author: Elanohard, J.

text:
    No. 12,957.
    F. May & Co. vs. City of New Orleans.
    Syllabus.
    Goóds Imported and remaining in the original boxes, or cases, or wrappings, In which shipped, are held to be, until sold by the importer, not subject to assessment and taxation for State and municipal purposes, being exempt under Art. t, Sec. 10, par. 2 of ’federal Constitution. a.
    But goods taken from the original cases, or boxes, or wrappings, in which shipped and received by the importer, even though still remaining in the manufacturers’ packages, become incorporated into the general mass of property of the State and subject to its tax laws.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Gurley & Mellen for Plaintiffs and Appellees.

      Samuel L. Gilmore, City Attorney, and W. B. Sommerville, Assistant City Attorney, for Defendant and Appellant.
    Argued and submitted March 10, 1899.
    Opinion handed down April 3, 1899.
    Rehearing refused May 15, 1899.
   The opinion of the court was delivered by

Elanohard, J.

Plaintiffs are importers of merchandise. Their place of business and store is in the city of New Orleans. They were assessed for the year of 1897 on “merchandise, or stock in trade,” at ■$2,500, and, under the printed heading on the assessment roll of “money loaned on interest, all credits and all bills receivable for money loaned or advanced, or for goods sold, and all credits of any and every description,” they were assessed at the further sum of $1,000.

They refused to pay the city tax based on this assessment, on the ground that the same is void because in conflict with Article 1, Section 10, paragraph 2 of the Constitution of' the United States.

Their position is that the merchandise and stock of goods carried by them in 1897 consisted of dry goods imported from -foreign countries upon which duties were levied by the United States and paid by them; that the goods so imported were by them sold only in the unbroken original packages; and that the only credits and bills receivable appertaining to the firm were those representing sums due them on account of the sale as aforesaid of goods in the original packages.

They brought this action to have the assessment declared unconstitutional and void, and coupled with it a proceeding by injunction to restrain the city treasurer from attempting to enforce payment of the taxes.

The city answered by general denial, and, from a decree favorable to the plaintiffs, prosecutes this appeal.

The tax assessor appears to have arrived at the conclusion that part, at least, of the merchandise received by plaintiffs at their place of ‘business, kept in stock there and sold during the year 1897, had lost its distinctive character of “goods in the original package,” by the breaking of the packages in which imported, and that -the contents of such packages so broken had become incorporated into the general mass of property in the State in such way as to become the objects of State and municipal taxation.

Accordingly, to -reach and tax this part of their stock, he returned .an assessment, of $3500 in the aggregate against them.

The burden of proof is on plaintiffs, resisting the assessment and ■asserting exemption, to show that no part of their stock of merchandise is of a character rendering it subject to taxation, and that ho portion of their credits or bills receivable were for goods sold which were subject to taxation.

If it appears from the evidence that they kept in stock and sold goods which must be considered, at the'time of such keeping and ■sale, not to have been in the “original package” in the legal interpretation of that phrase; if the original packages, in which such goods were, had been broken, and. merchandise taken therefrom, put in stock -and sold, then are plaintiffs subject to this taxation.

It is established, we think, that plaintiffs imported a large quantity ■of merchandise; that such merchandise was bought for their account, they were the parties ordering same, and to whom the goods were shipped, and in this sense were the vendees thereof; that the greater part, or from 60 to .65 per cent, of the merchandise so imported was-purchased on import orders, or for customers whose orders they had taken; that the remainder was purchased for their own stock and sold as such out of their store; that the goods purchased on import orders-(for those ordering same) as well as those purchased on stock orders (for their own store) would be shipped in large wuoden cases; that a. case would sometimes contain only the goods embraced in one order (that is to say, all for one firm or business house) and then it would be delivered to such firm or business' house in the original package; that at other times a case would contain the goods to fill several orders of different firms and business houses, in which event the original package in which they were imported would be opened by the importer and the goods for the different orders sorted out, separated, and delivered to those ordering same; and that sometimes goods purchased on stock orders (for their own .gtore) would be shipped in large eases, which when received by the importer would be opened and the goods taken out and put in stock and sold, but that such goods were only sold in the packages in which they were put up by the manufacturer— that is to say, a case would contain many packages, those packages would be taken out of the case, which was broken for the purpose, but the packages themselves would not be broken:

The business of plaintiffs, as importers, was, In this sense a wholesale business, selling only by the package as put up by the manufac-turer; not a retail business because no package was broken and the individual articles of the same kind and make it contained were not sold separately.

Sometimes a case would contain goods purchased on import orders-for customers and likewise goods purchased on stock orders for the importers themselves. When this was so, the case would be opened by the plaintiffs, who would take the goods purchased on the import orders and deliver same to their customers so ordering, and the-goods purchased on the stock ordérs would also he removed from the-case and sold as stock to those choosing to buy.

All the goods whether purchased on import orders or stock orders that came to plaintiffs, did so as the goods of F. May & Co.; they were-the owners of same.

The goods plaintiffs kept in stock were for the most part bobbinet,. and household linens, towels, sheetings, embroideries, laces, etc.

They dealt only in imported merchandise. The goods mentioned, would be put up by the manufacturers in convenient packages. For instance, towels may be put up by the manufacturer in packages containing two, three, or five dozen to the package. But a large order for towels might include five hundred dozen towels. These would all. come in one ease done up in packages of (say) five dozen to the package. The importer would open the case, take these packages of towels-out and sell them by the package. He would not break a package to sell one or more tojvels.

Conducting their business on this line plaintiffs claim to sell only in the original package.

The question, then, which the case really presents is — what is the “original package" ?

Is it the package in which the goods are put up for convenience-by the foreign manufacturer, or is it the case, the box, the covering in which the goods so put up by the manufacturer are packed for shipment? Is the manufacturer’s package the original package in the-legal interpretation, or must that bo held to- be the original package which is delivered to the carrier for transportation to the desired destination ?

If the package put up by the manufacturer be the original package, then plaintiffs’ objection to the assessment complained of is well taken.

If the ease or box, in which the goods arc placed for shipment, be-the original package, then their case falls.

This court in State ex rel. Gelpi & Bro. vs. Board of Assessors, 46 La. Ann., 147, defined a package to be a “number of things bound together convenient for handling and conveyance;” “a bundle put up-for transportation or commercial handling.”

In the early and leading case of Brown vs. Maryland, 12 Wheat., 442, it was said that the thing imported “while remaining the property of the importer in his warehouse in the original form or package• in which it was imported” was not subject to taxation under the prohibition of the Constitution.

In Low vs. Austin, 13 Wall., 34, it was said that “goods imported do-not lose their character as imports and become incorporated into the mass of property of the State'until they have passed from the control of the importer, or been broken up by him from their original cases.”"

In Keith vs. State (Ala.), 10 L. R. A., 430, it was held that when intoxicating liquors are imported in small bottles, each of which is -wrapped in paper and labeled “original package,” the bottles being ■packed, for the purpose of facilitating the shipment, in an open box-marked with the number and size of the bottles contained therein, ■the box, and not the bottle, is the original package.

To the same effect is State ex rel. Cockran vs. Winters (Kan.) 10 L. R. A., 616, where the package as it existed at the time of its transportation was taken to be the “original package.”

Also Guckenheimer vs. Salls, 81 Fed. Rep., 997, where it was said that an original package appears to be the package delivered by the importer to the carrier at the initial place of shipment in the exact-condition in which it was shipped, and that if afterwards this package be broken “it comes within the police regulations of the State”; and McGregor vs. Cone (Iowa) 39 L. R. A. 484. where it was said •that the words “original package” had reference “to a unit which the carrier receives, transports and delivers as an article of commerce,” and which when sold or broken after delivery ceases to be an article -of interstate commerce, becomes a part of the common mass of property within the State and subject to its tax laws.

Other authorities of the same tenor might be cited, but these suffice to support the contention of the defendant that the “original package” in this case must be held to be that in which the- goods were shipped to and received by the plaintiffs, and not the smaller packages put up "by the manufacturer and packed within the ease delivered to the ■carrier.

It follows that since many of the cases of goods received by plaintiffs were opened and the contents removed therefrom and sold after .-such removal by plaintiffs, the merchandise imported in such cases, so afterward broken as aforesaid, lost its distinctive character as objects of foreign commerce not subject, while remaining in the original case, to the police laws of the State, and thereafter, to-wit: — after the case was broken and the goods removed therefrom, became incorporated in the general mass of property in the State and thus subject to State and municipal taxation.

In the Gelpi case, supra (46 Ann.), “it appearing that the larger part of the assessment of complainants was based upon imported goods never removed from the original cases in which shipped and held by them in such cases as “unbroken packages” for sale, we decided that part of their stock not to be subject to assessment and taxation. The other part of their stock, however, representing goods removed from broken packages, was subject to assessment.

And so, in the instant case, the goods imported by plaintiffs and remaining in the original boxes, or cases, or wrappings in which, shipped, are held to be, until sold by the importer, not subject to assessment and taxation for State or municipal purposes; but the-goods taken from the original cases, or boxes, or wrappings in which shipped, even though still remaining in the manufacturers’ packages,are subject to assessment and taxation by defendant. Accordingly, the assessor having fixed upon $3,500 as the sum covering that portion, of plaintiffs’ stock, and its proceeds, for the year 1897, so taken from the broken packages after importation, such assessment must be sustained.

