author: JANVIER, Judge..

text:
    SINGER LUMBER CO., Inc. v. KING et al.
    No. 19329.
    Court of Appeal of Louisiana. Orleans.
    April 10, 1950.
    Manuel I. Fisher, New Orleans, for plaintiff and appellee.
    Sydney J. Parlongue, New Orleans, for defendants and appellants.
   JANVIER, Judge..

The only question remaining in this case is whether the plaintiff corporation is entitled to a lien and privilege on the property of the- defendants, Mr. and Mrs. Edson M. Kruger. The amount of the indebtedness and the personal liability for the indebtedness are both conceded.

The facts are not complicated. Mr. and Mrs. Kruger own the premises described as 1519-21 Pryt'ania Street, in New Orleans. In March, 1948, they decided to make repairs or' alterations, and, to this end, entered into a verbal contract with Gilbert King, a contractor. Though the contract price was $2100.00,, the contract was not reduced to writing, no -recordation of it was made in the office of the Recorder of Mortgages for the Parish of Orleans, and no bond was required from the contractor.

Tbe contractor," King, purchased certain lumber, millwork and other materials and supplies from plaintiff corporation, which admittedly were delivered on the premises to be used in the performance of the work. The last delivery of material, made by plaintiff, was on April 8th, 1948.' Work was commenced, but the job'was not completed, the record establishing the fact that no work whatever was done on the job after the “first week in April”, 1948. On September: 3rd, 1948, á lien was duly recorded" by plaintiff corporation in the office cf the Recorder of Mortgages for the Parish of Orleans in M.O.B. 1683, at folio 370. The acco'unt was never paid, and this suit is the result.

The amount claimed .in the petition was $695.53. 'Personal judgment for that amount was prayed for against the contractor, Gilbert King, and also- against Mr. and Mrs. Kruger, and plaintiff also prayed that its lien and privilege be recognized and enforced and, if necessary, that the property be sold and that out of the proceeds the claim of plaintiff be paid by preference and priority over all other persons.-

There was judgment for plaintiff for $642.60 against Mr. and Mrs. Kruger, and the lien of plaintiff was recognized and ordered enforced. The- suit as against the contractor, King, was dismissed without prejudice, since it appeared that no proper service of citation- had been made on King.'

' Mr. and Mrs. Kruger admit the correctness' of the -amount awarded and the correctness of the judgment as against them personally, but they appealed from the judgment insofar as it recognizes the lien of plaintiff.

- The sole contention of - the • defendants is that whatever right plaintiff may have had to a lien was lost by its failure to record its lien within sixty days from the time at which work on the building was abandoned.'

Plaintiff contends that since the work was never completed the lien was recorded well, within the time limit fixed by the pertinent statute; that where there is a right to a lien the recordation may be made at any time prior to -the. expiration of sixty days from the acceptance of the work when-there is a contract, and within sixty days of the completion of the work where the owner himself undertakes it- without contract.

In a determination of this question there is involved an interpretation of certain provisions of Act 298 of 1926, which, it is conceded, is the pertinent statute. There is a very comprehensive discussion of that statute in National Homestead Ass’n v. Graham, 176 La. 1062, 147 So. 348, 351. The portion of that decision which is interesting here is that in which Section 12 is interpreted. That section reads as follows: “When the owner, or his authorized agent, undertakes the work of construction, improvement, repair, erection, or reconstruction, for the account of the said owner, for which no contract has been entered into, or when a contract has been entered into but has not -been recorded, as and when required by this act, then any person furnishing service or.material or performing any labor on said building - or other work may record in the office of the Clerk of Court or Recorder of Mortgages in the parish in -which said work is 'being done or has been done a copy of his estimate or an affidavit of his claim or any other writing evidencing.same, which recordation, if done within sixty days after the daté of the last delivery of all material upon said property or the last performance of all services or labor upon the same, by said furnisher of material or said laborer, shall create a lien and privilege upon the building or other structure and upon the land upon which it is situated, in favor of any such person who shall have performed service or labor ■or delivered material in connection with the said work of improvement, as his interest may appear. Said lien and privilege, recorded as aforesaid, shall constitute a lien and privilege, against the said property for a period of one year from the date of its filing, unless interrupted by judicial proceeding, during which judicial proceeding said prescription shall not run. * * *

The above section was not affected by the amendment of the statute as a whole which resulted from Act 323 of 1938.

In the Graham case the owner, instead of •employing a contractor and recording his contract and bond, undertook to do the work himself and to purchase the necessary materials and to employ the necessary carpenters and other craftsmen. There arose the question of when, under these circumstances, liens must be recorded.- It was contended that a furnisher of material must record his lien within sixty days of date ■of the last delivery by him and that a carpenter or other craftsman must record his lien within sixty days of the lhst day on which he -performs services. The Supreme Court refused to accept this interpretation and said1: “ * * * We do not so construe the language of the act. We construe it to mean that the claim must be filed and recorded within 60 days after the last labor is performed on or last material is furnished for the building by any one. In other words, if the claim is filed within 60 days after the final completion of the building, it is in time, even though the laborer or furnisher of material did not file his claim within 60 days after he performed his last labor or furnished his last material on the building.”

To indicate without any possible misunderstanding as to what the Court meant, it repeated its conclusion in the following language: “In the case at bar, some of the claims were not filed within 60 days after the last labor was performed and the last material furnished by the particular claimants, but were filed within 60 days after the building was completed, and it therefore becomes necessary to decide the .question. We now do so, and hold that .under section 12, Act. No. 298 of 1926, the. filing and recording of claims .within 60 days after the final completion of a building or other structure creates a lien on the building or structure and on the grounds, regardless of,the date on which the last .labor was performed or last material furnished' by the particular claimant.”

Counsel for defendants maintains -that while the above-stated rule is applicable to the situation presented in that case, the-situation is different where the building is never completed and- work is . abandoned, and counsel declares that, where. there is an abandonment, the sixty-day period, for the recording of liens should commence to run- from the day on which the owner definitely decides that he will not go further with the contemplated work. Counsel says that very shortly after April 1st, the defendants ‘ found it impossible to locate the contractor and, therefore, being unable to prevail upon him tó proceed with the work, they decided to abandon the'project and that the sixty-day period for the filing of liens began to run as soon as they reached the conclusion that they would abandon the work;

It is very true that there seems to, be nothing in the statute which fixes the time within which the. sixty-day period shall commence to run when the owner himself undertakes the work, but there are in the decision of the Supreme Court in the Graham case expressions to which counsel for defendants points which, he says, are at least suggestive that the time of the last delivery is of importance in such situation as is presented here. He argues from this that, where there is an abandonment, the time for the filing of liens commences to run from the moment of definite abandonment.

In the Graham case the Court, referring to the situation in which the owner himself undertakes the work, said: “When the work is done by the owner, he is the contractor. The work is completed when the last material is furnished and the last labor is performed. 'That date corresponds to the date of acceptance when the work is done by contract.”

We are, however, not concerned with the question of when to commence the sixty-day period when the work is completed. Our problem is when to commence the sixty-day period when the work is never completed and the job is abandoned. The District Judge decided that even if it should be properly held that where there is an actual abandonment and the owner decides not to have the work continued, the sixty-day period commences at the time the owner so decides, nevertheless the lien filed by the plaintiff here was not filed too late because long after the discontinuance of the actual work on the project and, in fact, until well within the period of sixty days before-the lien was' filed, the owners had not abandoned the . project and were still hoping to be able to have the contractor recommence operations.

We are not at all certain as to when the sixty-day period should commence when there is an actual definite abandonment of the job. We find it difficult to persuade ourselves that in such a case the beginning of the sixty-day period may be fixed by any mental determination of the owner. The statute, as interpreted by the Supreme Court, declares that where there is a contract, the materialmen and the laborers and others shall have sixty days from -the acceptance of the work within which to file their liens, and that where there is no contract, they shall have sixty days from the completion of the work. A prospective lienor, thereforé, need only watch the job to see when'the work is completed since he knows that after it is completed he will still have sixty days within which to record his lien. So long as it is not completed, he knows that he still has ample time. How can he determine when the owner has agreed to an abandonment? How can he know that the time for the filing of his lien is running out? He. will see that the work, in its- incomplete state, is still unfinished and yet when he records his claim he will be told that more than sixty days before that the owner decided that he would go no further with the work and that, therefore, he has lost his lien.

Still if we assume that such result may be accomplished by the mere mental determination of the owner that the work is abandoned, we must nevertheless agree with our brother of the District Court that at the time this lien was filed there had not expired sixty days from the time at which the defendants still hoped to be able to persuade the contractor to proceed with the work. We agree with the District Judge that the evidence of the defendants themselves shows that they had not given up hope and had not abandoned the project until well within the period of sixty-days prior to the filing of the lien.

The property which is involved is described in the petition and in the judgment.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be and it is affirmed, at the cost of appellants.

