text:
    No. 1228.
    The State of Louisiana ex rel. M. S. Crain, District Attorney, et al. vs. A. W. O. Hicks et al.
    Act No. 71 of 1882, for tlie i>impose of increasing the number of judges in the first judicial district, clearly intended to limit the term of the new incumbent to the time of the next general election, to wit. the 22d of April, 1881.

      That provision is not violativo of Art. 109 of the Constitution, which fixes the term of all district judges at four years.
    It is the true meaning, intent and spirit of the Constitution that general elections for district judges should occur only once every four years; aud that the terms of all elective district judges should expire at the same time.
    Hence, the G-eneral Assembly in increasing the number of district judges under authority of Article 110, cannot fix a term expiring at a time different from that at which expires the term of all other elective district judges in the State. Such a provision would be unconstitutional.
    PPEAL from the First District Court, Parish of Caddo. Sail, J.

      Land & Land for the Relator, Appellant.

      3£. 8. Oram, District Attorney, for the State.

      Wise & Herndon and *F. F. Bell for Defendant and Appellee.

      8. L. Taylor m pro. per.

   The opinion of the Court was delivered by

Poché, J.

This litigation involves the question of the right to the office of one of the judges of the first judicial district. It arose out of the following circumstances:

The General Assembly, acting under authority of Article 110 of the Constitution, passed Act No. 71 of 1882, for the purpose of increasing the number of judges for that judicial district from one to two.'

The act stipulated that the additional judge thus provided for should “be elected as provided by law,” and an election ordered by the Governor in pursuance thereof resulted in the election of the relator, John W. Jones, on the 18th of November, 1882.

Section 3 of the act provides that the additional judge “shall hold office until the next general election for district judges, or until his successor shall be qualified according to law.”

He was accordingly commissioned for “the term of said office as fixed by law.”

In his proclamation for the recent general election, held throughout the State on the 22nd of April last past, the Governor included two judges for the first judicial district, and at that election S. L. Taylor and A. W. O. Hicks, defendants herein, were elected, and they have been commissioned and qualified as such.

In his petition the relator concedes the legality of the election of S. L. Taylor, who was hitherto the sole incumbent of the office of judge of the first judicial district. His suit is restricted to the defendant, Hicks, wliose election is alleged to have been unwarranted by the Constitution and not sanctioned by the laws applicable in the premises.

Relator’s contention is: that on the 18th of November last, he was elected for a term of four years, which is the constitutional term of the office of district judges, and that any provision of Act No. 71, which may have warranted an election for said office at the last general election, is violative of Article 109 of the Constitution and is therefore null and void.

The defense is a general denial, coupled with the special plea that relator is estopped from questioning the legality of the election as held, by the fact of his having been a candidate before the Democratic convention for the nomination of that party as candidate for the same office at that very election.

This appeal is taken by Judge Jones from arfadverse judgment rendered by the judge of the adjoining district acting in the place of the defendants, Hicks and Taylor, who recused themselves on the ground of interest.

Prom the foregoing statement of the pleadings and of the facts in the case, it appears that the question herein presented for solution is one of constitutional law, involving a discussion of the term of the office to which Judge Jones was elected in November last.

His main argument is, that a proper construction of sec. 3 of Act No. 71 would fix the term of his office at four years, to begin from the date of his election, and that under any other construction the section would be unconstitutional, as violative of Art. 109, which provides that district judges “shall be elected for the term of four years.”

Hence, he contends that no election could be constitutionally held for that office before November, 1886. Under his construction, a special election should be ordered at that time and every four years thereafter. The same necessity would arise in the case of the additional judge for the twelfth judicial district created by operation of Act No. 22 of 1882, and of every additianal judge which the Legislature may create at its option under Article 110 of the Constitution.

Now, as the Legislature meets in the month of May only every two years, and that in one of those years there is no general election, and that in the other the general election is held in the month immediately preceding the meeting of the General Assembly, it follows that there would be as many special elections for district judges as the number of such offices which the Legislature may provide for.'

A careful study of the system of Government contemplated by the Constitution, clearly demonstrates that such a frequency of elections, and such want of uniformity in the expiration of the terms of important constitutional offices, are dashingly hostile to the ruling spirit of our organic law. The term of four years is the shortest term of all the elective offices created and provided for by the Constitution.

The true meaning and intent of that instrument, when construed under the guidance of that cardinal canon of interpretation which requires that all the parts of an instrument must he construed together, with a view to give effect to every part and to harmonize all the parts into uniformity, appears that all elective offices were to expire at the same time, and that all the incumbents should be elected at one and the same election. State ex rel. Shakespeare vs. Patton, 32 Ann. 1207; State ex rel. Railroad Company vs. Cage, 34 Ann. 509.

In order to better guard against the well recognized attendant evils of too frequent elections, the framers of the Constitution went to the extent of requiring that all parochial elections and the municipal elections of the two largest cities in the State should be held on the same day as the general election, “ and not oftener than onee in fowr years.” Article 192. This settled determination to avoid the dreaded recurrence of frequent elections culminated in the adoption of Article 191, which provides that “the general State elections shall be held once every four years.

This was followed by Article 262, which required that all officers whose election was provided for in the Constitution should be elected on the first Tuesday of December, 1879. And under the provisions of Article 265, the term of the officers thus elected terminated as though the election had been holden on the first Tuesday after the third Monday in April, 1880.

A proper construction of the Constitution makes it perfectly clear that the term of office of all the elective district judges in the State, expired on the first Tuesday after the third Monday in April last past, and will continue to expire at the same time every four years thereafter.

We are equally clear in our conviction that the rule was intended by the framers of the organic law to apply to the term of office of judges created by the Legislature under authority of Article 110. A different ruling would effectually destroy the intended uniformity of the system, and would utterly defeat the well guarded precaution of the instrument to avoid the evil of too frequent elections.

It might with as much plausibility be argued in the sense of relator’s contention that, if the Legislature were to create a new parish at its imesent session and order an election for representatives in said parish in time for the next session (in 1886), that the term of office of such representatives would expire only four years after their election: and that in the future the election for the members from the parish thus created would be held at a time different from that of all other members of the General Assembly. The reverse of that proposition is the truth and is too plain for argument.

The only special elections authorized or contemplated by the Constitution are those intended to All vacancies and that for the unexpired term of the office which may become vacant. Articles 22,109,160.

It is therefore clear to our minds that in creating an additional judge under the provisions of Article 110, the Legislature is powerless to fix the expiration of the term of the office at a time other than that fixed by the Constitution for the expiration of the term of office of all the elective district judges in the State.

Hence, we hold that this feature of Act No. 71, now under consideration, is so far from being violative of the Constitution, that a different provision would, on the contrary, be tainted with unconstitutionality.

But relator argues that the language of the section is liable to two constructions. It may be construed as limiting the term of the office to April, 1884 — or to some future time at which a successor may be elected and qualified according to law.

He then contends that if the first limit was intended, the provision must be held as violative of Article 109. If the latter was contemplated, then the term must be held as expiring only in November, 1886.

There is absolutely no force in the argument. If the legislative intent had been to fix a term longer than until April, 1884, it would have been unconstitutional, as we have already shown. But in point of fact, no such intention can be eked out of the language of the section. The intent to limit the term “at the next general election for district judges,” is manifest and unambiguous. The words “ or until his successor shall be qualified,” do not and cannot alter the plain meaning of the qrrevious sentence, which remains unshaken and mandatory in the letter of its provision. The use of these words amounts to nothing more than an express mention in the act of an implied condition in the expiration of the term of all offices, resulting from Article 161 of the Constitution, which provides that “all officers shall continue to discharge the duties of their offices until their successors shall be inducted into office.”

Our conclusion is, therefore, that Judge Jones had been elected for a term which expired at the last general election for district judges, which took place on the 22d of April, 1884, and that he is now funetus offieio. In his elaborate opinion, the district judge devotes considerable time to show that the election of Judge Jones in November, 1882, was legally held, and that the Governor had ample power and authority to order the same. But the discussion of that question would throw no light on the present controversy, which restricts the issue to the legality of the defendant Hicks’ election. For the purpose of this opinion, we assumed the legality of the election. Under our views of the case, we also eliminate the discussion on the plea of estoppel interposed by the defendant.

The judgment appealed from is, therefore, affirmed, at the costs of relator Jones in both courts.


source: Caselaw Access Project

author: Manning, J.

license: Public Domain

text:
    No. 1212.
    Crescent City Ice Company vs. Abram Ermann.
    A litigant who fails to produce proof within his reach creates a presumption that it would he prejudicial to his case, and this presumption is strengthened when the evidence is in his possession and has been called for by his adversary by a demand upon him to produce it.
    APPEAL from the Nineteenth District Court, Parish of St. Mary. Goode, J.

      P. H. Mentz and Foster & Suthon for Plaintiff and Appellee.

      B. F. Winchester for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The suit is for the recovery of two thousand nine hundred and fifteen dollars for .ice furnished the defendant, whose defence is that he bought the ice from one Joseph Dreyfus and owes the plaintiff nothing.

The defendant is an ice dealer in Morgan City. Dreyfus was a wholesale dealer in liquors and cigars in New Orleans, was the personal friend of Ermann, and the medium through whom Ermann’s drafts, cheques, etc. were collected. Ermann’s funds were left with Dreyfus, and he drew on Dreyfus whenever there was occasion. Dreyfus failed in October 1883. The ice was furnished in September and October, the last shipment being on the 19th.’ several days before Dreyfus’ failure.

