author: Nicholls, C. J.

text:
    No. 12,166.
    The Union Oil Company vs. F. L. Campbell, Assessor, et al.
    1. On. rule to show cause when relator’s demand is first met by a peremptory exception and such exception is overruled, the respondent is not thereby debarred from any further defence on the merits of the application.
    2. The court, in its discretion, will prevent any improper advantage being taken by filing the exception separately from the answer; this was done in Shaw vs. Howell, 18 An. 195, when dilatory exceptions were presented evidently for delay.
    3. A respondent in court on a rule to show cause invoked by the relator, has the right to be heard on the defences which he may urge, subject to the legal test as to whether they are such as he could legally raise. Rouge ys. Hafargue Co., Lim., 47 An. 1649; Ex rel. Morris vs. Secretary, 48 An. 680-681.

      4. The powers of the Board of Reviewers, created by Secs. 22 and 23 of Act No. 106 of lb90, are quasi-judicial in character and must be exercised in the manner indicated by law.
    5. In the matter of the correction of the assessments of individual citizens or corporations, the Board of Reviewers is authorized to take action only upon a special opposition made by the party alleging himself to be aggrieved, and for the purposes of such a contest before the board a sworn declaration of the taxpayer, such as is required by Sec. 19 of Act No. 106 of 1890, is essentially necessary. JSx rel. Johnson vs. Tax Collector, 89 An. 538.
    6. The declaration of the court in Insurance Co. vs. Board of Assessors, 40 An., p. 373, which announces another rule of construction, does not meet with the approval of this court.
    7. An assessor called on by the Roard of Reviewers to revise his rolls, has the right to call in question the fact whether the Board in making alterations therein had acted under the circumstances which the law required to exist as conditions of its taking action, though he be not authorized to dispute their conclusions of fact when acting within their statutory jurisdiction.
    8. When powers conferred by statute have not beeu exercised, under the circumstances and requirements of the statute, the acts done fail for want of authority, even though they would have been right and sustained, had legal conditions as to action been complied with.
    A PPEAL from the Eighth Judicial District Court for the Parish of ***■ Concordia. Dagg, J.

      Elam & Dale, for Plaintiff, Appellee.

      M, J. Cunningham, Attorney General, and D. N, Thompson, District Attorney, for Defendants, Appellants.
    Argued and submitted June 2, 1896.
    Opinion handed down June 15, 1896.
    Rehearing refused November 16, 1896.
   The opinion of the court was delivered by

Nicholls, C. J.

Relator in its petition to the District Court represented that it was the owner of an oil mill in the parish of Concordia. That the police jury for that parish convened at the court house on the first Monday in July, 1895, for the purpose of reviewing the assessment or listing of all the taxable property and effects for the year 1895, and that said jury while sitting as a Board of Reviewers for said parish at the said session valued said mill and appurtenances at the sum of ten thousand dollars, being the valuation for the year 1895, as would appear by the resolution of said board made part of the petition. That Campbell, the assessor of the parish, had without the knowledge or consent of the relator and without any legal authority, either by judgment of the court or otherwise, since the valuation made by the Board of Reviewers for the year 1895, placed the assessment at the sum of seventy-five thousand dollars upon the tax rolls for said parish and refused to be governed by the board in putting the value of the mill at ten thousand dollars, although demand had been made upon him to comply with the action of the board. That he made said increase of the valuation after the adjournment of the board and that the State, Parish, Railroad and Levee taxes on the property in said parish are thirty-one miils.

That it was absolutely necessary for the protection of relator’s rights that said assessor and the sheriff of the parish (ex officio tax collector) be ruled to show cause why said assessment or valuation of said mill should not be placed upon the tax rolls for said parish at the sum of ten thousand dollars, and that a writ of mandamus issue directed to them commanding them to place the assessment of said mill upon the tax rolls for the year 1895 at ten thousand dollars. Relator therefore prayed that said assessor and sheriff be notified, and that an order be granted ordering said officers to show cause at chambers why a peremptory writ of mandamus should not issue commanding said officers to put the valuation of said mill upon the tax rolls of said parish for the year 1895 at the sum of ten thousand dollars, and that this be the amount upon which taxation shall be based for that year; that after due proceedings there be judgment ordering them so to do, and declaring that said valuation should be .the basis for taxation for the year 1895, and that a peremptory writ of mandamus issue commanding them to comply with said judgment. Defendants were ordered to show cause as prayed for.

The defendant’s excepted that plaintiff’s petition disclosed no cause of action and no legal right against them for a peremptory mandamus. This exception having been overruled, they answered, pleading the general issue. Oampbell admitted he was the assessor of the parish, and averred that in pursuance of his duty as such and in compliance with the law and within the time specified by law, he listed the property of relator and affixed a valuation, as was his duty, thereon of seventy-five thousand dollars. That said valuation was a fair, just and equitable valuation, and did not exceed the actual cash value of the property; that relator made no protest against said valuation and did not furnish any duplicate lists with its valúation under oath, as required by Sec. 19 of Act 106 of 1890. That the police jury, sitting as a board of reviewers, without any legal or proper contest on the part of the relator, without any notice to him,, the assessor, and without hearing any evidence as to the value of said property, and in flagrant violation of the Oonstitution and laws of the State defining the duties of said Board of Reviewers, proceeded to make an original assessment of said property and to fix the valuation thereon for the purposes of taxation at ten thousand dollars, without any reference to the cash valuation of said property and without any reference to vhe uniformity or equality of the same. That said action of said board being contrary to law, arbitrary and unjust and injurious both to State and parish was absolutely null and void, without legal effect and was in no manner binding upon him and did not and could not change or affect the assessment and valuation of said property as made by said assessor. Defendants prayed that the demand for a mandamus be rejected — that the action of the board be declared null, void and of no effect, and the assessment and valuation as made by said assessor be recognized and maintained and that the sum of two hundred ana thirty-two dollars and fifty cents ($232.50), being ten per cent, upon the aggregate amount of taxes due by relator, be levied and taxed as attorney’s fees against relator.

Relator filed a motion to strike out the answer on the ground that 'defendants having made an appearance and filed an exception could not file any subsequent pleadings, as all of the defences must be"made at one and the same time and in one pleading. In the event of the motion being overruled it averred that defendants had no legal right to question the validity of the action of the Board of Reviewers fixing the valuation of the mill at ten thousand dollars, nor had they any legal power to raise the question as to the right of the board to fix said assessment, as the action of the board is final-against the defendants, the State and parish, as neither have any legal standing to raise the question set forth in the answer because the law only gives the taxpayer the right to appear in court to have the assessment passed upon by the court. That the action of the board is final and the defendants, the State and the parish, are precluded and debarred from raising any question as to said assessment.-

The court sustained this motion “in so far as the answer related to the valuation of the property or the evidence on which the police jury acted in ascertaining same or reducing said assessment.”

On the trial a“ certificate ” of the president of the police jury attested by the secretary thereof was introduced in evidence to the effect that “ on the 2d day of July, 1895, the following resolution was adopted by the police jury as a Board of Reviewers for said parish, to-wit:

“ A resolution was adopted while the jury was acting as a Board of Reviewers continuing the assessment of the Union Oil Company, Yidalia Mill, for the year 1895 at ten thousand dollars.”

A demand was made by relator on the assessor “ to make his assessment roll for the year 1895 conform to the assessment equalization and valuation made by the police jury sitting as a Board of Reviewers at its regular meeting in July, 1895, as to the assessment of the Union Oil Mill Company’s Yidalia Mill, to-wit: ten thousand dollars.”

The ownership by relator of the mill in question was admitted, and the refusal of the assessor to comply with the demand on’him shown. The assessment of the property by the assessor fixing 'the valuation of the property at seventy-five thousand dollars was offered in evidence. Campbell the assessor as a witness testified that he had made an assessment of the Union Mill in 1895, fifteen or twenty days prior to the meeting of the police jury. The Union Mill Company made out a duplicate list, but not sworn to. This list was made only a short time prior to the meeting of the jury, and was submitted to the jury — the amount of the other duplicate list was ten thousand dollars. The assessment lists are not always sworn to. The Union Mill Company opposed the assessment which he made. We find in the record a bill of exception by the defendants in which it is recited that the assessor being on the stand as a witness, defendants offered to prove that the police jury sitting as a Board of Reviewers, did not have any evidence before them as to the actual cash value of plaintiff’s property; that there was no contest before them on the part of the oil mill of the valuation placed upon said property by the assessor; that the assessor was not heard in reference to the correctness of his valuation of said property; that the action of said board in placing the valuation of said property at ten thousand dollars for the purpose of taxation was had without any reference whatever to the value of the property and without any reference to the equality or uniformity of assessments, but was based upon other and different reasons. That relator objected to testimony on those .subjects as irrelevant to the issues in the ease and for the reasons set forth in relator’s motion to strike out the answer of defendant which had been adopted by the court, and the motion to strike out therefore partially sustained.