It is, therefore, ordered and decreed that the judgment appealed-from be annulled, avoided and reversed, that the demand of plaintiffs be rejected, their injunction dissolved, and their suit dismissed, with, costs in both courts.

Mr. Justice Monroe takes no part, as he was not a member of the-court when this case was heard.

Note — This case has been taken to the Supreme Court of the-United States by writ of error.


source: Caselaw Access Project

author: 'Blanchard, J.

license: Public Domain

text:
    No. 12,997.
    Jean Marie Courrege vs. Mrs. Celina M. Colgin.
    Syllabus.
    1. The fruits and revenues of the wife’s separate property, administered by the. husband, fall into the community.
    2. Where the husband, for the community, cultivates a plantation, the separate property of the wife, the Indebtedness incurred in such cultivation is a lia bility of the community and the wife cannot be individually held for same.
    S. And this Includes the ordinary repair account of the plantation, by which-the same is kept in a fair state of preservation and deterioration prevented.
    4. This is to be differentiated from the expense incurred by which improve, ments of a substantial, permanent character are added to the wife’s separate estate. In the latter case, the rule of law may well be invoked which holds the wife liable for the cost of such betterments whether she retains the1 administration of the property or abandons It to her husband.

      APPEAL from the Nineteenth Judicial District Court for the Parish of Iberia. Voorhies,J.

      L. 0. Hacker for Plaintiff, Appellant.

      Foster & Broussard for Defendant, Appellee.
    Argued and submitted January 12, 1899.
    Opinion handed down May 1, 1899.
   "The opinion of the court was delivered by

'Blanchard, J.

Defendant, a married woman, not separate in property from her husband, owned several tracts of land, or small .plantations, which were her paraphernal property. On one of these she lived, with her husband and children.

The husband, George Colgin, owned no property and was without means.

Plaintiff is a merchant, who makes advances of supplies and money .to those engaged in farming.

In January, 1891, an account was opened with him and supplies :and advances obtained with which the plantations belonging to the wife were cultivated and the family supported.

This continued down to January 31, 1895, when the account closed.

The proceeds of the cotton and sugar cane produced on the places -were received by plaintiff and credited on the indebtedness resulting from the advances made by him. A large balance was left due when the account was closed, for which a promissory note was given, signed by the wife and husband, payable February 1, 1896, with interest.

This note was not paid at maturity, and another was given for ■$3,124.70, representing the principal, with interest added, of the first note.

It was not paid, whereupon this action was instituted.

It does not purport, specifically, to be a suit on the note, though the .«am for which judgment is asked in the petition is that named in the note.

The cause of action set out is that plaintiff sold and delivered to defendant articles of merchandise, provisions, farming cattle and implements, cash, and other plantation supplies for her own use and ■advantage and for the cultivation and improvement of her paraphernal .property; and the averment is made that on the 1st of February, 1896, ■defendant owed him the $3,124.70 aforesaid and promised to settle the same twelve months from that time. He charges that the wife’s property, to cultivate and exploit which the indebtedness was incurred, was under her administration, that he dealt with and gave the credit to her and not to him, that she and her separate property were ■directly benefited by the same, and that she was duly authorized by her husband in all her dealings with him.

The defense is that while the plantations cultivated are the separate .property of the wife, the same were not under her control or administration, but under that of her husband; that a community of .acquets .and gains exists between them; that the account with plaintiff was opened by the husband, with whom plaintiff dealt and to whom the ■credit was extended; and that the indebtedness is that of the husband, or of the community, for which neither she, nor her separate property, is liable. She denies that the indebtedness inured to the benefit of her separate property.

The judgment below rejected plaintiff’s demand. He appeals.

TBe evidence establishes that the husband, not the wife, had the administration of the paraphernal property. The account, from the time when opened in January, 1891, down to September 15, 1894, was carried on the books of the merchant in the name of George T. Oolgin, the husband. From September 15, 1894, to January 31, 1895, when the account was closed, it appears to have been carried on in the name of the wife.

The wife did not authorize this substitution of her name. Besides, changing the account to her name was of no consequence. 36 La. Ann. 626. The dealings of plaintiff were with the husband, not the wife. It was the husband who bought the goods, obtained the advances, and whose orders for supplies were honored.

It was he who delivered the crops to plaintiff or paid over the proceeds to him. The wife did not figure at all in these transactions beyond, perhaps, a few minor purchases by herself individually at the store. The contracts of the plaintiff were with the husband. The credit was extended to him.

This wife did not cultivate her plantations, and the same were not cultivated by the husband as her agent, nor for her account and benefit.

The fruits and revenues of the wife’s separate property administered by the husband fell into the community and the debts contracted, in such administration are community obligations. C. C. 2386; Van Wickle vs. Violet, 30 La. Ann. 1106; Chaffe vs. McIntosh, 36 La. Ann. 824; Pior vs. Giddens, 50 La. Ann. 216 (22 So. Rep. 338); Hall & Lisle vs. Wyche, 31 La. Ann. 734; Trudeau vs. Row, 22 La. Ann. 197.

That portion of the indebtedness contracted with plaintiff chargeable to the household expenditures of the family was mingled with the plantation account, was extended on the same basis of credit (that of the husband and the revenues of the property) and can not be viewed in any other light than as a community obligation, for which, under the circumstances here presented, and considering the situation cf the parties, the wife and her separate estate can not be held liable at the suit of the plaintiff. C. C. 2389, 2395, 2425; Choppin vs. Harmon, 24 La. 327.

But plaintiff urges that the wife is liable for that portion of the-indebtedness which is shown to have been for those things or articles,, which by their nature and character entered into the permanent improvement of her separate estate, and he culls from the account, beginning with June 27, 1893, and ending with January 23, 1895, the items under this head, aggregating $303.75.

An examination of the items show them to have been purchases of nails, staples, fence-wire, fence posts, hinges, screws, locks, lumber and lime, all in small quantities, and one item of $35 for building cabins, and another of $17.50 for building a crib.

Even if these expenses are considered as rightly coming under the head of betterments or permanent improvements put upon her paraphernal property, and if viewed as adequately proven, they are entitled to be considered paid in whole or in part by the credits received by plaintiff from the crops and proceeds of crops raised on the places.

In other words, plaintiff can not be permitted to cull out these items-of indebtedness so as to deprive them of all benefit of the credits he has received, apply such credits exclusively to other items of indebtedness in the common account, and hold tbe wife for the aggregate sum of the items exculpated from the benefit of the credits. There-would be gross inequity in this. The husband and the community, of which he is the head, incurred this indebtedness and put these-things on the plantation for his and its benefit; the revenues of the.place belonged to the community; as such they were received by the plaintiff and credited on the account, and the sums so received entered into the payment pro tanto, as far as they went, of each and every item on the account.

Besides, we* are not impressed that the items of expense so culled out are entitled to be classed as improvements on the plantation. Most of the items, indeed all, unless it be the two for cabins and crib, are rather to be viewed as for current repairs — repair account — and like those on another list furnished by plaintiff, of items used in the-cultivation of the plantation, must be held as liabilities of the community and not of the wife.

Where the husband, for the community, cultivates a plantation, the-separate property of the wife, the indebtedness incurred in such cultivation is a liability of the community, and the wife can not be individually held for same. And this certainly includes the ordinary repair account of the plantation, by which the same is kept in a fair state of preservation and deterioration prevented.

This is to be differentiated from the expense incurred by which improvements of a substantial, permanent character are added to the wife’s separate estate, thereby appreciably enhancing the value of same. In the latter case that rule of law may well be invoked which holds the wife liable for indebtedness incurred for the improvement of her separate property whether she retains its administration or abandons it io her husband.

Plaintiff claims he paid taxes on the property. He did not produce the tax receipts and his evidence of the payment of taxes was objected to and bill reserved on the ground that the best evidence of' such payment was the receipts themselves. Besides, his testimony was to the effect that he gave the money to defendant’s husband to-pay the taxes. This is not sufficient to establish that the taxes were-actually paid by plaintiff. 24 La. Ann. 142. And if they were, such ■ items of indebtedness, charged as they were on the common account, are, too, entitled to share in the benefits of the credits plaintiff received from the proceeds of the crops raised on the plantations.

Besides all this, the community, enjoying as it did, the usufruct of the wife’s landed estate, ought in good conscience to be chargeable-with the taxes on the same.

We find no sufficient warrant for disturbing the judgment of the court a qua■ and the same is affirmed.

Mr. Justice Monroe takes no part, the case having been submitted before he became a member of this court.


author: Blanchard, J.

text:
    No. 13,007.
    State of Louisiana vs. R. E. Perry, Alias Jack Moore.
    Syllabus.
    1. Even after appeal in a criminal case, the trial court may, In a proceeding taken contradictorily with the appellant, correct and amend its minutes so as to present the true facts for the consideration of the Appellate Court.
    2. District attorneys prosecuting on behalf of the State should look carefully after the minute entries of the court relating to prosecutions.
    3. Judges and clerks of trial courts might save much delay and'trouble, as well as facilitate gosd order and promote regularity of proceeding, by more attention to such details.