Ermann’s contention is that Dreyfus was his commission merchant, from whom he ordered ice and whom he paid for it by the several remittances he made from time to time. There does not appear to have been any settlement of their accounts. There is nothing to shew that Dreyfus charged Ermann'" with these several ice-bills, and that Er-mann’s funds in Dreyfus’ hands were thereby diminished. Dieyfus says he owes’Ermann nothing on account. Ermann says when Mr. Dreyfus failed he owed him a little amount, which has since been paid.” Dreyfus swears stoutly that he alone owes the bill, but neither he nor Ermann have furnished any evidence beyond their own asseverations that they or either of them understood at the time that the one was selling ice and the other was buying it, much less is there proof that the plaintiff understood it was selling ice to Dreyfus and was looking to him for payment.

And a significant fact is that th e plaintiff endeavoured to furnish such proof as would shew the contemporaneous acts of the parties, and was thwarted by the defendant. The plaintiff gave the defendant notice before the trial to produce his cheque book and the several bills of the plaintiff for the sixteen shipments of ice. If it were a fact that the Ice Co. was selling to Dreyfus, these bills would have shewn it, and would have therefore established that the plaintiff was giving credit all the time to Dreyfus alone. The defendant did not produce them, and says he made no effort to get them. The presumption is always and inevitably against a litigant who fails to furnish evidence within his reach, and it is the stronger, when the documents, writings, etc would be conclusive in establishing his case. It is a legal inference that the writings would prejudice him whenever he fails to produce them, and when too his adversary had challenged the production of them as a decisive test of their respective pretensions.

The lower court gave judgment for the full demand.

Judgment affirmed.


author: Poché, J.

text:
    No. 1217.
    Joseph Jacobs vs. Dora Tobelman.
    The fact that a husband, who has obtained a judgment of separation from bed and board against bis wife, continues to occupy the same house as his wife, but separate apartments, while he is preparing a new homo to which he moves alone as soon as it is ready, will not be construed as a reconciliation under the Civil Code.
    Those circumstances will not bar his right to a divorce one year after the rendition of the judgment of separation.
    A PPEAL from the, Nineteenth District Court, Parish of St. Mary. NX Goode, J.

      D. Caffery for Plaintiff and Appellee.

      A. C. Allen for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

This is an action for divorce predicated on a judgment of separation from bed and board, rendered at the instance of the husband more than one year .previous to the institution of present suit.

The defense is au alleged reconciliation of the parties since the rendition of the judgment of separation.

The present appeal has been taken by the defendant from a judgment decreeing the divorce prayed for.

The evidence fails to sustain the defense. The proof is that, for several months after the judgment of separation, plaintiff continued to live in the former domicile of the spouses, under the same roof with his wife but in separate rooms; and that he continued to provide for the support of the wife and of the children, issue of the marriage, who had been placed in the custody of the husband.

It also appears from the evidence that plaintiff is a poor man and had no other place to live at pending his efforts to build up and reestablish another home and a new place of business.

As soon as his new home was prepared, he moved into it and has since lived in it, separated from the defendant. As he had no other home, while he was preparing to move away, he had no other alternative but to continue to dwell under the same roof with his wife, or to expel her from that house. The course which he adopted was doubtless dictated by feelings of humanity which courts of justice should encourage rather than discountenance.

These facts do not constitute in our opinion a reconciliation within the meaning of our Code. Hence, we conclude with the district judge, that jdaintiff was entitled to a decree of divorce a vineulo matrimonii.

Judgment affirmed.


author: MANNING, J.

text:
    No. 1214.
    Jean Gerac et al. vs. U. A. Guilbeau et als.
    Where a party is in possession under a tax title, prima facie valid, a seizure cannot be legally made of the property by other parties enforcing claims against former owners. A direct action must first be resorted to to annul the title.
    Where a new trial has been prayed as to certain specified parts or features of a judgment; has been granted, had, and another judgment rendered as to such parts, the judgment so far as uncomplained of will not be reviewed in this Court.

      ^ PPEAL from the Twenty-first District Court, Parish of St. Martin. Fontelieu, J.

      Ediomd Simon and C. S. Mouton for Plaintiffs and Appellees.

      F. Voorhies for Defendants and Appellants.
   The opinion of the court was delivered by

MANNING, J.

The plaintiffs, claiming to be owners of certain lands, injoin the sale of them under the foreclosure of a mortgage given by a former owner after the divestiture of her title.

The lands belonged to Ann Offutt. In 1873 they were sold for taxes, the State becoming the adjudicatee, and in 1881 the plaintiffs bought at a sale by public auction provoked by the State. Both these deeds were recorded. In 1870, several years after the deed to the State, had been recorded, Mrs. Offutt mortgaged the lands to Anderson, and her mortgage note was transferred to a mercantile firm who are the seizing creditors in this instance, and co-defendants with the sheriff.

The plaintiffs had possession under their deed when the seizure was made, and they invoke the protection of that rule which requires a party to proceed by direct action to annul a prima facie valid title, and forbids him seizing in disregard of such title.

This principle has been maintained in a series of decisions and may be considered too well settled to be now called in question. Coco v. Thienman, 25 Ann. 236; Lannes v. Work. Bank, 29 Ann. 112; Jurey v. Allison, 30 Ann. 1234; Ludeling v. McGuire, 35 Ann. 893.

The judgment of the lower court was in accordance with this jurisprudence.

The plaintiffs had prayed in their petition for' damages, by way of attorneys fees, for the expense they were driven to in obtaining the injunction. The low'er judge perpetuated the injunction, but rejected the demand for damages. The plaintiffs have not filed any prayer for amendment of the judgment. The mention of the matter in their brief does not suffice.

Judgment affirmed.

On Rehearing.

The land is described in the seizure and advertisement as lots 1—14 inclusive of sec. 28 of a designated township. On the first trial below the judge perpetuated the injunction in Peb. 1883 without reservation. The defendants prayed a new trial on the ground that the tax title does not include lot No. 1. and tliat “the same might be said of lots 2 and 3.” The new trial prayed was restricted by the defendants themselves to “the property described in their motion,” and was granted accordingly. It was had in Peb. 1884, and the judgment maintained that rendered in 1883 except as to lot No. 1, as to which the injunction was dissolved. That is the judgment we affirmed.

The defendants on rehearing urge upon us to except lots 2 and 3, which they falteringly suggested “might be” in the same condition as lot No. 1, and also lots 6 and 8. We cannot touch the judgment of 1883 as to these two last lots. It is true that both of them as well as Nos. 2 and 3 are not included in the tax sale. Therefore

It is ordered and adjudged that our decree and the judgment of the lower court be amended by dissolving the injunction as to lots Nos. 2 and 3 of the section designated, and as thus amended that it be the judgment of this Court, the plaintiffs paying the costs of this appeal.


text:
    No. 1220.
    Belonie Granger, Adm’r, vs. Joseph S. Reid, Adm’r.
    The second, administrator of a succession who sues the succession of the first administrator of the same succession for a moneyed judgment for funds alleged to have "been received by said administrator and unaccounted, will be successfully met by an exception of no cause of action. His suit should be for an account and not for a moneyed judgment.
    A PPEAL from the Fourteenth District Court, Parish of Calcasieu. /\ Bead, J.
    G. A. Fournet and F. A. Gallaugher for Plaintiff and Appellant.

      Geo. H. Wells for Defendant and Appellee.
   Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

The motion to dismiss this appeal is predicated on an alleged deficient bond of appeal. The bond is in favor of “Thaddeus Mayo, clerk district court,” etc., and appellee contends that the description is fatally defective.

The body of the bond contains the statement that the appeal is taken from the District Court of the Parish of Calcasieu, and it thus informs the reader that the bond is in favor of Thaddeus Mayo, clerk of the District Court of the Parish of Calcasieu. A similar bond was held good by oar immediate predecessors in the case of Escbert vs. Harrison, 29 Ann. 860. With tbem we deprecate and must discourage “this careless and slipshod way of preparing- legal papers,” but like them we hold the informality is not sufficient to defeat the appellant in his constitutional right of appeal.

The motion to dismiss is, therefore, denied.

On the Merits.

Plaintiff, as the second administrator of the succession oi Emerand Benoist, seeks to recover a moneyed judgment against the succession of David John Reid, who was the first administrator of the Benoist succession, for funds alleged to have been received by D. J. Reid during his administration and notfaccounted for.

The defense was an exception, containing among other grounds that of no cause of action. The exception was sustained and the plaintiff appeals.

The substantial allegations of the petition are that the first adminis trator, Reid, caused a sale of the succession property to be made on terms — part in cash and on credit — the proceeds of which sale he collected or ought to have collected and realized,” and that he disposed of other property of the succession alleged to be worth a specific amount, for which he is responsible; that out of the funds thus realized he has paid over to the heirs of Benoist the sum of eight hundred and thirty-five dollars, by means of purchases made by said heirs at the succession sale, and that he died without having accounted for the balance of the succession property.

The striking feature of the pleadings is that the .defendant succession is to be credited in the sum of $835 to the debit of certain heirs of Be-noist, but the names and the number of such heirs is not given, and of course they are not parties to the suit. Hence, they could not be bound by the judgment prayed for, and therefore such a judgment could be no bar to an actionby these heirs against the succession of Reid for that very amount. This consideration fairly illustrates the wisdom of the rule of jurisprudence which prescribes that in such cases the action should not be for a moneyed judgment against the unfaithful administrator, but it should be for an account.

In such a proceeding all proper and necessary parties could be brought before the court, and the judgment would be final and binding on all parties in interest. Thomas, adm’r, vs. Bourgeat, ex, 1 Rob. 4; Succession of L. A. Rachal, 12 Ann. 717.

The wisdom of the rule is further illustrated by the fact that iu his petition plaintiff does not, as he could not, allege that Eeid had received a definite amount of succession funds, but his allegation is qualified by the significant averment that a specific amount was due and that the administrator ought to have collected the same. We note also that plaintiff does not allege that the sum of $835 is the only credit to which the former administrator is entitled, but he specially anticipates that he may be entitled to further credits and reserves his right therefor.