Affirmed.


source: Caselaw Access Project

author: HAWTHORNE, Justice;

license: Public Domain

text:
    216 La. 994
    RANSOME et al. v. POLICE JURY OF PARISH OF JEFFERSON.
    No. 39134.
    Supreme Court of Louisiana.
    Feb. 13, 1950.
    Rehearing Denied March 20, 1950.
    John E. Fleury, Gretna, Willis C. McDonald, New Orleans, for defendant-appellant.
    Louis H. Marrero, III, Marrero, for plaintiffs-appellees.
   HAWTHORNE, Justice;

On May 14, 1947, the ..Police Jury of the Parish of Jefferson, acting under and by virtue of the authority of Article 14, Section 29(a), of the Constitution of this state, created a residential district designated as “Residential District No. 1 of the Parish of Jefferson, State of Louisiana”. The ordinance establishing this residential district was submitted for . approval to the resident property taxpayers of the district at an election held for that purpose on June 17, 1947. On June 18 the police jury met for the purpose 'of canvassing and counting the ballots cast at the special election, and ascertained that the ordinance had been approved unanimously both in number of votes and in amount of property assessment. The results of the election were duly promulgated in a newspaper published in the parish.

On August 20, 1947, plaintiffs, Clyde Ransome and Ernest E. Moise, as owners of Lot L of the Kostmayer Subdivision in the Parish of Jefferson, situated within Residential District No. 1 of that' parish, instituted this suit against the police jury seeking to have the police jury ordinance, the election, and the canvassing and the promulgation of the returns thereof -can-celled, recalled, annulled, and vacated in-' sofar as they affected plaintiffs’ property, for the reason that they were inoperative, unconstitutional, null, and void because they constituted a taking of petitioners’ property without due process of law, contrary to Article 1, Section 2, of the Constitution of this state and the Fifth and Fourteenth Amendments of the Federal Constitution, and also because action thereunder would constitute an impairment of the obligation of contracts, contrary to Article 4, Section 15, of the Constitution of this state and Article 1, Section 10, of the Constitution of the United States, and, further, because the zoning ordinance would be retroactive if applied to petitioners? property. The district court rendered judgment for plaintiffs as prayed for, and the police jury has appealed.

The record discloses that these plaintiffs acquired Lot L on April 24, 1947, prior to the effective date of the zoning ordinance, and shortly after its acquisition commenced the construction of a building thereon to be used for commercial purposes, that is, as a "seafood establishment”. On May 2, 1947, while this building was under construction and was more than half completed, an injunction suit was filed against these plaintiffs by,Ernest J. Holloway, a resident of the subdivision in which plaintiffs’ lot is located. Plaintiff’s cause of action in that suit was that the defendants therein were violating restrictions as to the use of property contained in various deeds to plaintiff and other persons of property in the subdivision. A temporary restraining order was granted enjoining the defendants from continuing with the construction of the building. In that suit the rule nisi was fixed for trial for May 12, 1947, and, according to the allegations of plaintiffs’ petition in the instant suit, at the request of Holloway’s attorneys the trial was continued from time to time and was finally had on July 1, 1947. The district court rendered judgment enjoining and restraining defendants therein from continuing with the construction of their building, and defendants in that suit, plaintiffs herein, appealed devolutively to this court. On December 9, 1949, the judgment of the district court was reversed, and plaintiff’s suit was dismissed. See Holloway v. Ransome et al., No. 38,726 on the docket of this court, 216 La. 317, 43 So.2d 673.

Further, according to the allegations of plaintiffs’ petition, it was on the petition of Holloway and other property owners in the Kostmayer Subdivision that the' Police Jury of the Parish of Jefferson on May 14, 1947, adopted the ordinance creating Residential District No. 1, which is here under attack. This ordinance was adopted while the injunction suit instituted by Holloway was pending in the lower court, and plaintiffs herein further allege that they would have completed the construction of the building which they intended to use as a commercial establishment on or about May 12, 1947, or prior to the adoption and the effective date of the ordinance, had they not been enjoined from continuing with its construction because of the suit instituted by Holloway.

The ordinance creating Residential District No. 1 of the Parish of Jefferson provides in Section 3: “That when the creation of the said Residential District shall have been approved by the resident property taxpayers in said district at an election held for that purpose, by majority in number and amount of property assessment, that the creation of said Residential District shall become final and effective, and thereafter the establishment of places of business in the said Residential District shall be and the same are [¿r] hereby prohibited.” (Italics ours.)

Since this section of the ordinance prohibits the establishment of places of business in the residential district only after the effective date of the ordinance itself, the prohibition against the establishment of a place of business in the district is prospective and not retroactive. Plaintiffs-appellees do not contend or allege that they had established their business prior to the effective date of the ordinance, nor is there any allegation ox proof that the police jury or any other person has threatened or attempted to enforce the provisions of this ordinance against them. Under the provisions of the ordinance, if they had actually established their business prior to its effective date, the prohibition contained therein against the establishment of businesses in such residential district would not apply to them.

By Article 14, Section 29(a), of the Constitution of this state, the Police Jury of the Parish of Jefferson is authorized, in the manner set forth therein, to create residential, commercial, and industrial districts and to prohibit the establishment of places of business in residential districts, and the exercise of the authority so granted, in a proper manner, by the adoption of an ordinance thereunder in no way deprives one of property without due process of law in violation of the Constitutions of this state and of the United States. That the exercise of such authority does not violate the due process of law clauses of the state and Federal Constitutions is well settled in the jurisprudence of this state. See State ex rel. Manhein v. Harrison et al., 164 La. 564, 114 So. 159, and authorities therein cited, State ex rel. Civello v. City of New Orleans, 154 La. 271, 97 So. 440, 33 A.L.R. 260; State ex rel. Giangrosso v. City of New Orleans, 159 La. 1016, 106 So. 549; State ex rel. Palma v. City of New Orleans et al., 161 La. 1103, 109 So. 916; State ex rel. Roberts v. City of New Orleans, 162 La. 202, 110 So. 201; Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016. See also Sampere v. City of New Orleans, 166 La. 776, 117 So. 827, affirmed 279 U.S. 812, 49 S.Ct. 262, 73 L.Ed. 971; State ex rel. Dema Realty Co. v. McDonald et al., 168 La. 172, 121 So. 613, certiorari denied 280 U.S. 556, 50 S.Ct. 16, 74 L.Ed. 612; State ex rel. Shaver v. Mayor and Councilmen, Town of Coushatta, La.App., 196 So. 388.

The deed under which plaintiffs purchased the property contained a statement that: “Property can be used for commercial, no restrictions in title.” It is their contention that under this provision of their contract of purchase their vendor warranted that the property could be used for commercial purposes, and that the zoning ordinance of the police jury constitutes an impairment of what they term this obligation of their contract of purchase and is therefore unconstitutional, being in violation of Article 4, Section 15, of the Constitution of this state, and Article 1, Section 10, of the Constitution of the United States.

There is no merit in this contention. The provision which we have quoted from the deed is nothing more than a declaration on the part of the vendor that on the date of purchase there existed no legal impediment against the use of the property for commercial purposes, and cannot possibly be construed as a warranty that the property would at no time in the future be zoned by the police jury under constitutional authority permitting such zoning. Certainly the vendor in the deed did not obligate himself to prevent the police jury from exercising its police power in zoning property. Moreover, it is well settled that everyone holds his property subject at all times to every valid exercise of the police power, and the adoption of such -an ordinance, pursuant to the authority of the Constitution, is undoubtedly a valid exercise of the police power. See Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 26, 25 S.Ct. 302, 358, 49 L.Ed. 639, 643, 3 Ann.Cas. 765; State ex rel. Manhein v. Harrison, supra; City of Shreveport v. Kansas City, S. & G. Ry. Co., 167 La. 771, 120 So. 290, 62 A.L.R. 1512; City of Shreveport v. Kansas City Southern Ry. Co., 193 La. 277, 190 So. 404; State ex rel. Fitzmaurice v. Clay, 208 La. 443, 23 So.2d 177; Cochran v. Preston, 108 Md. 220, 70 A. 113, 23 L.R.A.,N.S., 1163, 129 Am.St.Rep. 432, 15 Ann.Cas. 1048; 2700 Irving Park Bldg. Corp. v. City of Chicago, 395 Ill. 138, 69 N.E.2d 827; Metzenbaum, The Law of Zoning (1930) 54.

For the reasons assigned, the judgment appealed from is reversed, and it is ordered that plaintiffs’ suit be dismissed at their costs.


author: HAWTHORNE, Justice. HAMITER, Justice

text:
    216 La. 1003
    STATE v. BROADNAX.
    No. 39697.
    Supreme Court of Louisiana.
    Feb. 13, 1950.
    Rehearing Denied March 20, 1950.

      G. Wray Gill and Eugene Stanley, New Orleans, for defendant-appellant.
    Bolivar E. Kemp, Jr., Atty. General, M. E. Culligan, Asst. Atty. General, Herve Racivitch, District Atty., Robert E. Le-Corgne, Jr., Asst. District Atty., New Orleans, for appellee.
   HAWTHORNE, Justice.