      A. Defendant, on trial, is not prejudiced by denial of motion to attach a wit ness whose evidence is immaterial.
    ■5. Granting or denying applications for continuance of criminal causes rests largely in the discretion of the trial judge,- and his rulings will not be interfered with unless a clear case of abuse of discretion is presented.
    ■6. A possible motive existing in another other than the accused, and that other not named or suggested, to slay the deceased through revenge for an antecedent killing by him, has a bearing, if any at all, so remote as to render ' subject to the objection of irrelevancy and immateriality evidence sought to be introduced of such killing by the accused.
    •3. Where the accused objects to evidence of inculpatory declarations by him on the ground that a proper foundation for the same has not been laid, he should specify the defect complained of.
    APPEAL from the Twelfth Judicial District Court for the Parish of Vernon. Bead, J.

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

      Don B. Sore'lle and James B. Monh for Defendant, Appellant.
    Submitted on briefs April 8, 1899.
    Opinion handed down May 1, 1899.
    Rehearing refused May 15, 1899.
   The opinion of the court was delivered by

Blanchard, J.

Indicted for murder, found guilty without capital .punishment, and sentenced to imprisonment, at hard labor for life, defendant appeals.

In an assignment of errors filed here, it is complained that the minutes of the court do not show the presence of the accused at important stages of the trial. This is true as far as the minutes, as first transcribed by the clerk, read in open court and attested by the signature .of the trial judge, are concerned. But after the transcript was filed here, the Attorney General, suggesting that the minutes of the court, relating to the trial of the case, were defective in not showing the presence of the accused at any stage of the trial, and averring that he was present at all the stages thereof, moved for a correction of the minutes and for a continuance of the case to allow the District Attorney to take proper proceedings in the court below to have the correction made so as to conform to the facts.

An order to this effect, without prejudice to the accused, having been entered here, the District Attorney took a rule in the court a qua on the accused to show cause why the minutes of the trial should not be corrected so as to show his presence in court throughout the trial •of the ease. He averred the fact to be that he was present at each .and every stage of the trial.

Defendant, answering the rule, pleaded 'that it was then too late to make any change in the minutes of the trial for the reason that nearly lour months had elapsed since the holding of the term of court at ■which the trial was had; that the proper time for the correction of the minutes, if incorrect, was when they were read in court after the same were first transcribed; that the District Attorney was present when they were so read, and suffered the same to be approved without objection on his part; and that the practice of attempting to effect changes in the minutes of court long after the adjournment of the term at which the trial was had was unsafe, and an unfair preference shown the State as against the accused.

On trial of the rule the testimony showed the presence of the accused throughout his trial. Whereupon judgment for correction of the minutes accordingly was entered up, and an amended transcript of the case, showing such correction, was presented here and ordered filed without prejudice.

Neither bill of exceptions, nor appeal, was taken by jjfie accused to the ruling and judgment allowing the correction.

But even if there had been, it would not have availed him. It has been held repeatedly that even after appeal the trial court may, in a proceeding taken contradictorily with the appellant, correct and amend its. minutes so as to present the facts for the consideration of this-court. 31 La. Ann. 337, 400, 557; 32 La. Ann. 1227; 34 La. Ann. 369.

The corrected minutes showing the presence of the accuséd throughout the trial, his assignment of errors falls.

But while so holding, we deem it not amiss to admonish District Attorneys prosecuting on behalf of the State, of the necessity of looking carefully after the minute entries of the court relating to prosecutions. Judges and clerks of trial courts might save much delay and trouble, as well as facilitate good order and promote regularity of proceeding by more attention to such details.

After having obtained a continuance of his case and postponement of trial for more than twelve months, the accused applied for a change of venue on the ground of the existence of prejudice in the public mind against him to such an extent as precluded the possibility of an impartial trial in the parish.

To an adverse ruling thereon he reserved a bill of exceptions, tc which is attached the evidence taken on trial of the application. This testimony fails entirely to show the existence of such prejudice against him as he contended for, and every one of the many witnesses he called declared the belief that he could obtain a fair and impartial trial in the parish of Vernon.

There was no error in the ruling denying the change of venue.

A witness, T. J. Grissom, living in an adjoining parish, having been subpoenaed on behalf of the defense, failing to appear, an attachment was asked. His testimony was wanted to establish the fact that the accused went by the assumed name of J. B. Moore long prior to this date of the murder charged in the indictment; that the reason for this change of name was because he had been black-listed by the railroads ? and that his motive in passing under a name other than his real one-was not to conceal his identity because of crime committed.

To the refusal of the court to order the attachment, a bill of exceptions was reserved.

The ruling was based, in the main, upon the immateriality of the .testimony to afiect the substantial issues of the case.

To have granted the attachment of the witness would have necessitated the further postponement of the trial, having then already been postponed more than a year since the arraignment under the indict-1 ment.

The testimony of the witness Grissom could not possibly become material unless the State attempted to make capital of the change of name in the instant prosecution, and this the judge could not anticipate or forsee.

The materiality of the evidence was not apparent at the time the attachment was applied for.

It did not appear that the prosecution was then seeking, and it is a fact that it did not subsequently seek, to turn to the disadvantage of the accused the circumstance of the change of name as an incident having any bearing upon the case.

On the contrary, the judge states in the bill of exceptions that the evidence of the State, itself, showed the accused had given the name of “Jack Moore” as his several months prior to the murder.

The accused is not prejudiced by the denial of the attachment, an. the ruling of the trial judge thereon is sustained.

On the day the case was called for trial, defendant applied for a continuance on the ground of the absence of certain witnesses fof whom, subpoenas had issued and reserved a bill to the denial of the •motion.

As to two of the witnesses, Williams and Blevins, the sheriff’s return shows they had left the State, one of them being in Texas, the ■whereabouts of the other unknown.

As to another, Sullivan, the- return of the sheriff states no knowledge of his whereabouts and inability to learn anything concerning him upon diligent inquiry.

It is established by repeated decisions that the matter of granting or denying applications for the continuance of criminal causes rests largely in the discretion of the trial judge, and that this court will not interfere unless a clear case of abuse of such discretion is presented.

No such abuse appears here.

To the statement made in the motion for continuance as to what was expected to be proven by the absent witness, the judge replied, in' his reasons embodied in the bill of exceptions for denying the motion, that circumstances within his knowledge forced him to conclusions of fact entirely different.

While not justifying this as sufficient grounds for withholding his-assent to the demand for continuance, the whole case as presented on the motion to- continue does not impress us that the ends of justice would have been subserved by the granting of the continuance, and,, accordingly, we cannot say there was error in its refusal.

The State having called the widow of the murdered man to the stand, seeking to identify the accused as one of the two men who had committed the murder, she was asked on cross-examination if her deceased husband had not, a short while previous to his death, killed a man by the name of Sam Williams — counsel for defendant stating his-only purpose to be to show motive may have existed in another or others to commit the murder with which the accused stood charged.

Objection by -the State being interposed, the same was sustained. Defendant excepted.

The ruling was correct. The burden rested on the State to prove the dead man was killed, that the killing was a murder, and that the accused was the murderer. If any one of these essentials failed of proof, the prosecution fell. A possible motive existing in another, and that other not named or suggested, to slay the deceased through revenge for an antecedent killing by him, had a bearing, if any at all, so remote as to make the question put to the witness well subject to the objection of irrelevancy and immateriality.

The State offered one George Rivers as a witness to prove inculpating declarations by the accused. The latter objected on the ground that the proper foundation had not been laid for the admission. Required by the court to declare wherein the foundation was defective, declined to say. Whereupon the objection was overruled. Defend1 ant excepted.'

The statement of. the witness is annexed to the bill. We think it competent testimony:

The last bill of exceptions was taken to the denial of the motion for new trial.

The principal ground averred for the motion was separation of the jury. Evidence was taken in.the effort to show the separation. It all comes up as part of the bill. It fails entirely to show any separation, of the jury. •

Judgment affirmed.'


text:
    No. 13,012.
    Kansas City, Shreveport and Gulf Railway Company vs. Heirs of W. W. Smith et al.
    Syllabus.
    1. The finding of a jury of free-hoiders in an expropriation case, as to the compensation to he paid the owner for property taken in the exercise of the right of eminent domain, is entitled to the greatest weight.
    2. While in a case showing unreasonable disproportion, one way or the other, of the amount of the award of such jury with what the evidence shows the true value of the property to be, this court will interfere and increase oi reduce such award according as the facts and real condition of things may warrant, it is only a clear case of error or mistake, fraud, prejudice or misconduct on the part of the jury that would justify the disturbance of their verdict.
    APPEAL from the First Judicial District Court for the Parish of Caddo. — Watkins, J., vice Land, J., recused.

      T. Alexander for Plaintiffs, Appellees.

      A. E. Leonard and D. T. Land for Defendants, Appellants.
    Argued and submitted January 26, 1899.
    Opinion handed down May 1, 1899.
   The opinion of the court was delivered by

Blanchard, J.

This is an expropriation suit, and the only issue presented is as to the value 'of the ground sought to be taken for the use of the railroad.

There are several rival, adverse claimants to the .land over which the railway demands the right-of-way, to-wit.: (1) The city of Shreveport, (2) the Vicksburg, Shreveport and Pacific Railway Company, (3) the heirs of W. W. Smith, deceased, and their transferrees.

Plaintiff caused all the claimants to be cited and prayed to be permitted to deposit in court the sum awarded by the jury as the value of the land and damages, subject to the contest of those claiming title.

A jury of free-Holders from the vicinage was impaneled, heal'd the evidence, inspected the premises, decreed the expropriation, and fixed the value of the land taken at $1950.