It is therefore clear to our minds that all the allegations of plaintiff’s petition, even taken as true, could not justify a moneyed judgment for any specific amount against the succession of David J. Reid, but that they could at most justify an action for an account, by means of which the matters vaguely alleged could be adjusted with legal certainty.

The exception was, therefore, properly taken and correctly sustained.

Judgment affirmed.


author: Fenner, J.

text:
    No. 1219.
    James A. Blanc, Adm’r, et al. vs. Lastie Dupré et al.
    Where one appointed as a curator of a vacant succession has brought suit iu that capacity to recover from third possessors land belonging to the succession, citation in such suit will operate as an interruption of prescription in favor of the true heirs and representatives, although the appointment of a curator was a nullity. Tt is sufficient that the defendants had been seasonably notified by judicial demand and citation of the titles which are the foundation of the demand.
    The transfer by parties of their rights in property involved in such a suit, to a third person, provided the suit itself is not discontinued or abandoned, is not such an abandonment as will defeat the interruption by citation, in their favor, upon the reversion to them of the rights so transferred.
    A PPEAL from the Thirteenth District Court, Parish of St. Landry. Hudspeth, J.

      Perrodin & DuRoy for Plaintiffs and Appellees.

      Lewis & Bro., K. Ballio and H. L. Garland for Defendants and Appellants.
   The opinion of the Court was delivered by

Fenner, J.

Prior to the year 1818, Antoine Blanc died in St. Landry parish, leaving a largo tract of land in said parish, which is the subject of the present litigation. On June20,1819, the brother of the deceased, Louis Blanc, accepted the succession, as sole heir, with benefit of inventory, which acceptance was duly recorded. On June 21, 1819, an esti-mative inventory of the succession was taken. By due proceedings the land was sold at public offering in the same year, on terms of credit, to Mace and Guilleland. Mace being unable to pay the price, retroceded his undivided share to Louis Blanc, by act duly recorded. Guilleland, failing to pay, Louis Blanc obtained judgment against him, seized, sold and became the purchaser of his share of the land.

By the effect of these proceedings, Louis Blanc became in 1821 the sole and undisputed owner of the land, under valid titles duly recorded.

Notwithstanding this condition of affairs, and probably in ignorance of them, the succession of Antoine Blanc was reopened in this parish in 1868, Elbert Gantt was appointed administrator thereof, the land in controversy was inventoried as belonging to his succession, and, in due course of probate proceedings, it was sold and adjudicated to Jas. K. Dixon, under whose title thus derived the present defendants hold the land.

This is a petitory action brought by the administrator and heirs of Loixis Blanc to recover the land.

The title of Dixon, under whom defendants hold, dates from January 11, 1870.

The instant suit -was only filed in February 1882.

Two propositions maybe laid down, at the threshold, as irrefragable:

1. That the sale under which defendants hold, being the sale of the property of another, was null.

2. That, nevertheless, the title of defendants being just and transla-tive of property, peaceable and uninterrupted possession thereunder in good faith for ten years would perfect their title by prescription.

It thus became incumbent on plaintiffs to establish an interruption of prescription. To meet this exigency, plaintiffs rely upon citation of defendants made in 1879, in a suit entitled C. C. Duson, curator, vs. Lastie Dupré and others, which was twice before this Court. See 32 Ann. 896; 33 Ann. 1131.

The succession of Louis Blanc had been opened in this parish as a vacant estate and C. C. Duson had been appointed and qualified as curator thereof. In that capacity he brought the suit referred to against the same defendants and upon the identical cause of action presented in the present action.

To the effect of this citation, as interruptive of prescription, it is first objected that Duson, curator, did not represent the succession of Louis Blanc or his heirs, for the reason that his appointment was a nullity on two grounds:

1. That Louis Blanc having died in the parish of Orleans, where he resided, the probate court of St. Landry had no jurisdiction over Ms succession.

2. That Louis Blanc having left heirs residing in the State, the succession was not vacant and the court was without power to deal with it as such.

By reference to 32 Ann. 886, it will be seen that these very objections were urged to Duson’s capacity in that suit, and were overruled on the ground that the nullity of Duson’s ax>pointinent was not apparent on the face of the pleadings, and capacity could not be questioned collaterally.

Defendants say, however, that in the instant case the facts upon which the nullity rests are apparent on the face of plaintiffs’ own pleadings and, therefore, may be noticed by the Court.

We will not discuss this question. Conceding the nullity of Duson’s appointment as curator, we still think his suit, in that capacity, sufficed to interrupt prescription. He acted as the representative of the succession of Louis Blanc under an appointment by a court for that purpose. Had he recovered the property, his recovery would have inured to the benefit of the succession of Louis Blanc or of - those entitled thereto, whoever they might be. The literal terms of Art. 3518 C. C. were complied with, viz: “A legal interruption takes place when the possessor has been cited to appear before a court of justice either on account of the ownership or of the possession.” The defendants were cited to appear before a court on account of ownership asserted in behalf of the succession of Louis Blanc by one claiming to represent that succession under judicial appointment prima fade valid, and we think the plaintiffs are entitled to the benefits of the interruption, as they would have been entitled to the fruits of the recovery had it taken place. The case falls clearly within the broad doctrine heretofore laid down by this Court: In order to determine the extent and effect of a legal interruption, we must inquire more particularly into the object and cause of the action than into the right of the plaintiff, the manner in which it is prosecuted and the competency of the court in which it is instituted, and endeavor to ascertain how far the Mowledge of the titles on which the action is founded has been brought home to the defendant by the judicial demand; and we do not hesitate to conclude that, if it be established that the defendant has been judicially notified of the titles which are the foundation of the demand, so as to acquire a sufficient knowledge of the rights which are sought to be enforced against him by a suit, there results from said suit a legal interruption in fcwor of those to ivh.om such rights belong.” Flower vs. O’Connor, 17 La. 219.

It is next contended that even if the citation in that suit was effective in favor of plaintiffs as an interruption of prescription, its effect was lost by reason of plaintiffs’ abandonment of the suit under Art. 3519 C. C. which declares: “ If the plaintiff in this case, after having made his demand, abandons or discontinues it, the interruption shall be considered as never having- happened.”

The abandonment is claimed as the effect of the transfer by plaintiffs of all their rights, claims, etc., in the land in controversy to C. C. Du-son, made during the pendency of the suit. This transfer was the subject of discussion in the decision rendered in 33 Ann. 11.31, where it was annulled as the transfer of a litigious right and the suit, in consequence, dismissed, with express reservation, however, “of the rights of the sue-, cession of Louis Blanc or his heirs to vindicate their alleged titles to these lands by proper in-oceedings.”

There was no discontinuance and no abandonment of the suit. On the contrary, the suit i>roceeded to final judgment and was dismissed, without prejudice to plaintiffs’ rights, as we have seen.

Whatever abandonment there was of plaintiffs’ rights in the subject-matter of the suit was an abandonment, not in favor of defendants, but in favor of Duson, and defendants can take no advantage from it. It was the obvious purpose of both plaintiffs and Duson in the transfer that the rights of the former to the land and the suit for the enforcement thereof should not be abandoned, but, on the contrary, should he prosecuted; as is evident from the provision in the transfer that plaintiffs should receive the stipulated price only in the event of Duson’s recovery of the land. As affecting the question of interruption, it could make no difference whether the suit was prosecuted for the benefit of plaintiffs or of their transferee, Duson. We can find no force in the claim of abandonment, and must hold that the prescription invoked by defendants suffered a legal interruption and the plea must, therefore, be overruled.

On the merits, there is no defense.

The several bills of exception to the reception of evidence are without merit.

The identity of the land claimed by plaintiffs with that held by defendants is apparent from the fact that both claim from the same author and by descriptions substantially identical.

Judgment affirmed.


text:
    No. 1227.
    Succession of S. J. Weldon—On Opposition of J. L. Morris.
    Interest on moneys of tlie wife received and expended by the husband can be allowed only from his death, when the claim is set up against his succession.
    In a suit for revival of a judgment, citation within ten years interrupts prescription. If the judgment rendered thereon does not specifically revive the judgment, that error maybe corrected by proper proceedings below.
    PPEAL from tlie Thirteenth District Court, Parish of St. Landry. -, judge ad hoe.

      H. L. Garland for the Opponent, Appellant.

      K. Baillio, contra.

   On Motion of Administrator to Dismiss.

The opinion of the Court was delivered by

Manning, J.

The motion is based on an alleged want of jurisdiction, it being assumed that the sum involved is $494. That is the question in dispute, the inventoried value of the succession being claimed by the opponent to be $14,353, and the judge finding it to be $2,550. Clearly the motion is untenable and must be denied.

On the MeRits.

Weldon died on May 2, 1863 and his widow qualified as administra-trix. The inventory then taken represented values in Confederate currency. The movables were unavoidably lost through the accidents of war.

Morris obtained judgment against the succession in January 1871 for $550. In 1882 the succession ivas not yet settled, and the administra-trix had a new inventory taken, the sum total being $494. She proposes to distribute that sum, and the judgment creditor opposes. The judge ad hoc relieved the administratrix from accounting for property unavoidably lost, compensated tlie revenues by expenses of various kinds, and reduced the estimated value of the land which was $8,500 in Confederate currency to $2,550, the rate being 30 cents in thé dollar.

The administratrix interposes in this Court the plea of prescription to the judgment of the opponent. Ten years from its rendition would have elapsed in January 1881. He instituted his action for revival and had citation served the preceding month, but the judgment rendered thereon is not for revival. It seems to be a judgment for a sum of money. That had already been obtained. The only object of the subsequent suit was to revive the first judgment, and the revival of it is not even mentioned. It*should have been specifically decreed.