That these objections were sustained and the evidence not permitted to be received. The District Court made the mandamus peremptory, decreeing that the valuation of ten. thousand dollars placed upon the property by the Board of Reviewers should be taken as the value of the property for the purposes of taxation for the year 1895 and that defendants pay costs.

Defendants appealed.

Relator’s claim, that the defendantshaving filed an exception that on the face of the papers relator showed no cause of action, they were forcedly debarred from setting up any ground of defence on the merits, is not tenable. The only matter which would be involved in that question would be one of delay. It was within the power of relator through the court to prevent any improper advantage being taken by filing the exception separately from the answer. This matter rests greatly in the discretion of the court. The court properly exercised its discretion in this case.

The exceptions filed in Shaw vs. Howell, 18 An. 195, were dilatory exceptions as to form, and the court must have been of the opinion that they had been presented for purposes of delay.

Relator denies the right of the assessor to raise the issues he has attempted to raise through his answer. Having been brought into court upon a rule to show cause invoked by the relator itself, defendant necessarily had the right to be heard (Rouge vs. Lafargue Co., Limited, 47 An. 1649). As a matter of course the issues which he tendered in defence were subject to legal test as to whether they were such as he could legally raise (State ex rel. Morris vs. Secretary, 43 An. 680-681). The District Court, in acting upon the motion to strike out the answer, correctly ruled that the assessor was not authorized, in this proceeding, to question the action of the Board of Reviewers in respect to the correctness of the conclusion of face which they have reached touching the value of the relator’s property, assuming that that matter was before the board under such conditions as to legally call for a decision by it on that point, but it went much further than this when it ruled out the testimony offered by defendants to sustain the position taken by them that the board acted without any legal or proper contest on the part of the oil mill, without any notice to the assessor, and that without hearing any evidence made an original assessment of the property at ten thousand dollars. Defendants claim that the board could only legally take action for the alteration of the assessment of property in individual cases when the property owner had presented to the local assessor a duplicate list, duly sworn to, and had made a formal opposition before him to the assessment which he had made in the particular case to accompany the general lists-which he (the assessor) was required to transmit to the Board of Reviewers for its examination. That it could not dispose, as on its own knowledge, of an objection to the assessment of a particular person or corporation and dispose of it without notice to the assessor as the representative of the State, without giving him an opportunity to sustain the correctness of his action, and without the taking of testimony. That the action taken in this case by the board is not a revision of his assessment, but substantially and practically an original assessment which it is not authorized to make. That the board is a quasi-judicial body with no original powers and with no jurisdiction to act except upon a regularly formed contest and after giving to the State through him a hearing — that the police jury in dealing with the subject of the review of assessments was acting as a public agency outside of its usual functions as a police jury having legislative power and was without power to bring about the reduction of an assessment through a mere “resolution.”

The 22d and 23d sections of Act No. 106 of 1890 are as follows:

Section 22. “The police juries of the several parishes (parish of Orleans excepted) throughout the State are hereby appointed and constituted Boards of Reviewers for their parishes.

Sec. 23. “ The Board of Reviewers shall meet on the first Monday of July of each and every year or as soon thereafter as possible, and the several assessors throughout the State, parish of Orleans excepted, shall lay before the said board all of said lists of property with the estimated (actual) cash value thereof extended and listed and valued by said assessors as aforesaid, together with the lists and valuation made, under oath as aforesaid of those property holders who believe the assessor’s valuation to be in excess of and beyond the actual cásh value of the personal or real property therein enumerated, and the said board shall proceed at once to arbitrate upon the said lists of property and cash valuation, and their decision shall be final, unless set aside in accordance with Art. 203 of the Constitution; the said Board of Reviewers shall then proceed to examine all the aforesaid lists of real and personal property submitted to them by the said assessors and should they find any property to have been illegally or wrongfully assessed in the listing or valuation thereof, it shall be their duty to correct the same, and they shall also equalize the assessment of all property of like character and relative value within their respective parishes in accordance with Art. 208 of the Constitution, provided that no valuation made by the assessor shall be increased unless the taxpayer is served with notice to appear before said board within five days and show cause why such increased assessment should not be made. Such summons shall be signed by the president of the board; service therein and return made in the manner now provided by law in the ease of ordinary subpoenas. The said board shall have the power to summon and compel the attendance of witnesses, interrogate them under oath concerning any matter before them, and after having passed upon and determined the correctness of any list and the valuation thereof, the same shall become final unless set aside, or changed as provided by law. The members of said Board of Reviewers shall receive the same pay for such length of time as they may be in session, as now allowed to police jurors; provided that if the session extend longer than fifteen days from date of service only pay for that length of time shall be allowed. The duplicate lists forwarded by the assessor with his assessment rolls are those referred to in the nineteenth section of the act, in which it is declared, that in case the valuations made by the assessor are, in the opinion and belief of the taxpayer, in excess of and beyond the cash value of the personal or real property, the assessor shall make or cause to be made, a duplicate list of said property, and shall then and there administer to the said taxpayer the oath or affirmation, as follows: I swear or affirm that the valuation affixed opposite each item of the property in the foregoing list is the actual cash value thereof, according to the best of my knowledge and belief, so help me God. The assessor shall subscribe such duplicate lists and submit them to the Board of Reviewers.

It is the-duty of the assessor, after, the completion of the assess-, ment rolls, to give public notice to the effect that the listing had been completed and that they would be exposed in the office of the as-' sessor for twenty days, and it. has been repeatedly held by this court that, subject to some exceptions, parties having complaint to make of the assessment must do so within the time fixed as a condition to relief before the courts.-

In State ex rel. Johnson vs. Tax Collector, 39 An. 538, this court quoted approvingly Shattuck & Hoffman vs. City of New Orleans, in which it was said : “ The right of the taxpayer to appear’before the standing committee of the City Council and be heard concerning the description of property listed and valuation of same as assessed, and the report of the standing committee on assessments of the City Council, are proceedings preparatory and prerequisite to the taxpayers’ right of action to test the correctness of the assessment in the courts of justice,” adding, that the same rule must be applied to the revision and correction of assessments in the country parishes.”

In the same decision we referred to the powers of the Board of Reviewers as being quasi-judicialjin character, and referred to the necessity of their being exercised in the manner indicated by law, or in some similar manner.

Relator’s position seems to be that the police jury, acting as a Board of Reviewers, are not called on to have before them testimony of any kind to show incorrectness in the assessments made by the local assessor, but that it was authorized to take notice of themselves of what they might conceive to be error therein and deal with it upon quasi-judicial notice ” or knowledge of the subject of some one or more members of the board. That the provisions of the law relative to taking testimony or making an investigation of the facts of the cases, were merely permissive. We do not so understand the law. We are of the opinion that in the matter of the correction of the assessment of individual citizens or corporations, the board is authorized to take action only upon a special opposition made by the party alleging himself to be aggrieved, and that a sworn declaration made by him, such as is called for in Sec. 19 of the act is required as essentially necessary for the purposes of such a contest before'the board. We are of the opinion that it is no part of the duty of Boards of Reviewers to vindicate the wrongs, either actual' or supposed, of individuals, and take any more interest in their affairs than they do themselves and by taking action in their behalf practically dispense the parties from declaring, under oath, that they have, in point of fact, been injured and what, in their opinion and what the extent of that injury is, and enabling them to obtain relief through the voluntary action of the board from which they had cut themselves off by laches and inaction.