Defendants had claimed a much larger sum.

From the judgment based on the verdict of the jury, the Smith heirs and'their transferrees appeal. The city of Shreveport and V. S. and P. Ry. Company have not appealed.

The 'strip of land involved, varying from 100 to 115 feet in width, comprises 5 2-10 acres lying in the bed of what was once Silver Lake, and within the limits of the city of Shreveport. The lake during the last thirty years has gradually dried up and its bed filled with deposits from the river water and detritus from the higher contiguous land until the same has become susceptible of occupancy. It is still, however, subject to inundation from the Red river, and at the point where the railway crosses, the depth of overflow is several feet.

The lake bed is, too, the natural receptacle of the rainfall and the drainage of the hills which surround it.

Owing to these conditions, and because of the disputed title, the land .forming- the lake bed remains unoccupied save by negro squatters or ground-renters who inhabit miserable shanties erected by themselves.

The evidence shows this property is not, as yet, fitted either fo” business or residential purposes.

Consequently, its value is largely speculative.

Under the circumstances now surrounding and controlling it, the property can hardly be said to have for selling purposes any real market value or price, based upon the usual conditions of enquiry, supply and demand.

To make the strip sought by the railroad available for its purposes, huge embankments, or fills, and a long and high trestle have been necessary.

The testimony makes it clear that to put the ground embraced in this strip, and that contiguous to it, in condition for ware-house purposes, or as sites for manufactories, supplying a demand (not shown) •for the same for such enterprises, would require a fill with earth to -a depth of six or eight feet, which would cost, considering the conditions for obtaining dirt, from 32 to 40 cents per cubic yard. Thus, to raise, by filling, a lot 40 by 125 feet,' would involve an'expense of ■from $400 to $500 a lot.

As to the value of the ground embraced in the strip, five witnesses testified for defendants and an equal number for plaintiffs.

Those of plaintiff averaged the value of the five and a fraction acres in the strip at from $300 to $500 per acre; those for defendant aver.aged it at as many thousands per acre.

¡Several sales of recent date of near-by property, showing prices, were offered by defendants, and oiie by plaintiff of an interest in the Silver Lake property, of which the strip in question is part; but we ■do not consider that any of these sales, owing to widely differing conditions and to peculiar circumstances existing, shown by the evidence, furnish any criterion, even remotely proximate, by which to judge of .the value of the ground sought to be expropriated. And this must .have been the view taken by the jury. By their verdict, they fixed upon $350 per acre as the value of the land and damages.

The trend of the evidence was to show that the Silver Lake property was benefited, not damaged, "by the location of the railroad track on it, and, consequently, it is likely what the jury allowed was really ■what they considered the value of the land.

Nor are we impressed with the contention of defendants that as the negro ground-renters pay a dollar or more per month for their small holdings in the lake bed, it furnishes a criterion for appraising the laud at a much higher value than that determined by the jury. These are an undesirable class of tenants, the evidence showing that the collection of not more than two-thirds of the revenues from such sources can be depended upon.

The ground-renters on this lake bed are hardly more than squatters, ■acknowledging to hold for and from the parties who put them there, or authorized them to settle there. The huts they occupy are hardly more than temporary structures of their own erection, most o.f them not even approaching to the importance of an ordinary plantation negro cabin. Theirs is a precarious tenure — nothing to hold them if they choose to go, and irresponsible as to the obligation of tenancy thej- may have assumed.

The jury of free-holders after hearing the evidence, viewed the premises.

Their conclusion as to the proper compensation to be paid defendants is entitled to the greatest weight.

'While in a ease showing- unreasonable disproportion, one way or the other, of the amount of the award of a jury in an expropriation suit with what the evidence shows the true value of the property to be, this court will interfere and increase or decrease such award according as the facts and real conditions of things may warrant, it is only in. a clear case of error or mistake, fraud, prejudice or misconduct on the part of the jury that we would feel justified in disturbing their verdict.

In R. R. Co. vs. Frank, 39 La. Ann. 707, it was held that: — “In an expropriation proceeding for a right of way the verdict of a jury of the vicinage, composed of land owners, and presumed to be familiar with the value of the land sought to be expropriated, will not be disturbed by this court, unless it is found to be inconsistent with the proof in the record, or entirely unsupported by the evidence.”

In Cable Co. vs. Railway Co., 43 La. Ann. 522, this doctrine was approved in the following language: — “It has long been held in this State that the jury of free holders, authorized by our laws to act in expropriation proceedings, have to some extent, the character and authority of experts, supposed -to have some personal knowledge of the matters submitted to them, and authorized to rely on their own opinions as well as the testimony adduced before them. Their verdicts are, indeed, subject to review by appeal, and may be amended when manifestly inadequate or excessive; but they are entitled to great respect and will not be interfered with except in case of gross or manifest error.”

See also R. R. Co. vs. McNeeley, 47 La. Ann. 1298; 12 La. Ann. 500; 44 La. Ann. 178; 46 La. Ann. 1273.

We are constrained to hold that the situation here does not warrant the court in concluding that gross or manifest error characterizes the verdict of this jury, nor that fraud, prejudice or error perverts their finding.

Judgment affirmed-

Mr. Justice Monroe takes no part, as he was not'a member of the court when the ease was submitted..


text:
    No. 13,109.
    State of Louisiana vs. Samuel Furco.
    Syllabus.
    1. While it would be in better form to go outside the coterie of court house officials for witnesses to the drawing of juries, a deputy clerk of court and deputy coroner, acting in their individual capacities and not as officials, are not incompetent to serve as such witnesses.
    2. The fact that an incompetent person happens to find a place on the grand jury, is no ground for the dissolution of that body. The judge may dismiss-such ineligible juror and supply his place from the names remaining on the-grand jury list.
    3. It is not deemed essential that the judge should deliver anew a full charge-to the grand jury after each filling of a vacancy in the panel.
    4. But the failure to administer the full oath of a grand juror to the person chosen from the grand jury list to fill such vacancy is reversible error when-timely objection Is made to the indictment, the finding of which was participated in by the juror improperly sworn.
    5. The abbreviated form of oath administered to those chosen with the foreman, and who heard the full oath administered to him, suffices; but, later, when another is added to the panel to fill a vacancy, it will not do to qualify-him by the abbreviated oath.
    6. A wise discretion to select his witnesses and manage the prosecution according to his best judgment under the eye and reasonable direction of the court,, is vested in the district attorney.
    APPEAL from the Twentieth Judicial District Court for the Parish of Assumption. — Guión, J.

      M. J. Cunningham, Attorney General, and G. A. Gondran, District'. Attorney, for Plaintiff, Appellee.

      John Marks and Beattie <6 Beattie for Defendant and Appellant.
    Argued and submitted March 25, 1899.
    Opinion handed down May 1, 1899.
    Rehearing refused May 15, 1899.
   The opinion of the court was delivered by

Blanchard, J.

The accused was indicted for murder and convicted of manslaughter. From a sentence to six years’ penal servitude, he appeals.

The first move made in his defense was a motion to quash the im dictment on several grounds, viz.: — ■

1. Because the grand jury which returned the true bill was illegal,, for the reason that the jury commissioners did not draw the jury in the presence of two disinterested witnesses as prescribed by law.

2. Because after the grand jury had been empaneled and sworn and had commenced its work, it was found and adjudged that two of .its members were disqualified under the law, were discharged from the panel, and two others drawn from the grand jury list and sworn and installed as grand jurors .in their place. That, later, it was found another member of the grand jury had permanently left the ■State, and, thereupon, another name was drawn from the jury list to fill this vacancy, and the person so drawn was not qualified by the .taking of any proper or sufficient oath to conscientiously perform his ■duties as grand juror.

3. Because after the j uror last taken had been added to the panel, •the grand jury had not been .charged anew as to its duties, but did the following day return the indictment against the accused.

4. Because the first two grand jurors declared incompetent did not become so after being impaneled, but ivere so when impaneled, and their discharge dissolved the grand jury, which could not be after-wards added to and made a further continuing legal body.

This motion to quash was overruled and a bill of exceptions taken.

1st. The jury commissioners for the parish selected the jury in accordance with Sec. 4'of Act 135 of 1898. The clerk of the court was himself present acting as one of the commissioners. There h-ere two witnesses present witnessing the drawing of the jury. One of these •witnesses was deputy clerk of the court and the other was connected with the coroner’s office of the parish in the capacity of so-called deputy coroner. They, in their individual capacities, not as officials, had been summoned to attend the drawing of the jury as witnesses thereof, l'n acting as witnesses they did so as citizens and individuals — not as deputy clerk or deputy coroner. The contention that they are not to b'e considered “competent and disinterested” witnesses, in tl1 e language of the statute, because they held the official positions designated, is of insufficient force to justify setting aside the panel. While it would-be in better form to go outside of the coterie of court house officials for persons to witness the drawing of the jury, the language of the statute does not exclude such officials from acting in their individual capacities as witnesses, and we cannot.

We are not unmindful of-the fact the statute directs that in case of inability of the clérk of court to act as jury commissioner, his chief' •deputy is ex officio to serve as such. But the chief deputy, in this instance, who acted as one of the witnesses, was not serving as jury ■commissioner. The clerk himself was there performing that duty, ’and, hence, the deputy was a stranger to the proceeding except in his-capacity as citizen called to witness the drawing.