It does not follow however that Ms suit is therefore prescribed. The citation was in time. That has interrupted prescription. The opponent may obtain a judgment for revival on that citation. I-Ie is not therefore without interest, and the plea cannot at present be maintained.

The lower court erred in allowing interest on the claim for parapher-nal funds from the time they were received by the husband. The proper date is Ms death. In other respects he has ruled correctly, save in classifying Morris as a judgment creditor absolutely. It may be that on the triaFof the suit for revival, payment may be pleaded and proved. He must obtain his judgment for revival at his peril.

It is therefore ordered and decreed that the tableau and account are amended by inserting May 2,1863 as the date from which interest runs on the-widow’s paraphernal claim, that the classification of Morris as a judgment creditor be provisionally suspended, and that in other respects the judgment be affirmed, the parties to pay the costs of appeal equally.


text:
    No. 1213.
    The State of Louisiana vs. Berry Johnson.
    The legal discretion of the trial judge in a criminal case, in matters of continuances, will not he interfered with'unless the^ruling complained of is glaringly erroneous and manifestly unjust.
    An accused who, on the day of his arraignment, declines the offer of the court to assign counsel for his defense and informs the judge that he has retained his own counsel, is not entitled to a continuance on the ground that his counsel subsequently abandoned Ms case, when it appears that counsel was then assigned to Mm by the court and defended him through the trial and on appeal.
    APPEAL from the First District Court, Parish of Caddo. Taylor, J.
    M. S. Crain for the State, Appellee.
   The opinion, of the Court was delivered by

Poché, J.

The defendant appeals from a sentence of death for the murder of his wife and seeks relief under three bills of exception.

1. He complains of the refusal of the continuance of his case prayed for, on the ground that lie had not had sufficient time to prepare his defense. It appears that when he was arraigned, one week previous to his trial, the court offered to assign counsel for his defense. The offer was declined, for the reason that he had secured counsel of his own. On the day of trial he informed the court that.his counsel had abandoned him, and he therefore prayed for a continuance on that ground. Whereupon, the court having assigned him counsel who now represents him, refused the continuance, but allowed two hours delay to the attorney thus appointed.

At the time that the accused was offered counsel by the court, he was particularly warned to be in readiness for trial on the day fixed. All these circumstances satisfy us that in refusing the continuance of the cause, the judge did no injustice to the accused, and that he properly exercised the discretion vested in him by law in matters of continuance.

Our jurisprudence has firmly settled the rule that this Court will not interfere with the legal discretion of the trial judge, unless gross injustice has been done to the accused. The defendant chose to rely on his own selection of counsel rather than to accept the guidance of the court and he must abide the consequences. And besides, it appears that he was finally assisted by zealous counsel, who has invoked every technical defense which legal ingenuity can suggest.

2. The second bill of exception presents the ruling of the judge, in admitting testimony to show the previous relations as to peace or general treatment between the accused and his wife, whom he was charged to have murdered.

The evidence was clearly admissible, in order to show the cminms which prompted the accused in the perpetration of the homicide.

Circumstances resulting from such evidence may contribute to characterize the very essence of the deed, and law and justice alike demand the introduction of testimony on such a vital point.

3. The court admitted in evidence a certain rifle, over the objection of counsel for the accused.

Nothing in the record shows the reason or object of that evidence, or the connection between the rifle and the charge. We are therefore deprived of all means to consider the question of the relevancy of that kind of evidence. In the bill the judge says that the evidence was relevant, as tending to show premeditation. The defendant has failed to supply any reasons or to show any circumstances or authority to the contrary, or to show how the accused could possibly have been injured by the exhibition of a rifle to the jury, without any testimony or effort to show that the rifle belonged to the accused, or had been used by him at any time or under any circumstance.

The bill is painfully vague and unsatisfactory on this point, but we cannot do the injustice to presume that the trial judge would have tolerated the idle ceremony of exhibiting in a solemn trial a rifle or any other weapon or thing which had no connection by ownership or otherwise with the accused or the crime charged against him. It is the legal duty of parties who seek the reversal of rulings of inferior courts, to present to the appellate tribunal an intelligible statement of the matters embraced in their complaint.

We find no-error to the prejudice of the accused.

Judgment affirmed.


text:
    No. 1215.
    The State of Louisiana vs. Willie Williams, alias “Frenchy.”
    More absence of a witness, However material, is not ground for a continuance, unless it appears that due diligence Had been used, and also that there was j ast expectation of being able to procure the attendance of tbe witness in case tbe continuance were granted.
    APPEAL from the Nineteenth District Court, Parish of St. Mary. Goode, J.

      Jolm W. Ogden, District Attorney, and B. F. Winchester for the State, Appellee.

      A. 0. Allen and P. P. Sigw for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The only error assigned is the refusal of a continuance applied for on the ground of absence of a material witness.

The affidavit for the continuance was defective in not showing that there was any expectation of being able to procure the absent witness. State vs. Mollie Kobinson, 29 Ann. 364.

Defendant had given timely order for the summons of the witness, but the summons had been duly issued and returned “not found,” four days before the trial. If the defendant, in his order, indicated the place of residence of the witness, it is to be presumed that the sheriff sought for him at that place, without finding him, and there is nothing to show the contrary. If, knowing where he was to be found, he did not indicate it in his order, that was lack of diligence.

Although the judge a quo refused the application for continuance for the defect above stated, yet, in Ms anxiety to protect defendant, he caused the sheriff to send for the witness to a place suggested at the time as the place of his then residence; and before the defendant’s evidence was opened, the sheriff made return that he had proceeded to that place and that the witness could not be found.

Nothing in the affidavit or record indicates that, if a continuance had been granted, the witness could have been produced.

Judgment affirmed.


text:
    No. 1226.
    The State ex rel. Frank M. Condon vs. C. C. Duson, Sheriff.
    A party in actual custody under a charge of manslaughter, a bailable offense, is entitled to proceed by wit of habeas corpus before the Supreme Court or any of its judges for the purpose of being admitted to bail, provided he show that the judge of the district court of the parish in which he is held is absent from the State.
    Application for Habeas Corpus.

      H. L. Garland and Perrodin & DuRoy for the Relator.

      John H. Ogden, District Attorney, for the Respondent.
   The opinion of the Court was delivered by

Poché, J.

The relator, who is in the custody of the sheriff, has applied for a writ of habeas corpus, for the purpose of being admitted to bail.

He shows that the charge under which he is held, that of manslaughter, is a bailable offense, and that the judge of the District Court of the Parish of St. Landry, the only court of competent criminal jurisdiction, is now absent from the State. Hence, he alleges that his only remedy for the enforcement of his constitutional right of bail is by means of an application to the judges of this Court.

Resisting the application, the district attorney contends that the proceeding is really and in truth a simple application for bail, and that this Court lias no legal authority to entertain the same.

The punishment provided for the offense charged against relator places his case within the appellate jurisdiction of this Court. Article 89 of the Constitution vests the xiower in this Court and in each of its judges to issue writs of habeas corpus in oases in which it may have appellate jurisdiction. Article 792 of the Code of Practice confers the same power to district judges within the limits of their respective jurisdiction. Article 793 of the same Code provides that in case of the absence of the district judge the writ may he issued by the judge of competent jurisdiction in one of the adjoining districts.

It is plain, by a comparison of these articles and of the constitutional mandate, that touching such a case this Court or any of its judges would have at least the same power and authority as any judge of an adjoining district.

Undoubtedly, in ordinary circumstances such applications should originate in the court of competent original jurisdiction, but the rule must yield in the face of an unavoidable exception. In this case, the absence of the district judge creates an absolute impossibility to present the application to him. Our refusal to grant him relief when this Court is holding a term in the parish where the case is pending, would leave a party in actual custody under a charge or oftcnse which is bailable in its nature and which is within our appellate jurisdiction. The great and primary object of the writ of habeas corpus is to afford judicial relief to parties who are illegally deprived of their liberty. The peculiar and exceptional circumstances of this case place the relator in that precise condition. Our duty is to come to his relief, and we have ample authority to give the necessary orders.

In the case of Longworth, 7 Aun. 247, this Court held that “ a judge or court authorized to issue a writ of habeas corpus cannot refuse bail, by sufficient securities, except for capital offenses.” It is the constitutional right of the prisoner to demand it, and it is not in the discretion of the judge to deny it.

The same doctrine was annotuiced in the case of the State vs. Roger, 7 Ann. 382. See, also, Governor vs. Fay, 8 Ann. 490.

It is to be understood that nothing in this opinion must be construed as forestalling the subsequent action of any competent authority to find or prefer a charge of greater gravity against this relator. Our action is based exclusively on the nature of the sole charge now pending against him and under which he is entitled to bail.

It is therefore ordered that the sheriff do release the prisoner on a bond with good and solvent securities, in the sum of five thousand dollars, conditioned for his appearance before the competent authority to answer to the charge preferred against him.


text:
    No. 1211.
    The State of Louisiana vs. William Foster and Robert Davis.
    In a murder case, a verdict of “guilty of capital punishment ” cannot serve as a foundation for a sentence of death. The verdict, taken literally, convicts the accused of no crime known to the law or charged in the indictment; and if we resort to conjecture as to its true intent, the arguments are equally balanced as to whether it meant “ guilty with capital punishment,” or “ guilty without capital punishment.”
    APPEAL from the Twenty-first District Court, Parish of Iberia. Fontelieu, J.

      C. M. Mouton and John N. Ogden, District Attorneys, for the State, Appellee.

      Breax & Renodet for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The defendants, appeal from a sentence of death for the crime of murder.