It was charged in a bill of information that the defendant, Joseph Broadnax, “did wilfully and unlawfully possess , and have under his control, a narcotic drag, to wit: six (6) capsules of heroin, a compound derivative, mixture and preparation, containing opium”, which crime is denounced by Section 2 of Act No. 14 of the Second Extra Session of 1934, as amended by Section 2 of Act No. 416 of 1948, the Uniform' Narcotic Drug Act. The defendant was placed on trial before a jury, which in due course returned the following verdict:

“New-Orleans, La., May 31, 1949. Guilty of Attempted Possession.
“(sgd) Alex. S. Allain, Foreman”

Following this conviction the defendant was sentenced to serve a term of two and one-half year's at hard labor in the state penitentiary. From this conviction and sentence he has appealed.

The section of the act which defendant is charged with violating reads as follows : “It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug, or to be or become an addict as defined in subsection 21 of Section 1 of this Act, except as provided in this Act.”

The exceptions apply to physicians, veterinarians, dentists, and other persons named therein who may lawfully manufacture, possess, or sell narcotics under the terms and provisions as set forth in the act itself. The accused makes no defense t-hat he comes within any of the exceptions set forth in the act, and it is well settled that an information or indictment does not have to allege that an accused does, not come within the exceptions, for Article 228 of the Code of Criminal Procedure provides that it is no objection to an indictment that it does not aver that the accused was not embraced within the terms-of the proviso of the statute creating the offense; that what comes by way of proviso or exception in a statute must be urged by way of defense. Moreover, the act itself provides in Section 18 that in any indictment or proceeding brought under its provisions, it shall not be necessary to negative any exceptions contained in the act, and that the burden of proof of any such exception shall be upon the defendant. •

Defendant contends that the verdict returned by the jury is a legal nullity on its face and plainly shows that the jury rendered a meaningless verdict when it found the defendant “Guilty of Attempted Possession”, as there is no such crime known to the laws of this state.

Under the provisions of the Code of Criminal Procedure of this state, a verdict of a jury may be delivered orally or in writing. See Arts. 400, 401, La.Code Cr.Proc. Article 402 provides that, if the verdict is incorrect in form or not responsive to the indictment, the judge shall refuse to receive it and shall remand the jury with oral instructions as to what verdicts are permissible and as to proper form. Article 405 provides that the verdict must be responsive to the indictment, that is to say, that no one can be found guilty of an offense not charged in the indictment or not necessarily included in the offense charged, and that no verdict can be of any effect if found upon an indictment so defective as to charge no crime.

The bill of information charging the defendant with possession of narcotics in this case has numerous endorsements thereon, among these being the verdict heretofore quoted.

There are certain well recognized rules of construction to be used in determining whether a verdict returned by a jury is so obscure, uncertain, and meaningless as to be invalid.

Bishop, in Bishop’s New Criminal Procedure (4th ed. 1895) sec. 1005a, p. 636, states the following as a guide for interpreting verdicts: “The language of the verdict, being that of ‘lay people’, need not follow the strict rules of pleading, or be otherwise technical. Whatever conveys the idea to the common understanding will suffice. And all fair intendments will he made to support it. * * *”

In 53 Am.Jur., “Trial”, sec. 1036, p. 716, we find the following: “Because in-artificial expressions and words are sóme-times employed in framing a verdict, the first object in the construction of a verdict is to learn the intent of the jury, and when this can be ascertained, such effect should be given to the verdict,. consistent with legal principles and construing it as a whole, as will most nearly conform to the intent. The jury’s intent is to be arrived at by regarding the verdict liberally, with all reasonable intendments in its support and with the sole view of ascertaining the meaning of the jury, and not under the technical rules of construction which are applicable to pleadings. In the interpretation of an ambiguous verdict, the court may make use of anything in the proceedings that serves to show with certainty what the jury intended, and for this purpose, reference may be had, for example, to the pleadings, the evidence, the admissions of the parties, the instructions, or the forms of verdict submitted.” (All italics ours.)

The same work continues in sec. 1050, p. 727: “ * * * every reasonable construction should be adopted for the purpose of working the verdict into form so as to make it serve. Further, if, by refers ence to the record, any uncertainty in the verdict can be explained, it is sufficient to sustain the appropriate judgment.”

The rule is stated in 23 C.J.S., Criminal Law, § 1398, page 1077, in the following language:

“The verdict should be expressed in plain and intelligible words, so that its meaning may be understood readily by the court in giving judgment thereon. The verdict should be sufficiently definite, certain, and specific to identify the crime. Where the verdict is so indefinite and uncertain as to be unintelligible, it is invalid.
“However, a strict adherence to the statutory form of verdict usually is not required; and although the verdict is informal or contains inaccuracies in the language used, if the intention of the jury to return a verdict of guilty or not guilty of the offense charged may be understood readily, it is sufficient; any words which convey beyond a reasonable doubt the meaning and intention of the jury are sufficient.
“A verdict will not be void for uncertainty if its meaning can be determined by reference to the record, as by reference to the indictment or information, or to the evidence and charge of the court.”

And, further, in § 1409, p. 1107, it is stated:

“In construing a verdict the object is to arrive at tile intention of the jury, and when this can be ascertained, if it is consistent with legal principles, such effect should be given to their finding as will conform to the intent.
“In arriving at the intention of the jury the verdict should receive a liberal rather than a strict construction. The verdict is not to be construed as strictly as a pleading, but is to have a reasonable 'intendment and construction. It should 'be construed with reference to the pleadings, and it should be construed with reference to the evidence, instructions, the proceedings at the trial, the forms of verdict submitted, and to the entire record; and if, when so construed; it is definite and clearly expresses the intention of the jury and is otherwise legal, technical objections or mere inaccuracies of expression will not render it void. If the intention of the jury can be ascertained with reasonable certainty, the verdict will be sustained.”

The appellate courts of this country have recognized, accepted, and followed these rules, as evidenced by the following decisions: Blackshare v. State, 94 Ark. 548, 128 S.W. 549, 140 Am.St.Rep. 144; Yarborough v. State, 94 Fla. 143, 114 So. 237; Barnhill v. State, Fla., 41 So.2d 329; Arnold v. State, 51 Ga. 144; Warren v. State, 12 Ga.App. 695, 78 S.E. 202; People v. Schmidt, 364 Ill. 313, 4 N.E.2d 382; People v. Bailey, 391 Ill. 149, 62 N.E.2d 796; People v. Jensen, 392 Ill. 72, 64 N.E.2d 1; State v. Doolittle, 153 Kan. 608, 113 P.2d 94; Hunn v. Commonwealth, 143 Ky. 143, 136 S.W. 144; State v. Lovitt, 243 Mo. 510, 147 S.W. 484; State v. Polich, 70 Mont. 523, 226 P. 519; Ex parte Booth, 39 Nev. 183, 154 P. 933, L.R.A. 1916F, 960; State v. Cody, 224 N.C. 470, 31 S.E.2d 445; Fowler v. State, 26 Okl. Cr. 170, 223 P. 206; Smith v. State, 83 Okl.Cr. 392, 177 P.2d 523; State v. Setsor, 61 Or. 90, 119 P. 346; Bray v. State, 140 Tex.Cr.R. 3, 143 S.W.2d 593; Henderson v. Commonwealth, 98 Va. 794, 34 S.E. 881; State v. Domanski, 9 Wash.2d 519, 115 P.2d 729.

In Blackshare v. State, 94 Ark. 548, 128 S.W. 549, 551, the Supreme Court of Arkansas expressed the rule thus: “In a criminal case the verdict should be construed with reference to the indictment or information and the entire record, and, if when so construed it is definite and clearly expresses the manifest intention of the jury and is otherwise legal, mere inaccuracies of expression will not render the verdict void.”

•The Supreme Court of Illinois in People v. Bailey, 391 Ill. 149, 62 N.E.2d 796, 789, said: “The test in determining the sufficiency of a verdict and the judgment of conviction based thereon is whether or not the intention of the jury can be ascertained with reasonable certainty. Verdicts are to be liberally construed and all reasonable in-tendments indulged in their support. A verdict is not to be held insufficient unless from necessity there is doubt as to its meaning; and in determining the meaning the entire record will be searched and all parts of the record interpreted together. * *

We find the following language in State v. Lovitt, 243 Mo. 510, 147 S.W. 484, 487: “In determining the sufficiency of a verdict, the controlling object is to learn the intent of the jury; and, if such intent may be ascertained and the verdict made definite and certain by reference to the pleadings and instructions, it will be sustained, ‘and all reasonable presumptions are indulged to sustain the verdict * * ”

In Bray v. State, 140 Tex.Cr.R. 3, 143 S.W.2d 593, 596, the court quoted the following from Texas Jurisprudence as the law applicable to the construction of verdicts in that state:

"In construing a verdict the main object is to ascertain the intention of the jury. * * * All reasonable presumptions and intendments are made in order to sustain the verdict; * * *. Indeed it has been said that a verdict should not be set aside unless it is so defective and uncertain that the court cannot know for what offense to pass judgment.
"The verdict may and should be construed in connection with the indictment or information and the charge of the court, especially where the intention of the jury would not otherwise be clear. It is said that it must always be presumed that in expressing their findings the jury have reference to th? 'charge of the court, unless they also state something which shows that such was not their intention.”