2nd. Some days subsequent to the impaneling of the grand jury, it. was found that one of them could not read and write the English language. Whereupon the judge ordered his dismissal from the panel because of disqualification. Still later another juror was dismissed because found also to be disqualified. Having found these jurors to be without the proper qualification, it was competent for the judge to-dismiss them and supply their places by two other persons whose names were duly drawn from those yet remaining upon the grand jury list. Sec. -Y, Act 135 of 1898.

A third graud juror, having left the State permanently and thus created a vacancy, another drawing from the grand jury list became necessary and Thos. J. Dyer was drawn, sworn and thereafter sat with the grand jury, participating in the finding of the indictment.

It is strenuously insisted on by the accused that Dyer must be considered as not having been sworn. This contention is based on the form of oath administered to him. It was as follows: “You do solemnly swear that the oath your foreman has taken on his part you will observe and keep on your part — so help you God.”

The method of inpaneling a grand jury is about as follows: — The jury commissioners select the names of tw'enty persons to serve as grand jurors for the next ensuing six months. See. Y, Act 135 of 1898. These twenty persons are summoned by the sheriff to appear in court on a day named and they do so appear. The judge of the court, then, from this grand jury list of twenty, selects a suitable person to-act as foreman of the grand jury about to be organized. Sec. 8, Act 135 of 1898. This person so selected as foreman has then'administered to him the usual oath of grand jurors. Following this the sheriff, under the direction of the court, draws from the grand jury list of names, one by one the names of the jurors until eleven answer, and these eleven, with the foreman, constitute the grand jury. The practice, in administering the oath to these eleven so drawn, appears not to be to repeat over again the oath taken by the foreman, but a formula like that administered to the grand juror Dyer.

Those drawn to serve as grand jurors are present and hear the oath as the same is administered to the foreman, and, accordingly, it is not necessary to repeat over again to the eleven the full oath. The abbreviated form, such as that administered to Dyer, suffices. But' •when a vacancy occurs in the panel and it becomes necessary to fill it .from those remaining on the grand jury list, as in case of the selection of Dyer, the regular oath in full of a grand juror should be administered to such person so selected, and the failure to do so is reversible error, when, as in this case, timely objection is made to the indictment, the finding of which was participated in by the juror improperly sworn.

The abbreviated oath administered to those chosen with the foreman, and who heard the full oath administered to him, is all right; •but later, when another is. added to the panel, it will not do to qualify .him by the abbreviated oath.

Unless he were present and heard the oath administered to the foreman, th,e abbreviated formula is equivalent to no intelligible oath administered to him at all, and a grand juror not duly sworn vitiates all indictments in the finding of which he took part where seasonable -complaint is made.

We feel constrained to hold that it was error in the court below in not sustaining the motion to quash on this ground.

The case might properly end here by reversal of the judgment and .remanding for further proceedings, but inasmuch as the other points raised'by the defense are important in the criminal practice, we deem it wise, for the guidance of the courts, to consider and determine the ■same.

3rd. A grand jury having been fully charged by the judge on the ■ day of its organization, it is not required by the statute that he should charge it fully anew each time another juror is added to fill a vacancy -•occurring.

It appears in the instant case, however, that after the new jurors -were added to fill vacancies the judge did charge the jury anew as to the necessity of reporting all crimes and offenses, and as to the neces■sity of secrecy.

4-th. We can not give our sanction to the proposition that, should •a person, not having the qualification prescribed by the statute for a grand juror, be placed accidently or inadvertantly upon the grand jury list of twenty, and be drawn in the make up of the jury, and •serves upon it, the entire panel of the grand jury is stricken with nullity. To hold this would be to precipitate endless confusion upon the administration of criminal justice throughout the State. Nor does -the statute warrant such holding.

Care should be taken, first, by the jury commission to exclude incompetent persons from the grand jury list; next, by the judge to prevent an incompetent person, who happens to get upon the grand jury list, from being included in the grand jury organization. But if an incompetent person should happen to find a place on the grand jury, It is no ground for the dissolution of that body. As soon, however, a? his disqualification comes to the knowledge of the judge, it is his duty, as was done in the instant case, to dismiss such person, declare a vacancy and fill it by drawing from the remaining names on the grand jury list.

There is force in the contention that, within the meaning of the jury statute under consideration, the disqualification exists only from the time when it becomes known to the court; and finding a person on the jury wBo is disqualified, whether his disqualification antedates his .selection or develops afterward, it equally presents the case of a vacancy that the judge may order filled by a further drawing from the grand jury list. And as none of the incompetent persons dismissed from the panel were serving upon the grand jury at the time the present indictment was returned, we do not see that the accused has just cause of complaint on that score.

In this respect the case at bar differs from State vs. Hammond, 2 Woods Reps. 197; State vs. Clough, 49 Me. 573; State vs. Thibodeaux, 48 La. Ann. 601; 8 R. 613; 21 La. Ann. 25, and other cases cited by counsel for defendant. In these eases, incompetent persons actually sat upon the grand jury and participated in the finding of the true bills.

Another bill of exceptions was reserved to the ruling of the court refusing the motion of counsel for the accused to compel the district attorney to call, on behalf of the prosecution, certain witnesses who were alleged to have been present at the homocide and had knowledge of facts relating to the same.

It seems that after the State had announced its ease closed so far as further evidence was concerned, counsel for defendant stated that there were in the witness room two witnesses whose presence at the time of the homocide had been shown by the testimony adduced on the part of the State, and he thereupon called upon the State to put these persons on the witness stand, to the end that what they knew about the case might be stated to the jury, and giving thé accused the opportunity of cross-examination. The prosecuting attorney' declined to call these persons as witnesses and the court refused to direct him to do so.

This is averred to be reversible error. The parties referred to had been subpoemed by the defense, not by the State.

In Louisiana, as elsewhere, the humane policy of the law has ever been that it were better “ten guilty men escape than one innocent man should suffer.”

Furthermore, the rule obtains here that the officer prosecuting on behalf of the State represents the public interest, which can never be promoted by the conviction of the innocent. All the information possible relating1 to a crime charged to have been committed should be-disclosed. The State has no interest to suppress real facts, whether they sustain the prosecution, or overthrow it.

The State is far better served when an innocent man escapes conviction for the crime he did not commit, than it is when a guilty man is brought to punishment for the crime he did commit.

This is the general rule that should guide the courts in their administration of criminal justice, and the law officers of the commonwealth in conducting prosecutions.

At the same time a wise discretion to select his witnesses and manage the prosecution according to his best judgment under the eye and reasonable direction of the court, to the end that the law may be vindicated and the guilty brought to punishment, is vested in the district attorney. State vs. Williams, 30 La. Ann. 843.

The witnesses in question, in the instant case, were in court by the action of the accused. ITe had called them as his witnesses, and when the State declined the invitation to put them on the stand, they were put upon the stand by the defense. What they knew of the case, therefore, went to the jury.

They, likely, did not testify as the defendant hoped they would, and his case may have been prejudiced thereby. But this can not he held sufficient ground to set aside this verdict'and remand the case. State vs. Ford, 42 La. Ann. 259.

The matters set forth in the bill of exception relating to the denial of the motion for new trial and that in arrest of judgment have been,, for the most part, already discussed and disposed of.

What is further urged in regard to the absence of a witness named Testa, has had our attention. Without going into its discussion, we think the trial judge ruled properly therein.

The same is true of the objection raised with respect to the interpreter who was sworn at the instance of the accused to translate the utterances of witnesses who testified in the Italian language; and of the further complaint that the district attorney filed an information, the day following the trial, against the accused, charging him with cutting and stabbing one of his witnesses.

One or two minor matters of objection are suggested in briefs oi counsel for the accused, but since they do not form the subject matter of bills of exception, nor are brought to our attention by an assignment of errors, filed here, we decline to consider the same.

Recause of tJ}e failure to administer a sufficient oath to the grand juror Dyer, as hereinbefore set forth, it is ordered, adjudged and decreed that the verdict, sentence, and judgment appealed from is avoided and reversed, and the case is remanded for further proceedings according to law — the accused to remain in the custody of the law.


text:
    No. 13,147.
    State of Louisiana vs. Westley Thompson.
    Syllabus.
    1. Cutting and stabbing with intent to murder, and wounding less than mayhem, while separate and distinct offences, may be cumulated in one presentment, provided each is charged in a separate count.
    2. Bill of information as here drawn held to set forth two counts, and that one of said offences was averred in each.
    3. Not necessary to conclude each count of a presentment with the formula “contrary to the form of the Statute, etc.” It suffices if-the indictment or information concludes with it. So concluding, the formula is held to apply tro each count of the bill.
    APPEAL from the 18th Juditial District Court for theParish of Lafourche. — Caillhonet, J.

      M. J. Cunningham, Attorney General, and L. C. Moise, District Attorney, for Plaintiff, Appellant.

      John 8. Billiu for Defendant, Appellee.

      Submitted on briefs April 22, 1899.
    Opinion handed down May 1, 1899.
   The opinion of the court was delivered by

Blanchard, J.

An information was filed against the accused charging him with cutting and stabbing with intent to kill and murder, and with inflicting a wound less than mayhem.

These are separate and distinct offenses, though kindred.

Cutting and stabbing with intent to commit murder is actionable-under Section 791 of R. S„ as amended by Act 43 of the Acts of 1890.

