text:
    No. 12,336.
    James E. Besson et als. vs. The Mayor and Common Council of Donaldsonville.
    Intervenors in„an action of slander of title, having joined the plaintiff for the purpose of making common cause in resisting the claims of the defendant, and its attempt to sell the property in controversy pendente hte, but at the same time setting up title in. themselves adverse to that of the plaintiff, can not be said to have adopted the allegations of the plaintiff’s petition, and bound themselves by a judicial estoppel precluding them from bringing a new suit adversely thereto.

      A PPEAL from the Twentieth Judicial District Court for the Parish of Ascension. Guión, J.

      R. N. Sims for Plaintiffs, Appellants.

      E. N. Pugh for Defendants, Appellees.
    Argued and submitted January 6, 1897.
    Opinion handed down January 18, 1897.
   The opinion of the court was delivered by

Watkins, J.

This is an action of slander of title or jactitation, the plaintiffs alleging ownership and possession of the property in controversy, and averring that the defendant, out of possession, is asserting title thereto to their prejudice and injury. Havard vs. Atkins, 24 An. 511; 2 Hennen’s Digest, p. 1489.

Averring further that the defendant had advertised said property for sale, they coupled with their petition a prayer for a writ cf injunction to issue, restraining same, and which accordingly issued.

To this suit the defendant filed a peremptory exception and plea in bar of plaintiffs’ right of action, predicated upon prior judicial proceedings to which they were parties; and same having been sustained and the suit dismissed, the plaintiffs have appealed.

The only evidence introduced in the court below on the trial of the exception and piea of estoppel was the record of the suit entitled Leon Godchaux vs. Mayor and Common Council of Donaldsonville, bearing docket No. 840 in the District Court of the parish of Ascension — the same court from which this appeal is brought up — “ and all the papers contained therein,” and “ the minutes of court showing the proceedings taken in open court in (same) and the different exceptions in (that) suit and the dates of their filing.”

There appear in the transcript certain interrogatories on facts and articles and the answers thereto, as well as the answer of the defendant; but, manifestly, they have no pertinence to the exception, and we will therefore dismiss them from further consideration.

The plaintiffs sue in the capacity of legal co-heirs of Joseph and Celestino Besson, deceased, and allege that their paternal grandfather, Jacques E. Besson, acquired at a sheriff’s sale made on the 19th of May, 1820, “ a certain parcel of land situated in the city of Donaldsonville, fronting on the Mississippi river, and on Cabahanasse street (now called Railroad avenue), marked No. 2, on the plan of said town, containing such front and depth as to the same then belonged, and all the right, title and interest or demand which the estate of William Donaldson had in and to said lot or parcel of land, on the 14th of April, 1820.”

“ That at the time of said sale (on the) 19th of May, 1820, said parcel of land so conveyed to petitioner’s grandfather fronted on the Mississippi river, nothing intenening between it and said river but the passage-way or street and the levee. That by said sale said Jacques E. Besson acquired said parcel of land described in said deed with the right to every and all accretion or accessions which might thereafter be formed in front thereof by alluvial deposits of said river;” and that, immediately after said sale to him, said purchaser went into actual possession of said property, and remained in posséssion thereof uninterruptedly, up to the year 1860. That during the year 1860, petitioners’ father, Joseph Besson, in certain partition proceedings amongst the heirs of Jacques E. Besson, aforesaid, deceased, of the property of his estate, u acquired all of the right, title and interest of said succession, and of his (Joseph Besson’s) co-heirs in and to the parcel of land” sold at the aforesaid sheriff’s sale “with all the rights of accretion thereto appertaining; and that they derive title by inheritance through him and his wife, their father and mother.”
Petitioners allege that “subsequent to the year 1820, there began to form in front of said parcel of land, a batture or accretion from the deposits of river sand, during high water; that said formation was slow and gradual, and at the time of their (father’s acquisition) of said lot or parcel of land, the batture did not extend more than one hundred feet from the levee in front of said lot to the water’s edge at the low stage of the river. That from 1860 to 1870, there was considerable accretion in front of said property, said batture being further extended toward the river and raised by deposits of river sand during high water in said river.” That at the time Jacques E. Besson acquired said lot or parcel of land in 1820, the levee ran along Mississippi street, on the river side thereof, directly in front of said land, and said levee formed the river bank, there being at the time no intervening batture, formed by accretion or otherwise, between said levee and the river. “ That said levee remained in the same position in front of that portion of the town from 1820 to about two years since, when it was replaced by a new line of levee, constructed at a distance of about two hundred feet further out toward the river. That prior to the construction of said new levee, the batture in front of said lot or parcel of land No. 2 was covered with water from two to four feet * * during the high stage of the river, but the same remained exposed and was high above the level of the river at its low stage during the fall and winter months of the year.”

Petitioners then aver that on the 6th of March, 1871, their said father, Joseph Besson, conveyed to his daughter, Felice Besson, one of petitioners, a certain lot of ground situated in the city of Donaldsonville, “ at the corner of Mississippi and Cabahanosse streets, designated as lot No. 2 on the official plan of said city,” measuring sixty feet * * * front on Mississippi street by one hundred and twenty feet * * * on Cabahanosse street, together with all the rights, .ways, etc., thereto appertaining; but that their father did not convey nor divest himself of his right, title and interest in and to the said batture or secretion in front of said parcel or lot of land described in said act,” but that, on the contrary, he “retained his ownership and possession, until his death, of said batture property, which at the time of said sale in 1871, he had uninterruptedly held as owner and possessed under said partition proceedings as an heir of the succession of his father, Jacques E. Besson.”

They “further show that no one now disputes their rights of ownership and possession of said batture or accretion in front of said lot or parcel of land No. 2, as the children and lawful heirs of their deceased father * * * except the municipal authorities of the town of Donaldsonville, who have recently, without any legal right or warrant whatsoever, slandered the title of petitioner to said batture or accretion by claiming the same as the property of the town of Donaldsonville, and advertising same for sale,” etc.

Petitioner further avers “ that since the building of the new levee in front of said town on the river, a strip of batture or accretion in front of said lot No. 2, corner of Mississippi street and Railroad avenue (formerly Cabahanosse street) measuring about sixty feet in width, by a depth of about two hundred and fifty feet toward the river, is protected by said levee, and (that same) is no longer subject to be-, overflowed during high water, and has become valuable propertyand that (they) are entitled to be quieted in the possession and enjoyment thereof; and that it is worth more than two thousand dollars.

. Tne prayer of the petition conforms to the foregoing extracts from the averments thereof, and it particularly demands that the defendant be enjoined and restrained from “ selling the strip of land or accretion in front of said lot No. 2, corner of Mississippi street and Railroad avenue (formerly Oabahanosse street), in Donaldsonville, belonging to your petitioners;” and it demands further that they “ be quieted in their ownership and possession of all the said lands in front of said lot or parcel of land No. 2 on the plan of said town,” etc.

The italicized portions of the foregoing extracts from the petition in this suit will more readily direct attention to the gravamen of the suit, and render comparison between it and the petition in the former suit, relied upon as supporting defendant’s exception, more convenient and easy.

Reduced to a last analysis, this suit has for its object to maintain-the plaintiffs in the joint possession and ownership of an alleged batture formation between Mississippi street, in the city of Donaldsonville, and the Mississippi river, on the ground that same has been-created from the accretions of river sand occasioned by annual swells of the Mississippi river through a long series of years, since-the acquisition of the land adjacent in the year 1820 by their grandfather, and that neither their father nor their grandfather ever disposed of same to any one, and it had consequently passed to them by their right of inheritance .as legal and forced heirs.

The defendant’s peremptory exception is of the following tenor • and purport, viz.:

That the plaintiffs “ are estopped and debarred” from any further-proceeding in this suit, for the reason that they filed a petition of intervention in the suit of Godchaux vs. Mayor, No. 840, “ and, adopted the pleadings of said Godchaux and joined him in said suit, and were represented by the same attorney; ” and that they “are-bound by all the judicial admissions made by said Godchaux in said suit No. 840, touching the subject matter of the present controversy. That in said suit No. 840 it was distinctly and affirmatively alleged, that in 1820, at the time of the sale of lot No. 2 to Jacques E. Besson,. that a batture existed in front of said lot No. 2, and the ownership of same was claimed by said Godchaux in that suit; and that (that) allegation was necessary and essential to sustain the rights of Godchaux,” etc.

That the plaintiffs in this suit “are estopped and should not be heard or allowed to deny, alter or vary their judicial admissions, or shift their position; that having judicially admitted the existence of a batture in 1820,” and averred that it was not sold to them, “they should not be allowed to allege or prove the contrary.”

Referring to the petition of the plaintiff Godchaux in the suit referred to, we find that he makes claim to said lot No. 2, “ forming the corner of Mississippi street and Railroad avenue * * together with all the rights of accretion and accession belonging to and attached to said lot or parcel of ground, including the batture or land now lying in front of said lot or parcel of ground between it and the Mississippi river.”

The petition further alleges that he acquired same by purchase at sheriff’s sale made in 1880, and derives title thereto through mesne conveyances from Jacques E. Besson, who acquired same in 1820, in executory proceedings against William Donaldson.