Relator calls our attention to Insurance Company vs. Board of Assessors, 40 An. 372, in which this court declared that the failure by a taxpayer to have complied with the legal requirement of making out a sworn duplicate list of his property was not a peremptory bar to relief. The question was raised under different conditions from those in which it is raised here. In that case the objection was urged at the threshold of a judicial investigation in a court of justice where the question of the correctness of the assessor’s valuation was the precise issue about to be made, and during which, we assume, the claims of the party aggrieved would be required to be supported on the stand by his oath as a witness. In the present matter the question comes before us as an objection raised after what is claimed to be final action by the Board of Reviewers, in order to show that this duplicate list, which was the only basis upon which the board could have acted, was not before it, and, therefore, its action was substantially original and ex parte. We take occasion to say the course which the declaration made in the case referred to, announced as being permissible, does not meet with the approval of the court as presently constituted.

We do not understand that the lawmaker intended to invest in a small number of citizens, no matter how worthy they may be, the power of determining of themselves, and for themselves, without rule, check or limit, the rights either of their fellow-citizens or those of the State and parishes. The law contemplates a hearing of both sides, an examination and investigation as a condition to action. We had occasion to express our views on this subject in the matter of the Gaslight Company vs. City of New Orleans, 46 An. 1146, though it was brought to our notice under different sections of the act of 1890 — sections having reference to the Board of Reviewers in the city of New Orleans. The principles lying behind the powers of .the city board and those of parish boards are alike. The interests of the State and the country parishes are entitled to be protected as fully as those of New Orleans.

As we said in the Gaslight Company case, we do nob think it was ever intended by the lawmaker to leave to any body of men free to change, arbitrarily of its own will, or through favoritism, dislike or prejudice, such assessments as they might think proper to select, and we repeat here what we said there, that we do not mean to intimate that the reduction of relator’s assessment could not properly and justly have been made, and to the extent to which it was made, or that the board acted arbitrarily or improperly, but that it was called on to act under limited powers and under limitations and restrictions. When powers conferred by statute have not been exercised, under the circumstances and requirements of the statute, the acts done, fail for want of authority, even though they would have been right, and sustained, had legal conditions as to action been complied with. We do not pass upon the correctness or incorrectness, the regularity or irregularity of the assessment of the parish assessor. That matter is not before us at all. The question is, whether right or wrong, he can be made to change it in the manner and through proceedings such as have been brought to our attention in this case We think not. Having performed his own duty he has the right to stand upon his rolls until they are revised and altered under conditions such as the law has required to exist to give the Board of Reviewers the power and authority to make the alteration. He has the right to call in question the fact that such conditions did exist and to place’parties insisting upon an alteration upon proof of their existence. 47 An. 696. A '‘ resolution” of the police jury, sitting as a “ Board of Reviewers,” declaring that the assessment of relator’s property should continue at ten thousand dollars, did not convey to him the information which he was authorized to exact.

We are of the opinion that when the assessor raised an issue in this case, which he had the right to raise, that matters were not before the Board of Assessors of Concordia parish, under conditions such as to authorize or justify them in taking action in the matter of relator’s property; that relator had imposed upon it the burden of showing affirmatively that the board was acting inside of its statutory power, or as it is frequently termed, its statutory jurisdiction. Relator has not done so.

We are not satisfied from the record of the actual state of the facts of the case. We think the court should not have excluded the testimony offered by the defendants. Through that evidence the whole situation would have been developed. We think that an opportunity should be afforded to bring everything connected with the matter out. For the reasons assigned,

It is hereby ordered, adjudged and decreed, that the judgment appealed from be and the same is hereby annulled, avoided and reversed; and, it is ordered that the cause be remanded to the District Oourt, and there reinstated and tried, and that, on the trial the testimony offered by defendants on the first trial, and rejected, be received.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 12,263.
    State of Louisiana vs. Charles Washington.
    An information founded upon the Revised Statutes, See. 791, which charges that the defendant did feloniously, wilfully and maliciously, cut a person named with a dangerous weapon, with intent to commit murder, is good and sufficient in law.
    APPEAL from the Fifteenth Judicial District Oourt for the Parish of East Baton Rouge. Brunot, J.

      M. J. Cunningham, Attorney General, and H. N. Sherbourne, District Attorney, .for Plaintiff, Appellee.

      J. A. Addison and L. E. Droz for Defendant, Appellant.
    Submitted on briefs November 7, 1896.
    Opinion handed down November 16, 1896.
   The opinion of the court was delivered by

Watkins, J.

The information charges that the defendant did “ feloniously, wilfully and maliciously cut Caroline Thompson with a dangerous weapon, viz., a hatchet, with intent to commit murder; ” and he having been convicted of said charge and sentenced to one year’s imprisonment in the penitentiary, prosecutes this appeal.

Counsel made a motion for a new trial on the sole ground that the verdict of the jury was contrary to the law and evidence, and it having been overruled, he filed a motion in arrest of judgment on the ground that the information does not charge that the act complained of was committed “feloniously and of his malice aforethought.”

There is no bill of exceptions in the transcript, and consequently no explanation furnished by the record of the ruling of the judge or the grounds of defendant’s complaint thereof.

As the motion of the defendant raises a question of law which is determinable upon the face of the information, we deem it our duty to examine and pass upon it, following the precedent established in State vs. Balize, 38 An. 542, and State vs. Hanks, 38 An. 468, and the authorities therein collated.

Our statute declares that “it shall be sufficient in every indictment for murder to charge that the defendant did feloniously, wilfully and of his malice aforethought, kill and murder the deceased,” etc (Revised Statutes, Sec. 1048), and this language has been interpreted to be sacramental in such indictment; but this defendant is being prosecuted on an information founded upon another statute, which declares that “ whoever shall shoot, stab, or thrust any person' with a dangerous weapon * * * shall suffer imprisonment at hard labor,” etc. (R. S., Sec. 791) — a very different crime. The crime charged in this case is statutory.

State vs. Frances, 36 An. 336, is exactly such a case as this, founded upon the same section of the statutes, and against which the same motion in arrest was urged; and of that objection this court said:

“The indictment charges that the accused feloniously did shoot with a dangerous weapon, with intent to commit murder. It is drawn in accordance with the statute, which does not expressly require that the shooting must have been done wilfully, feloniously and with his malice aforethought. The words used in the indictment, ‘feloniously,’ and ‘ with intent to commit murder,’ are amply sufficient” — citing numerous authorities.

The language of this information is stronger than that of the Frances case, as it charges that defendant did shoot with a dangerous weapon, and that the act was done “ feloniously, wilfully and maliciously,” “with intent to commit murder.” It fulfils the requirements of State vs. Bradford, 33 An. 921.

It will be observed that in the indictment under consideration in State vs. Green, 36 An. 99, there was no averment of “ malice aforethought,” or words of equivalent import; and the same is true of that under consideration in State vs. Scott, 38 An. 387. We think the trial judge ruled correctly.

Judgment affirmed.


author: Breaux, J.

text:
    No. 12,260.
    State on the Relation of H. J. Rhodes.
    The warrant o£ arrest is sufficient authority not to order the release of the prisoner.
    The District Court in whose jurisdiction it is charged a crime was committed has taken cognizance of the case.
    Cause is not shown to oust that court of its jurisdiction.
    QN APPLICATION for a Writ of Habeas Corpus.

      John C. Wickliffe for Petitioner.

      Robert H. Marr, District Attorney, for Criminal Sheriff, Respondent.
    Argued and submitted October 22, 1896.
    Opinion handed down October 22, 1896.
   The opinion of the court was delivered by

Breaux, J.

Petitioner for the writ alleges that the judge by whom the warrant of arrest was signed is not in the parish of Tangipahoa.

He also, in substance, alleges that the warrant of arrest was not addressed to the criminal sheriff of the parish of Orleans. •

The warrant is addressed to the sheriff of the parish of Tangipahoa.

It is not illegal in form, and the sheriff to whom it was addressed made the arrest.

The sheriff, when authorized, may place the prisoner for safekeeping in the jail of another parish than that in which the arrest has been ordered.

We must presume, until the contrary is alleged and proven, that the prisoner was brought to the jail of the parish of Orleans under proper order and authority.

The sheriff to whom a warrant is addressed may act through one of his deputies to whom the warrant is not, in terms, addressed.

He may also, in executing the order of the court, authorize the jailer to take charge of and hold the prisoner under the warrant of arrest originally issued to him. There is no necessity for obtaining another warrant of arrest especially addressed to the jailer or sheriff in charge of the jail in whose charge the petitioner is committed temporarily.

