the suit prepare and sign a statement of proven fact for use in appeal, and, if they cannot agree, the party desiring the appeal may resort to Article 603, which directs that upon application of such person the trial judge shall prepare such a statement and when this is done it will be considered by the appellate court in disposing of the case.

Again, in the Succession of Moore, supra, on the discussed subject, the court said:

“The record furnishes no solution of the question. It contains no bill of exceptions, and no note of evidence offered on the trial. The original record appears annexed to the transcript of appeal. * * *
“The whole case is before us, and we must take cognizance of the record as we find it, and decide the issues presented. We must assume that the judge a quo had before him sufficient evidence to justify his undertaking to decide them, and intelligently, to do so.
“This rule was approved by us, in Nugent v. Stark, 34 La.Ann. 628, and by our predecessors in numerous cases.”

Whether or not the proof adduced by the plaintiff herein was sufficient in legal effect to sustain the action instituted by it, we are not in a position to say. The trial judge held that it was sufficient. There is nothing before us to warrant disagreement with him in this regard. A presumption, as announced by a long line of decisions, supports the correctness of his action. Appellant has had her day in court. If she has lost any right herein it is due to her own laches for which she alone is to blame.

In brief, appellant’s counsel cites and relies upon Whalen v. Davis, 200 La. 1066, 9 So.2d 424, wherein it was held that adverse possession is a necessary part of plaintiff’s case in a petitory action even though judgment be rendered on default. There can be no issue as to the soundness of this statement, but in the present case there is no evidence to dispute the correctness of the allegation of adverse possession by defendant; but, on the contrary, the presumption is that there was before the court a quo evidence to support the allegation on this phase of the case.

For the reasons herein assigned, the judgment from which appealed, is affirmed, with costs.