Inflicting a wound less than mayhem is actionable under Section 794 of R. S., as amended by Act 17 of the Acts of 1888.

The two may be cumulated in one indictment or bill of information, provided each is charged in a separate count. 39 La. Ann. 959; 33 La. Ann. 1294; 42 La. Ann. 978.

“Whether they are charged in separate counts is an issue in this .-appeal.

Tlie first part of the bill recites that the district attorney gives the ■court “to understand and be informed that Westley Thompson * * * on the 27th day of .December, in the year oí our Lord one thou•sand eight hundred and ninety-eight, with force and arms * * * ■did feloniously, wilfully and of his malice aforethought, with a dan- . gerous weapon, to-wit — a knife and hatchet, stab, cut -and thrust one .Artemise Thompson with intent her, the said Artemise Thompson, i then .and there feloniously, wilfully and of his malice aforethought to skill and murder.”

The end of a sentence, full stop, or period, is here, and-ithen follows .-another sentence concluding the bill, as follows: — -“The District Attorney further gives the court to understand and' be informed that the said Westley Thompson on the day aforesaid, in the month and year aforesaid, and in the parish and State aforesaid, the said Westley Thompson in and upon the said Artemise Thompson, with a dangerous weapon, to-wit: — a knife and hatchet, did inflict a wound less than mayhem, contrary to the form of the statute of the State of Louisiana in such eases made and provided and against the peace and dignity of .the same.”

Appended is the signature of the district attorney.

The bill is indorsed “State of Louisiana vs. Westley Thompson— Information — 1st Count, cutting with intent to murder; 2nd Count, .inflicting wound less than mayhem.”

The jury which tried the accused returned this verdict: — “Guilty, 1st charge; guilty, 2nd charge.”

A motion for new trial having been overruled, counsel for defendant filed one in arrest of judgment on the ground that the information is defective because of illegal joinder of offenses, and bad for duplicity.

This motion the court a qua sustained, and the State appeals.

IV e think it clear that the bill contains two counts and that one separate offense is charged in each count.

The authority relied on by counsel for -the accused, State vs. David Johns, 32 La. Ann. 812, is not in point. There was in that case hut .one count charging the same two distinct offences which, in the in.stant case, are charged in separate counts.

A test as to whether -or not there are separate counts in this bill, .and distinctive offenses averred in each count, is presented when the inquiry is made — could the jury have found the accused guilty as to one offense and not guilty as to the other? Undoubtedly this could .be done as the bill is drawn. And if such had been the verdict, the .prisoner would be sentenced for that offense for which convicted under .the section of the Revised Statute applicable to the same, and, of ■course, not sentenced for the other offense as to which he was acquitted and relative to which the penalty prescribed in another section of the law applies.

Having been convicted, however, on both counts — a separate verdict as to each count being returned — there is nothing in the way of the ■trial judge passing upon the accused the sentence of the law for each of the offenses he has committed.

Each count in the bill states and charges unmistakably and with certainty the offense with which it deals. So that the accused was thoroughly and distinctly informed and advised why and to what extent he was in jeopardy. There was no duplicity here,.and no illegal joinder of offenses.

Another issue raised is, there being two separate counts in the bill, each count should conclude with the words: — “against the peace and dignity of the same.”

Article 90 of the Constitution of 1898 is an exact reproduction of Art. 86 of the previous Constitution. It directs that: “All prosecutions shall be carried on in the name and by the authority of the State of Louisiana, and conclude: — ‘Against the peace and dignity of the-same.’ ”

The concluding words of this bill of information were :■ — “Contrary to the form of the statute of the State of Louisiana, in such cases made and provided, and against the peace and dignity of the same.” But this formula was not used in concluding each count. It appears-only at che end of the bill.

The question is, is that count of the indictment bad which did not-conclude with the formula aforesaid?

It is settled in the negative.

In State vs. Scott, 48th La. Ann. 294, the point was made that the first count in the bill was defective in not ending with the words:' “contrary to the form of the statute of the State of Louisiana in such-cases made and provided.” As to this the court said: — “The concluding words of the information necessarily referred to the several counts therein, and their repetition after each count would be useless-tautology.”

In State vs. Travis et al., 39th La. Ann. 356, there was a motion in arrest of judgment on the ground that the information contained one charge against some of the accused as principals in the crime, and' another charge against others as accessories before the fact, and each charge did not conclude with the words “contrary to the form of the statutes and against the peace and dignity of the State.” While the-opinion of the court does not say so precisely, we conclude, from the-language used, that there were two counts in the indictment, one charging the principals, the other charging the accessories. The syllabus speaks of “each count.” The formula “contrary to the form of the statutes, etc.” was found at the close of the indictment. This' was held to suffice.

We think this ruling sustained by reason and adhere to it.

For the reasons assigned, it is ordered and decreed that the judgment appealed from, sustaining the motion in arrest of judgment, be avoided and reversed, and it is now ordered that the motion in arrest be overruled and the case remanded with instructions to pronounce the-sentence of the law upon the accused.


author: Monroe, J.

text:
    No. 13,077
    The City of New Orleans vs. Danneman & Charleton.
    Syllabus. '
    'The city of New Orleans is authorized by Act No. 143 of 1898, to enforce obedience to, and to punish the violation of what is known as the “Building Ordinance” (being Ordinance 6533, C. S.), through the Recorders, by fine and imprisonment, or both, or by imprisonment in default of the payment of the fine, and legitimately exercised that authority In the adoption of Ordinance 14,804, C. S.
    ON APPEAL from the Third Recorder’s Court, of New Orleans. Thompson, J.

      James J. McLaughlin, Assistant City Attorney, and Samuel L. Gilmore, City Attorney, for Plaintiff, Appellee.

      Kossuth V. Richard for Defendants, Appellants.
    Argued and submitted April 22, 1899.
    Opinion handed down May 1, 1899.
   The opinion of the court was delivered by

Monroe, J.

This is an appeal from a judgment rendered by the Recorder of the Third Recorder’s Court, of New Orleans, sentencing the defendants to pay a fine of $10 or, in default thereof, to be imprisoned for twenty days, for erecting a building, within the city limits, •without having first obtained a permit from the City Engineer, in ■¡violation of the provisions of a city ordinance upon that subject.

The defendants, demurred on the grounds:

“That there is no delegation of power in the City Charter of New Orleans to create as a misdemeanor, punishable by fine and imprison- “ ment, the non-compliance by an owner of property therein with an •“ ordinance prohibiting owners of property from erecting buildings on “ their premises until they have obtained the consent of the City ■“ Engineer to the building of the structures (as being in conformity to ■‘“city regulations), and until they had obtained a permit from him.”

“That such ordinance is unconstitutional, null and void; further,, “ that an ordinance amending an ordinance declared null and void by “ the Supreme Court of the State is null and void.

“That this court” (the Recorder’s) “is without jurisdiction to- “ enforce it.”

The ordinances called in question are Ordinances 6533, C. S., adopted in 1892, and Ordinance 14,804, C. S., adopted in November. 1898.

The first is known as the “Building Ordinance,” and the first section provides that “no building shall be erected, or its erection commenced -x- -x- -x- unless plans * * * shall have first been submitted to the City Engineer, and a certificate of approval and a permit granted by him therefor,” etc.

The 28th section provides that a violation of the ordinance shall constitute a misdemeanor, and that the violator (qwner) shall be punished by fine and imprisonment.

This ordinance came before this court for construction in the case of State vs. Zurich, 49th Ann., 447, and it was held that there was-no delegation of power in the City Charter authorizing the city to-declare infractions of the ordinance to be misdemeanors and to punish them by fine and imprisonment. This judgment was rendered in 1897. Subsequently, in November, 1898, the City Council adopted' Ordinance 14,804, O. S., which provides, in different terms from, but with the same object in view as, Section 28 of Ordinance 6533, that violations of that ordinance shall be punished by fine and imprisonment.

The counsel for the appellants,, arguing upon the basis of the decision in the Zurich case, claims that if Section 28 of Ordinance 6533 was ultra vires of the city, Ordinance 14,804 is equally so, and' for the same reason; and this position would be unanswerable were it not for the fact that, in 1898, the General Assembly granted the-authority, the lack of which was the basis of the judgment in the Zurich case.

Act US of 1S08, provides that: “It shall be lawful for the city of' New Orleans, through the several recorders thereof, to enforce obedience to, or punish the violation of, all ordinances passed by the City Council thereof, by a fine and imprisonment, or both, or by imprisonment in default of the payment of the fine.”

This act was approved in July, 1898, and, thereafter, in November-of tlie same year, the City Council adopted the Ordinance 14,804, CL S., imposing the penalty of fine and imprisonment for violations of. Ordinance 6533, C. S., and several other ordinances.

The legislative authority was no longer lacking, therefore, when the* ordinance under which the appellants were prosecuted was adopted,, and the decision in the Zurich case loses its application.

This really disposes of the whole case, for, whilst it is set up in the demurrer that the ordinance is unconstitutional, no other grounds of objection have been urged, or suggested, in the brief, save that Ordinance 14,804, and Section 28 of Ordinance 6533, involved the exercise of power not delegated by law to the city of New Orleans, from which we understand that the word “unconstitutional,” as used in the demurrer, was intended to apply to that condition, and was not intended to apply, otherwise, to the “Building Ordinance,” or to the act of the General Assembly, No. 143 of 1898, which is nowhere mentioned in the pleadings, or to the exercise, by the city, of the authority as delegated by that act.