The warrant of arrest having the effect of a commitment for the time being, is not absolutely illegal. In another jurisdiction it has been decided that the warrant of commitment, if issued to the sheriff of the court in which the examination is held, will authorize his detention and custody by the sheriff' of the next most convenient county having a jail. Church on Habeas Corpus, 2d Ed., par. 283.

This may also well apply to a warrant of arrest when invoked as in this case.

There is another objection fata.1 to the application.

The prisoner does not allege, nor was it said at the bar in his behalf, that he has applied for a hearing before the authority, under whose order he is in custody.

It was not shown that the judge is absent from the State or from his judicial district, and that ample hearing can not be had within a reasonable delay.

The court within the jurisdiction of which it is charged that a crime has been committed has taken jurisdiction. It can not, without the least notice, be ousted of its jurisdiction.

And lastly, it is “the spirit and intention” of the statute “ that the several judges in this State shall have a general supervisory control over the officers appointed by the law to execute the writs issuing from and the orders of their courts.” Sec. 1087, R. S.

In view of the supervisory control of the judge of the Sixteenth District, we will not discharge the relator. State ex rel. Bauman vs. Sheriff, 44 An. 1014.

Where the proceedings are entirely void, the accused may be discharged, but not so where they are voidable. American and English Encyclopedia of Law, Vol. 9, p. 190.

The writ of habeas corpus is not granted and the application is refused.


author: Watkins J.

text:
    No. 12,249.
    State of Louisiana vs. Willie Dillon.
    Tlae defendant having been indicted for the larceny of a skiff, and the proof showing that he was found in possession of the property apparently stolen recently it was competent for him, as a witness in his own behalf,tonegative the existence of felonious intent by stating that he had taken the skiff for the purpose of evading arrest under a warrant for robbery, and had carried with him a friend by whom it was to be returned to the owner.
    Such testimony is perfectly competent and admissible. It is for the jury to determine what weight such evidence is entitled to, as well as the credibility of the witness.
    APPEAL from the Fourteenth Judicial District Court for the Parish of West Baton Rouge. Talbot, J.

      M. J. Cunningham, Attorney General, and Alex. Hébert, for Plaintiff, Appellee.

      Clarence S. Hébert for Defendant, Appellant.
    Submitted on briefs November 7, 1896.
    Opinion handed down November 16, 1896.
   The opinion of the court was delivered by

Watkins J.

The defendant being convicted of larceny and sentenced to six months’ imprisonment at hard labor prosecutes this appeal.

The information charges Willie Gibson and Willie Dillon jointly with the larceny of a skiff, but the prosecution against the former was abandoned by the State, and urged against the latter, alone.

The defendant filed a motion for new trial on the ground that the State utterly failed to make out against him “ any intent to convert the skiff to his own use; ” and the same having been overruled by the trial judge, he retained a bill of exceptions. It also appears from the motion, that the court, on the exception of the State, excluded from consideration by the jury, the proposed exculpatory statement of the defendant as a witness in his own behalf, to the effect that his intent in taking the skiff was to escape ” an arrest upon a warrant for robbery.

The statement in the bill of exceptions is, that the defendant, being on the stand as a witness in his own favor, proposed to make the following statement, viz.:

“ That at the time he took the skiff, a charge was pending against him in the justice court for robbery, and his intention in taking the skiff was not to convert same to his own use, but merely to escape arrest; ” and same having been objected to as irrelevant, the objection was sustained by the court.

The following are the reasons assigned by the judge, viz.:

“ 1. That the testimony is clearly immaterial.
“2. That the intent with which the property was taken must be determined by the jury from all the surrounding circumstances; and the declarations of the defendant as to another intent can not affect the case, and is in the nature of manufactured testimony.
“3. That if there is any criminal 'charge pending against him the declaration of the defendant is not the best evidence,” etc.

To this ruling of the judge the defendant excepted and tendered a bill of exceptions.

Was this ruling correct, and the evidence properly rejected; or was the defendant entitled to have it go to the jury — leaving it to them to judge of the weight it was entitled to, as well as of his credibility as a witness?

Our statute declares “ that the competent witness in all criminal matters shall be a person of proper understanding,” etc. Sec. 1, Act 29 of 1886.

It further provides, “ that the circumstance of the witness being a party accused, shall in no wise disqualify him from testifying;” and “ if the person accused avails himself of this advantage he shall be subject to all the rules that apply to other witnesses,” etc. It further provides, that “ all testimony shall be weighed and considered according to the general rules of evidence; and the trial judge shall so charge the jury.” Sec. 2, Ibid.

In State vs. Walsh, 44 An. 1122, the court said that “his credit” —that of an accused — “like that of other witnesses, is for the jury” (at page 1135).

The correctness of the ruling of the court upon the motion for a new trial depends upon the correctness of his prior ruling as to the admissibility of the aforesaid statement of the defendant; for if that statement was correctly disallowed, there is no doubt of his having correctly refused the application for a new trial.

His bill of exceptions embraces both propositions.

The trial judge distinctly grounded his ruling on the theory, “that the intent with which the property was taken must be determined by the jury from all the surrounding circumstances, and that the declaration of the defendant as to another intent can not affect the case.”

There was no question of res gestae in the lower court, and no objection that.the statement of the defendant was hearsay was made.

The following is an extract from the proposed statement of the defendant, which is taken from the brief of his counsel, viz.:

“ He offered this statement to the jury in substance: ‘ There was a warrant against me for robbery; my idea was to get out of the parish of West Baton Rouge to escape arrest. I took Willie Gibson along with me to send the skiff back by him. I had no intention to steal the skiff.’ ”

The foregoing is, in effect, corroborated by the statement we have extracted from the brief of the State, viz.:

“ The nature of the testimony was about as follows: ‘That in taking the property the accused had no felonious intention of converting the skiff to his own use, or to deprive the owner of it; that, on the contrary, he intended to send the skiff back by a party he had taken along with him for that purpose; that his object was to get away from the parish of West Baton Rouge, where a charge of robbery was pending against him, and he knew a warrant was out for his arrest.’ ”

Taken altogether, the different statements in the record disclose, that the defendant was found in possession of the skiff which had been recently stolen, apparently, thus giving rise to the supposition that he was the thief. By his own testimony upon the witness stand, the .defendant proposed to show that he had no felonious intention in taking it, and none of converting the property to his own use, or of depriving the owner of it. That, in order to show his contrary intention, he proposed to state, that he was using the skiff as a means of making his escape from the parish of West Baton Rouge, where there was a charge of robbery pending against him, and that he had with him in the skiff Willie Gibson to bring the skiff back again to the owner.

■ The information discloses that Willie Gibson was jointly charged with Willie Dillon with the commission of the larceny of the skiff, thus supporting the proposed statement of the defendant, in part; and the record shows the discontinuance of the prosecution as to the former, giving rise to an inference that it was correct in other particulars.

We do not understand that the proffered evidence in any way involves the existence or verity of defendant’s prosecution for robbery, and hence the statement could not be regarded as secondary evidence, in any sense.

It is only to the effect that he was endeavoring to escape arrest under a warrant for robbery, and, in so doing, took the skiff and used it, intending to .send it back by his; friend Gibson, whom he had carried along for that purpose. Whether or not there was such a prosecution in fact would have been the next step in the course of the introduction of testimony; but the trial judge having disallowed the defendant’s statement altogether, its introduction became unnecessary afterward.

However, the record was annexed to the transcript with the consent of this court, and the information against Willie Dillon, the defendant, and other proceedings in the cause of State vs. Will Dillon, No. 864 D. C., charging him with the robbery of Albert Washington of one cheek for eighteen dollars, in the parish of West Baton Rouge, on the 18th of June, 1896, form parts thereof, and which information bears date of filing September 14, 1896, the same exactly as the date of filing the information in this case — it charging against the defendant the larceny of the skiff on the 23d of June, 1896 — just five days subsequent to the date the robbery is laid.

The defendant’s bill of exceptions relates that at the time he took the skiff a charge was pending against him in the Justice court for robbery, and his intention in taking the skiff was not to convert same to his own use, but merely to escape arrest,” etc. Now, as one information charges a robbery to have been committed on the 18th of June, 1896, and the other that the larceny was committed on the 23d of June, 1896 — just five days intervening — and both informations having been filed in court on the 14th of September, 1896, is there not a reasonable probability of the proposed statement of the defendant being true in this particular?

