text:
    No. 13,314.
    M. F. Dunn & Bro., In Liquidation, vs. Springfield Fire and Marine Insurance Company, of Springfield, Mass.
    Syllabus.
    Where, in answer to a suit on a fire policy, it is charged that the claim made against the insurer is in furtherance of a systematic atttempt fraudulently to collect more than is due, and that, to that end, the plaintiffs have attempted, “both before and after the fire, to conceal the origin and prevent the discovery of said fire,” testimony tending to show that the connections of an automatic fire alarm, on the premises upon which the fire occurred, were cut, in order to prevent the existence of the fire from becoming known, and to bring home such cutting, or knowledge thereof, to the assured, who are the plaintiffs before the court, should not be excluded on the ground that neither incendiarism, nor a violation of the automatic fire alarm clause in the policy, are specifically charged in the answer.
    2. Where this court finds error in the ruling of a trial court excluding testimony upon a particular point, the case may be remanded, in order that testimony upon that point may be received,' without re-opening it to further evidence upon other issues.
    APPEAL from the Civil District Court, Parish of Orleans. — ■ King, J.

      Bernard McCloskey and Franh McGloin for Plaintiffs, Appellees.

      Ilowe, Spencer & Cocke (Farrar, Jonas & Krults'chniU, of counsel), for Defendant, Appellant.
   Statement of ti-ie Case.

The opinion of the court was delivered by

Monroe, J.

M. F. Dunn & Bro., doing business in New Orleans as stationers, bookbinders and lithographers, insured their stock of merchandise, fixtures, lithographic stones, machinery, etc., valued at $67,300.00, for a total of $50,500.00, pro-rated as follows:

1. — On stock of merchandise (valued at $20,000)..........$15,007 34

2. — On furniture and fixtures (valued at $2,000).......... 1,500 70

3. — On lithographic and other presses (valued at $7,500). . 5,62'i 72

4. — On lithographic stones (valued at $30,000) .......... 22,961 34

5. — On lithographic ink, etc. (valued at $1,000) .......... 750 43

6.' — On gas engine (valued at $1,200).................... 900 32

7. — Machinery, etc., of bindery (valued at $5,000)........ 3,752 15

Total................................$67,300 00 — $50,500 00

There was an inconsiderable fire upon October 12th, and a more serious one upon October 22nd, 1898, as the result of which, it is claimed that, the property insured was damaged, or destroyed, to the extent of $60,536.56, and that the loss to the insurance companies amounts to $48,465.25; and the defendant company is sued for its pro rata of this loss, upon two policies, aggregating $3,500.00

The defendant admits the issuance of the policies sued on and admits that the property insured was somewhat damaged by fire on October 22nd, 1898, but denies that the said property was worth the amount, or was damaged to the extent, claimed by plaintiffs; and the defendant alleges that, the plaintiffs, in their proofs of loss, and otherwise, orally and in writing, have made false and fraudulent statements, under oath, with intent to deceive the insurers and collect an amount in excess of the loss sustained; and that said firm, to that end, has systematically and persistently attempted to cause, increase and inflate the loss suffered by it; has attempted, both before and after the fire, -to conceal the origin, and prevent the discovery, of said fire, and to obliterate, and keep from inspection, books, papers, documents, records and facts, necessary and material to prove its actual loss; has made, or caused to be made, false, or fictitious entries in its books, and has claimed, in its proofs of loss, excessive or total loss and damage on property unharmed or only slightly injured; has claimed large sums for property admittedly worthless, and has grossly overvalued and over estimated the value of and loss to the property set forth in detail in their schedules and annexed to the proofs of loss, all for the fraudulent purpose aforesaid.”

The defendant further alleges that each of the policies sued on contains the following stipulation, to-wit:

“This policy shall be void if the insured has concealed or misrepresented, in writing, or otherwise, any material fact or circumstance concerning this insurance, or the subject thereof, or if the interest of the insured be not truly stated herein, or in case of any fraud or false swearing, by the insured, touching any matter relating to this insurance, or the subject ther'eof, whether before or after such loss.” And defendant avers that, “by reason of the premises aforesaid, said policy became, and is, null and void, and the plaintiffs are not entitled to recover anything thereunder.”

The judge a quo found the total loss, under all policies, to be $46,593.98, and gave judgment against the defendant for its pro rata of that amount; and the defendant, having appealed, presents the following reasons why the judgment so rendered should be reversed, to-wit:

“1. That the lower court erred in rejecting the testimony offered by the defendant to prove that the plaintiff had attempted before and after the fire to conceal the origin and prevent the discovery of the fire and to prove the allegations, of fraud set forth in the eighth para- * graph of its answer.
“2. That the plaintiffs failed to make out a case, in that, and in so far as, they did not show the actual cash value of the property alleged to have been damaged at the time said damage occurred, as required by the policies.
“3. That the evidence shows such conduct on the part of the plaintiffs as to constitute fraud, or attempt at fraud, and false swearing under the policies, and to release the defendant from liability.
“4. That, in any event, the judgment rendered is grossly excessive, and not supported by the weight of the evidence.”