In Henderson v. Commonwealth, 98 Va. 794, 34 S.E. 881, 882, it was stated: “ * * * A verdict of a jury in a criminal case must always be read in connection with the indictment, and if it be certain, %pon reading them together, what is the meaning, of the verdict, it is sufficiently, certain. * * * ”

In Warren v. State, 12 Ga.App. 695, 78 S.E. 202, the syllibi by the court show that the accused was charged with the offense of larceny from the house. The jury returned the verdict: .“We, the jury, find the defendant not guilty as charged in the hill of indictment, but guilty of an.attempt to commit larceny.” The. contention .apparently was made that the verdict Was uncertain because it was impossible to ascertain from it what crime the jury had found' the defendant guilty of attempting to commit— whether larceny from the house or simple larceny. The court held: “Verdicts must not 'be avoided, unless from necessity; and, giving to this verdict a reasonable construction, the jury intended to find the. accused guilty of- an. attempt to commit the crime charged in the accusation, to wit, larceny from the house, and not an attempt to commit simple larceny.!’

It is true that in some cases decided by this court convictions have been reversed due to the phraseology used in the verdict or to incorrect spelling of words therein. In doing so this court used a very strict and highly technical approach in determining the sufficiency of the verdict, and disregarded the rule that the main object or purpose in such case is to determine with reasonable certainty the intention of the jury, and, after so determining, to ascertain whether or not the verdict is responsive to the indictment in that by the verdict the defendant is found guilty of the offense charged in the indictment or of one necessarily included in the offense charged. In some cases, however, this court has recognized the general rule as set out herein-above. For instance, in State v. O’Leary, 50 La.Ann. 641, 23 So. 885, 886, this court stated: “ * * * The verdicts of juries, as it is put by one of the leading text writers, are framed by laymen; need not be couched in technical form; any words that convey the idea to the common understanding will he deemed adequate; and all fair intendments , will be made to support the verdict. 1 Bishop Criminal Procedure, § 1005. * * * ”

And again, in State v. Ritchie, 172 La. 942, 136 So. 11, 15, we said: “* * * It [is] not necessary that a verdict be written in the exact language of the statute. It is valid if words of similar import are used, and the meaning and intent of the jury is clear. * * * ”

In all criminal cases the verdict should be expressed in plain and intelligible words, whether returned orally or in writing, so that its meaning' may be understood readily by the court in rendering judgment thereon, must be responsive to the indictment, and must operate'as a bar'to any other prosécution for. the same offense. If the verdict is not responsive or is incorrect in form, the trial judge should refuse to receive it and should remand the jury‘with oral instructions as to what verdicts are permissible and as to .proper form. Art. 402, La.Code Cr.Proc. In this state there is no statutory form for a verdict of the jury, although certain -verdicts have been made responsive to certain .charges. Art. 386, La.Code.Cr. Proc., as last amended by Act No. 161 of 1948. In the absence of any such statutory form, what is meant by the words “correct or proper in form” in the articles of, the Code of Criminal Procedure is that the language used by the jury in returning the verdict should disclose the intention of the jury with reasonable certainty; but, if any uncertainty exists in the language actually used, the first object of the appellate court in construing the verdict is to ascertain with reasonable certainty the intention of the' jury, which intent may be ascertained or arrived at by reference to the indictment or information and the charge of the court.

The following expression from 53 Am. Jur., “Trial”, sec. 1035, p. 716, referring to sufficiency of the form of the verdict, is pertinent here: “In the absence of some express provision of the practice statutes or the governing rules of practice prescribing the form of the general verdict to be returned, there is no hard and fast rule governing such form. The, responsibility of returning a true verdict rests with the jury, and it is a matter of accommodation, and not a legal requirement, that the trial judge supply the jury with the proper forms in any given case. Any words which convey the meaning and intention of the fury are usually deemed to he sufficient. So long as the verdict manifests the intention and findings of the jury upon the issues submitted to them, it will not be overthrown because of defects of form merely. * * *»

In the instant case defendant is charged in the bill of information with willfully and unlawfully possessing and having under his control a narcotic drug, to-wit, six capsules of heroin, a compound derivative, mixture, and preparation containing opium. The endorsement on this bill of information discloses that the jury found the accused guilty of “Attempted possession”. Under these circumstances there is not any doubt that the verdict, as returned, when considered with the information and by reference to it — the charge of the judge is not in the record — , establishes beyond doubt that it was the intention of the jury to find the accused guilty of attempted unlawful possession of a narcotic drug, to-wit, six capsules of heroin, and the verdict was therefore sufficient in form, within the meaning of the rule here-inabove set out and discussed.

Moreover, we are of the opinion that the verdict returned in the instant case is responsive,to the charge contained in the bill of information.

Article 27 of the Criminal Code provides:

“Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances,-he would have actually accomplished his purpose.
* * * * * *
“An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt. * * * ”

Article 7 of the Criminal Code states: “A crime is that conduct which is defined as criminal in this Code, or in other acts of the legislature, or in the constitution of this state.”

The crime charged against the defendant is found in an act of the Legislature other than the Code, Section 2 of Act No. 14 of the Second Extra Session of 1934, as amended by Section 2 of Act No. 416 of 1948, and clearly comes within the terms and provisions of Article 27, the “attempt” article. The 1934 act, as amended, makes it unlawful for any person to possess a narcotic drug, and Article 27 makes it unlawful for any person to attempt such possession. By the provisions of Article 27, an attempt is made a separate but lesser grade of the intended crime, and that this article is broad enough to include the crime charged in this case is evidenced by the penal provisions of Article 27, as follows: “Whoever attempts to commit any crime shall be punished as follows * * *.” ' The punishment is then set out where the offense is punishable by death or life imprisonment, etc., and, in Paragraph 3 it is provided: "In all other cases he shall be fined or imprisoned, or both, in the same manner as for the offense attempted, but such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.”

This court has previously pointed out that the comments to the various articles of the Criminal 'Code, printed as footnotes, have legislative sanction, and that it is appropriate and proper to take into consideration these comments in endeavoring to interpret and construe the provisions of the articles found therein. See State v. Davis, 208 La. 954, 977, 23 So.2d 801.

Under. Article 27 (the attempt article) we find the 1 following comments:

“Louisiana statutes covered: Before the adoption of the Criminal Code Louisiana had no general statute punishing all attempts to commit crimes.
* $ * * * ' *
“Scope: The article is in accord with the general common law concept of attempt. An attempt to commit any crime is an offense whether the offense attempted be a felony or merely a misdemeanor. * * * ”

These comments further support us in our view that Article 27 is broad enough to include attempted possession of a narcotic drug, and that such a verdict is responsive to the charge in the bill of information. Article 27, when read with the comments, clearly shows that it was the intention of the redactors and the Legislature for its provisions to be of a general nature, punishing all attempts to commit any crimes.

Counsel for defendant argue and contend that Article 27 is not applicable in the instant case, for the reason that Section 17 of the Uniform Narcotic Drug Act, the act under which defendant was prosecuted, makes it an offense to obtain or attempt to obtain a narcotic drug under certain circumstances, and that for this reason it was not the intention of the authors of the Criminal Code that the attempt article of that Code should be applicable to the offense here charged. Section 17 does make it an offense to obtain or attempt to obtain a narcotic drug by fraud, deceit, misrepresentation, or subterfuge, or by forgery, alteration of prescription or any written order, or by the concealing of any material fact, or.by the use of a false name or the giving of a false address, etc. It was clearly the intention of the Legislature to denounce the acts set forth in Section 17 as crimes separate and distinct from, and not connected with, the offense denounced in Section 2 of the act dealing with unlawful possession of such drugs. What Section 17 denounces is the obtaining or attempting to obtain a narcotic drug under color of authority or by fraud or deceit. We do not agree that Section 17 shows any intention of the redactors of the Code to exclude Section 2 of the Uniform Narcotic Drug Act from the application of Article 27.

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

HAMITER, Justice

(dissenting).

The verdict returned in the instant case is not, in my opinion, responsive to the charge contained in the bill of information. The offense of attempted possession of a narcotic drug may be committed only under circumstances (they are not present here) described in Section 17 of the Uniform Narcotic Drug Act. Any other unsuccessful effort to obtain the drug would constitute mere preparation, not an attempt, under the specific recitals of Article 27 of the Louisiana Criminal Code.

I respectfully dissent.


author: McCALEB, Justice.

text:
    216 La. 1023
    LIBERTY FARMS, Inc. v. MILLER et al.
    No. 39269.
    Supreme Court of Louisiana.
    Feb. 13, 1950.
    Rehearing Denied March 20, 1950.

      Frank W. Summers, Richard J. Putnam, Walter B. Gordy, Jr., -Abbeville, for defendant-appellant Dr. Preston J. Miller.
    Harold Moses, New Orleans, for defendant-appellee The Federal Intermediate Credit Bank of New Orleans.
    Kibbe & Bailey, Abbeville, Monroe & Lemann, Walter J. Suthon, Jr., New Orleans, for plaintiff and appellee Liberty Farms, Inc.
   McCALEB, Justice.