His statement was directed at the existence of preliminary proceedings in the justice court antecedent to the filing of informations, founded possibly upon an affidavit; and had no possible reference to these informations subsequently found.

There may be something serious in this defence, or there may be none, but of one thing we feel quite certain, and that is that the trial judge erroneously disallowed the defendant’s evidence. It should have been allowed to go to the jury for what it was worth.

It is therefore ordered and decreed that the verdict of the jury and the judgment and sentence thereon based be set aside, and the cause remanded for a new trial.


text:
    No. 12,246.
    State ex rel. Robert H. Marr, District Attorney, vs. Henry Bezou, Recorder.
    The District Attorney may appear for the State in a criminal prosecution, on the part of the State, before the committing magistrate.
    He may, also, if he is employed in the discharge of other duties, secure counsel to appear in his stead before the committing court, in which the preliminary examination is held.
    QN APPLICATION for Writs of Mandamus and Oertiorari.

    Relator in propria persona.

      A. M. Aucoin and Lionel Adams for Respondent.
    Submitted on briefs October 10, 1896.
    Opinion handed down October 26, 1896.
   The opinion of the court was delivered by

Breaux, J.

The relator, unable, he says, to attend the sessions-of the Recorder’s Courts, employed a duly licensed and practising attorney, to appear for the State, and conduct in his name and stead, a criminal prosecution.

The respondent, on the motion of the defendant, ruled,when the case was pending in the court below — i. e., in State vs. Bonafon, that the District Attorney was without authority to appear before a police court and examine witnesses; and, therefore, he was without legal power to send any one to represent him in the ease before his court.

By the statute, it is made the duty of the District Attorney to represent the State in all civil and criminal actions.

Recorders, as committing magistrates, are vested with criminal jurisdiction.

This jurisdiction involves the discharge of highly important and responsible duties.

The law intends that a careful examination shall be made into the case, for and'against the prisoner.

In principle, the difference between the trial of a case and a preliminary examination is not great.

In the former, the accused is convicted only in case of guilt beyond a reasonable doubt; in the latter, he is bound over or committed where there is probable cause to suppose that he is guilty.

In addition to the important duty of committing magistrate it devolves upon the recorders, before whom a preliminary examination is held, to transmit all depositions of witnesses to the court having jurisdiction, in order that they may be delivered to the Attorney General or District Attorney for the purpose of preparing information or indictment, as the case may be.

It would seem to follow that the District Attorney, charged with the prosecution of accused persons, should have the authority to appear before a court exercising the important functions just stated, and in the second place, that he should be heard, when the purpose is to assist in the preliminary examination, and in preparing and keeping a record of the proceedings.

Years ago, the question arose, as to whether the accused had the right to be represented by counsel in his examination.

This court maintained the right. State vs. Oger, 5 An. 744.

Such being the right of the accused, a similar right should not be denied to the State.

There was no law under which accused could claim, as a right, to be represented by counsel, and yet, the court decided in the cited case supra that privilege of counsel would not be denied in view of the importance of making a proper defence.

We do not think, in the case under consideration, the law is silent, or that there is no law upon the subject.

The District Attorney is authorized to appear and prosecute in all criminal cases coming before the criminal courts.

An examining court, though held by a recorder, has concurrent jurisdiction in preliminary examination cases with all courts having the authority of examining courts.

The case here is a criminal ease, under examination before a criminal court. When a recorder sits In a preliminary examination his court is a court having jurisdiction, to that extent, in criminal cases, and it is not a mere police court, as urged by the respondent.

The magistrate, as a committing magistrate in criminal cases, is vested (it has been decided) with judicial power. State ex rel. Goale vs. Recorder, 30 An. 450, 455.

But conceding for a moment that the magistrate, in the exercise of this jurisdiction, does not put forth judicial powers; that he is a mere clerk, invested with entirely ministerial functions; in view of the fact that the depositions of material witnesses are to be transmitted to the District Oourt to be delivered to the District Attorney for the purpose of preparing the information or indictment, that officer should be heard when he offers tojassist the court in the performance of that duty.

Having determined that the District Attorney should be heard when he offers to prosecute, in a preliminary examination; this conclusion leads us to the second branch of the case: the authority of counsel to appear for the district attorney.

A question similar arose in State vs. Anderson, 29 An. 774.

The court held that, “ the District Attorney may employ associate counsel to aid him in a case.”

This decision was affirmed in State vs. Mangum, 35 An. 619, and reaffirmed in State vs. Mack, 45 An. 1155.

The duties of the counsel are entirely ministerial. The functions are of reasonable obedience and service. They invoke no authority, discretion or jurisdiction of any sort. He has no authority to direct or control or exclude other counsel. He appears only to assist the court in procuring the presence of witnesses; in their examination, and in other proceedings of a committing court.

In other words the law officer of the State may, through counsel, give his advice and opinion to the committing court.

This being the extent of the service, the defendant has no ground upon which to base an objection. He'is without right and can-not sustain the point urged in his behalf.

The right of the accused “ to defend himself,” does not include a right to challenge the authority of the District Attorney, to secure the service of counsel, when he, for good reason, is unable to be present, to examine witnesses and conduct the prosecution on preliminary hearing.

The defendant has the right to be heard personally, or through counsel before the committing court, but he has not the legal power to raise an incidental question, such as the one involved in this case. The legal defence is not affected by the service of. counsel, who appears only to assist the court in the preliminary examination.

It is therefore ordered, adjudged and decreed that relator’s prayer be, and it is granted, and the mandamus sought is made peremptory ; and let counsel render service in accordance with the application made by the relator.


author: Miller, J.

text:
    No. 12,244.
    State ex rel. Voegtle vs. The Judge of the Criminal District Court.
    This court will not grant the writ of prohibition to restrain the Criminal District Oourt from proceeding on an information against the relator when the record on which the application for the writ is based, shows only the information charging an offence within the jurisdiction of the Criminal District Court, and. a demurrer to the information. Constitution, Art. 90; Code of Practice, Arts 845 et seq.

    y^PPLIOATION for Writs of Certiorari and Prohibition.

      Charles H. Luzenberg for Relator.

      Robert H. Marr, District Attorney, for Respondent.
    Submitted on briefs October 3, 1896.
    Opinion handed down October 10, 1896.
   The opinion of the court was delivered by

Miller, J.

The relator applies for these writs to- arrest proceedings in the Criminal District Court on an information charging him with the violation of Act No. 18 of 1886, known as the Sunday Law. He filed a general demurrer, which being overruled, he seeks in this court the writs on the ground that the Criminal District Court has no jurisdiction of the charge preferred in the information.

The act besides requiring the closing on Sunday of all stores, -saloons and other places of public business, forbids the sale, bartering, giving or delivering on Sunday of any of the stock or articles kept in such establishments. There is an exception of hotels, boarding houses, restaurants and some other establishments, the necessity of keeping open, the statute recognizes; but there is the prohibition of the sale therein of all intoxicating drinks, qualified by the permission that hotel keepers and boarding houses may serve wine for table use for their guests. The sale or delivery of malt liquors is not within the permission, and the prohibition of such liquors is repeated along with the permission as-to wine.

The offence charged in the information is that the relator, as the keeper of a restaurant, sold, bartered and delivered on his premises, on Sunday, malt liquor to his guest. The general demurrer must be taken to admit the occupation of the relator as charged in the information.

The argument for relator in this court is, that he keeps a hotel with restaurant attached, that the law permits the hotel keeper to -sell wine; that wine includes beer; hence there is no offence charged and no jurisdiction to try or punish him.

The argument is based on the theory that defendant is a hotel keeper, and the inferences from that assumption. We have no knowledge of his occupation, except that afforded by the information. That charges him not as of the occupation assumed in the argument, but as the keeper of a restaurant. Our inquiry, confined on this application to the face of the papers, is, whether the Orimina District Court had jurisdiction of the offence charged. Set out, as the charge is in the words of the statute, and met by demurrer, the statute and the previous decision of this court must be deemed to answer affirmatively the only question submitted to us. State ex rel. Walker & Merz vs. Judge, 39 An. 132.