A brief extract from the minutes of the court, as presented in the record, will disclose the only point which we find it necessary to discuss on this appeal:

“The jury appeared in court, and on being polled each juror answered to his name, as follows, etc.; whereupon James Camorse, foreman, handed to his Honor, the judge, the verdict in this case. The court ordered the clerk to read the verdict. It read as follows: ‘ Both guilty of capital punishment, (Signed) Jas. Camorse, foreman.’ The court again ordered the jury polled, and as each juror was called his Honor, the judge, asked him, ‘What is your verdict?’ ' Each juror answered, ‘Both guilty of capital punishment.’ The court then, on motion of the district attorney, ordered the verdict of ‘Both guilty of capital punishment’ recorded and remanded the prisoners to jail, and the jury in this case was discharged.”

An imagination stimulated by familiarity with the freaks of ignorant juries might have conceived the possible existence of a single man capable of inditing such a verdict; but the phenomenon of twelve men successively adopting and repeating the senseless formula, confounds all precedent and would surpass belief if it were not asseverated from the pages of a solemn judicial transcript. Not the slightest effort seems to have been made to call the attention of the jury to the absurdity of their verdict, or to afford opportunity for correction or explanation.

The sentence of death passed upon the prisoners in pursuance of such a verdict cannot, of course, be sustained. However heinous be the guilt of defendants, without the verdict of a jury finding them guilty of some capital'crime, the judge had no more right to touch their.lives-than if they had been as innocent as saints. We are equally without right to affirm his sentence, unless such verdict exists and appears on the face of the record. Obviously, it is wanting here. The verdict, taken in a literal sense, convicts the accused of no offense known to the law or charged in the indictment. If we resort to conjecture as to the intention of the jury, the arguments are about equally balanced as to whether it intended to find “guilty with capital punishment,” or “guilty without capital punishment.” In support of the latter hypothesis the record discloses that, on their voir dire, two of the jurors expressed their aversion to capital punishment.

In such matters we must not depend upon uncertain conjectures; and we are bound to reverse the judgment.

It is, therefore, ordered, adjudged and decreed that the verdict of the jury be annulled and set aside, the judgment and sentence voided and reversed, and the case remanded to the lower court to be there proceeded with according to law.


text:
    No. 132.
    The State of Louisiana vs. James Birdwell.
    In a criminal prosecution a juror is not incompetent 'because it is shown that on the clay before the trial he declared in a public store that he intended to convict every person tried before him as a juror, and when it is shown that on his voir dire the juror showed that he had no bias or prejudice in the case. Courts will not consider gossip in determining the legal qualifications of jurors.
    A juror who acknowledges to have formed an opinion in the cause, but asserts that such an opinion will readily yield to the evidence on the trial, and that he feels able to do impartial justice in the case, is competent. State vs. Dugay, 35 Ann. 327; and other decisions affirmed.
    Evidence to show that the accused had made efforts to cause the deceased to leave the country, in reference to a criminal prosecution instituted against him by the latter, who is the material witness in such case, and that in that connection he had made threats against tlie deceased, is admissible, as it tends to show elements of malice in the homicide.
    Evidence of the dangerous character of the deceased and of threats made by him against accused, unless preceded or accompanied by evidence of an assault or overt act, or of some hostile demonstration, at the time of the killing, is inadmissible as a defense against the charge of murder. The law of self-defense expounded.
    PPEAL from the Eleventh District Court, Parish of Sabine. Pierson, J.

      D. C. Scarborough, District Attorney, for the State, Appellee.

      J. F. Smith, T. C. Armstrong and Wm. Goss for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

Appealing from a sentence to the Penitentiary for life, on a charge of murder-, the defendant complains, by bills of exception, as follows:

1. That the judge erred in accepting as competent a juror who had on the previous dajr declared in a public store that he intended to convict every person tried before him as a juror.” The bill shows that on his voir dire the juror stated that he had made the remark imputed to him in a jocular manner; that he had no opinion or bias either way in the case on trial; and his examination convinced the judge, as it satisfies us, that he was a competent juror. We can but commend the course of the judge in disregarding an imprudent or light remark made by a juror out of the presence of the court.

Corner grocery gossip cannot be considered as an element in the consideration of a serious question touching the legal qualification of a juror in a trial involving the life or liberty of a human being.

2. He charges error in the ruling of tire judge on the qualification of a juror who stated on his voir dire, in substance, that from conversations which he had had with several persons, not known to him as witnesses in the case, he had formed an opinion, which would only yield to different evidence.

During a further examination the juror stated that he had no bias or prejudice for or against the accused, whom he did not know; and that the opinion which he had formed, and which rested on rumor, would readily yield to evidence on trial. Whereupon the judge promptly and correctly ruled that he was a competent juror, and overruled the objection of defendant’s counsel to Ms competency.

The serious manner with which counsel for the accused press their objection before this Court satisfies us that our recent decision in the case of the State vs. Dugay, 35 Ann. 327, has thus far escaped their attention. In that case wo reiterated the well established rule which recognizes as competent a juror who states that he has formed an opinion in the case, but who asserts at the same time that he is free of bias or prejudice, and that he feels able to do impartial justice according to the law and the evidence in the case.

As we said in the Dugay case: “We now distinctly and emphatically reiterate that this is the correct rule, with the reasonable hope that it will be clearly understood by the profession.”

3. He next charges that the judge erred in admitting, over his objection, the testimony of a witness intended to show that some three weeks previous to the homicide the accused had solicited the witness to induce the deceased “to leave the country.” The bill shows that this request was made with reference to a criminal prosecution which the deceased had instituted against the accused, and in which he was the material witness. It further appears that the accused had made threats against the deceased in connection with that prosecution. Under that state of the case the evidence was admissible. Malice being of the essence of murder, it was competent for the State to prove a feeling of ill-will and enmity on the part of the accused to the deceased, as both are elements of malice.

The evidence, although not immediately connected with or making part of the res gestae, was not irrelevant, as charged by counsel, because it served to enlighten the minds of the jurors on some of the motives which impelled the perpetration of the homicide, and because it tended to show premeditation, one of the essential elements of murder.

4. The defendant complains of the rejection of evidence offered by him to show the general dangerous character of the deceased, and to prove threats previously and repeatedly made by him against the life of the accused. The evidence was excluded on the ground that the accused had not yet shown any overt act, assault or hostile demonstration by the deceased against the accused at, or immediately before, the time of the killing.

It appears from the bill that from the evidence previously introduced and uncontradicted, it had been shown that the deceased had been killed at a steam mill where he was employed, and to which the accused had gone in the evening in company with another person, and that he was shot when in the act of leaving for his home with a bag of meal on his shoulders and when he was walking away from the ac-eused, with whom he luid just exchanged a few words in answer to the inquiry by the accused whether deceased liad or not threatened to kill him.

To his inquiry the deceased made answer by asking' him, “Who told you so 9” To which the defendant had answered in a violent manner that it made no difference. Whereupon the deceased replied, “Lot me alone, I don’t want any fuss with you;” and walked away when he was shot, and in his flight, before falling, was pursued by the accused.

We have taken the trouble to thus' detail these circumstances, because they conclusively show a state of things entirely inconsistent with the circumstances, which could alone justify the introduction of the evidenco of the dangerous or violent character of the deceased, and of previous threats alleged to have been made by him against the life of the accused.

It must be noted that the evidence was offered as a defense to the charge of murder, without restriction or qualification, of intending the same to rebut the evidence in proof of malice previously introduced by the State. That feature of the question entirely removes it from the effect of the rulings and dicta in the cases or the State vs. McNeely, 34 Ann. 1022, and the State vs. Cooper, 32 Ann. 1085, relied upon by counsel. Under the authority of those cases the evidence might have been admissible if offered with the avowed and exclusive object and purpose to rebut the proof of malice or to mitigate the offense charged. But in the absence of such a restriction, and when offered, as in this case, as a general defense to the charge of murder, and in the abs mce of any proof to show an assault, an overt act or a hostile demonstration as the immediate occasion of the homicide, that evidence has uniformly been held to be inadmissible.

The rule of its exclusion rests on the wise and philosophical reason that no one is justifiable in killing a man simply because he is.vicious, quarrelsome or dangerous, or because he has made threats which he manifests no intention of carrying into effect. Wharton’s American Criminal Law, sec. 641; State vs. Jackson, 33 Ann. 1087; State vs. Vines, 34 Ann. 1074.

5. The last bill embodies a complaint against the refusal of the judge to give the following special charge to the jury:

What constitutes such an overt act as will warrant a person in slaying his enemy in Iris own defense, is a question for the jury, to be resolved according to the circumstances of each particular case; no general rule can be laid down upon the subject.”

In lieu of which the judge gave the following charge:

That the law requires such an overt act on the part of the deceased at the time as would he calculated to produce in the mind of the prisoner a reasonable apprehension that the design was to take his life or to do him great bodily harm. To excuse homicide in self-defense, the assault must be perilous, not any act, not even such as the jury ought to excuse, but dangerous action, imminent peril, necessity can alone excuse.”

It takes but a glance at the two propositions as quoted to satisfy the legal mind that the judge’s refusal to give the charge suggested by counsel was eminently proper, and that the charge which he gave contains the true and correct doctrine of self-defense as expounded by nearly all American courts, and as announced by all respectable authors on criminal law.

This concludes the consideration of all the objections and contentions suggested by the zeal and ingenuity of counsel in their laudable efforts to extricate their client from the clutches of the law, and we have found no error to his prejudice, or no reason to relieve him from the penalty of his own act.

Judgment affirmed.


author: Todd, J.

text:
    No. 138.
    The State of Louisiana vs. Ferdinand Edwards.
    "Where an appeal ig talcen by a person convicted of a crime and under sentence, who escapes from custody during the pendency of his appeal, and who remains a fugitive,his appeal will be dismissed.
    A PPEAL from the Second District Court, Parish of Bossier. X_L Drew, J.