This case presents for determination the ownership of an undivided one-half of the minerals in and under certain lands, located in Vermillion Parish, which were acquired by defendant, Dr. Miller, from plaintiff by warranty deed on January 25th 1941. Plaintiff, as claimant of the one-half mineral interest, instituted the action for Miller’s alleged slander of its title, the aver-ments of the petition being allegedly supported by four conveyances, upon the construction of which the decision of the case depends. In addition to Miller, Federal Intermediate Credit Bank of New Orleans was joined as a party defendant. The allegations of the petition, taken in conjunction with the exhibits attached thereto, enfold the following facts and circumstances.

Plaintiff, Liberty Farms, Inc., a domestic corporation domiciled in Acadia Parish, was the owner of a number of large contiguous tracts of land in the Parish of Vermillion. Prior to 1935, the corporation was heavily indebted to Canal Bank & Trust Company of New Orleans, which went into liquidation during 1933. The Canal Bank had discounted most, if not all, of plaintiff’s obligations with Federal Intermediate Credit Bank. In 1932, Canal Bank formed Vermaca, Inc., as a convenient instrumentality for managing and financing various properties which it had acquired from debtors. On October 29th 1935, Ver-maca became the owner of all of the capital stock of plaintiff corporation by acquisition from the Federal Bank, where it had been held as collateral. This transfer was effected in accordance with a plan which had been formulated by the President of Vermaca (who was also a liquidator of the Canal Bank) and officials of the Federal Bank whereby all of the collateral held by the latter securing obligations of Verma-ca, including the capital stock of plaintiff, was to be delivered to Vermaca in consideration of the issuance by Vermaca of five promissory notes, each for approximately $16,083, payable from one to five years after' October 29th 1935, aggregating a total of $80,403.72, and the conveyance by Ver-maca of a mineral servitude to the lands in Vermillion Parish owned by plaintiff, Liberty Farms, for the purpose of securing payment of the promissory notes' and another indebtedness of $69,176.76. To' carry out this scheme, the Federal Bank turned over to Vermaca the capital stock of plaintiff corporation and, simultaneously, plaintiff, at the instance of Vermaca and solely in order that it could furnish security to the bank, executed a deed conveying to Vermaca all of the minerals in and on the various tracts of land owned by it in Vermillion Parish for the stated consideration of the delivery by Vermaca of a mortgage note issued by plaintiff dated April 6th' 1931, in the sum of $31,708.38.

Immediately thereafter, on the same date, Vermaca transferred, conveyed and assigned the mineral servitude to. the Federal Bank. This contract recited in substance that, whereas the bank had released to Ver-maca certain notes and other collateral for the consideration of $80,403.72, evidenced by five promissory notes executed by Ver-maca and, whereas Vermaca had acquired a mineral servitude covering certain lands belonging to plaintiff, Vermaca sold and assigned with warranty of title the mineral servitude, subject to certain conditions, which may 'be stated as follows:

1. That the sale and assignment of the minerals, would be void and of no effect “and the property herein conveyed shall revert to Grantor herein” upon payment of the five promissory notes amounting to $80,403.72 and the. payment of an additional sum of $69,167.76 with 6% interest thereon from June 21st 1935 until paid “the: latter sum to be paid as an additional consideration only in the event-of the receipt of royalties from the exploitation of said mineral rights, and then only from one-half of the royalties derived from the exploitation thereof”.

2. That all of the rents, revenues and royalties derived from the mineral servitude were to be applied by the bank to the payment of the $80,403.72 and $69,167.76 obligations in the following manner:

(a) The rentals and revenues, as distinguished from royalties, received by the bank were to be applied to payment of the $80,403.72 indebtedness until the notes were paid in full as to principal and interest and, after payment of the notes, all the rentals would be paid by the bank to Vermaca.

(b) One-half of the royalties, as distinguished from rentals, received by the bank, was to be used in liquidation of the five notes representing the $80,403.72 obligation until paid.

(c) The remaining one-half of the royalties were to be applied to the payment of the $69,176.76 obligation until it was satisfied in full.

(d) That any revenues received from the mineral servitude would be applied first to the payment of interest and then to principal.

(e) That the Federal Bank agreed not to sell or assign the mineral servitude and that, after the liquidation of all indebtedness, it would reconvey and reassign to Vermaca the entire mineral estate; that, when the five promissory notes aggregating $80,403.72 were paid in full, the bank would convey and assign to Vermaca an undivided one-half of the mineral estate and that, thereafter, Vermaca would be entitled to receive all of the rentals and revenues, as distinguished from royalties, derived from oil leases then in existence.

(f) And, finally, that all mineral leases granted by the bank should have the approval of Vermaca, except under special circumstances.

Thereafter, on July 8th 1937, the Federal Bank and Vermaca, with the concurrence of plaintiff, leased to, Humble Oil & Refining Company the mineral estate conveyed on October 29th 1935. But it does not appear that the lessee ever began drilling operations.

On November 22nd 1938, the bank, Ver-maca and plaintiff entered into a tri-party agreement wherein Vermaca transferred all of its right, title and interest in and to the “contract of sale and agreement which is dated October 29, 1935” for a consideration of $1000 cash. In accepting this transfer, plaintiff recognized the servitude and interest of the bank in the oil, gas and other minerals and assumed all of the obligations of Vermaca under its contract with the bank. On its part, the bank acknowledged payment by Vermaca of the promissory notes aggregating $80,403.72 and, in recognition of its obligation under the contract of October 29th 1935, sold and assigned to plaintiff, as transferee of Ver-maca, an undivided one-half interest in the oil, gas and other minerals included in the servitude on plaintiff’s land.

Thus, by this agreement, plaintiff became the successor of Vermaca- and obtained a retransfer of one-half of the minerals thereby extinguishing, by confusion, the mineral servitude on its land to that extent.

With affairs in this state, plaintiff, on January 25th 1941, sold to Dr. Miller a portion of the lands covered by the servitude for a consideration of $27,500. This deed contained the following stipulation : “There is conveyed to the purchaser herein an undivided one-half of all the oil, gas, and other minerals including sulphur in, on, and under the land, above described, which mineral interest was reconveyed to the vendor herein by Federal Intermediate Credit Bank on November 22, 1938, by act before K. C. Bar-ringer, Notary Public, recorded November 29, 1938, in Vol. 140 of Conveyances, page 514, Under Entry No. 66324, records of Vermillion Parish, Louisiana, and the vendor herein reserves to itself the remaining undivided one-half of all the oil, gas and other minerals including sulphur, in, on and under said land, including the usual and incidental rights of ingress and egress, for the purpose of exploring for same.”

It is alleged by plaintiff that, notwithstanding the foregoing reservation of one-half of the minerals in the act of sale, Miller is claiming that these minerals have reverted to him, as landowner, by the ten year prescription of non-user; that this contention hampers and retards it in the free exercise of the mineral interest reserved by it under the deed, constituting a cloud on its title which the court should remove by appropriate decree.

Miller appeared and interposed, in limine, an exception of no cause of action and, alternatively, pleaded estoppel. The bank, also made a defendant, answered and joined plaintiff in its contentions.

After hearing argument, the trial judge overruled the exception, assigning lengthy reasons therefor. Miller thereupon answered reasserting the same contentions made by him on the exception and, assuming the position of plaintiff in a petitory action, maintained that he was the owner not only of the surface and one-half of the minerals (by the deed of January 25th 1941) but that the remaining one-half of the minerals have reverted to him by the prescription of ten years: After a hearing on this issue, the court rendered judgment in plaintiff’s favor. Miller has prosecuted this appeal from the adverse decision.

We address our immediate attention to Miller’s exception of no cause of action. Plaintiff’s theory of the case is that, whereas it granted a servitude to Vermaca on October 25th 1935, the simultaneous conveyance of Vermaca to the bank was a security or pignorative contract; that, notwithstanding the recital in the deed that the servitude was sold and conveyed to the bank, it was in reality a pledge or antichresis and that, this being so, Vermaca retained legal title-to the servitude. From this premise, it is asserted' that, by the tri-party agreement of November 22rid 1938, plaintiff acquired title to the servitude from Vermaca (also presumably in part from the bank by its transfer of an undivided one-half interest in the minerals) ; that thereafter, when it conveyed to Miller, it was vested with the ownership of the entire mineral interest, subject only to the bank’s right as pledgee, and that, consequently, it had the legal right to reserve to and for itself one-half of said minerals.

In the alternative, plaintiff contends that, if it is held that the bank acquired the mineral servitude from Vermaca on October 29th 1935, the reservation by it in its deed to Miller is nevertheless valid and that, when the bank’s mineral servitude was extinguished by prescription on October 29th 1945, it and not Miller was entitled to benefit by the extinction of said servitude. Again, in the alternative, plaintiff maintains that, should it be determined that th.e bank acquired ownership of the servitude, prescription was interrupted by its (plaintiff’s) acknowledgment and recognition of that servitude in the act executed and recorded in 1938.