Then follows this allegation, viz.:

“That at the time of said sale to Jacques E. Besson in 1820, the levee along the Mississippi river in front of Donaldsonville was situated about fifty or sixty feet from the corner of said lot No. 2, and the batture in front was covered with water during the high stages of the river (and) that said levee remained in (that) position until about two years ago;” and that about that time “ the levee in front of (his) said property was removed or reconstructed about two hundred feet further toward the river, thereby leaving in front of (his) said lot or .parcel of ground a strip of land sixty feet wide, by about two hundred feet in length, forming the accretion or accession to said lot or parcel of land No. 2, “ which belongs to him and is in his possession.”

The prayer for relief is very much the same as that in the instant suit.

The present plaintiffs, as intervenors in that suit, show (1) what the substance of Godchaux’ claim in that suit was, making the usual allegation, viz.:

“(1) All of which will be seen more fully by reference to the petition of said Godchaux, and the record of said suit, hereto annexed as part hereof; (2) they state the nature and origin of the title of Jacques E. Besson, and his acquisition in 1820, of the property in dispute; (8) that of the manner in which their father, Joseph Besson, acquired same; (4) that in which Joseph Besson conveyed to his daughter, Felicie Besson; (5) that in which Felicie Besson conveyed to Henry Loeb, whose title Godchaux expropriated under an act of mortgage, and acquired his title thereto at sheriff’s sale.

They then specifically aver that their father, Joseph Be-son, did not convey in the deed to his daughter, Felicie, “ the batture or accretion belonging to it,” and lying between it and the Mississippi river; and, consequently, same did not pass by mesne conveyances to the plaintiff, Godchaux. On the contrary, they distinctly aver, that, as said title to Felicie Besson did not inciude the batture or accretion, the title thereto remained in their father, and that they, as his legal and forced heirs, including Felicie Besson, acquired same by inheritance at his death.

Their prayer is, that they be allowed to intervene in said suit and join the plaintiff “ in asking the court to adjudge and decree the town of Donaldsonville not entitled as owner, or otherwise, to any portion of said batture herein described, and described in plaintiff’s petition herein, and to have no right, title or interest in said batture property;” and it concludes with the demand that they be decreed the owners of said batture, or accretion,” etc.

Having carefully, and in detail, recited all the pertinent portions of the petition in this suit, and that of the plaintiff and intervenors in the previous suit, and analyzed them with care, we are unable to perceive the conflict of allegation the defendant’s exception implies.

It is quite true that the petition of the intervenors does aver that they join the plaintiff Godchaux; but it is equally true that they restrict that averment to the particular object of making common cause in resisting the demands of the defendant only for the purpose of preventing a sale of the property; and they, at the same time, most distinctly set out their ownership and possession of the batture and accretion, as having been derived by inheritance from their father, Joseph Besson. And their prayer is, that they be adjudged and decreed the joint owners of same, in their capacity as heirs, and maintained in the possession and enjoyment thereof.

These averments and prayers are altogether inconsistent with the theory of intervenors having adopted those of the petition and prayer of plaintiff, Godchaux; and it is perfectly evident to our minds that such was not the intention of the intervenors; otherwise than as we have stated.

The intention of the intervenors was to join the plaintiff, Godchaux, and unite with him for the purpose of preventing defendant from making a sale of the property; but this they could do without adopting his averments as to ownership and chain of title.

It would have been inconsistent pleading on the part of the intervenors to have adopted the averments of Godchaux’ petition, because each of their claims of ownership depended upon a different state of facts; that of intervenors upon the formation of batture or accretion susceptible of private ownership since the purchase by Jacques E. Besson in 1820, which did not pass to Godchaux, while that of Godchaux is that batture was then in existence, and passed to Jacques E. Besson by his title, and to him (Godchaux) by mesne conveyances.

In the former suit the defendant filed peremptory exceptions to the petitions of the plaintiff and of the intervenors, and the judge a quo made this ruling, viz.:

I agree with defendant’s counsel, that as plaintiff has no right to stand in judgment for the property, and this proposition must be assumed to be true — since the same counsel who represents him (Godchaux) also represents the intervenors, who now claim the property — he can not ask a judgment in his favor, so that his suit must be dismissed.
“ The dismissal of plaintiff’s suit carries with it the dismissal of the intervention, leaving to intervenors the right to proceed by separate suit.” (Our italics.) A like decree follows. Barron vs. Jacobs, 38 An. 371; Meyers vs. Birotte, 41 An. 746.

The injunction of the plaintiff was thereupon dissolved and the suit dismissed. Just here arises the question: Why did the judge a quo, having the two petitious before him, reserve totheintervenors the right to renew the demands in a separate suit, if, in fact, they were conclusively bound by the judicial declarations of Godchaux upon which he had no standing in court?

It may be, and doubtless was, because that theory was not then developed by the defendant’s counsel, or he would have done so, entertaining the view he expressed by his decree in this case. But on the theory we have outlined with regard to the intervenors not having adopted the allegations of Godchaux’ petition, we deem his prior ruling perfectly consistent. But conceding, for the argument, that the question is in doubt, that doubt must be resolved in favor of the plaintiffs and against the exceptors; for estoppels are not favored in law. This question should, if possible, be judicially settled and definitively put at rest, particularly as the property in dispute is a riparian lot in a flourishing inland city on the shore of the Mississippi river, to the public authorities and citizens of which a settlement of the question may be of great importance, either presently or pi’ospectively.

For these reasons we think the judgment appealed from should be reversed.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed ; and it is now ordei’ed and decreed, that the cause be remanded to the lower court to be therein proceeded with according to law — the cost of appeal to be taxed' against the defendant and appellee, and other costs to await the final judgment in the cause.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    No. 12,333.
    Succession of James Teller.
    The usufruct of the surviving spouse of the sh ire of the deceased spouse in the community property is not affected by the tact that there is an adopted child ol the spouses, surviving the deceased. O. 0., Arts. 915, 916; It. S., Sec. —.
    A PPEAL from the Twentieth Judicial District Court for the Parish. ‘V of Ascension. Guión, J.

      E. N. Pugh for Executrix, Plaintiff, Appellee.

      Paul Leche, Special Tutor, Defendant, Appellant.
    Argued and submitted January 6, 1897.
    Opinion handed down January 18, 1897.
   The opinion of the court was delivered by

Miller, J.

The appellant, the tutor of the adopted child of the late James Teller, takes this appeal from the judgment recognizing his widow as the usufructuary of the community property not disposed of by his last will.

The question raised by the appeal is whether the child by adoption is exempted from the operation of the Arts. 915 and 916 of our Oode embodying the Act of 1844, which confers on the surviving spouse the usufruct of the community property which the deceased has not disposed of by his will. The spirit and text of the law is against the pretensions of the tutor. The purpose was unless the deceased spouse disposed of his share of the community, to preserve intact the community property to be enjoyed by the surviving spouse during his or her natural life or widowhood, when there were children of the marriage. Revised Statutes, Secs. 627, 628, and the articles of the Oode cited. There was no design to interfere in the least degree with this community usufruct when the Legislature, first in 1865, and by subsequent enactments, authorized adoption abolished by the Oode, as it then stood. Act No. 48 of 1865 and No. 64 of 1868; R. S. 2328-2828. The effect of this legislation conferring on the adopted child the rights of the child of the marriage, has been announced in the decisions of this court. Vidal vs. Commagere, 13 An. 516; in the matter of the Tutorship of Ellen Wilson Upton, 16 An. 176; Carroll Hoy & Co. vs. Davidson, 23 An. 431; Succession of Hosser, 37 An. 840; Succession of Unforsake, 48 An. 548. If the legislation places the adopted child in the position of a child of the marriage with respect to the right of inheritance, it would certainly seem that the child by adoption became subject also to the limitation on the right of inheritance of community property imposed by the Code upon children of the marriage. The child of the marriage inherits the share in the community of his deceased parent subject to the usufructuary right of the surviving parent. If the law confers on the adopted child the right of the child of the marriage, the adopted child inherits community property under precisely the same limitation that attaches to the child of the marriage. Again, the Oode establishes this usufruct when there are no children of the marriage, and there is also the usufruct established with qualification when there are children. If the adopted child is to be excluded from the category of children, the usufruct exists under Art. 915; if deemed a child the usufruct subsists under Art. 916 of the Oode.