This view relieves us from the necessity of considering the issues sought to be raised, that as a hotel keeper, the relator can serve his customer with beer under the permission to sell only wine, in connection with which we have had an elaborate argument to show the absence of any reasons to permit the sale of wine and prohibit that of beer. We take occasion to say that the reason for distinctions of this character is with the Legislature, and courts must take the law when plain in its terms as it comes from the lawmaker. But we omit any opinion on this defence urged in the argument, based as it is on the asserted occupation of relator, not shown by the record, and which we can not assume, but must take it as exhibited in the information.

The previous order made on this application is set aside, and the application is denied.


text:
    No. 12,243.
    The State ex rel. Greene, vs. Frederick, Justice of the Peace.
    The defendant cited to answer the demand before the justice of the peace, is entitled on entering his appearance to a reasonable delay for procuring testimony, and if judgment against defendant is rendered without the opportunity afforded of obtaining his testimony, relief will be given by the writ of certiorari, directing the trial anew, and arresting the execution of the judgment. Constitution, Art. 90; Code of Practice, Arts. 1083, 1081, 861, 866; 35 An. 1101.
    y^PPLIC ATI ON for Writs of Certiorari, Mandamus and Prohibition.

      J. Nelson Greene and W. P. Edwards for Relator.

      L. L. Bourges for Respondent.
    Submitted on briefs October 3, 1896.
    Opinion handed down October 10, 1896.
   The opinion of the court was delivered by

Miller, J.

The relator bases his claim for relief on that article of the Code of Practice which ■ entitles the defendant cited before a Justice of the Peace to a reasonable time for procuring his evidence.

It seems, that cited to appear, he applied for a commission to take testimony. Without issuing the commission, the justice decided the suit against the defendant. We think, under the circumstances, the trial should have been postponed until the desired testimony was obtained, or, at least, the opportunity for obtaining it was afforded. C. P., Arts. 1082, 1084.

We are better satisfied with this view, as the justice states in his return a new trial would have been granted if it had been asked.

It is therefore ordered that the judgment referred to in the application be set aside, and a reasonable time be allowed the relator to obtain his testimony, and the suit then proceed to judgment in due course.


text:
    NO. 12,258.
    State ex rel. Kiernan vs. The Recorder of the First District.
    The contention that the judge oí the lower court does not possess the qualification of citizenship can not be considered on an application for a certiorari to review the sentence or judgment of such judge. Constitution, Art. 90; C. P., Arts. 855, 857.
    APPLIOATION for Writ of Certiorari.

    Relator in propria persona.

      Samuel L. Gilmore, Oity Attorney, for Respondent.
    Submitted on briefs October 22, 1896.
    Opinion handed down November 2, 1896.
   The opinion of the court was delivered by

Miller, J.

This application is for a writ of certiorari to restrain the enforcement of the fine imposed on the relator by the First Recorder’s Court, under the charge of disturbing the peace.

The writ authorized in unappealable cases is intended to correct proceedings in the lower court absolutely void,” as when the judgmenfc is given without citation or hearing. Code of Practice, Arts. 855, 857. The petition for the writ assigns no canse within the scope of the writ. The allegation is that the recorder is not entitled to the office. The law provides remedies to test the right to public office. But, manifestly, that issue can not be raised in this form of proceeding.

The writ, too, is preventive. Its purpose is to arrest the execution of the void judgment. In this case the supplemental petition informs us the fine has been paid, though under protest. We can not give relief by certiorari for money claimed to have been illegally exacted. Code of Practice, Arts. 857, 866.

The .previous order in this case is set aside, and the relator’s application is denied.


text:
    No. 12,065.
    James Culbertson vs. Crescent City R. R. Co.
    The fact that a child may not be capable oí contributory negligence, does not always render the defendant liable upon the mere proof of the act causing injury.
    No liability for sudden act of a child.
    If the defendant’s employee was not careless or negligent, it can not be rendered liable.
    APPEAL from the Civil District Court for the Parish of Orleans. Théard J.

      O. B. Sansum for Plaintiff, Appellee.

      Farrar, Jonas & Kruttsclmitt for Defendant, Appellant.
    Argued and submitted March 27, 1898.
    Opinion handed down April 6, 1896.
    Rehearing refused November 16, 1896.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff sued the defendant to recover damages for killing his son James, at the upper crossing of Soraparu street, on the night of Sunday, July 7, 1895, at 9 o’clock. The boy was 6 years and 11 months old.

The plaintiff says that his son was standing on the car track, plainly within view; the car moved slowly down, the projecting fender struck him and threw him across the fender frame, and from it, by the car’s motion, he was thrown to the track; the fender passed over him and forced his body under the cars, causing almost instant death; that the motorman of defendant’s car knew nothing of the accident until some one near from the street shouted to him that there was a child under the car.

That the motorman did cut off the power and applied the brakes, stopping the car within twenty feet from the point at which he thus applied the brakes.

The complaint further is, had the motorman looked down the street he could have seen the child in time to prevent the accident; that he was not watchful and attentive; that he failed to ring the gong.

The defendant denies that its employee was guilty of negligence. 'The jury found a verdict for plaintiff in the sum of fifteen hundred dollars.

From the verdict and judgement the defendant appeals.

This is another of the sad accidents, the cause of which this court is called upon to investigate and to familiarize itself with, in order to determine if damages are due.

The questions are principally of facts and no controversy in regard to the law arose in argument at the bar.

We take up the review of the facts (the incidents as they happened) according to the order of time. The gong was sounded and the alarm given as the car came down Chippewa, approaching the corner of Soraparu street. The motorman and the conductor were at their respective places, and the former had the electric power and the car brakes under his control.

We set forth the details of the occurrence as near the language of the witnesses, as possible, in view of the fact that some brevity and conciseness are required.

WITNESSES FOR THE PLAINTIFF.

The first who says he saw the accident, the witness Hyland, was about three-fourths of the way on Chippewa, walking up from Philip toward Soraparu street. The boy was standing on the uptown side of Soraparu street, near the track, the car descending, at the time was about one hundred feet from the corner. He says: “He was close to the track. I could not state positively whether he was on the track or in the middle of the track or not. I know he was between the banquette and the track. He was in that neighborhood close to the track.”

“ Q. Do you know that he jumped on the track?
“ A. I don’t know whether he did or not.”

Again he states: “ Saw the child moving, could not state positively in what direction.

“ He may have run across before my attention was directed to him.” He says he was struck by the fender.

The companion of this witness, Murphy, who was walking and talking with him at the time, can’t say whether the boy was standing on the car track, between the rails, or near the car track. The first witness, Hyland (with whom he [Murphy] was, as just stated) , said nothing to him, although he, Hyland, says he saw the boy as he was struck by the fender and dragged.

This last witness, Murphy, states that he had no intimation that anything had happened before he saw the car stop and everybody run to it.

Another witness, Mrs. Nelson, saw the little boy standing on. the little bridge over the small gutter, and afterward saw the fender strike him.

WITNESSES POR THE DEPENDANT.

About the only 'testimony of any value of the first witness is, that she heard the car bell ringing the alarm at the moment of the accident.

The second witness was sitting about thirty feet from the place of the accident, and was looking in the direction to which the child was running. He thought the child had collided with the side of the car. Upon discovering that he had not, he gave the alarm; the car was stopped within twenty feet, and the child’s body removed from under the car.

He answered: “ Q. Did the bell of the car ring before it got to this corner?
“ A. Yes, sir.
“ Q. And the motorman couldn’t have seen the child in time to stop the car before the accident?
“A. Surely not.”

Another witness, Miss Birmingham, was talking with Mrs. Nelson and looking in the direction of the accident with Mrs. Nelson, and saw the boy cross over to the track. He appeared to be running after a dog. “He was standing on the Ohippewa street side, and ran in the direction of his home, over toward Annunciation, and then appeared to be knocked down by the fender.”

“ Q,. Did you see the fender knock him down?
“ A. No, sir; I saw him pass the front, and I thought the fender must have knocked him down.”

Again, at another time, while testifying:

“ Q. Was the boy running or walking?
“ A. He was standing until the car came and he ran across.
“ Q. Could the man have seen him?
“A. No, sir; couldn’t have seen him.”

Another witness, Caroun, observed the boy playing between the rails, and at times near the track.

Caire, also a witness, says that the alarm was sounded at the time.

Another witness, Gitz, knows nothing having any bearing upon the issue, save that he heard the ringing of the bell before the car came to the corner.

The motorman and the conductor substantially testify that everything was done to prevent the accident; that the boy darted in front of the car, and that the motorman quickly stopped the car.