      J. A. W. Loughery, District Attorney, for the State, Appellee.

      J. A. Snider for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant was convicted of murder and sentenced to a life imprisonment in the penitentiary. He appealed to this court and during the pendency of the appeal escaped from the jail in which he was confined. He was not re-arrested and is now a fugitive.

The district attorney moves to dismiss the appeal by reason of the above facts. The motion must prevail. A prisoner, under conviction and sentence, who has escaped from custody during the pendency of his appeal, cannot, by counsel, prosecute his appeal.

In the case of State vs. Wright, 32 Ann. 1017, while the fact of the escape was not fully established, on motion of the district attorney to continue the case, we granted the continuance. In this case there is no doubt of the escape and there is no reason whatever why the case should remain any longer on the docket.

The appeal is therefore dismissed.


text:
    No. 134.
    The State of Louisiana vs. Frank Wilson.
    A voluntary confession of the accused, not made under restraint or constraint, is admissible in evidence. If it is admitted by his consent, he cannot afterwards object to it.
    Objections to the form of tlie oath administered to the jurors must bo made at the time of [heir qualification. Such objections are assimilated to those made to the possession by a juror of the proper qualifications, which must be made whom he is offered, and to those that may be made to the list of jurors, which must be complained of when the imperfection or defect is discovered. It is too late to object to the form of the oath in a motion for a new trial.
    APPEAL from the First District Court, Parish of Caddo. Taylor, J.

      M. S. Crain, District Attorney, for the State, Appellee.

      John W. Jones for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

Prom a sentence to hard labour for eight years, inflicted upon a conviction of burglary and larceny, the defendant appeals, and relies for reversal upon a bill of excei>tion and a motion for a new trial.

The bill is to the admission in evidence of a confession of the defendant under these circumstances; — Two men, one the owner of the house broken into, were in pursuit of the felon, and coming up with the defendant asked if he was the man that came down the road that morning, and if he was armed. They ordered him to lay his pistols down, which being done, they asked him where were the things stolen. One of the parties had a gun in hand, apparently ready to use it. The confession then made was ruled out.

But on the following day all of them, the pursuers and pursued, seem to have fraternised. While laughing and talking over the event, the defendant said that he was a fool for telling where the gun was (a gun was one of the things stolen) for he had hid it so well they would never have found it, and if he had known the owner of it was as poor as he was, he would not have entered his house and taken his things ; he thought it was a negro’s house and actually smelt the pants, (which he had also stolen), to test the colour of the wearer by the odour.

This conversation was admitted. That it was voluntary and not made under restraint or constraint is apparent. But its admission was preceded by the inquiry, addressed by the court to the prisoner’s counsel, if he had any objection to urge, which was responded to negatively. The confession was therefore admitted by the prisoner’s consent, and no objection to it can now be heard.

The motion for a new trial is based on the alleged insufficiency of the oath administered to the jurors.

Even if the oath were defective in form, advantage cannot be taken of it in a motion for a new trial. Objection should have been made at the time it was administered. It seemed to have been good enough in the opinion of the prisoner for the purpose of an acquittal, and he cannot take the chances of a favourable verdict, withhold objections that should have, been made on the instant, and remit the disclosure of them to the close of the trial.

Objections to the form of the oath are assimilated to objections to the qualifications of jurors which must be made when they are offered, State v. Bower, 26 Ann. 383, and to objections to the list of jurors, the incorrectness of which cannot be taken advantage of, if no complaint is made at the moment of discovery. State v. Shay, 30 Ann. 114.

Judgment affirmed.


text:
    No. 136.
    The State of Louisiana vs. Ben Jenkins et al.
    "Where, on appellant’s own motion and suggestion, an appeal is made returnable at a time and place different from those required by the provisions of a mandatory law, and where the order of the judge granting the appeal shows that he merely adopted the suggestion of appellant by granting the appeal “as prayed for,” the error is imputable to the fault of appellant, and, under the settled jurisprudence of the State, the appeal must be dismissed.
    The constitutional right of appeal is a right of appeal in conformity with law.
    Rules of practice, when once settled by authoritative decisions, must, in public and'private interest, be adhered to.
    APPEAL from the Tenth District Court, Parish of De Soto. Logan, J.

      J. C. Pugh, District Attorney, W. H. Wise and J. H. Shepherd, for the State, Appellee.

      W. H. Jack, John L. Seales, C. M. Pegues, T. F. Bell and C. B. Stewart for Defendant and Appellant.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Fenner, J.

The ground of this motion is, that the appeal taken on February 28,1884, was made returnable to this point, instead of to New Orleans where this Court was then in session and remained in session until may 31, following.

The return day fixed was in gross violation of the provisions of Act 30 of 1878, which requires appeals in criminal cases to be “made returnable within ten days after granting the order of appeal, whenever the Supreme Court may be in session on the return day.”

This error is unquestionably fatal to the appeal, unless saved by the provisions of Act 53 of 1839, now section 36 of the Revised Statutes, which provides, in substance, that such error shall not occasion the dismissal of the appeal unless imputable to the fault of appellant.

The question in this case is whether or not the error here was imputable to appellant’s fault.

What are the facts ?

The record shows that on February 28, a written motion of appeal was tiled, signed by the numerous counsel for appellant, in which they, in the language of the document, “ moved the court for an appeal returnable to the Supreme Court of Louisiana, at Shreveport, La., on the second Monday of October, 1884.”

On the same date the order of appeal was entered on the minutes in the following words: “Motion for an appeal filed and returnable to the Supreme Court at Shreveport seen d Monday of October next and according to law, and it is ordered that appeal he granted as prayed for in the motion."

Observe: appellant filed a motion asking an appeal returnable at Shreveport; the court simply granted the appeal “as prayed for in the motion.”

Now, whatever "contrariety of opinion may have existed previously, it has been settled since the case of Wooton vs. LeBlanc, 32 Ann. 692, that when the appellant expressly asked that the appeal be made returnable at a wrong timo and place, and the order of the judge merely fixed the return day as prayed for, the error is imputable to appellant’s fault and the appeal should be dismissed.

In a very recent case, we repeated the doctrine very emphatically, saying: it is elementary in onr practice, that when an imx>roper return day is suggested by appellant, the error is attributable to his own fault and his appeal cannot be maintained.” State ex rel. Lee vs. Jumel, 35 Ann. 980.

In Delwood’s case we admitted an exception to the general rule. There, although the appellant suggested the erroneous return day, in his motion, yet tiie order of appeal recited that by reason of the law and of the motion herein filed, the appeal is granted returnable, etc.” We held that inasmuch as the order showed by its terms that the judge acted by reason of the law ” and not merely in pursuance of appellant’s suggestion, the order was an exercise of judicial discretion, error in which could not prejudice appellant. But we distinctly differenced the case from that of Wooton vs. LeBlanc, whose authority was not impugned. State vs. Delwood, 33 Ann. 1229.

This decision does not protect the present case where the peculiar feature on which it rested is entirely wanting.

Indeed, it is not with very good grace that appellant invokes the shelter of Delwood’s case, because in that very decision we pointed out the gross illegality of the return day fixed, and it must have been known that the order asked for by him was equally illegal.

He asked for an order so patently illegal that even ignorance or doubt of its illegality could not be pretended. The judge granted it. There is nothing to show that the judge exercised any independent discretion or did anything more than grant the appellant’s own prayer by allowing the appeal as prayed for.”

With all our desire to protect the right of appeal, especially in criminal cases, we cannot avoid the conclusion that the error here is attributable to the clear fault of appellant, and that it is fatal to his appeal.

The constitutional right of appeal is a right to an appeal in conformity to law.

Rules of practice, when once settled by authoritative decisions, must be adhered to. They cannot be varied, without involving in uncertainty questions about which public and private interests require that there should be no uncertainty. Tn no class of cases, does the rule of stan-e decisis apply more forciblj'.

It is, therefore, ordered, adjudged and decreed that appeal herein taken be dismissed.


author: Poché, J. Manning, J.

text:
    No. 137.
    Margaret Viola Gray vs. Simeon Gray.
    In an action for partition of property held in indivisión, tlie jurisdiction of this Court must lie tested under the same rules which govern in succession matters. The jurisdiction of this Court depends upon the amount of the fund to he distributed, and not upon the amount claimed therein.
    In this case the amount of the inventory is less than $2000; and the fact that appellant claims $5000 against the community, cannot vest jurisdiction in the Supreme Court.
    PPEAL from the Second District Court, Parish of Webster. Drew, J.

      J. D. & J. T. Watkins for Plaintiff and Appellee.

      J. E. Reynolds for Defendant and Appellant.
   Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

The object of plaintiff in these proceedings is to obtain a partition by sale of the property depending upon the succession of her mother in community with the defendant, the surviving husband, and to obtain a recognition of her mortgage rights on the immovable property of the community, in restitution of her mothers paraphernal funds, amounting to $1502 54.

The defense is a general denial, followed by a plea in reconvention for judgment in the sum of $5000, the alleged amount of the defendant’s separate funds used and disbursed for the benefit of the community. He has taken this appeal from a judgment in favor of his daughter, allowing her all the relief which she sought.

The motion to dismiss, predicated on our want of jurisdiction ration e material, must prevail, because the fund to be distributed, as shown by the record, does not exceed, but is less than, two thousand dollars. From an inventory taken of all the property belonging to the succession and to the community, it appears that the pecuniary value of the same is $1918 72; that is the fund to be distributed, and that affords the test of our jurisdiction, irrespective of the amount claimed therein. Art. 81, Constitution.

Hence it follows that the amount claimed by the defendant as a credit against the community cannot be considered as a constituent element in the test of jurisdiction.