Affirmed.


author: Nicholls, O. J.

text:
    No. 12,261.
    State of Louisiana vs. Leonidas Pruett.
    A motion to quash a venire must be filed on the first day of the term. State vs. Oollins, 48 An. 1454.
    The express statutory grant to a defendant by Act No. 113 of 1896, to have the testimony taken down in writing can not be denied because the exercise of it might be barren of results in the particular case. That fact could only bo tested on appeal when the record would come up.
    It has been held in this State that threats made by the deceased are only exceptionally admissible in evidence, but when the particular matter being considered through the testimony is not as to justification or mitigation of the homicide, but justification or explanation of the circumstances under which a certain statement by the defendant had been made, the question is not presented under the circumstances which require proof of a prior overt act on part of the deceased. In order to explain such statement (as to which the State had elicited testimony), defendant on the stand as a witness, was entitled to show that threats made by the deceased had been communicated to him.
    When an application is made for achango of venue, the court may postpone action on the motion until after an examination on their voir dire of the jurors of the panel, but the accused has a right to have it taken up and passed on as a substantive motion after hearing, contradictorily with the State and on evidence adduced in support of the allegations of the same. Am. and Eng. Ency. of Daw, Vol. 3, p. 99.
    On the trial of such an application, the accused is not, concluded by the answers of the jurors on theirvo&r dire. He is entitled to traverse, contradict and disprove these statements. As the condition of a juror’s mind, in respect to his being unbiased and impartial, rests entirely upon his own assertion, his declarations on that subject should not close the door to an investigation and examination of facts which would tend to show that the juror either unconsciously or designedly was not stating the truth.
    In a criminal suit the State should at once offer on its side all the evidence which it has, and not reserve its real or main attack until after the defendant had closed his case; but this matter must be left in each case to the sound judicial discretion oi the court, which having knowledge of the general rule would protect the defendant by enforcing it, unless by reason of some exceptional state of facts.
    In ordering the summons of tales jurors the provisions of Sec. 7 of Act No. 90 of 1896 are not to be taken as mandatory, without regard to the facts of any special ease. A certain discretion has to be left to the court, to be exercised by it in such manner as that wrong and disadvantages be worked neither to the State nor to the accused.
    Appeal from the Eleventh Judicial District Court for the Parish of St. Landry. Dupré, J.

      R. Lee Garland, District Attorney, for Plaintiff, Appellee.

      W. S. Frazee, F. B. Dubuisson, C. F. Garland and John N. Ogden or Defendant, Appellant.

      Argued and submitted November 21, 1896.
    Rehearing refused January 18, 1897.
    Statement of Case.
    Defendant was indicted for murder, found guilty of manslaughter and sentenced to fifteen years’ imprisonment in the State penitentiary. Prom this verdict and sentence he has appealed, presenting a number of bills of exception for review.
    Tne first bill is reserved to the overruling a motion to quash the indictment, on three grounds; first, because the list or venire from which the grand jury was drawn was not published; secondly, because one of the jury commissioners was a deputy United States postmaster in active discharge of his duties as such at the time; thirdly, because another of the jury commissioners was at the time a member of the police jury. The motion was overruled on the ground that it was filed too late; that it did not allege fraud or injury, and because the clerk was right in not publishing the lists after the new law took effect,' because of the proviso of the repealing clause.
    The second bill recites that the defendant filed a motion for a. change of venue, which he annexed to his bill; that a day had been fixed for the hearing of the same, notice given and a number of witnesses were summoned by him to prove the allegations thereof; that when it was called for hearing the District Attorney moved that evidence in support of the motion be postponed until after the jury had been examined on its voir dire in order to ascertain from that examination whether a fair and impartial trial could be had or not; that defendant objected on the ground that that would be submitting the question to a test not contemplated by law or the pleadings; that the change of venue is a constitutional right which should not be lightly dealt with, and that the sanction of the Constitution (Arts. 7 and 158) attaches to the law existing on the subject (Secs. 1022 et seq., Revised Statute-), which declares that the motion for a change of venue shall be made in open court or by petition at chambers, and that the judge should award the change if after hearing contradictori-y with the State’s representative and “ an examination of the evidence adduced,” he should be of the opinion that the party applying could not have a fair and impartial trial in the parish wherein the indictment was pending.; that therefore the statute contemplated the hearing of evidence contradictorily; that the judge overruled the motion in a written opinion, which defendant annexed to his bill; and that to this ruling defendant reserved and tendered a bill of exceptions.
    The third bill recites that after the judge presiding had ordered that the venire of jurors be examined tn their “voir dire,” prior to taking up defendant’s motion for a change of venue, as detailed in bill of exception No. 2, the judge, on the examination of the jurors, would not permit defendant to question the jurors on the lines laid down in said motion, or as to the truth or falsity of the averments thereof, nor would he permit the said jurors to be questioned as to the political party to which they belonged during the last political campaign in the parish, as to the feelings and prejudices aroused, between the contending parties, nor as to whether the jurors entertained those feelings and prejudices, all of which would appear by reference to the examination of said jurors, which was reduced to writing and was annexed to the bill and made part thereof for explanation and certainty; that after the examination of the jurors on their voir dire, limited and circumscribed as it was, defendant urged that that examination was no test of whether he could obtain a fair trial in the parish under the condition of things charged in the motion for a change of venue. Defendant, therefore, moved to have his witnesses heard for the purpose of proving the averments of his motion, which he desired to have taken up, and for the purpose of rebutting the inference that could be drawn from the said examination of said jurors, that he could obtain a fair and impartial trial in the parish, if any such inference there was; that the examination of the jurors did not touch upon the main facts set up in the motion for a change of venue, and that the action of the court was the denial of a constitutional right, without a hearing and without due process of law; that the court overruled defendant in all his objections, questions and contentions and ordered the jury to be empaneled, which was accomplished after the examination of a large number of tales-men.
    The court’s action was based upon reasons assigned which need not here be stated. A large part of defendant’s bill, and of the judge’s reasons, are made up of “ arguments ” to sustain the position which the defendant and the judge respectively took, and are here omitted.

      The fourth bill states that on the day the case was fixed for trial (September 14) defendant- applied for and obtained compulsory process for the attendance of Charles Medici, a material witness for defence, who was living at the time in the parish of Ascension; that on the day fixed for trial (September 17) the District Attorney called the case for trial. Whereupon defendant announced that he was not ready for trial, because of the absence of said Medici, and because no return had been made upon said process; that the letter of the sheriff of Ascension to the clerk of court, annexed to the bill, which was filed September, 17, 1896, and dated September 16, 1896, shows that the sheriff had made no effort to serve said process; that defendant, for said reasons, objected to going to trial; that thereafter he filed a written motion (annexed to the bill) asking for additional compulsory process or alias subpoena, to have the same served on Medici and proper return made, and asked for sufficient delay for said purpose, all of which was refused by the court for the reason that the State stood ready to admit, a-nd did admit, that if the witness was present he would testify as stated in the affidavit for the process which was done under the provisions of Act No. 84 of 1894.
    The fifth bill states that on the 18th September, 1896, defendant filed a motion for a continuance (annexed to the bill), which the court refused for the reason that the State agreed to admit, and did admit, that if the witness (Medici) was present he would testify as stated in the affidavit for the continuance agreeably to Act 84 of 1894.
    The eighth bill recites that one Oahanin being on the stand as a witness to prove express malice, said witness swore, first, that defendant Pruett told him on the morning of the homicide “he was going to kill or would kill the deceased,” and on cross-examination modified said statement by saying that defendant said “ he would have to kill the deceased.” That thereupon Pruett, the defendant, was put upon the stand in his own behalf, and having related the conversation he had with Oahanin, was further asked: “State to the jury and detail any occurrences that may have taken place between you and Sandez (the deceased) in order to explain the remax’k made by you to Oahanin,” but that the question was ruled out by the court for the following reason, viz.: The court permitted the witness to fully explain all the reasons he had fox’ telling Oahanin that he would have to kill the deceased. The court expressly stated that the State could prove the threat, but the defendant had the right to explain why the remark was made by the witness. What the court ruled out was this: That defendant had no right to go into details of previous quarrels and difficulties in order to prove Who was right and who was w^ong. To which ruling defendant excepted and further excepted to the reasons given by the court, because at the time the question was asked Pruett had only stated the conversation with Cahanin which showed a quarrel between them, and because he had a right to detail the quarrel or quarrels in order to show the dangerous and serious character of the same in order that the jury might understand why he made said remark and not draw any unfair inference therefrom, and also excepted to said reasons, because said Pruett had not given all of his reasons for making said remark, which objections to said reasons were also overruled by the court, because Pruett was permitted to go into details of quarrels had with deceased and was permitted to state everything which had occurred between them and deceased at these quarrels,-but the court would not permit him to recite threats which had been communicated to him previous to the killing for the reason that at the time of the killing no overt act or hostile demonstration on the part of said deceased had in the court’s opinion been shown to exist. To which rulings defendant excepted and tendered a bill.
    Bill number nine states that on the trial of the above cause, and after defendant had introduced evidence as to the overt act, the court was asked for time within which defendant could draw up a written motion, asking the court to allow evidence of previous threats and provocation and to reduce the evidence as to the overt act to writing, in case the court should not agree with defendant that an overt act, on the part of Sandoz, deceased, had been proved; that this application was refused, the court assigning as its reason that in State vs. Christian, 44 An. 954, the Supreme Court had declared that whether or not a foundation had been laid for the in-, troduction of the dangerous character of the deceased is a matter to be decided by the trial court, whose ruling in such matter would not be reversed, unless manifestly erroneous (State vs. Barker, 46 An. V96) ; until a feasible method had been devised to bring up for review on appeal all testimony — (that on behalf of the accused to prove and that of the State to disprove the overt act), the court would follow established precedents.
    The tenth bill states that defendant, having introduced the testimony of himself, his daughter, Thomas R. Carroll, J. B. Donato and other witnesses, [whose evidence he considered and declared proved •that Sandoz, deceased, had attempted to shoot before he (Sandoz) was shot], offered the evidence of Charles Medici, as appears in motion for continuance (annexed and made part of the bill) and which counsel for the State admitted (in order to force a trial), that said Medici would swear to if present; that this evidence was ruled •out by the court upon the ground that the overt act had not been proved; that defendant excepted to this ruling and reserved a bill; that counsel for defence differed from the court as to whether the overt act had or had not been proved, moved orally (the court having previously refused to allow time for a written motion) that the evidence on the question of the overt act be taken down in writing in order that the same might be annexed to the said bill of exception, to the end that the Supreme Court might decide whether there was sufficient proof of the overt act to justify the admission of the evidence of Medici and other like evidence; that counsel contended that the overt act, on part of deceased, had deprived him of evidence which, taken with the evidence of the overt act, would have acquitted him, and contended further that the question of the overt act was a mixed question of law and fact, and should, therefore, be reduced to writing.
    Appended to the bill the judge stated that in the opinion of the court no hostile act nor hostile demonstration had been shown; that, on the contrary, it was established, beyond cavil, that accused had long before deceased neared his house (that of accused) gone into the same, procured his rifle, which he pointed through the half door of his house until his victim reached a point just opposite, when the accused fired upon the deceased, the shot from which he died; that “ the question of overt act or hostile demonstration was addressed to the discretion of the trial judge, and that there was no law which authorized the taking of testimony vel non for review by the Supreme Court.”
    The eleventh bill states that defendant moved the court to reduce to writing the evidence of the witnesses, Aline Pruett, Johny Savant, Joseph Boudreau, J. B. G. Donato and others, on the question of establishing the overt act; these witnesses having testified on this matter, and there being a difference of opinion between court and counsel for the accused, as to what constituted an overt act or hostile demonstration, and whether such act or demonstration had been made by the deceased; that this request was made for the purpose of enabling the appellate court to properly pass upon the ruling of the lower court in excluding proofs of previous difficulties and communicated threats. The court stated it overruled the motion for the reasons assigned in bills of exception Nos. 9 and 10.
    The twelfth bill states that on the trial of the case, after the State had offered its evidence and the defence had closed its case, counsel for the State called one Alfred Johnson, who, after saying he was an eyewitness of the homicide, was asked by counsel for the State: “ State what you said and what happened?” that counsel for defendant objected, because it was evidence the State should have offered originally in making out its case, and because under the law only evidence strictly in rebuttal was permissible at said stage of the proceedings; that the question was one that called for and elicited a statement of facts on the whole case. The court overruled. the objection, assigning as its reason that the evidence was offered in rebuttal of the prisoner’s evidence; that the State had announced that the evidence would be to this effect and it proved to be absolutely so.
    The fourteenth bill states that on the 18th September defendant filed the written motion, annexed to the bill, asking that tales jurors be not summoned within the corporate limits of the town of Opelousas; that the motion was overruled. The court assigned as the reason for its action that it knew of no law that would warrant such a mode of procedure; that Sec. 7 of Act No. 99 of 1896 directs the manner in which tales jurors should be summoned and the court complied with its requirements.
   The opinion of the court was delivered by