We immediately eliminate from the discussion, as not well founded, plaintiff’s first alternative contention that, even though the bank is held to have acquired title to the servitude from Vermaca, it would nevertheless be entitled to reserve one-half of the minerals in its conveyance to Miller in 1941. One may not reserve reversionary rights to minerals when he is not the owner of the minerals at the time the reservation is made. It is settled that, in such instances, the reservation is ineffective and the outstanding mineral interests revert to the person owning the land at the time prescription accrues. McDonald v. Richard, 203 La. 155, 13 So.2d 712; Gulf Refining Co. v. Orr, 207 La. 915, 22 So.2d 269 and Long-Bell Petroleum Co. Inc. v. Tritico (on rehearing), 216 La. 426, 43 So.2d 782.

In view of the above cited authorities, plaintiff cannot succeed in obtaining judicial recognition of its reservation of one-half interest in the minerals unless it is able to sustain its main contention that the transfer by Vermaca to the bank is an antichresis. In their efforts to demonstrate; that title to the servitude did not pass to the bank in the agreement of October 29th 1935, wherein it was specifically recited that Vermaca assigns, grants, sells and conveys “All of the oil, gas and other minerals and mineral estate, * * * to the following described tracts of land * * * ”, counsel for plaintiff depend . primarily upon the well-established rule of law that, in determining the nature of a transaction, the court will look to the substance rather than to the mere terms used to describe it. Long v. Sun Co. 132 La. 601, 61 So. 684 and Grapico Bottling Works v. Liquid Carbonic Co., 163 La. 1057, 113 So. 454. And it is said that an examination of the nature of the agreement between Vermaca and the bank readily discloses that the servitude was conveyed solely as security for Vermaca’s debt and that the transaction bears no resemblance to a sale, exchange or other similar contract known to our law.

We are in accord with counsel that the conditions set forth in the agreement by which the bank acquired title from Vermaca make it manifest that it was not an outright sale or even a sale with the right of redemption. In truth, it was nothing more than a conveyance to the bank of a security title in the sense that the bank hoped to obtain out of mineral leases, rents and royalties a sufficient amount to liquidate in full the $80,403.72 indebtedness represented by the notes of Vermaca and, out of. royalties, satisfaction of the contingent indebtedness of $69,176.76.

But this fact does not make imperative a holding that title did not pass to the bank. Particularly is this so when it is evident from the nature of the transaction that it cannot be classified as an antichresis which, under our law, is a pledge of an immovable. Article 3135, Civil Code. While the agreement between Vermaca and the bank contains one of the main characteristics of an antichresis, in that the servitude was conveyed for security purposes, the servitude could not form the basis of a valid pledge as it was not susceptible of either real or fictitious and symbolical delivery. Article 3152 of the Civil Code provides: “It is essential to the contract of pledge that the creditor be put in possession of the thing given to him in pledge, and consequently that actual delivery of it be made to him, unless he has possession of it already by some other right.”

And Article 3153 declares : “But this delivery is only necessary with respect to corporeal things; as to incorporeal rights, such as credits, which are given in pledge, the delivery is merely fictitious and symbolical.”

It is clear from the foregoing that plaintiff must depend on Article 3153 as servi-tudes are not susceptible of real delivery; it is the use the owner makes of the right which supplies the place of delivery. Article 743, Civil Code. But counsel for plaintiff contend that, since the servitude is an incorporeal immovable, no delivery whatever is essential and that a valid antichresis may be perfected by mere agreement because, under Article 3153, the delivery is a fiction.

Article 3153 eliminates the requirement of a real delivery when the thing given in pledge is an incorporeal right. The reason for this is obviously because it is impossible to make a real delivery of an incorporeal right. But the article does not dispense with a delivery. It requires that there must be something substituted as a symbol in the place and stead of actual and real delivery. The provision that delivery is merely fictitious, and symbolic does not mean that a valid pledge or antichresis may be effectuated where there is nothing which can be placed in the pledgee’s possession capable of standing in lieu of the right sought to be pledged. For example, shares of stock in a corporation may be pledged by delivery of the stock certificate evidencing the interest in the corporation. But we seriously doubt that a servitude may be the subject of an antichresis — for, without delivery to the pledgee of legal title, there is no way by which he can become vested with the right of its use.

In our research, we have been unable to find any case in this State involving the pledge of a servitude and we have been referred to none by counsel. However, Professor Denis, on page 26 of his treatise “Contract of Pledge”, declares: “Inasmuch as possession is the essential element of a pledge, what can not be delivered, either actually or constructively, can not be pledged, even if it can be sold.”

Thus, it would seem that a right such as a servitude could not be given in pledge without the transfer of title from the debt- or to the creditor. Provision is made under our law for such a transfer by an assignment. Article 2642 of the Code .declares that, in the transfer of credits, rights or claims to a third person, “the delivery takes place between the transferrer and transferee by the giving of the title.” This is exactly what is provided for in the agreement between Vermaca and the bank. True, the servitude was conveyed for security purposes but title was nonetheless delivered. Therefore, it could not, strictly speaking, be a pledge.

Our resolution that the transaction was the assignment of a security title to the bank by Vermaca is supported by the decision of this Court in Caffin v. Kirwan, 1852, 7 La.Ann. 221. In that matter, the question for decision was whether the rights of a lessee under a lease could form the subject of a valid pledge. In holding that it could not, the court said that only things, whether corporeal or incorporeal, susceptible of delivery, actual, fictitious or symbolical, can be pledged. ■ In concluding thus, the Court adopted with approval the opinion of the trial judge, wherein it is observed: “I believe a legal delivery might have been effected by an instrument in the form of a sale or transfer, of all Kirwan’s right to Caffin for the avowed purpose of securing him by way of pledge, accompanied by a notice to Kirwan’s lessor. This would have vested the legal title into the pledge. Every day our courts give the effect of a mortgage to contracts of this description passed in other States. But, one thing appears to me certain, namely: that if the delivery of rights under a lease cannot be effected in this manner, it cannot be effected at all, and consequently that such rights cannot 'be pledged by our law.”

A fortiori, this pronouncement applies to a .servitude — for, since a servitude is not susceptible of delivery but only of use, Art. 743, Civil Code, a transferee without title would have nothing with which to demand recognition of his right of use from the owner of the land on which the servitude was established.

Aside from .everything else, there is another flaw in plaintiff’s contention which plainly appears on analysis. In order to maintain its position, counsel assert that, when Vermaca transferred to plaintiff, under the 1938 tri-party agreement, its interest in the 1935 contract with the bank, plaintiff obtained title to the servitude subject to the pledge of the bank. But, in arguing thus, counsel neglect to consider the legal effect which' would be produced by plaintiff’s acquisition of title to the mineral servitude while it was' owner of the land subjected' thereto. Indeed, if plaintiff’s contention were upheld, then the servitude would be extinguished by confusion. Article 783, Civil Code; Sample v. Whitaker, 171 La. 949, 132 So. 511 and Arent v. Hunter, 171 La. 1059, 133 So. 157. And, if the servitude was extinguished in 1938, the bank could not hold it in pledge as there was no servitude. Accordingly, the argument that the 1935 transfer of Ver-maca to the bank did not vest the latter with legal title to the servitude inevitably leads to the unseemly consequence that the bank had a pledge on a non-existent incorporeal right.

The conclusion we have reached leaves only for discussion plaintiff’s second alternative proposition that its acknowledgment in 1938 that the bank was vested with a servitude for one-half of the minerals had the effect of interrupting the running of prescription. It is stated in the 1938 triparty agreement that plaintiff “hereby acknowledges and recognizes the servitudes and/or interest of the bank in and. to all of the oil, gas, and other minerals , and mineral estate, rights, and servitudes on, in, under and to the hereinabove described property and assumes all obligations of Vermaca under its contract with the Bank; * * $ »

The foregoing acknowledgment falls far short of the type required to effect an interruption of the running of prescription. In the case of Hightower v. Maritzky, 194 La. 998, 195 So. 518, 521, we observed:' “In order for an acknowledgment by a landowner that his land is subj ect to certain mineral rights in favor of a person named in the acknowledgment to' have the effect of interrupting the prescription by which such rights are extinguished the intention that the acknowledgment shall have that effect must be expressed in unmistakable terms.” See also Achee v. Caillouet, 197 La. 313, 1 So.2d 530 and Baker v. Wilder, 204 La. 759, 16 So.2d 346.

We are of the opinion that the exception of no cause of action is well founded and should have been sustained.

Accordingly, the judgment appealed from is reversed; the exception of no cause of action is maintained and plaintiff’s suit is dismissed at its cost.

HAMITER, J., concurs.

      . The hearing on the merits -was practically a reiteration of the exception of no cause of action, as no evidence was adduced to contradict any of the well-pleaded facts contained in the petition.

      . Articles 470, 471, Civil Code; Palmer Corporation of Louisiana v. Moore, 171 La. 774, 132 So. 229; Arent v. Hunter, 171 La. 1059, 133 So. 157; Patton’s Heirs v. Moseley, 186 La. 1088, 173 So. 772 and Deas v. Lane, 202 La. 933, 13 So.2d 270.