The object of the suit being for a partition of the community, and for the enforcement of a privileged claim thereto, the proceeding is practically a settlement of the succession of plaintiff’s mother; and the question submitted under the present motion must therefore be settled under the rules governing such cases.

Jurisr>rudence has long since settled the rule that in such cases the jurisdiction oí this Court depends 'upon the amount of the fund to be distributed. Out of numerous decisions we quote the following as directly in point: Succession of W. H. Gale, 21 Ann. 487; State ex rel Hickman vs. Judge, 28 Ann. 935; Succession of James Cloney, 29 Ann. 326. It will be noted that these decisions were rendered under the Constitution of 1868, which did not circumscribe or define the jurisdiction of this Court in as narrow and clearly described limits as is done in the present Constitution, which has left very little room for discussion on the question of jurisdiction in all matters of partition and succession. But that provision, although clear and unambiguous, has been tested and has been j udieially interpreted since the adoption of the present Constitution, and the rule is now absolutely settled that “the amount of the claim preferred against the succession is not the test of jurisdiction, but the fund to be distributed.” Succession of Thomas, 35 Ann, 19; Succession of Andres, 34 Ann. 1063; Succession of Lesassier, 34 Ann. 1066.

It is therefore ordered that this appeal be hence dismissed at appellant’s costs.

Appeal dismissed.

ON Application por Rehearing.

Manning, J.

The appellant calls our attention for the first time to the date when his appeal was taken, viz May 9th of this year, at which time the constitutional amendments changing the jurisdiction of this Court had not been promulgated, and therefore his appeal was rightly taken then. Those amendments became a part of the Constitution on May 15, 1884, and our disi>osition of the case should have been a transfer of it to the Circuit Court. We grant the rehearing solely for the purpose of altering our decree.

On Rehearing.

It is ordered and adjudged that our decree dismissing the appeal in this case be rescinded and vacated, and that the record be transferred to the Court of Appeals for the Circuit that includes Webster Parish.


text:
    No. 141.
    W. L. Dickson vs. Lizzie Dickson et. al.
    Where in ’an act of mortgage the property mortgaged is first described by legal subdivisions and these sub-divisious are tben declared to compose a certain plantation, giving the name thereof and otherwise sufficiently describing it apart from the sub-divisions mentioned, held that the mortgage rested on tbe plantation and that parol evidence was admissible to show that the description by the legal sub-divisions was erroneous and that said numbers did not, in whole or in part, compose the plantation.
    APPEAL from the Second District Court, Parish of Bossier. Brew, J.

      J. D. & J. T. Watkins for Plaintiff and Appellee.

      R. J. Looney, J. H. Shepherd and Loughery & Vance for Defendants and Appellants.
   The opinion of the Court was delivered by

Todd, J.

A judicial partition having been made of the lands belonging to the succession of Hannah P. Dickson, Mrs. Mattie L. Dickson, subsequently to said partition, obtained a judgment recognizing and rendering executory a special mortgage against a part of the lands so partitioned.

This judgment rendered necessary certain supplementary proceedings relating to said partition, having in view the readjustment of the shares of the heirs of said deceased, on account of this mortgage, and to provide for its payment by the heirs, who bought the lands at the partition sale.

In those proceedings Mrs. Mattie L. Dickson, the mortgage creditor of Hannah P. Dickson, deceased, intervened for the purpose of enforcing her mortgage against the property subject thereto. In her petition she alleged that her mortgage rested upon the Rush Point plantation and that she was entitled to the proceeds of the same in the proportion of the mortgager’s interest therein. She further alleged that in the act of mortgage certain lands were erroneously inserted and described by numbers or legal sub-divisions as composing Rush Point plantation which, in fact, formed no part o1 the said plantation, the property really mortgaged.

The opposing parties asserted that the description of the lands in the act of mortgage was correct and conclusive, and denied her right to alter the description or to introduce parol testimony' to contradict, change or modify the same as shown by' the act of mortgage.

This contention presents the main issue in the case for determination.

The property mortgaged is thus described in the act:

“All her right, title and interest to the following described property, to-wit:
“ Fractional section three, the east half and the northwest quarter of the northeast quarter, and the west half and northeast quarter, and west half and northeast quarter of northeast quarter of section four, and northeast quarter and southwest quarter of section five; and the northwest quarter of northwest quarter of section eight, township twenty and range fourteen.
“ Said property being the Rush Point plantation on which Michael A. Dickson, deceased, formerly resided, and now occupied by Mrs. Mattie L. Dickson, containing about six hundred and sixty acres, more or less, together with all the buildings and improvements thereon, lying on Red river nearly opposite Carolina Bluffs.”

From a reading of the above description it seems to us that it was clearly the meaning and intention of the contracting parties that the X>roperty to be mortgaged was the Rush Point plantation. This is the necessary inference from the words “ the said property being the Rush Point plantation,” etc.

If the language of the act makes it clear that it was the Rush Point plantation that was mortgaged, then the numbers or the legal subdivisions named in the act became secondary or merely descriptive of the subject of the contract — the thing mortgaged. It would be a bold proposition for either party to the contract to assert that the Rush Point plantation was not the subject of the mortgage, and one which would not be listened to, but to say that the cumbers cited as composing the plantation did not, in fact, comx>ose it, would not be strange, but be viewed as a misdescription of the property which, as well known, is of frequent occurrence in contracts of this kind.

The right which the creditor had was to enforce the mortgage on the Rush Point plantation, if that property was sufficiently described, and the right could not be defeated or affected by any errors in the description, whether in the numbers or otherwise, provided, that the description, taken as a whole, was sufficient to identify the property.

It seems to us clear, therefore, that there was nothing in the language of the act of mortgage, relating to the property mortgaged, that would prevent the intervenor, under the allegations of her petition from showing this misdescription of the property, and it was competent to do so by parol testimony. In like cases this right has never been denied. We cannot see anything in this case, on this point, to distinguish it from the case of Levy vs. Ward, 33 Ann. 1033, where the authorities on this subject were all reviewed.

It was urged in argument by the defendant’s counsel that that case was one instituted to correct an error alleged in the description of land sold and that this case differs from that one because there is no allegation of error. In this the counsel are mistaken, as we find in the petition of the intervenor a distinct allegation of an erroneous description of the property mortgaged — as we have before stated.

If the object of the parties was to effect a mortgage on the Rush Point plantation and that property was sufficiently described apart from the numbers — which we deem it to have been done under ample authority — the errors in the numbers could not defeat the true intent and purpose of the contract, and it follows as one of the plainest legal propositions that parol evidence was admissible to show the error.

If it be conceded that the real and true subject of the mortgage was the Rush Point plantation, and it was sufficiently described by metes and bounds or otherwise, and incorrectly described by numbers or legal sub-divisions, then it might be considered as presenting an ambiguity on the face of the act, which, without any allegation of fraud or error, might be explained by parol.

The evidence admitted shows' what the Rush Point plantation embraced at the date of the mortgage; that some of the sub-divisions mentioned were not owned, at the time, by Mrs. Hannah P. Dickson, and some were separated from the plantation by an intervening proprietor, whose land was also included in the mortgage and which the mortgagor never claimed, which facts are strongly confirmatory of the mistakes made in the preparation of the act of mortgage.

It seems that a small part of hill land on the opposite side of Red river from the plantation in question, of little value, was purchased subsequent to the opening or establishment of the plantation. This tract was sold at the partition sale with the plantation, and as it could not be considered as forming a part of the plantation and subject to the mortgage, parol evidence was admitted to show the value of this land with a view to deduct its value from the total price at which the whole property — that is the plantation and the hill tract — was adjudicated, so as to ascertain the precise fund derived from the sale of mortgaged property. We think this evidence was properly admitted under the circumstances. We cannot well see how the object in view could have been reached without such testimony unless resort was had to other proceeeings. And it is evidently the interest of all parties that this matter, involving but a small interest, should be thus settled.

From a complete and thorough review of the record we think the judge of the lower court reached a proper conclusion upon the facts of the law involved in the issues presented, and thus did justice between the parties, and the judgment appealed from is, therefore, affirmed, with costs.


text:
    No. 133.
    The State of Louisiana vs. Julius Robinson.
    Non-arraignment, that would have "been fatal to the legality of the verdict and sentence, does not exist where, after discovery that the defendant had not been arraigned, he waives arraignment and the trial begins, de novo, and the jury are re-sworn. .
    Objection to the form of the jurors’ oath must be made when it is administered, and cannot be made the basis of a motion for a new trial.
    APPEAL from the First District Court, Parish of Caddo. Taylor, J.
    M. S. Crain, District Attorney, for the State, Appellee.

      Alexander & Blanchard for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The defendant was convicted of obtaining money under false pretences, and was sentenced to hard labor for one year.

A bill of exception was taken to an alleged want of arraignment. It appears the preliminary stages of the trial had been gone through — the jury had been completed after challenges by both sides, and the indictment had been read to them — in other words, the State had opened its case — when it was discovered that the prisoner had notbeen arraigned. The judge at once arrested the proceedings and ordered the arraignment of the accused, whereupon his counsel waived it but waived nothing else, by which we understand them to mean that they were to be considered at liberty to take advantage of the previous non-arraignment. This being done, the judge began de novo, the jurors were sworn again, but the indictment was not read again, and the trial proceeded.

We shall treat the waiver as the counsel seem to wish, leaving the defendant at full liberty to object to its previous admission. But what has he to complain of? The want of arraignment, which would have been fatal to the regularity of the trial, no longer existed. A plea was entered. The judge even took the precaution to have the jurors re-sworn. They had already heard the indictment read. It was not needful, nay it would have been superfluous, to have read it again. The waiver took the place of an actual arraignment, and even if it did not operate as an estoppel, 1 Bish. Cr. Prac. § 117, the irregularity was cured, or regularity was restored by the judge commencing de novo, and going over anew what had already been done.