Nicholls, O. J.

The action of the court in overruling defendant’s motion to quash the indictment was not erroneous. The motion was made too late. The facts disclosed by the evidence adduced bring the present case within the doctrine announced in State vs. Collins, 48 An. 1454. The jury drawn in this case was through the proviso of the repealing clause of Act No. 99 of 1896, withdrawn from the provisions of the fifth section of that act requiring publication.

The ninth, tenth and eleventh bills of exception reserved by defendant are the first which we take up. From them it appears that after he had introduced the testimony of himself, his daughter, Thomas R. Carroll, J. S. Donato and others, whose evidence he declared proved that Sandoz (the deceased) had attempted to shoot before he (Sandoz) was shot, defendant offered evidence to prove previous threats made by the deceased and provocation, but that said evidence was ruled out by the judge for the reason that no overt act on the part of the deceased had been proved. That defendant moved the court that the evidence on the question of the overt act be taken down in writing in order that the same be annexed to his bills of exception to the end that the Supreme Court might decide whether there was sufficient proof of the overt act to justify the admission of the rejected evidence, but that this application was refused, the court stating that “no overt act had been shown; that the question of overt act or hostile demonstration was addressed to the discretion of the trial judge and that there was no law which authorized the taking of the testimony for review by the Supreme Court.”

The court erred. Act No. 113 of 1896 authorized the accused to demand that the testimony be reduced to writing and made it the duty of the court to grant the request. It is possible that had the testimony been taken down the record would not have been placed in such a form as to have enabled us to review the ruling of the lower court; but neither this court nor the District Court are permitted to speculate upon that subject. The express statutory right granted to a defendant by the act can not be denied because the exercise of it might be barren of results in the particular case. That fact could only be tested on appeal when the record would come up.

We are of the opinion that the court erred in refusing, as shown by the eighth bill, to allow defendant when on the stand as a witness to recite threats of the deceased which had been communicated to him, on the ground that at the time of the killing no overt act or hostile demonstration on the part of the deceased h d, in the court’s opinion, been shown.

The particular connection in which the evidence was sought to be made use of seems to have been overlooked. It has been held in this State that threats made by the deceased are only exceptionally admissible in evidence. Usually prior proof is required of some overt act by the party killed at the time of the homicide to warrant the reception of testimony in regard to them, but the question was not presented in this case under the circumstances which required that a prior overt act on the part of the deceased should have been shown before evidence of communicated threats should be admissible. The particular matter then being considered was not evidence as to justification or mitigation of the homicide, but justification or explanation of the circumstances under which a certain statement made by defendant had been made. The parties had turned aside temporarily from the facts directly connected with the homicide at the time of its occurrence to consider an incidental collateral issue concerning evidence upon the trial. The State had shown by Canahan a declaration made by defendant calculated to powerfully impress the .jury adversely to accused if left unexplained. The State had opened the door to the inquiry and made it imperatively necessary for defendant to show the exact facts. When it had been testified to that defendant had declared that “he intended to kill the deceased,” or “ that he would killhim,” we think it was perfectly proper for him to explain, if he could, that if he made the statement, it was because he anticipated from threats made by deceased and communicated to him, that he would be forced to kill him in self-defence. A very different coloring would be given to defendant’s expression viewed from that standpoint, from that which it would have, if permitted to rest at the point where the State wished to “close the inquiry. As a matter of course, defendant in availing himself of an opportunity given him to rebut any prejudicial influence which might result from his declaration, should not be permitted to push his testimony beyond what was legitimate solely for that purpose. There was a limit to his right which the court was authorized to see was not transcended. We must assume, in the absence of any showing, what his testimony had been, or what it was intended to have been, that the court’s action (other than that in respect to the excluded testimony as to communicated threats) was justified by the facts.

The exceptions of defendant in the second bill of exceptions and the argument of counsel upon it are much broader than the action of the court, referred to in the bill, called for. As we understand matters, defendant had filed a motion for a change of venue on stated grounds — this motion was fixed for trial — defendant summoned witnesses in support of his motion, who were present in court for examination, but upon the application of the District Attorney the hearing of evidence in support of the motion was postponed until-after the jury panel had been examined on its voir dire in order to-ascertain from that examination whether a fair and impartial trial could be had. The bill is argued as if the court had then and there-finally cut the defendant off from the right of examining witnesses-to sustain his motion. That is not the import of the ruling, which-extended only to a temporary postponement of the hearing and to a decision upon the order of proceeding. In so considering it, we find no cause of reversible error. In the Am. and English Ency. of Law, page 99, we find it laid down that where an application is made for a change of venue the court may deny the motion until it can be-shown by an examination of a sufficient number of jurors whether a fair and impartial trial can be obtained or not (citing State vs. Gray, 8 West. Court Rep., Nevada, 72) * * * that there is no error in postponing the consideration of a motion to change the venue until an attempt is made to impanel a jury (citing People vs. Plummer, 9 Cal. 298; Hunter vs. State, 43 Ga. 483; Ward vs. Moorey, 1 Wash. Ter. 122).

The third bill contains a double complaint, the first being that the court did not give the accused the latitude he was entitled to in the cross-examination of the jurors"when examined on their voir dire;the second being that after the jury had been so examined the court overruled defendant’s motion to have his witnesses heard in support of the averments of his motion for a change of venue and for the purpose of rebutting any inference that could be drawn from the examination of the jurors, that he could obtain a fair aud impartial-trial in the parish of St. Landry.