After as careful and close an analysis of the evidence as it was possible for us to make, we think that the weight of the testimony is with the defendant.

Plaintiff’s theory that the little boy was standing on the track, between the rails, and that the motorman ought to have seen him, is not sustained by the evidence of his own witnesses; they do not testify, with any degree of certainty, where he was just preceding the accident. The witnesses for the defendant agree in stating that he was not on the track, and that the accident was occasioned by the sudden act of the child.

Granted as contended by the plaintiff that the motorman did not see the child before he was knocked down by the fender: if the child had escaped his attention, because of his sudden and unanticipated act itself, it becomes evident that the defendant is not liable. Whether he was seen or was not seen by the motorman would not render the defendant responsible, if owing to thoughtless impulse of the child he brought about the accident by a sudden act which could not be foreseen or guarded against by the motorman or any one else in charge of the car.

This brings us to the question of contributory negligence. Courts are averse to finding children guilty of contributory negligence, and are readily and properly inclined to disregard the thoughtlessness natural to boyhood, but accidents may happen for which the unconscious agent may not be responsible.

The fact that a child may not be capable of contributory negligence does not always render a defendant liable upon the mere proof of the injury. The test is negligence vel non. If the defendant or the defendant’s agent or employee was not negligent, it is not liable.

The only alternative, after the conclusion reached, is to set aside the verdict.

The verdict and judgment are reversed, annulled and avoided.

The demand of plaintiff is rejected and his action dismissed at his cost in both courts.


text:
    No. 12,241.
    State of Louisiana ex rel. Algiers Democrat Publishing Company vs. Judge of the Third City Court of New Orleans and the Constable.
    The writ of certiorari, authorized to afford relief against “ void ” proceedings of the lower court to the prejudice of the suitor, will be refused to restrain, the alleged Illegal action of the constable in executing the writ of fieri facias, the Code pointing out the methods of relief by application to the lower court and there having been no such application by relator. Code of Practice, Arts. 85T ct seq., 653,1141, Ilf 5.
    QN APPICLATION for Writs of Certiorari and Prohibition.

      Thomas F. Maher for Relators.

      J. Paris Childress for Respondents.

      Submitted on briefs November 2, 1896.
    Opinion handed down November 16, 1896.
   The opinion of the court was delivered by

Miller, J.

The relators seek the writ of certiorari to obtain relief for an alleged illegal seizure of their property under the judgment against them rendered by the Third Oity Court^for the city of New Orleans,

The record of the lower court transmitted in accordance with the writ shows the suit, judgment and execution against relators and the seizure of their property to satisfy the judgment. It appears also that relators obtained an injunction from the lower court to restrain the sale under the execution, the petition for the injunction alleging the illegality of the advertisement. The injunction suit was tried and submitted, but before it was decided the relators obtained the certiorari, which has suspended all further proceedings in the lower court.

The argument for the relators in this court urges that under the judgment for a small amount, property of far greater value was seized, and pending the injunction suit the constable threatened and would have removed the property but for the application to this court. The argument supposes that this threatened action of the constable furnished the basis for the exercise of the supervisory jurisdiction of this court.

The writ of certiorari is intended to review the action of the lower court and afford relief against its proceedings “utterly void” when, as the Oode puts it, by way of illustration, the judgment has been pronounced without citation or hearing. If this court on the return of the certiorari sets aside the judgment of the lower court, the Oode naturally directs that the execution of the judgment shall be restrained. Code of Practice, Arts. 85, 857. In this case there is no complaint of the action of the lower court. The citation, hearing, trial and judgment, followed by the execution, are not assailed. Nor is it contended the lower court did not grant the injunction or relators’ application, pending for decision when that application was made here.

Under this condition of fact, there is, in our view, no room for the interposition of our writ. In the petition and order for the injunction we perceive it is only the sale of the property which is enjoined, naturally, because the complaint is only of the illegal advertisement. If, however, the injunction had liberated the property from seizure, we must presume the lower court, on suitable application, would have ordered the constable to desist from removing it. If the seizure was excessive, or if still' in force, and the relators objected to its removal pending the seizure, the Code points out the method of relief. Code of Practice, Arts. 653, 1141, 1145. But all relief of this character must be sought in the lower court; as the record stands it shows no such application. Until some right is denied the suitor in the lower court of the character indicated by the Code, there is no warrant for the writ of certiorari. In the Gooch case cited by the relator, 38 An. 969, the relief was sought against an execution on a judgment claimed to have been illegally rendered, and the alleged illegality, it was contended, was patent on the record. Yet this court denied relief on the ground the writ, confined as it is to the correction of void proceedings, could not be used to revise errors of judgment of the lower court in deciding questions within the jurisdiction of the court. With greater reason must the writ be refused in this case, when the redress of the alleged wrong of the relator is confided to the lower court, and the record shows no attempt to obtain relief at its hands.

The writ is therefore denied and our previous order is set aside.


author: McEnery, J.

text:
    No. 12,251.
    State of Louisiana vs. Thomas Huey.
    A party may be charged in separate counts in the same indictment with burglary and larceny.
    A PPEAL from the Third Judicial District Court for the Parish oi Lincoln. Barksdale, J.

      M. J. Cwnninghan, Attorney General, and Charles B. Roberts, District Attorney, for Plaintiff. Appellee.

      W. A. Van Hook for Defendant, Appellant.
    Submitted on briefs November 7, 1896.
    Opinion handed down November 16, 1896.
   The opinion of the court was delivered by

McEnery, J.

The defendant was indicted for burglary and larceny. He was convicted, and moved in arrest of judgment that two different and distinct crimes, belonging to different generic classes, can not be charged in one indictment.

There are two counts in the indictment, the first charging burglary with intent to steal, and the second charging larceny.

It is well settled that a defendant may be charged in the same indictment, if in separate counts, with burglary and larceny, when they both spring from the same act. State vs. Depass, 31 An. 487; State vs. King, 37 An. 662; State vs. Morgan, 39 An. 214; State vs. Nicholls, 37 An. 779.

Judgment affirmed.


text:
    No. 12,197.
    Metropolitan Bank et. als. vs. Commercial Soap, Candle and Starch Manufactory.
    A suspensive appeal will lie from a judgment appointing a receiver to a corporation.
    A PPEAL from the Civil District Court for the Paris of Orleans Monroe, J.

      Dinkelspiel & Hart for Plaintiffs, Appellees.

      W. S. Benedict for Defendant, Appellee.

      Rice & Montgomery for Intervenor, Appellant.
    Submitted on briefs June 22, 1896.
    Opinion handed down June 22, 1896.
    Rehearing refused June 30, 1896.
    Dismissed by consent November 2, 1896.
   On Motion to Dismiss.

The opinion of the court was delivered by

McEnery, J.

This is an appeal from a judgment appointing a receiver. A suspensive appeal was taken. The motion to dismiss is on the ground that the judgment appealed from was one which should be provisionally executed, notwithstanding the appeal, and therefore no suspensive appeal would lie therefrom.

Some judgments, notwithstanding the suspensive appeal, are provisionally executed. These are named in Art. 580, paragraphs 1 and 2, C. P., and Art. 1059, C. P.

The appeal for the appointment of a receiver to a corporation is not enumerated, and is therefore excluded.

The motion to dismiss is therefore overruled.


text:
    No. 12,257.
    State ex rel. Sarah Holsom vs. Henry Bezou, Recorder Second Recorder’s Court of the City of New Orleans.
    Act No. 45 of 1896 does not disturb the jurisdiction of the Sixth Recorder’s Court as established by Act 154 of 1894, and will not do so until the next election for city officers as provided by Sec. 112 of Act 45 of 1896.
    APPLICATION for Writs of Gertiorari and Prohibition.

      Charles J. Théard and John St. Paul for Relator.