      . By Act No. 97 of 1938, the Legislature provided for ,thp pledging of routs, royalties, overriding royalties, bonuses and other payments and rights accruing under ‘ mineral leases and other contracts relating to minerals without any delivery of .the pledged rights. .The act is without .application to. the instant case as the alleged antichresis was confected in 1935, prior to its passage. Hence, it is unnecessary to determine whether, mineral servitudes are included within, the provisions of the law.

      . It is admitted that there has been no interruption by use of the servitude for over ten years from its creation in 1935.


author: PONDER, Justice. HAWTHORNE,

text:
    216 La. 1041
    STATE v. SMITH.
    No. 39546.
    Supreme Court of Louisiana.
    March 20, 1950.
    Richard B. Williams, John Makar,, Patrick C. Murphy, G. F. Thomas, Jr., Julian E. Bailes, Natchitoches, for defendant-appellant.
    Bolivar E. Kemp, Jr., Attorney General, M. E. 'Culligan, Ass’t Attorney General, H. L. Hughes, District Attorney, Natchi-toches, for appellee.
   PONDER, Justice.

The defendant was indicted, tried and convicted for the crime of murder, and sentenced to be electrocuted. He has appealed from the conviction and sentence.

From our examination of the fifty-two bills of exceptions presented on this appeal, we find that many of them are without merit. However, some of them have given us grave concern.

Bill of exception No. 6 was taken to the statement of the district attorney made while a juror was being examined, after three jurors had already been selected, viz: that the defendant is not entitled to extenuating circumstances. Counsel objected to the statement at the time it was made and moved for a mistrial and a discharge of the jurors. The court overruled the obj ection.

Bill of exception No. 7 was taken to a question propounded by the district attorney to a prospective juror after six jurors had been selected, viz: “You would not inflict capital punishment, even if he raped your own daughter?” Counsel objected and moved for a mistrial and the discharge of the jurors. This objection was overruled.

Bill of exception No. 8 was taken to a question propounded by the district attorney to a prospective juror, after nine jurors had been selected, to determine whether the juror had conscientious scruples against capital punishment, “even in the case of rape.” Counsel objected to this question and moved for a mistrial and' the discharge of the' jurors. This objection was overruled! ■ •

The’trial’judge in his per curiam states that the State had difficulty in obtaining sufficient jurors because so many had disqualified themselves by reason of their conscientious scruples against capital punishment 'and it was more of less under these exasperating circumstances that the remarks of the district attorney were excepted to by counsel for. the defense.- The trial judge states that it was his opinion at the time and now that the- remarks were not prejudicial. .... ■

The remark of the, district attorney that the accused was not entitled to the benefit of extenuating circumstances was improper and prejudicial to the defendant. The objection should have been sustained and the jury instructed to disregard the remark because the jury alone has the right to determine whether or not there are extenuating circumstances and the effect to be given them. They might differ as to the kind or character of circumstances which would entitle a defendant to a qualified verdict. State v. Henry, 197 La. 999, 3 So.2d 104.

Counsel contends that the questions propounded by the district attorney to the prospective jurors were prejudicial to the defendant, who was being tried for murder, because they left the impression that the defendant was guilty of a sex crime and should not be released upon the public.

The defendant was twenty years old and single at the time the crime was committed. It appears that the deceased was a married woman and several years older than the defendant. We gather from the opening statement of the district attorney and the written confessions embodied in the record that the defendant and the deceased had been having improper relations in the past and that they went a mile and a half below town to a thickly wooded section for such purpose. It was while they were at this place that the accused killed the deceased by cutting her throat. According tp the written confessions, the defendant did not know why he killed her, but he made statements to Deputy Sheriff Black that he was paying attention to a cousin of the deceased and had previously asked the .brother of the deceased to make her quit running after him because she was going to get him in trouble. He stated that- her husband had already shot, or shot at, some man about ■her and that he wanted her to stop running after him because it was interfering with his attentions to her cousin. It does not appear there was any evidence produced or even contention made that the defendant raped the deceased.

Th'e questions propounded to the jurors were improper because they were not pertinent to determine the qualification of a juror to serve on a trial for murder. Article 357 of the Code of Criminal Procedure. Moreover, hypothetical questions and questions of law are not permitted in the examination of jurors which call for a prejudgment of any supposed case on the facts. 50 C.J.S., Juries, § 275, p. 1042; State v. Henry, 197 La. 999, 3 So.2d 104; State v. Thornhill, 188 La. 762, 178 So. 343. See also 31 Am.Juris., page 670, para. 154; State v. Plummer, 153 La. 730, 96 So. 548 and State v. Scott, 198 La. 162, 3 So.2d 545.

The authority cited by the State, wherein the juror was permitted to state whether or not he opposed capital punishment in a “case of cold blooded murder”, is not in point because the question was propounded to ascertain the qualification of the juror in the trial of a murder case and the examination was limited to that purpose.

These bills of exceptions are primarily levelled at the effect that the statements had on the jurors already selected. We cannot agree with the trial judge that the statements and questions propounded to the jurors were not prejudicial. His refusal to sustain the objections and his failure to instruct the jurors to disregard the statement and questions propounded was prejudicial to the defendant in his trial.

Bill of exception No. 5 is levelled at the ruling of the trial court refusing to place Deputy Sheriff Black under the rule when a severance of witnesses had been granted. Counsel concedes that the trial judge has a discretion in excusing deputies from the rule but contends that the sheriff had four other deputies available who had been placed under the rule.. He contends that the court abused its discretion by permitting Black to remain in the court room because he was the principal officer who testified to both confessions, the reaction of the defendant while in jail, and as to the motive expressed by the defendant for the crime, and made statements regarding the sanity of the accused, and endeavored on his own volition to fill in the gaps left by the other witnesses for the State. He cites Article 371, Code of Criminal Procedure and State v. Carter, 206 La. 181, 19 So.2d 41.

The trial judge in his per curiam states that Black was the oldest and most experienced deputy and Useful in the court room in helping with the essential mechanics of the trial and maintaining order because curious crowds had jammed the major portion of the court room.

The trial court is vested with discretion as to what officers may be excused from the rule, and it is only when this discretion is arbitrarily and unreasonably exercised to the prejudicial injury of the defendant in obtaining a fair and impartial trial that this court would be warranted in setting aside a verdict. The essence of the Carter case was whether or not the accused shot the deputies without provocation or in self defense. The refusal of the trial judge to place these three witnesses under the rule and permitting them to remain in the court room, for all practical purposes, deprived the accused of the right to cross-examine them. The trial judge did not cite any reason for his refusal to place them under the rule but took the position that the law granted him the discretion to do so. In the present case the trial judge states that Black was necessary to maintain order in court. It does- not appear that Black had any personal interest in the outcome of the case or had received injury at the hands of the accused. Under the circumstances, we cannot say that the trial judge abused his discretion in excusing this officer from the rule.

The exception to the overruling of the motion for a new trial has given us some concern.

It is alleged in the motion for a new trial that the district attorney in his final address to the jury stated: “Of course you can sentence the defendant to life imprisonment (at which time the district attorney shrugged his shoulders in a gesture of disgust said further) but you all know what life imprisonment in Louisiana means — it means that he (pointing to the defendant) would go down to the ‘pen’ for a while and be out in eight or ten years and be back up here.” “If I let a leopard loose on the streets of Natchitoches, and it kills someone, who is to blame — the leopard or I?” It is alleged that this remark was taken word for word from an article in an issue of the Saturday Evening Post entitled “What Can We Do about Sex Crimes” which was displayed on the table of the district attorney in such a manner that the jury could not avoid 'being aware of the article and its title. It is further alleged that the attorneys for the State used this article in questioning the witnesses and that this conduct on their part, where the question of a sex crime was not at issue, was a deliberate attempt upon the part of the attorneys for the State to appeal to the prejudices and sympathies of the jury.

The trial judge in his per curiam states, without commenting on the truth of the allegations, that no objection was made nor bill reserved to the alleged conduct and statements at the time they were made and that, they cannot serve as a basis for a new trial. State v. Willson, 215 La. 507, 41 So.2d 69.

If the allegations were true and the objections timely made this undoubtedly would have constituted reversible error. However, under the holding in the Willson case we cannot consider the alleged conduct and the alleged statements of the district attorney because they were not timely objected to.

It is alleged in the motion for a new trial that the rights of the accused were materially affected and prejudiced by the court’s permitting spectators to gather around and crowd against defense in such numbers and under such conditions as to actually hide the defendant from the witnesses in the witness stand and making it necessary for the witnesses to stand in order to see or identify the accused; that these spectators had overcrowded the court to the extent that the aisles, doors and passage ways were fully occupied and that the only available space was a small area between the counsel table and the jury box. It is alleged that some of the spectators were standing on seats, boxes and in the windows and were causing considerable disturbance from time to time; that the judge never closed the cqurt room doors; that people were gathered in the doorway and hall adjoining the jury box and had to be quieted down by the judge on several occasions ; that the spectators crowded around the defense to the extent that free movement and consultation on the part of the defense was prevented.

We find photographs in the record showing the defendant and jury were surrounded by spectators. People were back of the judge.’s seat, on both sides of the jury, and all around counsel. The photographs show a complete congestion of people inside the rail.