The precise course followed in the lower court does not appear in the record. We judge, however, that the thirty jurors of the regular panel selected for the third week of the session were called and each separately examined upon his voir dire — questions being first propounded by the State and then by the defence — that those whose answers were of a character to show them incompetent were set aside, while those who were deemed by the court proper jurors were held in reserve to be ultimately tendered to both parties. That when so tendered on the actual formation of the jury, defendant peremptorily challenged individual jurors as they-were presented; that under this proceeding the regular panel was exhausted (only six jurors having been taken therefrom) ; that thereupon the court then ordered the sheriff to bring in talesmen, who were in turn examined and accepted or rejected until twelve jurors were found; that in the formation of the jury in this manner the defendant exhausted his peremptory challenges. We do not find that bills of exception were taken to the action of the court in respect to the individual jurors accepted, but there is a bill covering the general line of proceeding and touching the restriction placed upon the cross-examination of the jurors by the defence. The court accepted the course adopted as having [by the fact itself that twelve jurors were found who in its estimation were proper jurors] conclusively established that the defendant could obtain a fair and impartial trial in the parish of St. Landry, and limited the scope of the inquiry on that subject to the questions propounded and answers made thereto by the jurors and talesmen. He excluded all testimony outside of this. The application for a change of venue was based upon allegations sworn to that he could not obtain a fair and impartial trial in St. Landry because of the intense and wide-spread prejudice against him in the public mind; that this prejudice was political and partisan, and permeated every branch of the court; that during the last political campaign the parish was divided into two fiercely • hostile parties marching and countermarching through the parish — that there were several collisions between them resulting in serious injury to persons and property — in some cases in death. That the contest resulted in the election of the then presiding judge of the court and ■the then prosecuting attorney. That the district clerk and the sheriff ■both belonged to the same side as the judge and District Attorney; that political feeling and prejudice and bias were heavy in the atmosphere in and aboutthe court house. That the court (however unconsciously) was influenced by that feeling was shown by the fact that it had appointed none but partisans upon the jury commission. That the clerk and jury commission were partisans, and that they ■carried their partisan feelings into the performance of their duty, ■was attested by the fact that they selected for the then term of court, under the jury law of 1894, a grand jury panel composed exclusively •of partisans, and that on the venire of the petit jury drawn for six weeks of the term there were not over half a dozen names that were not partisans belonging to the side of the clerk and jury commissioners. That defendant was an active and avowed partisan on the side opposite to that of the presiding judge and District Attorney and the deceased was a still more active and avowed partisan of the other side — that the encounter which resulted in the homicide with which defendant was charged grew out of the election and was a direct consequence thereof — that it happened in the town of Opelousas on the day following the election and defendant narrowly escaped being mobbed at the time — that the partisan feeling-referred to was directed against himself individually as well as-against the party he belonged to generally; that partisan feeling was so strong, and deep-seated in St. Landry that the man in the parish who was not affected by it was an exception; that under the circumstances it was utterly impossible for one accused of a crime which grew out of the last political campaign or which was closely connected with it to obtain there at that time, and perhaps for years to come, a fair and impartial trial.

The District Attorney complains of this application as being insulting to the presiding judge. There are certainly portions of it which are exceedingly objectionable; not only in respect to the judge, but as to other matters. We have purposely abstained from transcribing them. We do not think that the mere fact itself that a suitor should allege in a prosecution pending against him that the judge of the court has acted in a manner such as to have illegally prejudiced his rights furnishes ground for legal complaint, when the assertion of such a claim would be essential to his protection. The law has pointed out no method of attacking or annulling by direct action a verdict in a criminal case and a judgment based thereon for wrongful action on the part of the presiding judge in the performance of his duties. A defendant would certainly be entitled to protection at some time and in some shape or form; from the necessity of the case he would have to set up his complaints in the pending suit, and he should be allowed to introduce his testimony in support of the same. We would not expect the presiding judge to express-any opinion adverse to himself in the premises, but the whole matter would fairly come before the appellate court in reaching its conclusions as to whether actual wrong or injury had been done.

As a matter of course such a complaint should contain no abusive, opprobrious or intemperate expressions. See Wharton, Sec. 49.

An examination of the motion will show that several of the matters therein charged were matters more for a challenge to-the general panel or array than for an application for a change of venue. They were not advanced for the former purpose. We are authorized, however, we think, to consider them incidentally in dealing with the question of the change of venue. Accused maintains that in view of the method of the selection of the jury commissioners, the manner of collecting the jury and of obtaining talesmen, he was illegally hampered in his effort to show that a fair and impartial trial could not be had in the parish by limiting the witnesses testifying on that subject to witnesses not of his own choosing.

Section 1028 declares that an application for a change of venue “may be made orally in open court or by petition in chambers, and shall be accompanied with proof under oath of the party or his attorney that reasonable notice has been given to the District Attorney of such application. Thereupon the judge shall hear the party making the application, as well as the attorney representing the State, and, if on such hearing and examination of the evidence adduced he shall be of opinion that the party applying can not have a fair and impartial trial in the parish where the indictment is pending, the judge shall award a change of venue to the adjoining parish of the same judicial district, or of an adjoining district, and if possible to that in which a District Court shall next be held.”

From an examination of the proceedings taken below, those on the motion for a change of venue seem to have been substantially merged into an examination of jurors and the empaneling of a jury. As a substantive motion and proceeding, it seems to have been lost sight of and disappeared. Accused was not permitted to offer witnesses, but was confined to the cross-examination of the jurymen and tales-men who were produced before the court. We do not think that the answers of the jurors and talesmen should have concluded the accused. He was entitled to traverse, contradict and disprove their statements if he could. As the condition of a juror’s mind, in respect to his being unbiased and impartial, rests entirely upon his own assertion, his declaration on that subject surely should not close the door to an investigation and examination of facts which would tend to show that the juror either unconsciously or designedly was not stating the truth. Before reaching his conclusions upon the motion for a change of venue we are of the opinion the court should have heard the witnesses whom the accused sought to have testify. As the extent of the line of cross-examination of the jurors which the defendant was permitted to make was made a subject of complaint in this same bill of exception, we take pccasion to say that in our opinion the court narrowed the examination too closely. It was particularly desirable under the averments of the motion to change the venue, that the jurors should be subjected to a very rigid test. As the testimony which defendant sought to introduce was excluded we are unable to say whether he was entitled to a change of venue or not. All that we can do, as matters stand, is to set aside the court’s action on that subject and reserve to defendant, as we do hereby reserve to him, the right to renew his motion for a change.

Complaint is made in the fourth bill that the court “ refused on the day the case was fixed for trial to allow additional compulsory process or alias subpoena to issue to a witness named Charles Medici, to have return made upon said process and to grant time until this should be done, defendant objecting to go to trial.” Defendant in the bill states that he had on the 14th September (when the case was fixed for trial for the 17th) applied for and obtained compulsry process for the witness, who was living at the time in the parish of Ascension; that the subpœna had been received by the sheriff of the latter parish on the 16th, but he made no effort to serve the same, as would appear by a letter from him of that date to the clerk of the St. Landry court. Directly connected with this complaint is that urged in the fifth bill, that the court refused to grant defendant a continuance to obtain the testimony of the witness Medici, as asked for on the grounds urged in his affidavit and motion therefor. Both applications were denied on the ground that the State stood ready to admit and did admit that the witness if present would testify as stated in the affidavit for the process, and that under such an admission defendant was legally called upon under the provisions of Act 84 of 1894 to go to trial. We find in the record the letter of the sheriff of the parish of Ascension referred to. In it he says that “he returned to the clerk the notices sent for service; that in the first place the person named was unknown to him, and in the second place, even if he could make service, the person would find it impossible to be in Opelousas by 10 o’clock A. M. on the 17th — that he (the sheriff) had received the notice only on the 16th of September.” There seems to have been no- attempt to secure the service — and no return was made upon the subpoena by the sheriff. It is stated in one of the bills that the original application for a subpoena was annexed to it, but we do not find it attached as declared. It is useless for us to decide whether the action of the court, taken on that occasion, was or was not correct, as the case is remanded on other grounds, and it is not likely that this particular question will arise again under precisely similar circumstances. We notice that in the application for a continuance Medici is referred to as “formerly” of the parish of Ascension, and that there is no declaration or statement where he then was. Whether as a fact Medici ever lived in the parish of Ascension is uncertain — the fact is alleged, but it is nowhere sworn to. It was the duty of the defendant to have shown affirmatively the residence of Medici, or that there was good reason to believe that the witness could be reached by subpoena at the place to which it was directed. It would have been of no practical use to have issued a second subpœna to a person in Ascension parish who had “formerly” been a resident there. However irregular the action of the sheriff of the parish of Ascension was, defendant evidently adopted his conclusion that the witness was no longer to be reached there. We are of the opinion that when this case was fixed for trial the defendant should at once have called the special attention of the court to the fact he would require on his behalf the presence at the trial of a material witness who was in another parish and insist that in fixing the day of trial sufficient time be given to the sheriff for a proper search for the witness, for due return on the process issued and for the witness to comply with the orders of court. On proper showing made we do not presume the court would have pressed the case to trial.

We think a defendant when he has counsel should, as soon at least as he is indicted, take steps to ascertain where the various witnesses whom he will need live, or where they can be reached, and that he can not properly rely for the purposes of a continuance upon the discovery of that fact through mere experimental process to be sent to sheriffs of parishes in which it is possible the witnesses may be found. Such a practice would lead to great abuse.