The judgment appealed from is therefore affirmed.


text:
    No. 13,130.
    Mrs. Ursules Gagneaux, Wife, vs. Louis C. Desonier, Husband.
    Syllabus.
    1. Where, in a suit for separation from bed and board, brought by a wife, upon the grounds of habitual intemperance, cruel treatment, and public defamation, several unimpeaehed witnesses, including adult children of the marriage, testify, affirmatively, to specific conduct on the part of the defendant, sustaining the charges contained in the petition, such testimony will not ordinarily be considered rebutted by the testimony of witnesses for the defendant, establishing for him a good general character or reputation.
    2. Where the evidence in such a case shows that during a series of years, preceding the institution of the suit, the defendant husband has been a regular drinker of intoxicating liquor; that he has been quarrelsome and abusive at home; that his wife has) on several occasions, left the common domicile; that his children have, one after another, left the paternal roof at their father’s command, or with unfriendly feeling; and that the defendant has on more than one occasion, in presence of the adult children of the marriage, and' of other persons, made the vilest charges and insinuations' [ against his wife, the latter is entitled to a separation.

      8. The alimony to be allowed in such a ease should be regulated by the revenues of the community property, considered in connection with the earning capacity of the husband, and the amount required for the wife’s sup port.
    ON APPEAL from the Twenty-fourth Judicial District Court for the Parish of St. Mary. Allen, J.

      Milling & Sanders for Plaintiff, Appellee.

      J). Caffery & Son, and J. Sully Martel for Defendant, Appellant.
    Argued and submitted April 18, 1899.
    Opinion handed down May 1, 1899.
   The opinion of the court was delivered by

Monroe, J.

This is a suit for separation from bed and board, and for a dissolution of the community, upon the grounds of habitual drunkenness, excesses, and cruel treatmefit, and public defamation. Plaintiff obtained an injunction, in limine, restraining defendant from disposing of community property, and by supplemental petition, prayed for alimony.

Defendant, after an unsuccessful attempt to set aside the injunction, answered, admitting the marriage, and denying all the other allegations of the petition.

There was judgment for plaintiff in the court a qua, from which defendant has appealed, and plaintiff answers, praying that the judgment be amended by increasing the allowance for alimony, and in' other respects affirmed.

The evidence shows that the defendant came from Canada, to Louisiana, many years ago, and found a wife among the Creole young ladies of this State. With her he moved to the parish of St. Mary, where they have lived for more than thirty years. Ten children were born of the marriage, of whom but three are living at this time, viz.: Henry, aged thirty-nine; Alcide, aged twenty-six, and a married daughter, Mrs. Boudreaux. Joseph, another son, died within the past four or five years, and left a widow and one child. The other children appear to have left no issue. Defendant and his wife have acquired, in community, real estate consisting of a dozen small tenements, the jreutal value of which is said to be from $3 to $5 per month each (but which are not always rented), and the residence in' which they lived, with garden attached, worth about $6 per- month. They have .also .some live stock and other movables; the total value of the community .property approximating $10,000.

It further appears that about twelve or fourteen years ago, the ■defendant said to his oldest, surviving son: “I am going to put the whole shooting place out, and sweep the place clean,” and that the son .thereupon left, and went to Galveston, and elsewhere, and only returned to Sorrel, where his parents lived, in 1896, after an absence •of eleven years, and that he has his own blacksmith shop, and lives in his own house.

That, a few years later, Alcide, another son, having reached the age of seventeen, was turned adrift by his father, and, since then, has shifted for himself, and, in some way, picked up the trade, or profession of electrician, by which he now makes his living. That, in 1892, ■still another son, Joseph, married and lived with his wife for a few months, under the parental roof, when he too left, for some cause ■unexplained, but, under such circumstances, that there was little or no communication between his family and his father’s, thereafter, until lie died, two or three years later. That in 1892, the plaintiff, with the only remaining, and youngest, child, who afterwards became Mrs. Boudreaux, left their home in consequence of some trouble or misunderstanding with the defendant, but returned after a short absence, after which, the daughter married Boudreaux and was taken to a home of her own, and the old couple were left to themselves. In 1896, however, as it appears, the plaintiff again left the house and remained away for nine months, staying with her children. She again returned to her husband, but from that time up to December, 1897, when she •again left him, she frequently went, for a night at a time, to the house •of her daughter-in-law in alarm and distress. Finally, in December, 1897, she went with her son to Franklin to consult an attorney, and upon their return, they were accosted by the defendant, who inquired, •and was informed, where they had been, and thereupon used such language towra’ds and concerning his wife, as no wife, mother, or ■woman, could well forgive. If there was no other evidence of similar purport in the record, it might be said that a single ebullition of temper, provoked by the circumstances stated, ought to, or might, be condoned, but there is proof that on other occasions, in the presence of other children of the marriage, and of third persons, the defendant had made the vilest and most infamous charges against the plaintiff. It is in evidence that they had little or nothing to do with each other, though living in the same house; that she did not occupy the same room or sit at the table with him; and that he rarely spoke to her? unless to curse and abuse, or to sneer at the Creoles as cattle and animals, upon which occasions she sometimes retaliated in kind, and, at other times, sought refuge at the house of her daughter-in-law.

Precisely why the sons were turned out by their father, and why 'the wife left the common domicile, on the several occasions mentioned,, docs not clearly appear. If there had been troubles with the wife, alone, the blame might be imputed to her. If there had been troubles between the wife and one son, and the defendant, and no explanation, the presumption would be rather against the defendant, but when a man manages to get upon bad terms with his whole family, one after the other, and when it appears, as it does from this record, that ha indulges regularly in the use, or abuse, of intoxicating liquor, and, upon occasions, for a week at a time, purchases and disposes of as much as a quart of whiskey a day, the presumption is decidedly against him, and this presumption is strengthened, and we are able to read between the lines, and account for that which is unexiilained, when we consider the affirmative testimony as to the defendant’s conduct and language towards and concerning his wife, because that conduct and language shows of what the defendant is capable.

It is suggested, however, that in view of the testimony of the* defendant’s witneses as to his general character, and as to their ignorance of any misconduct on his part, the court should, believe him incapable of such misconduct, in spite of the affirmative testimony to the contrary. The difficulty, in the way of the adoption of this theory, is that the witnesses who testify to the misconduct refer to specific and affirmative facts, which must be as they state or else they are committing perjury. They seem to be respectable people (with two exceptions — defendant’s own children), and are wholly unimpeached. The defendant’s witnesses, also unimpeached, merely testify to 'what they know of the defendant from casual or business acquaintance, and. give us the benefit of their knowledge, or ignorance,- of his conduct at home, as based upon visits more or less unfrequent, and observations made whilst passing along the public road; so that it is easy to believe that all the witnesses are testifying truthfully, and if they are, then. the plaintiffs ease is made out, whereas in order to hold that the defense is sustained, we must conclude that all of the plaintiff’s witnesses have testified falsely, for which there can be no possible justification, since their testimony is strongly corroborated by facts which, are undisputed, and they, themselves, are uuimpeached.

It is asked that fhe amount allowed to the plaintiff as alimony be increased. The evidence shows that the rental of the real estate belonging to the community can hardly be less than $36 per mouth, in. addition to which defendant has the occupancy of the matrimonial, domicile, and the use of the movables. He has also an earning capacity,- and a trade, or profession, out of which he ought easily to-make a living’. Under these circumstances, $10 a month is rather a-scant allowance, which might well be increased to $15.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be amended by increasing the amount allowed plaintiff, as alimony, from $10 per month to $15 per month, such increase to-take effect from the date from which alimony was originally allowed, and, in all other respects, that said judgment be affirmed; defendant to-pay all costs in both courts.


author: ■Muxkoe, J.

text:
    No. 13,132.
    State of Louisiana vs. George H. Grandjean.
    Syllabus.
    1. The Civil District ‘Court has Jurisdiction in a suit between the State and a: "Recorder,” to test the title of the latter to the office held by him.
    2. The State, through the Attorney General, may bring suit, under the '‘Intrusion Act, " against a dc facto officer, without joining as plaintiff any claimant to the office in question, and without there having been any appointment made to fill the vacant office into which such officer is charged with having intruded.
    3. Art. 157 of the Constitution, authorizing the Governor to fill, by appointment, vacancies in the judicial offices of the parish of Orleans and city of New Orleans, applies to vacancies in the office of Recorder, which, as now constituted, is a judicial office within the meaning of the article.
    ON APPEAL from the Civil District Court, for the Parish of Orleans. Ellis, J.

      J1Í. J. Qunninghanm, Attorney General, (Frank D. Chretien and E. Howard McCaleh, of counsel,) for Plaintiff and Appellant.

      James J. McLoughlin, Assistant Oity Attorney, and Samuel L. GilmoreCity Attorney, for Defendant, Appellee.
    Argued and submitted April 8, 1899.
    Opinion handed down April 17, 1899.
    Rehearing refused May 15, 1899.
   The opinion of the court was delivered by

■Muxkoe, J.