The trial judge states in his per curiam that the court room was crowded but it was a curious and not a hostile crowd. He states that the attached picture was made while the court was thanking the jury for their three-day service and that the crowd in the door, around the witness stand and between the judge and jury had drifted in during the deliberation of the jury. He states that the man sitting with his back to the jury box wasn’t there during the trial and that the witnesses were not out of the sight of the accused or he of them. He states that no objection was madé to the conditions under which the trial was held and that it is too late to urge it now.

Counsel for the defendant relies on the holding in the case of State v. Henry, 196 La. 217, 198 So. 910. In the Henry case timely objection was made to the overcrowded condition of the court room during the course of the trial. Since we have arrived at the conclusion that a new trial will have to be granted because of the prejudicial errors reflected in bills of exceptions Nos. 6, 7 and 8, it is not necessary for us to determine whether the question of the crowded court room could be timely raised in a motion for a new trial. We have recited these allegations in the motion for a new trial in order to point out that such conditions should not be permitted. We express no opinion as to whether it is the duty of the court itself to see that these conditions do not exist irrespective of timely obj ection.

It appears from the allegations in the motion for a new.tr.ial and the testimony taken thereon that the jury was housed on the two nights during the trial at a fishing camp on Black Lake, owned by one of the jurors, located eighteen miles from the court house. On the first night the nine jurors selected were carried by "bus some twenty-five miles by road to the ■camp. Two deputy sheriffs were in charge -of the jurors and the. bus was operated by a person who was not an officer or in any way connected with the trial. There seem to have been several buildings at this camp but from the evidence of the two officers it appears that no one came in contact with the jurors and they were housed in one of •the buildings in this camp in four or five rooms opening into a common hallway. On the second night the twelve jurors were carried by bus to the camp and one juror and a ■deputy separated from the others and went some seventy yards to the lake and fished for a few minutes ‘ until the other deputy called the juror back. It seems that the other jurors at that time were shaving and bathing their faces at a place near the camp building.

From the per curiam of the trial judge, •it seems that the sheriff informed him on the first day of the trial that accommodations could not be obtained in the hotel for the jury except separate rooms. He was of the opinion that it would be better under the circumstances to house the jury at one of the camps. On Black Lake.

In view of our previous conclusions, it is not necessary to pass on this question. However, in cases where the extreme penalty of the law can be imposed, every precaution should be taken to prevent any access to the jury and a jury should not be .allowed to separate.

No purpose could be gained by a discussion of the other bills of exceptions.

For the reasons assigned, the conviction .and sentence are set aside and the case is remanded to the district court for a new -trial.

HAWTHORNE, J., dissents.

HAWTHORNE,

Justice.

I respectfully dissent from the ruling on hills numbered 6, 7, and 8, because I do not think that the authorities cited in the majority opinion .are pertinent or controlling. In none of the cases cited was the ruling óf the court based-on the fact that an improper question was asked in the presence of jurors already -selected. In the principal case relied, upon, State v. Henry, 197 La. 999, 3 So.2d 104, the trial judge refused to, sustain objections to improper questions, all peremptory challenges were exhausted, and the, defense was compelled to accept jurors who stated that, if they were convinced from the evidence that the accused was guilty and if in their opinion there were no mitigating circumstances, they would'-render a verdict carrying with 'it the death penalty.'

As I understand the record in the instant case, none of the prospective jurors to whom the questions were propounded was challenged for cause by the defense, none of them served on the jury, and the defense did not exhaust its peremptory challenges. Conceding that the question was improper examination of a prospective juror on his voir dire, I fail to understand how the defense was prejudiced under the above-facts and circumstances.

I respectfully dissent. -


author: PONDER, Justice.

text:
    216 La. 1055
    SHEFFIELD et al. v. JEFFERSON PARISH DEVELOPERS, Inc.
    No. 39322.
    Supreme Court of Louisiana.
    March 20, 1950.

      Leslie P. Beard, New Orleans, for applicant.
    Chaffe, McCall, Toler & Phillips and Leon Sarpy, New Orleans, for plaintiff and appellee.
   PONDER, Justice.

We granted a review in these consolidated cases because we entertained grave doubts as to the correctness of the judgment of the Court of Appeal.

In these suits- the plaintiffs seek to recover triple the amount of overcharges of rents alleged to have been collected from them by the defendant, and for attorneys’ fees. On trial the lower court rejected their demand. On appeal the judgment was reversed by the Court of Appeal and the plaintiffs were given judgment for the sum of $3,473.20, twice the amount of the overcharges, subject to a credit of $162.20, being the amount of rent due by one of the plaintiffs; interest and attorneys fees.

During the year 1942 the defendant corporation erected nineteen defense-housing units under priority 7064-00191 issued by the National Housing Agency through the WPB. Only eleven of these units are involved in this litigation. The housing units-are situated in the Paris Park Subdivision in New Orleans and within the New Orleans defense area as established by the Administrator, Office of Price Administration. These buildings were completed during the latter part of the year 1942.

As stated by the Court of Appeal, the facts surrounding the approval of the maximum shelter rentals are somewhat complicated. The officials of the defendant corporation testified that the WPB priority was issued on the basis that the contemplated houses were to carry a maximum rental of $45 per month, but when the building plans and specifications were submitted to the Federal Housing Administration for approval in order to secure federal financing and insurance, the agency refused to-give its consent to the project because the contemplated houses were too small and not in keeping with other units which had been previously built in this subdivision. The defendant submitted to the FHA new plans and specifications calling for houses of a larger dimension which were subsequently approved by the FHA and the proper commitments for financing, etc. were made. The officers of the defendant corporation testified that they made complaint to the WPB calling to their attention that houses of larger dimensions than those originally contemplated would necessitate increased building costs and that the rent base established on the original plans would be inadequate and insufficient to pay the federal loan, insurance and other costs. The WPB took the position that it had no jurisdiction to increase the rent base and referred the officials of the defendant corporation back to the FHA. The officials of the defendant corporation testified that conferences were held with the officials of the FHA and that it was finally agreed upon that the rent base should be established at $55 for some of the units and $60 for the others. These witnesses . testified that application for the increase rentals, as agreed upon, were filed with the FHA and when no action was taken thereon that it collected from the tenants the amount which they anticipated would be officially established on the larger units which the FHA forced the defendant to erect.

When the dwelling units were completed, the defendant registered the property with the local Rent Control Office of the OPA. In this registration it was stated that the dwelling units had been constructed with a priority rating from an agency of the United States arid that the rent approved by this agency was $55 for some of the units and $60 for the others. The local Rent Director received information indicating that the priority rent approved by thé WPB was in reality $45 and $50 per month, and after investigation, and acting under Section 5 (d) of Rent Regulations for Housing, orders were issued, covering the eleven units establishing maximum rental at $45 and $50 per month. The defendant did not appeal from this order. The defendant filed a Landlord's Petition for Adjustment of Rent and asked that the rent be increased under Section 5 (a) (3) of the regulations on the ground that there had been a substantial increase in the services, furniture, furnishings and equipment. The Rent Director issued an order, subsequent to the period of time for which overcharges are claimed, slightly increasing the rent on the eleven units. These orders were not retrospective and the defendant took no appeal. The defendant sought relief by other proceedings in the OPA organization without avail.

The finality of.the Rent Director’s orders cannot be questioned in these proceedings because the jurisdiction to ascertain the validity of it is vested solely in the Emergency Court of Appeals at Washington, D. C. The Court of Appeal held to this effect and we find no error in that conclusion. However, we do not believe that the facts in this case justify the imposition of a penalty.

The Court of Appeal refused to consider the testimony of certain governmental employees. This testimony is not admissible to contradict the order of the Rent Director because that order is final insofar as this Court is concerned. However, this testimony is admissible to determine whether or not the defendant willfully violated the regulation or failed to take practical precautions against the occurrence of the violation. This testimoriy of the Chief Underwriter of the FHA, the ■Regional Rent Executive of the OPA, and the Regional Rent Attorney of the OPA at Dallas, Texas, and -the telegrams in-connection therewith, indicates that the actual units constructed differed substantially from the original specifications resulting in an increased construction cost and that rid shelter rents were set by the WPB on the actual units constructed. It would appear that these officials were of the opinion that the rent prices had been fixed on the original plans and specifications and not on the units as they were actually Constructed. Under these circumstances, 'it would appear that the different governmental agencies were in as much confusion over the matter as the .defendant. It is alleged that the defendant charged two of its tenants $64 and $75 per month. This allegation was denied by the defendant and neither of these tenants testified in the case.

After a careful review of the evidence1 in this case, we have arrived at the conclusion that the defendant did not willfully violate the regulation and the penalty, of twice the amount of the overcharge, should not be imposed. However, we have no authority to disturb the order of the Rent Director and the defendant must pay the amount of the overcharge less the credit allowed by the Court of Appeal.

For the reasons assigned, the judgment is amended so as to award the plaintiff $1,574.40. As thus amended, the judgment is affirmed. The plaintiffs to pay the cost of this appeal, all other costs to be paid by the defendant.

MOISE, J., recused.