A question has been raised as to whether a person charged with crime, who would (but for the provisions of Act No. 84 of 1894) be entitled to a continuance of his case in order to procure the attendance on his behalf of an absent witness, can, in view of Art. 8 of the Constitution, be legally and constitutionally forced to trial (under authority of the act mentioned) by an admission on the part of the-District Attorney that the witness, if present, would testify to the facts stated by the accused in his motion for process or for a continuance. Article 8 of the Constitution declares that in all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him and to have compulsory process for-obtaining witnesses in his favor.

In Act No. 84 of 1894 it is enacted that “in all criminal cases whenever either the State or the defendant asks for a continuance on the-ground of the absence of an important witness, the other shall be entitled to an immediate trial on admitting that if said absent witness-were present that he would testify as stated in the affidavit made fora continuance, but in no case shall the defendant be required, in order to get a trial, to admit that the statements made in the affidavit for a continuance.”

The right of an accused person to insist upon the presence in court of the witnesses material to his defence has been frequently the subject of discussion and adjudication. Many authorities will be found-collected in Rice’s Work on Evidence, Vol. 3, Chap. 19. “ Of the-evidence necessary to secure a continuance” (Sec. 114). “Right not affected by admissions of opposite party,” also in the same author, Chap. 30, pages 269 and 270.

We are unwilling to pass upon the constitutionality of a statute unless imperatively required t.o do so. No such necessity exists in the present case. We content ourselves with saying for the present that the law is at least in derogation of common right, and that recourse to it should be avoided if possible.

The twelfth bill comes to us under contradictory statements, made by the court and counsel. Not having the evidence taken in the case before us, we accept as correct the court’s declaration that when the testimony objected to was offered the State announced that it was offered in rebuttal of the defendant’s evidence, and that when introduced it was actually in rebuttal. We have stated heretofore (State vs. Spencer, 45 An. 1) that, in our opinion, justice to an accused party requires that the State should at once offer on its side all the evidence which it has and not reserve its real or main attack until after defendant had closed his case. That there were, however, so many reasons why, under special circumstances, this course should, be departed from, and so many occasions on which such departure from it would be proper, that it could not be invoked as a matter of legal right. That this matter would have to be left in each case to the sound judicial discretion of the court, which, having knowledge of the general rule, would protect the defendant by enforcing it, unless by reason of some exceptional state of facts.

In Rice on Evidence, Vol. 3, See. 218, it is said: “ The rule is well settled that in rebuttal the people are restricted to evidence controverting the facts proven by the evidence of the defence and that no evidence confirmatory of the original case can be introduced by way of rebuttal, even though it clearly establishes the prisoner’s guilt.” (McLeod’s Trial Pamphlet, p. 222; Rex vs. Hilditch, 5 Car. & P. 299; Rex vs. Stimpson, 2 Car. & P. 415; Brown vs. Giles, 1 Car. & P. 118; 2 Philips Evidence, Note 500.) * * * “ No rule for the conduct of a trial is more familiar than that the party holding the affirmative is bound to introduce all the evidence on his side before he closes.” (Hastings vs. Palmer, 20 Wend. 225.) “ He must exhaust all his testimony before the testimony on the opposite side can be heard.” (Ford vs. Niles, 1 Hill, 301; Rex vs. Stimpson.) “He can afterward introduce in rebuttal only — rebutting evidence in such cases means not merely evidence which contradicts the witnesses on the opposite side and corroborates those of the party who began, but evidence in denial of some affirmative fact which the answering party has endeavored to prove.” (Silverman vs. Foreman, 3 E. D. Smith, 322; Rex vs. Stimpson, supra.) “These rules may in special cases be departed from in the discretion of the trial judge; but a refusal to depart from them is no ground of exception.” (Marshal vs. Davies, 78 N. Y., 414.) * * * Rice, after having quoted the opinion of Lumpkin, Judge, in Walker vs. Walker, 14 Ga. 242, 250, wherein he expressed himself in favor of the reception at any time of additional cumulative and corroborative evidence of facts previously proved or which tends to strengthen and add force or probability to such evidence — pushes this matter to its extreme length, saying: “So largely is the admission or exclusion of evidence not strictly in rebuttal a discretionary matter with the court that we are justified in formulating a general rule that material testimony in a case should be admitted at any time before the'formal submission of the case to the jury. The presiding judge in the exercise of this discretion has absolute immunity from all review unless it should clearly appear that there was a wilful abuse of the discretion confided to him. Of course where important testimony is withheld with the obvious purpose of placing either party to a disadvanage the trial court would be abundantly justified in refusing its admission.” (Gaines vs. Commonwealth, 50 Pa. 319; Dozier vs. Jerman, 30 Me. 216, 220; Huntsman vs. Nicholls, 116 Mass. 521; Morse vs. Potter, 4 Gray, 292; Marshal vs. Davies, 58 How. Pa. 231.)

Fourteenth Bill. The court in its reasons for refusing to grant defendant’s request [made while the jury was being examined generally on their voir dire], “that tales jurors be not’summoned within the town of Opelousas,” stated that it knew of no law which would Warrant such a request. That Sec. 7 of Act No. 99 of 1896 directed the manner in which talesmen should be summoned and the court had complied with its requirements in its order on the subject to the sheriff. The order referred to was that “ the sheriff of St. Landry will go out into the town of Opelousas and summon twenty-five or thirty talesmen jurors, securing if possible persons living in the country and remote from the town. He will go through the town and near the railroad at the cotton yards and endeavor as above stated to secure the attendance, if possible, of jurors living outside the corporate limits. Upon his failure to secure these he will summon jurors in the town from outside this court room.”

The seventh section of Act No. 99 of 1896 declares that whenever the District Judge thinks proper he shall require the jury commission to select additional jurors for service either as regular jurors •for service, or as talesmen, pursuant to formalities prescribed in Sec. 5 of this Act, and they shall be summoned without delay or within the time the said judge requires; but nothing shall be construed so as to limit the right of the judge in criminal matters to order the summoning of talesmen from among the bystanders or from any portion of the parish remote from the scene of the crime which the judge may designate.

This bill is not pressed very strongly, possibly because of appellant’s reliance upon his bill of exception covering the refusal of the .judge to hear testimony upon the motion to change the venue. The lawmaker evidently presumed that there would exist a greater state of excitement at or near the place of homicide than there would at .a distance, and therefore intimated that, as a rule, it would be well that talesmen should be drawn from places remote from the scene of a homicide. We do not look upon the provisions of the seventh section as mandatory upon that subject, without regard to the facts of any special case. A certain discretion has to be left to the court, to be exercised by it in such manner as that wrong and disadvantage be worked to neither State nor to the accused. The bill is not pressed in a way to call for special action upon it.

We do not pass upon a number of bills of exception which we And in the record, for the reason that some of the matters complained of are not likely to occur on the next trial, and others are presented to us under conditions such as to make it difficult for us to properly deal with them.

For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the verdict of the jury and the judgment of the District Court based thereon, which is herein appealed from, be and they are hereby set aside, annulled, avoided and reversed; and the cause is hereby remanded to the District Court for further proceedings according to law.


author: McEnery, J.

text:
    No. 12,356.
    R. W. Pringle vs. Eltringham Construction Company.
    A corporation organized for the exclusive pecuniary benefit of its members may be wound up by a majority of its members in their discretion whenever they deem this step to be in the interest of the whole association; provided, this is done in good faith, and not for the purpose of speculation and the intention of starting the company’s business anew at a subsequent time.
    The articles of association form a contract between the members, and when it provides for the manner of winding up the business, and no reason is shown why the mode and manner provided can not be executed, a receiver can not be appointed to the corporation on the demand of one of the members of the corporation, wlio is dissatisfied with the action of the majority.
    APPEAL from the Eighth Judicial District Court for the Parish of Concordia. Dagg, J.

    Lazarus, Moore & Luce and Elam, & Bale for Plaintiff in Rule for Appointment of Receiver, Appellant.

      Boatner & Hough for Defendants in Rule, Appellees.

      Argued and submitted January 20, 1897.
    Opinion handed down February 1, 1897.
   The opinion of the court was delivered by

McEnery, J.

The defendant corporation was organized for the purpose of doing levee, railroad and similar work.

The corporation is composed of three persons who. own the entire stock. The plaintiff is a member of the corporation and so are the other two litigants. The plaintiff instituted suit against the other two members of the corporation for a partition in kind of the effects of the corporation. The company was made a party and cited. Alexander Eltringham made defendant as president of said company and individually and as a stockholder, answered alleging that the corporation was no longer ‘ ‘ a running, going, operating corporation; that under an agreement entered into between the stockholders said company could take no more contracts; that the mules, work stock, etc., were maintained at a considerable loss, and that the continued maintenance of the work stock, paying wages, etc., would with the pending litigation consume all assets of the company, unless liquidators were appointed and the property sold and distributed among the shareholders; prayed that the other two shareholders be cited to show cause why liquidators should not be appointed, the property sold and the proceeds deposited in some bank selected by the court to await the final judgment of the court. An exception was filed to the rule. An amended petition was filed praying for the appointment of a receiver. The voluminous pleadings finally terminated in the issue being presented to the court whether a receiver should be appointed. The court declined a receiver, and the mover in the rule appealed from this decree. The evidence discloses that the corporation is solvent; that the shareholders had agreed to stop work, and thus practically dissolve the corporation. The testimony does not show that the property of the corporation has been abandoned, or that there are no persons to take charge of the assets of the corporation. Conceding that the corporation has been dissolved, the charter provides for the liquidation of its affairs in such a contingency.