      Samuel L. Gilmore, City Attorney, for Respondent:
    The Legislature has authority to change, at any time, the number and territorial jurisdiction of the Recorders’ Courts of the city of New Orleans. Crook vs. People, 106 111. 244; People vs. Brown, 83 111. 96; Mechem on Public Officers, Sees. 465-466; Dillon on Municipal Corporations, Yol. 1, p. 140, Sec. 85; Reynolds vs. Baldwin, 1 An. 163; Art. 254, Constitution of 1879; Art. 136, Constitution of 1879.
    Recorders of the Recorders’ Courts’of the city of New Orleans are municipal officers. Chap. 12 of Acts of Legislative Council of the territory of Orleans of 1805. Art. 23jof Cons, of 1812; Art. 128 of Cons, of 1845; Art. 124 of Cons, of 1852; Art. 94 of Cons, of 1868; Art. 136 of Cons, of 1879; Acts of 1852, p. 144; Act 95 of 1873; Act 71 of 1874; Act 131 of 1877, E. S.; Act 35 of 1878; State ex rel. Michel vs. Campbell, 25 An. 341; State vs. Ramos, 10 An. 422; State ex rel. Whitaker vs. Adams et al., 46 An. 834; State ex rel. Emerson vs. Mayor, 16 An. 395; Reynolds vs. Baldwin, 1 An. 162; State ex rel. Howard vs. Walshe, 32 An. 1234; Michel vs. City, 30 An. 1097; Brittin vs. Steeker, 62 Mo. 370;
    Act No. 45 of 1896, the new charter, in so far as it provides for the offices which are to constitute the city government, takes immediate effect. Secs. 122, 75 and 125 of Act. No. 45 of 1896; People vs. Brown, 83 111. 97; Crook vs. People, 106 111. 244; Dillon on Municipal Corporations, 4th Ed., p. 305, Sec. 221, Note; Mechem on Public Officers, Sec 408; Chandler vs. Lawrence, 128 Mass. 213; City of Shreveport vs. Maples, 27 An. 636;
    The exception in regard to municipal officers elected on April 21, 1896, contained in Sec. 122 of Act No. 45 of 1896, the new city charter, does not suspend the operation of Sec. 68, reducing the number of Recorders’ Courts of the city of New Orleans from six to four, and extending the jurisdiction of the Second Recorder’s Court of the city of New Orleans. Connor vs. New York, 5 N. Y. 285; People vs. Roper, 35 N. Y. 639; People ex rel. Gery vs. Whitlock, 72 N. Y. 198; Nicholls vs. McLellan, 101 N. Y. 533; Layton vs. New Orleans, 12 An. 516; State ex rel. Whitaker vs. Adams et al., 46 An. 834.
    Submitted on briefs October 26, 1896.
    Opinion handed down November 2, 1896.
   The opinion of the court was delivered by

McEnery, J.

The relatrix was arrested for violating a city ordinance, and taken before the Second Recorder’s Court for trial. She-demurred to the jurisdiction of the court on the ground that the offence was committed within the jurisdictional limits of the Sixth Recorder’s Court. The respondent’s return says, that the jurisdiction-of the Second Recorder’s Court, by Act 45 of 1896, now embraces the territory of the Third and Second Municipal Districts. There were six recorder’s courts established for the city of New Orleans by Act 154 of 1894. Unless abolished by Act 45 of 1896 they still continue to exist, with their jurisdictions as established by Act No. 154 of 1894.

Section 68 of Act 45 of 1896 says there shall be four police courts in the city of New Orleans, and defines the territorial jurisdiction of each. See. 69 establishes the qualifications for the judges of the city courts, which are different from the qualifications required by the old city charter, under which the present six recorders were elected and inducted into office. Unless there had been in the act, if the reorganization of the police courts took effect, after its promulgation, some provision for new incumbents, having the qualifications required by the act, and designating the persons who-should fill the offices, there would be confusion, as it would be impractical to give qualifications to the present recorders when they did not possess them, and it would be equally impractical to select from the six recorders, who were duly elected to fill the four police offices. That the act makes no such provision to avoid confusion is an expression, if there were any doubt on the matter, that the Legislature intended that the six recorders should continue in office until they were replaced by the election of four recorders having the necessary qualifications at the next general election. But the act provides against any contingency of doubt or uncertainty.

Section 122 provides that the act (city charter) shall take effect, in all respects, after due promulgation as provided by law, except that the various municipal officers and couneilmen elected at the general election held April 21, 1896, shall continue in office until the expiration of the term for which they were elected,- and until their successors are duly qualified.

A part of the act is to take effect after promulgation, and a part in the future, which is not an uncommon mode of expressing legislative will. Twenty-third American and English Encyclopaedia of Law, page 223, paragraph 8.

It is plain that all officers elected by the people at the general election held April 21, 1896, shall continue in office until the election provided for in Sec. 122 shall take place.

The writ of prohibition, issued herein, is perpetuated.

Mte. Justice Miller concurs in this decree.


text:
    No. 12,247.
    State of Louisiana vs. Sarah Allen.
    On tbe trial of a party accused charged “ with shooting with intent to murder ” it is sufficient for the court to charge that it devolved upon the State to prove heyond reasonable doubt that the shooting was done wilfully, maliciously and with malice aforethought.
    Under such a charge it would be impossible for a jury to bring in a verdict of conviction unless the condition of the evidence was such as would forcedly beyond a reasonable doubt, exclude the hypothesis of the shooting having been accidental.
    APPEAL from the Fourth Judicial District Court for the Parish of Grant. Machen, J.

      M. J. Cunningham, Attorney General, and A. B. Hundley, District Attorney, for Plaintiff, Appellee.

      W. C. Roberts for Defendant, Appellant.
    Submitted on briefs November 7, 1896.
    Opinion handed down November 16, 1896.
   The opinion of the court was delivered by

Nicholls, C. J.

Defendant having been found guilty of shooting with intent to murder ” has appealed.

The bill of exception upon which she relies recites that the court having charged the jury and having called upon defendant to know whether she desired any special charge to be given to the jury, re-, quested^ the following charge to be given:

“ Defendant asks the court to charge the jury that the burden is upon the State to show that the shooting was not the result of accident but was wilful and intentional, which charge the court refused to give as aforesaid.”

Appended to the bill are the following reasons:

The court declined to give the special charge for the reason that it had already charged that it devolved upon the State to prove beyond a reasonable doubt that the shooting was done wilfully, maliciously and with malice aforethought, and after having explained to the jury the elements of murder, further charged them, that unless they found from the evidence that had death resulted from the shooting, the killing would have been murder, they could not find the defendant guilty as charged in the indictment, and the court had already, at request of defendant’s counsel charged the jury, that it there was a reasonable doubt in their minds as to whether or not the shooting was the result of accident, they must give the accused the benefit of the doubt and acquit her.”

The special charge given as to reasonable doubt” is declared by the court to have been given at the request of the counsel of accused himself, and it is not by the bill of exceptions made the subject matter of defendant’s complaint. What is complained of is that the court did not instruct the jury that “ the burden was upon the State to show that the shooting was not the result of accident, but was wilful and intentional.” The court charged the jury that “ it devolved upon the State to prove beyond a reasonable doubt that the shooting was done wilfully, maliciously and with malice aforethought.” The only portion, therefore, of the requested charge which the court declined to give was that the burden was upon the State to show that it was not the result of accident.”

Under a charge which required for the purpose of conviction that the evidence should have established beyond a reasonable doubt the fact that the shooting was done wilfully, maliciously and with malice aforethought, it was impossible for the jury to have imagined that it could bring in a verdict of conviction unless the condition of the evidence was such as would forcedly, beyond reasonable doubt, exclude the hypothesis of the shooting having been accidental.

We do not think appellant has any legal ground for complaint.

The judgment is affirmed.


text:
    No. 12,254.
    State of Louisiana vs. Sam Davis et al.
    In criminal cases wliere there is no bill of exception, nor assignment of errors, and there is no error patent upon the face of the record — the judgment of the District Court will be affirmed. State vs. Behan, 20 An. 386; State vs. Kreppt* 20 An. 402.

    A PPEAL from the Eleventh Judicial District Court for the Parish of St. Landry. Dupré, J.

      M. J. Cunningham, Attorney General, and R. Lee Garland, District Attorney, filed a brief for the State.
    Opinion handed down November 16, 1896.
   The opinion of the court was delivered by

Nicholls, C. J.

Sam Davis and Andrew Davis having been found guilty, under an indictment for larceny, and each sentenced to the penitentiary; they have appealed:

The record contains motions of no kind, and no bills of exception. No formal assignment of error has been made and appellants have made no appearance nor suggested any ground for reversal. We, of ourselves, discover none. The appeals were evidently taken soley for delay.

The judgments appealed from are hereby affirmed.