The office of Recorder of the Second District of New "Orleans became vacant, in December, 1898,' by the death of Henry Bezou, the'incumbent; and, in January, 1899, the City Council of New Orleans elected the defendant to fill the vacancy. The State now brings suit, through the Attorney General, and alleges that the action of the Council in the premises was ultra vires, unconstitutional and null, and that the occupation of said office by said Grandjean is an unlawful intrusion and usurpation, and that he should be excluded and said office declared vacant, to be filled, under Article 157 of the Constitiution, by appointment by the Governor.

Defendant excepted that the court was without jurisdiction, and that the petition disclosed no cause of action, and, answering, avers ihat he was legally elected and is entitled to hold the office in question .and discharge the duties thereof.

1. The exception to jurisdiction is based upon the proposition, that the Constitution of 1898 conferred on the Civil District Court no power to determine the issues presented.

Article 183 reads: “The Civil District Court shall have '* * * '“ exclusive jurisdiction in suits * * * involving title' * * * “'to office or other public position, or civil or political rights; and in "“ all other cases except as hereinafter provided,” etc. No sufficient reason is suggested why- this comprehensive grant of jurisdiction -should not be considered sufficient for the purposes of the instant case, nor is it suggested that any other court would have jurisdiction in the premises.

2. The exception of “no cause of action” is based, as appears from ihe argument of counsel, upon the proposition that, because the Gov■ernor has made no appointment, and no one is claiming the office, save the defendant, the Attorney General has no right to bring the suit.

The suit is brought under Act 156 ot 1868, known as “The Intrusion Aet,” R. S., 2593, et seq.-, which, as far as it is necessary to quote it, reads:

“i:' * * That an action by petition may be brought before the- “ proper District Court, or parish court, by the District Attorney, or “ District Attorney pro tempore, and, for the parish of Orleans, by the “ Attorney'Geueral, or any other person interested, in the name of the- “ State, upon his own information or upon the information of any. “ private party, against the party or parties offending, in the following eases:

i'irst — “When any person shall usurp, intrude into, or unlawfully “hold or exercise any public office or franchise within this State;.. “ * * * Sec. 4, provides: That when an action shall be brought by “virtue .of * * * this act by the * * * Attorney General “ x x x x on †]10 reia-(;icn 01. information of any person interested,. ~u the name of such person shall be joined with the State as plaintiff.”

And there are other provisions as to the judgment which may be-rendered. The language conferring the authority upon the Attorney General, however, to bring the suit, is specific to the effect that it may be brought by him “or any other person interested,” and all the other ■ provisions of the statute harmonize with the idea thus conveyed, that the suit may be brought by the Attorney General alone in cases where there is no “other person interested;” though when it is brought by him upo* the information of a person interested, the name of such person must be joined with that of the State.

The decision in the ease of Guillotte vs. Poiney, 41st Ann., 333, to which we are referred, has no bearing upon the question at issue. In that case it was claimed that Guillotte, who was in possession of the office and who had proceeded by way of injunction to quiet his-title, should have proceeded under the Intrusion Act to oust the - plaintiff, who was not in possession. And the court simply held that in a proceeding under that aet, between a party claiming and a party in possession, the defendant must necessarily be the officer de facto.

The defense on the merits presents the single question, does theoffiee of recorder fall within the meaning of Article 157 of the Constitution? That article reads as-follows, to-wit:

“Art. 157. Vacancies occurring from any cause in the judicial “offices of the parish of Orleans or city of New Orleans shall b«~ •“ filled by appointment by tlie Governor, with the advice and consent “ ol the Senate, for the unexpired term.”

One of the propositions of the defense is that this article is controlled by Article 319, which reads:

“Art. 319. The electors of the city of New Orleans and of any political corporation which may be established within the territory “now, or which may hereafter be, embraced within the corporate “ limits of said city, shall have the right to choose the public officers, “ who 'shall be charged with the exercise of the police powel-, and with “ the administration of the afl'airs of said corporation in whole or in '“ part.”

Conceding (arguendo) that the recorder is a city officer, the proposition of defendant’s counsel would have greater force if Article 157 referred only to “the judicial officers of the parish of Orleans”; but, it will be observed, that the article in question also provides that the •Governor shall fill, by appointment, vacancies in “the judicial offices of the. * city of New Orleans,” from which it follows that, if the office of recorder is a judicial office, whether of the parish or city, and it is held, under Article 319, that a vacancy in such office may be filled otherwise than by appointment by the Governor, Article 157 is .striken with nullity; although that article could have been inserted in the Constitution for no other purpose than to provide for the filling- of vacancies in judicial offices in the parish of Orleans or city of New Orleans, since it deals with and mentions nothing- else, whilst Article '319 does not deal with or mention vacancies at all.

The most- elementary rule of construction requires that effect shall, if possible, be given to all the provisions of a law, and that different provisions upon the same subject matter shall be construed together in such a way as to reconcile and harmonize all, with the sacrifice of none. Construing the two articles in question agreeably to this rule, it is evident that Article 319 must be regarded as pro tardo modified by Article 157, which is to be regarded as though it were an exception ■embodied in the text of Article 319. »

The remainder of the original question, then, is, is the office of “recorder” a judicial office of either the parish of Orleans or city of New Orleans?

Law dictionaries and books of reference concur in the general proposition that recorders are judicial officers, but, after all, the determination of the question, in any given case, depends upon the law creating- the particular- office, and the functions and duties imposed upon that particular officer. There was a time when the destinies of the people of New Orleans were presided over by recorders in the different municipalities, who were executive officers to whom certain judicial functions were attached, and if a case .of that kind were here presented it might be a question whether Article 157 was intended to apply — where the office was not wholly judicial, but where, perhaps, the most important'functions were executive and quasi legislative. But such is not the case with which we have to deal.

The learned judge a quo argues with great force and effect in his able opinion that the office of recorder, under the existing Constitution and statute law, is a municipal and a statutory office, and from these premises he-deduces that" it can not fall within the meaning of Article 157 of the Constitution. He does not suggest that the duties imposed upon the recorders are not judicial, or that any other than judicial duties are imposed upon that officer.

Suppose it be conceded, then, that the office is a municipal office: It will hardly be denied that the title “City of New Orleans” describes the municipal corporation known by that name, and it can not be -denied that, under Article 157, vacancies in the judicial offices of the “City of New Orleans ” are to be filled by appointment by the • Governor.

And, again, suppose it be conceded that the office, under the Constitution, is to be regarded as a statutory, rather than a constitutional office, in what way does that affect the question under consideration! Most of our Constitutions, in the past, have left the question of the number of courts to be established, and the jurisdiction to be conferred upon each, in a large measure, to the General Assembly; so, that all the courts in the State, with the exception of the Supreme •Court, were statutory courts — thus:

Constitution of 1812.

“Art. IY, Sec. 1.. The~judiciary power shall be vested in a Supreme “ Court and inferior courts. * * *

“Sec. 4. The legislature is authorized to establish such inferior ' “ courts as may be convenient, to the administration of justice.” *

But it certainly could not be claimed that tribunals performing no other than judicial functions, thus provided for, in articles collected together under the title “Judiciary Department,” by the framers of .the Constitution themselves, did not become part of the judiciary system of the State, merely because it was left to the legislature to-establish and disestablish them.

Considering the decisions of this court, to which the defendant’s counsel refers as supporting his position upon this branch of the case,, they deal mainly with the question of amotion, impeachment, and removal, and it would seem only necessary to say that the framers of our Constitutions have not, generally, provided that officers shall be removed, in the same manner in which they are appointed, or by the-same authority. The two things have, therefore, no necessary connection with each other.

In the case of State ex rel. Whitaker vs. Adams, 46 Ann., 830, the question was whether the recorder could be suspended and impeached by the city authorities, and a distinction was found to have been made' by the legislature between the “removal for cause after trial,” as provided for in- the Constitution, and the “impeachment” authorized by the City Charter, and this court said:

“We are of opinion that the legislature was justified in making the “ distinction it did.”

In the case at bar no such distinction is possible, for, whilst it may be advisable, and is frequently the case, that more than one method should be provided by which obnoxious public servants may be required to make room for more efficient ones, there can be, in the nature of things, but one way of filling a vacancy in a particular office, though, no doubt, different methods may be provided for different offices.

The case of State ex rel. Bezou, Recorder, vs. Judge, etc., 50th Ann., 655, seems to be cited as establishing the proposition that the office of recorder, under the Constitution of 1879, was statutory, and not constitutional, and from this premise the learned counsel for the defendant argues, as follows, to-wit:

“If the recorder is a judicial officer, he must be an officer of the “ State of Louisiana, and if he is an. officer of the State of Louisiana, “ he can not be an officer of the city of New Orleans.”

Unfortunately for this argument, and aside from other considerations which might be suggested, the Constitution of the State contemplates that there shall be, or may be, judicial officers of the city of New Orleans, for it says so, in terms — and provides that vacancies in such offices shall be filled by appointment by the Governor. The final suggestion that even the Constitution can not deprive the people of New Orleans of the right to fill such vacancies, can hardly be entertained.

For these reasons it is ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed. And it ■is now ordered, adjudged and decreed, that there be judgment in favor of the plaintiff, the State of Louisiana, and against the defendant, George II. Grandjean, adjudging said defendant guilty of usurping, intruding' into and unlawfully holding and exercising the office of Recorder of the Second Recorder’s Court of the City of New Orleans, and that he be excluded therefrom, and -that said office be decreed vacant. Said defendant to pay costs in both courts.