In pursuance of this provision of the charter the three principal stockholders, after notice, met, and a resolution was passed providing for the appointment of commissioners to liquidate the affairs of the corporation. Clark and Pringle voted for the resolution; Eltringham protested. It is not shown that the commissioners are •unable to liquidate the affairs of the corporation.

It is a fundamental principle that a corporation organized for the ■exclusive benefit of the corporators, or shareholders, the majority of its members may, in their discretion, wind up its business whenever they deem this step to be in the interests of the whole association.

The majority may, without the consent of the minority, sell the whole of the company’s property, close up its business and distribute its assets, provided this is done in good faith, and not for the purpose of speculation and the intention of starting the company’s business anew at a subsequent time. Morawetz on Private Corporations, par. 413.

All the shareholders in the defendant corporation had agreed to wind up its affairs. The contention is as to the mode. The charter provides the means of winding up the corporation. It is law to the shareholders. The articles of association are contracts between them, and must be followed. No reason is shown why this corporation can not be wound up as agreed in the articles of association.

Judgment affirmed.

Miller, J., concurs in the decree.


text:
    No. 12,423.
    State ex rel. Widow Charles Minor et als. vs. Judges of the Court of Appeals.
    In a suit to aunul a tax sale, the amount which the plaintiff has to pay, under Art. 210 of the Constitution, before obtaining the nullity of the sale, and the possession of the property, is a part of the judgment, and a necessary sequence of it, and not a reconventional demand. The judgment is an entirety, and the plaintiff having obtained a judgment annulling the sale, and to be placed in possession of the property, if he feels aggrieved at that part of the judgment relating to the amount to be refunded to defendant, he has a right to appeal from the whole judgment. If the value of the property In contest is sufficient to give jurisdiction, lie has the right to go to that court having jurisdiction of the amount.
    ^"^N APPLICATION for Writs of Certiorari and Mandamus.

      Theo. Cotonio for Relators.

      Respondents in proper person.
    Submitted on briefs February 6, 1897.
    Opinion handed down February 15, 1897.
   On Application for Writs of Certiorari and Mandamus.

The opinion of the court was delivered by

McEnery, J.

The relator sued for an undivided interest valued at three hundred dollars in certain property. The tax sale was attacked, and the defendant prayed in case judgment was rendered against him to be reimbursed the amount of the price of the adjudication of said property, and the amount of taxes which he had paid on same since the adjudication to him. The price of adjudication and taxes amounted to ninety-three 90-100 dollars. There was judgment for the plaintiff, annulling the tax sale, and for the defendant’s retention of the property until the above amount should be paid. The plaintiffs believing they were not bound for so much, but only for one-half of said amount, appealed to the respondent court. The appeal was dismissed, because it was from a reconventional demand, less than the lower limits of the jurisdiction of said respondent court. The relator now seeks the supervisory jurisdiction of this court to have said order of dismissal set aside, and the case reinstated on the docket.

There was error in treating the demand of defendant for reimbursement, and to remain in possession of the property until the amount should be paid as an independent and reconventional demand. No personal judgment could have been rendered against the plaintiffs for said amount. It was accessory to the suit and necessarily accompanied the judgment to be rendered in the case.

Article 210 of the Constitution says: “No sale of property for taxes shall be annulled for any informality in the proceedings until the price paid, with ten per cent, interest, be tendered to the purchaser.” We have held that this amount need not be tendered before the filing of the suit, but may await the judgment. No tax sale can be annulled until the amount ascertained to be due is paid. The decree ought to and usually does recite that the defendant retain possession until the amount is paid, whereupon the judgment annulling the tax sale becomes absolute. As stated this decree ordering the retaining of possession by the defendant is only a necessary sequence of the judgment, and not an independent demand.

The judgment was an entirety and incorporated as a part of it the decree for reimbursement and retention. It could not have omitted this. The appeal, therefore, as to the amount in dispute is the value of the property, for the possession of which suit was instituted, with the added reimbursement claimed by defendant.

The rule herein granted is made absolute and the relief prayed for granted.


author: Nichobbs, O. J.

text:
    No. 12,187.
    Julius Freyhan vs. W. H. Berry et als.
    Where one who has contracted for the erection of buildings and who claims that the instalment or instalments due the contractor are withheld, because of privilege claims against the contractor and the fund, brings suit against the contractor and those claiming amounts due with lien upon the building, but declaring that he deposits the instalments so withheld in court, but fails to make said deposit, lie does not bring about a concursas, there being no fund with • the court for distribution.
    When by final judgment the. court orders the plaintiff to make the deposit which he had failed to make as alleged by him, and renders judgment against him in favor of the different defendants brought into court, the plaintiff appeals suspensively from such judgment, the Supreme Court (to determine its jurisdiction) will deal with the different judgments as if adjudged in separate and distinct actions, and will take cognizance of only such judgments as exceed two thousand dollars.
    When the difference between an amount claimed against plaintiff by one of the defendants and the pro rata adjudged to him out of the admitted indebtedness of the plaintiff is less than two thousand dollars, the appeal will be dismissed
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Saunders, Miller, Smith & Hirsch for Plaintiff, Appellant.

      Harry H. Hall for Daniel Pike, Defendant, Appellee.

      John Dymond, Jr., and H. P. Dart for Defendants, Appellees.

      Benjamin BAee Forman for Sidney Patridge, Syndic of the insolvent Michael Ross, Defendant, Appellee.
    Argued and submitted December 16, 1896.
    Opinion handed down January 4, 1897.
    Statement of Case.
    Plaintiff alleged that he had entered into a contract with the defendant Berry to build several buildings for him for the sum of eighteen thousand two hundred and forty dollars, to be paid in seven instalments, payable as the work progressed; that the final instalment of twenty-six hundred and forty dollars was payable fifteen days after the completion of the buildings, and provided no liens should then have been recorded against the buildings; that Berry had erected the buildings; that petitioner had paid the first six instalments; that after said payments sundry persons had presented to him claims which they declared they held against Berry for labor performed and materials furnished in the construction of the buildings; that after the buildings had been completed and delivered to petitioner he obtained from the mortgage office of the parish of Orleans a certificate, from which it appeared that certain named persons and companies had asserted and recorded claims against the buildings as secured by privilege thereon, amounting in the aggregate to five thousand and forty-seven dollars; that he did not know whether Berry, the builder, who alone contracted all the debts, admitted the same as correct; that as the first six payments had been paid to Berry, according to the terms of the contract, before any of the said claims had been presented to him or recorded, petitioner was not liable to said parties for any sum beyond the unpaid seventh instalment of twenty-six hundred and forty dollars, and none of them could assert a privilege on the buildings after he should have paid out to whomsoever was entitled thereto the said sum of-twenty-six hundred and forty dollars; that the claimants could not agree on the distribution of said sum among themselves, and threatened suit; that some of them had already sued the plaintiff; that the respective rights of the parties could only be determined by calling them all into a concur sus, and having them examined into and adjudicated upon contradictorily with each other, with Berry and with petitioner. He deposited into court the said sum of twenty-six hundred and forty dollars for the benefit of said Berry and said claimants.
    In view of the premises, he prayed that, after due proceedings, there be judgment fixing the mode and rate of distribution among said claimants of said sum of twenty-six hundred and forty dollars and judgment contradictorily with said claimants; decreeing that petitioner was not liable for anything in excess of said twenty-six hundred and forty dollars, and that all the privileges and liens mentioned on the said certificate of mortgage be canceled and’ erased on said claimants receiving such pro rata of said twenty-six hundred and forty dollars, as they should be decreed to be entitled to receive in the judgment to be rendered in the premises.
    At the time this proceeding was instituted, petitions had been filed in the Civil District Court by four of the parties named in the certificates of mortgages against Julius Freyhan and W. H. Berry, asking judgment against them in solido. The first of these suits (docketed under the number 44,530)- was instituted on the 11th December, 1894, by the Central Manufacturing Company, asking judgment for thirty-one hundred and fifty-three dollars, with lien and privilege upon the buildings for materials and merchandise sold and delivered to Berry, to be used by him in the erection of the buildings. Plaintiff in that case averred that the buildings had been completed and delivered, and the price had been paid by Freyhan; that in due time and before said payment, and while there was money in the hands of Freyhan due to Berry, it had attested its account, recorded the same, and served the same on Freyhan; that the buildings were erected under written contract between Freyhan and Berry, which had been recorded in the mortgage office of the parish of Orleans. Plaintiff charged that Freyhan was solidarily indebted to it, because he overpaid Berry and paid him money in advance and in violation of the contract, and before the same became due, without the knowledge of petitioner, amounting to more than five thousand dollars, to his great loss and injury, and because it was his duty under the law governing such cases to see that no money was paid to the builder until claims like petioioner’s had been paid and secured.
    On February 4, 1895, this suit was transferred from Division “E” to Division “ 0 ” of the Civil District Court, and cumulated with the suit brought by Freyhan against Berry and the other lien claimants.
    The second suit was filed on December 13, 1894; John O. Beneke, subrogee, seeking judgment against Berry and Freyhan in solido for one hundred and sixty dollars, with recognition of privilege on Freyhan’s buildings.
    The third suit (No. 44,554) was filed December 13, 1894, by E. A. Mattes against Freyhan and Berry, asking judgment against them in solido for five hundred and forty-one dollars, with recognition of privilege on the buildings erected by Berry.
    The fourth suit (No. 44,363) was that of Daniel Pike against Berry and Freyhan, asking judgment in solido for-three hundred and seven dollars.
    The allegations of these last three suits were substantially those of the Central Manufacturing Company. The four suits were, by orders of court, cumulated with the present one.
    -The court rendered judgment in the present proceeding in favor of the Central Manufacturing and Lumber Company, and against Freyhan and Berry for three thousand one hundred and fifty-three dollars and interest, and recognizing the privilege claimed by them.
    In favor of Daniel Pike against the same parties for three hundred and seven dollars, with interest and recognition of privilege.
    In favor of Beneke against the same parties for one hundred and sixty dollars, with recognition of privilege.
    In favor of Mattes against the same parties for five hundred and forty-one dollars, with interest and recognition of privilege.
    Also in favor of Platesmeier, J. J. Clarke, John Bass, syndic, in sums aggregating seven hundred and forty-five dollars.
    The demand of Freyhan for the cancellation of the privileges existing in favor of these different parties was rejected and his suit dismissed.
    The court decreed with respect to the sum of twenty-six hundred and forty-one dollars (admitted by Freyhan to be in his hands subject to his order) that there be judgment against Freyhan in favor of the different parties to the suit (with the exception of Berry), and that said sum be deposited in court for distribution among said parties by appropriate proceedings, with reservation of their privilege on the buildings.
    Freyhan (the plaintiff) alone has appealed from the judgment. He has appealed suspensively. Michael Ross having gone into insolvency, his syndic made himself a party in this court and moved to dismiss the appeal; first, because the amount in dispute on his demand in reconvention, and for which he had judgment in the District Court, is only two hundred and fourteen dollars and below the jurisdiction of the Supreme Court; second, because there is no fund for distribution, none having been deposited in the lower court; third, because the plaintiff Freyhan had acquiesced in the judgment since the appeal was taken, he having paid a part of the judgment appealed from, particularly the judgment in favor of the Central Manufacturing Company, Beneke, John J. Clarke and Mattes.
   The opinion of the court was delivered by