Adhering to the strictest technicalities would not justify interference with a verdict thus rendered.

The only other objection is presented in a motion for a new trial, of which the sole ground is an alleged insufficiency of the oath administered to the jurors in this, that it did not contain the words “according to law” at its conclusión, but only “ according to the evidence.”

If the contention could for a moment prevail, that the Constitutional provision of 1879, art. 168, made necessary the alteration of the form of a juror’s oath, when the brief of counsel asserts that “juries in this State have always been judges of the law as well as the facts,” and hence their functions now are just what they have always been, and therefore the oath that was sufficient before must be sufficient now, the objection if good comes too late. It cannot be made in a motion for a new trial, but must be at the time the oath is administered. No objection was made when the oath was first administered, and none when the jurors were re-sivorn.

Judgment affirmed.


text:
    No. 135.
    Wm. Davis et al. vs. John Montgomery et al.
    "When a citizen of Louisiana brings a petitory action against a citizen of Georgia, the latter of whom calls in warranty a citizen of Louisiana, there arise in the case two distinct controversies, one between plaintiff and defendant who are citizens of different States, and the other between defendant and warrantor who are also citizens of different States.
    The fact that plaintiff and warrantor are citizens of th.e samo State cannot prevent defendant from removing the cause to a Federal court.
    "Where at the first term of court after the suit, defendant in his answer files a demand in warranty, the warrantor is entitled to citation and the usual delay for answering, and the cause cannot be tried until after the expiration of that delay. If it does not expire till after the passage of that term, the following term is the first at which the cause could have heen tried, and an application for removal made at that term is timely under the provisions of the act of Congress of March 3d, 1875.
    APPEAL from tlie First District Court, Parish of Caddo. Taylor, J.

      J. B. Slattery and Alexander & Blanchard for Plaintiffs and Appellants.

      Wise & Herndon for Defendants and Appellees.
   The opinion of the Court was delivered by

Fenner, J.

The suit is a petitory action brought by plaintiffs, residents of this State, against Montgomery, a citizen of Georgia, and his tenants, who are mere nominal parties and need not be further considered, to recover the undivided half of certain immovable property, alleged to belong to plaintiffs but to be in the illegal possession of Montgomery under a title alleged to be void.

The suit went to issue at the March term of the court, when defendant filed his answer denying the alleged title of plaintiffs, asserting the validity of his own title, and at the same time made a demand in warranty calling in A. H. Leonard, a resident of the city of New Orleans, as the author and warrantor of his title, praying that he be cited and for such judgment against him as might be rendered against defendant.

The warrantor was accordingly cited, and the delay allowed him for answering had not passed till after the-expiration of the March term of the court.

At the following June term of the court default was taken against the warrantor, and immediately thereafter the defendant, Montgomery, made application for removal of the cause to the Circuit Court of the United States, under the provisions of the act of Congress of March 3d, 1875. All the forms of the law were complied with, but plaintiffs appeared and opposed the granting of the application in an exception based on the ground that the application came too late, because not filed at the first term of the court at which the case could have been tried, as required by the terms of the statute.

The court, after hearing, overruled the exception, and entered judgment removing and transferring the case to the Circuit Court of the United States, from which judgment the present appeal is taken.

Plaintiffs ask a reversal of the judgment of removal on two grounds, viz.:

1. That the application to remove came too late, as set up in the exception.

It is manifest that the defendant had the right to make his demand in warranty; that the warrantor was entitled to be cited, and, in the very words of the Code of Practice, to be allowed for answering the same delay as in ordinary suits,” C. P. 383; and that the cause could not be tried until after the expiration of these delays. Therefore, as these delays had not passed prior to the expiration of the March term of the court, the cause could not have been tried at that term. The first term at which it could have been tried was the following June term, and the application then made was timely under the statute.

2. It is next urged, however, that the order of removal is erroneous, because the controversy in the suit is not “ wholly between citizens of different States,” as required by statute.

It is true that the warrantor is a citizen of the same State with plaintiffs, but both plaintiffs and warrantor are citizens of a different State from that of defendant.

There is no direct controversy between plaintiffs and warrantor.

Plaintiffs can recover no judgment against warrantor, nor warrantor against plaintiffs. The only judgment which can be rendered in favor of plaintiffs is one against defendant alone. The only judgment which can be rendered against warrantor is one in favor of defendant alone. C. P. 385. Therefore, there are two distinct controversies in the suit, and only two' — one between plaintiffs and defendant, who are citizens of different States; the other between defendant and warrantor, who are also citizens of different States.

The expressions in various cases to the effect that the warrantor is the real defendant in the case, that he is entitled to manage the defense not only as between themselves and defendant, but also as between defendant and plaintiff, only mean that as defendant recovers against the warrantor the same judgment which the plaintiffs may recover against the defendant, the warrantor has the right to make such defenses for the former as he shall judge best for his own protection, not against plaintiffs, but against defendant.

The call in warranty is a mere incidental demand, so expressly designated in the Code of Practice.

This action is one which the plaintiffs might have originally brought in the Federal court, and if they had so brought it the citizenship of the warrantor would have been no obstacle to his being called in warranty in that court.

Even after bringing the action the plaintiffs would have had the right to remove it to the Federal court, and defendant could not have deprived them of that right by calling another party in warranty.

If, notwithstanding the call in warranty, the right to remove still subsisted in plaintiffs, it must remain in defendant also, because the statute grants the right indiscriminately to plaintiffs and defendant.

We find no error in the judgment appealed from.

Judgment affirmed.


text:
    No. 142.
    The State of Louisiana vs. Joe Foster.
    The fact that on© presented as a juror has formed an opinion from rumours of the case and has expressed it, does not disqualify him if he avers that the rumours would not influence him as a juror, and that he will be guided by the evidence in rendering a verdict.
    The exercise of a lower judge’s discretion in granting or refusing a continuance will not be disturbed, if it has been done soundly and not harshly or arbitrarily,
    A prayer or motion fora second continuance for the same cause, for which one has already been granted, is entitled to less favour than the original application.
    Conversations with the prisoner touching his identity are admissible to prove that fact, no inducement, threat or promise having been made to him or in his presence.
    A PPEAL from the Eleventh District Court, Parish of Natchitoches. Pierson, J.
    D. C. Scarborough, District Attorney, for the State, Appellee.

      Ponder & Porter for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The defendant was convicted of rape and was sentenced to be hanged. His appeal presents three objections to the legality of the conviction, embodied in as many bills of exception.

1. J. C. Cammack, a juror, was challenged for cause by the defendant, but the court ruling that the cause was not good, he was challenged peremptorily. The cause of challenge was that the proffered juror had formed and expressed an opinion on the case, based on rumour, and was a man of strong prejudices.

The examination of the juror on voir dire was ; — “ I have read something in the newspapers about this case; have heard the prevailing ru-mours about it, and have expressed an opinion based upon those rumours. I am a man of strong feelings and prejudices generally. I do not know the prisoner; do not know anything about the case; don’t know the witnesses; have no knowledge of the facts; have no bias for or against the prisoner; have no strong feelipg against him personally, or his case; believe that I can be guided by the evidence in rendering a verdict, and that I can disregard the impression produced by the rumours. I do not think the rumours I have heard would influence me as a juror.”

If the men who disclose that they have strong prejudices as a characteristic are to be excluded from the jury-box, the list of competent jurors will be shortened at the wrong end. He who frankly discloses his own mental peculiarities, but as frankly avows'they cannot hinder him from doing his duty, will be a much more impartial weigher of evidence, and is a fitter juror than one who conceals the fact that he has heard rumours, or is so uncertain of himself that he cannot tell whether the rumours or the newspapers would influence him or not. There is nothing in the answers of the juror that affect his competence, and the prisoner was therefore properly driven to his peremptory challenge.

2. A continuance was refused for the absence of a witnes. The lower judge assigns as reasons for his refusal, that at a previous term the prisoner had obtained a continuance for the absence of several witnesses, and among them this one who was again absent; that no attachment had been asked for the witness, and the particular matter he was expected to prove was an alibi, and other witnesses were present to prove the same and had testified relative thereto, and finally the court believed the application was a pretext for delay.

It has been so often said it has become trite, that the trial judge is entrusted with a large discretion in granting or refusing continuances, and it is thoroughly well settled that if his discretion has been soundly exercised, and not harshly or arbitrarily, his ruling will not be disturbed. A request for a second continuance for the same cause as the first continuance was obtained strengthens the supposition that the main object was delay, and the judge no doubt rightfully interpreted the prisoner’s motive.

3. The third bill was to the testimony of a deputy-sheriff as to the 'identity of the prisoner, which was that he had been sent to Shreveport to inspect the prisoners there in jail to ascertain if the accused was among them, and he recognized one of them as the accused. He then detailed his conversation with the prisoner. The objection seems to be to the admission of this conversation in evidence, the bill characterizing it as hearsay.

The proof of identity was made independent of the detailed conversation, but the conversation was admissible for it is not pretended that the piisoner made any confession, and that objection to its admission is made on that score. The sheriff said to the prisoner, “ I saw you on such a morning at or near Sinnott’s station on the railroad,” who replied “no, I came here all the way on the cars.” The sheriff rejoined, “I saw on your breast a spot of blood when you passed me on the railroad track,” and the accused answered, “ oh no, that was red paint I got off the colored quilt we slept under at Alexandria.” The shewff exclaimed, “ oh pshaw Jo, you must be the man,” and these was no answer.

We are at a loss to perceive why this is inadmissible. What weight it should have — whether any — was matter for the jury, but they were entitled to hear it. Wharton Crim. Ev. 679.

Judgment affirmed.