Nichobbs, O. J.

The allegations made in the last ground for dismissal are given color to from the non-appearance in any way in this court of counsel who are certainly not chargeable with ever leaving unguarded the actual interests of their clients. We have not been informed what appellant complains of, nor as against whom his complaints are directed. We would be inclined to affirm the judgment itself under such conditions, as judgments of the lower court are presumptively correct and we could not be expected to seek to discover and prove them otherwise. We have, however, reached the conclusion that the appeal should be dismissed. Appellant failed to deposit any fund in court, and suspensively appealed from the decree that it should be so deposited. We do,not think the appeal can be sustained upon the theory that a concursus was brought about through the plaintiff’s suit. Whatever effect, as between the different parties claiming judgments against Freyhan and Berry, may have flowed from the fact that the different judgments rendered by the District Court in their respective favor, were rendered in one and the same proceeding, it can not be said it brought presently before the court any fund for distribution. (See Denegre vs. Mushat, 46 An. 90; Wheelwright vs. Transportation Co., 47 An. 540.) We have, for present purposes, to deal with the different judgments as if they had been adjudged in separate, distinct actions. This result carries with it as a consequence that none of the judgments below in which the matter in dispute was less than two thousand dollars have been brought up for review through this appeal. The only claim for over two thousand dollars which was involved in the lower court was that of the Central Manufacturing and Lumber Company, Limited. Was the situation of that claim in the District Court such as to authorize this appeal from the judgment rendered in respect to it? Freyhan, in his pleadings, acknowledged a liability of twenty-six hundred and forty dollars, either to Berry or to the laborers and material men who were brought into the suit. He stood indifferent as to the distribution of the fund between these different parties. When the court rendered judgment in this suit, the pro rata out of the amount admitted by Freyhan to be due, falling to the Lumber Company, under the decree was such that that amount being deducted from the total claim of the company left as the only amount in dispute between it and Freyhan and Berry a sum less than two thousand dollars. A controversy touching a liability of Freyhan for a larger amount to the Lumber Company would not sustain this appeal. The appeal would fall independently of any question of acquiescence or a payment by Freyhan of the judgment rendered touching it.

We think the appeal should be dismissed, and it is hereby dismissed.


author: Nicholls, C. J.

text:
    No. 12,350.
    State of Louisiana vs. F. M. Perkins.
    An objection o£ insufficiency of the description of the article stolen in an indictment urged for the first time in arrest of judgment will not prevail.
    UnderSec. 1017, Revised Statutes, upon objection properly made the description of the thing charged to have been stolen could, by the court, have been made to conform to the defendant’s requirements.
    APPEAL from the Tenth Judicial District Court for the Parish of Rapides. Hunter, J.

      M. J. Cunningham, Attorney General, and Phanor Breazeale, District Attorney, for Plaintiff, Appellee.

      Robert P. Hunter for Defendant, Appellant.
    Submitted on briefs January 9, 1897.
    Opinion handed down January 18, 1897.
   The opinion of the court was delivered by

Nicholls, C. J.

The defendant was convicted and sentenced under an indictment for larceny, in which the property stolen was described as “ one beef of the cow kind.”

He filed no demurrer nor motion to quash before trial, but reserved his present objection to the indictment to be advanced on a motion in arrest of judgment. Defendant cites a number of authorities to show that a description of so general a character of the thing stolen as that given in the indictment we are considering is insufficient. He particularly relies upon State vs. Hoyer, 40 An. 744, and State vs. Johnson, 29 An. 714, though he refers to State vs. Edson, 10 An. 229; State vs. Muston, 21 An. 442; State vs. Monroe, 30 An. 1242; Banks vs. The State, 28 Texas, 644; Stollenwerk vs. State, 55 Ala. 142; Wharton’s Criminal Practice and Pleadings, Sec. 209, and Wharton’s Criminal Evidence, Sec. 124.

In State vs. Johnson, cited, the charge was of larceny of “an animal of the cow kind.” The insufficiency of the description was set up in a motion in arrest of judgment. The complaint was that the indictment was bad for not specifying the particular animal of the cow kind charged to have been stolen. Of this the court said: “ It is certainly very loose pleading to charge simply the larceny of ‘ an animal of the cow kind,’ and it is too uncertain to be encouraged. This was, however, one of those things which, under Sec. 1047 of the Revised Statutes, the court might have permitted to be amended, it being in the language of the statute ‘ the name or description of a thing named or described in the information.’ While, however, we are not disposed to encourage so loose pleadings, we are not prepared to arrest the judgment for a matter which might have been, and (as the case then stood) may yet under leave of court be amended.”

In State vs. Thomas, 30 An. 601, where the property stolen was alleged to be “ one small hog of the value of five dollars, the property of James Galagher,” this court, referring to the motion in arrest of judgment urged by defendant, said: “ If — as it is — that description was incomplete, its incompleteness would constitute a formal defect, apparent on the face of the indictment, and defendant’s objection should have been taken and urged — not as it was — on motion to arrest the judgment, but by demurrer and a motion to quash the indictment before the jury was sworn. It is too late to do so after trial and conviction. (Citing in support of its opinion Revised Statutes, Sec. 1064.)

There is ,a growing tendency in criminal proceedings to cut off objections based upon matters which are the subject of amendment or correction, prior to trial, which are postponed to be urged for the first time after conviction. There is, to some extent, an aider by trial and verdict in criminal as well as civil cases. There was no attempt made by defendant here to hg,ve the indictment against him made more specific than it was. Had there been a call for specifications, or an objection made to the generality of the description, we assume that matters could and would have been made to conform to defendant’s requirements.

The Attorney General calls our attention in support of the indict - ment itself to State vs. Carter, 33 An. 1214, where defendant was indicted for stealing' “ one hog;” to State vs. King, 31 An. 179; 2 An. 295; 2 Bishop Crim. Law, Sec. 769; 2 Archibold (Pomeroy’s note), p. 1160, and particularly to State vs. Baden, 42 An. 295, in which defendant was charged with the larceny of “ one beef of the value of fifteen dollars, the property of A. T. Broussard,” and in which State vs. Hoyer is mentioned. The objection in State vs. Baden was urged through a motion to quash. The motion was overruled, and on appeal the action of the District Court was affirmed. In the present case we are not called on to go further than to say that as against an objection of insufficiency of description 'Urged for the first time in arrest of judgment the indictment must stand. The word “beef” conveys to the mind when used as clear an idea of a definite object as does pistol, hat, spade, or any other well-known word in common use. The addition to it of the words “ of the cow kind” does not weaken its meaning.

The judgment appealed from is hereby affirmed.