Opinion.

Under the averments of the answer, charging the plaintiffs with fraud and false swearing, with intent to deceive the insurers and to collect an amount in excess of the loss, and the averment “that said firm, to that end, has attempted, both before and after the fire, to conceal the origin, and prevent the discovery of said fire — ”, the defendant offered testimony for the purpose of proving that the automatic fire alarm, established in plaintiffs’ store, was cut off, upon the evening of the night upon which the fire occurred, in order to prevent the discovery of any fire which might take place in said building, the defendant’s counsel further stating that they would endeavor to fasten such cutting off upon some one connected with the plaintiff firm. This testimony seems to have been objected to on the ground of irrelevancy and was finally excluded by the court a qua for reasons which were stated as follows, to-wit:

“By the Court. — -This same question was raised in this ease before, and the court ruled thereon. Since then the court has carefully studied the question, and has come to the conclusion that the defendant in this case cannot set up the defence, under its pleadings, or cannot offer evidence as to the defence, under its pleadings, that it now seeks to offer. There is no allegation in the answer charging a violation of the clause that the defendant shall keep an automatic alarm in that establishment. There is no allegation in the answer charging in any way upon the defendant, specifically, that he was instrumental in setting fire to that building, as a principal, or had others to do it. There are two parties before the court — the plaintiff and the insurance company. And when the insurance company seeks to escape liability upon a policy of insurance, the court is of opinion that it should set forth its defences specifically, so as to place the plaintiff upon his guard, as to what manner (of defence) he has to meet. An examination of the answer in this case satisfies the court that the plaintiff was not placed upon his guard, and no charge of incendiarism is made, and is not specifically pleaded. A general allegation of fraud and an attempt to conceal the origin of the fire and prevent its discovery is not sufficient for the defendant to introduce evidence leading up to a violation of the policy, by virtue of clauses which are made to protect an insuranee company from the assured setting fire to a building. For these reasons, the objections are sustained.”

We are unable to concur in this ruling. The defendant, in its answer, charges the plaintiffs with a persistent and systematic attempt to perpetrate a fraud for the purposes of the claim made by them under the contracts of insurance sued on, and makes the specific charge that the plaintiff firm “attempted,, both before and after the fire, to conceal'the origin, and prevent the discovery of said fire,” etc. The testimony which was objected to was offered for the purpose of showing that, in order to prevent the discovery of any fire which might take place in plaintiffs’ store, the automatic fire alarm, established in said store, was cut off, either by plaintiffs, or by some one acting in their behalf. The conduct thus charged would certainly amount to a violation by the plaintiffs of the contract under which they seek to recover, and the defendant was under no obligation to characterize it in any other terms than those used. Whether it amounts to incendiarism, or to a violation of the particular clause in the contract in question which relates to the maintenance of an automatic fire alarm, is wholly immaterial. The proof was offered to support the charge as made, and not to make out any technical case of incendiarism, or to show that the plaintiffs had specifically violated the automatic fire alarm clause of the contract, and, being in strict conformity to the charge as made, should have been admitted. The main defence is predicated upon the charge that the plaintiffs have been persistently and systematically attempting to defraud the defendant and other insurance companies, and the effort to conceal the origin, and prevent the discovery of the fire is specified as part of that fraudulent attempt. Under these circumstances, the door should be opened to all, proof, reasonably calculated to sustain the charge as made, and the fact that such proof might show conduct amounting to incendiarism, or amounting, to a violation of the automatic fire alarm clause in the contract, affords no reason for its exclusion.

In an action of this kind, where fraud is set up as a defence, even in general terms, a wide latitude should be allowed with respect to the admission of proof, and if the plaintiffs claim to be surprised, the trial court may afford relief by granting a continuance. Matthews vs. General Mutual Ins. Co., 9th Ann. 590; Gaidy vs. Lyons, 29th Ann. 4; 14 Amer. & Eng. Enc. of Law, second edition, pp. 195-7.

It is said by the counsel for the plaintiffs that it would not materially affect the result if the particular questions which were objected to were taken for confessed, and that it will therefore be unnecessary, in any event, to remand the case. We apprehend, however, that the matter is not to be dealt with in that way. It is true that the particular questions asked by the counsel for defendant served as the occasions for the objections upon which the judge ruled, but the objections themselves, and the rulings of the court, went much further than the questions, as may be seen from the language used by the judge a quo, which has already been quoted, and which was responsive to the statement made by the defendant’s counsel^ in answer to the objection and request for information of the counsel for plaintiffs, who said: “I object to it as being irrelevant^ and wish to know from my friend what line he proposes to open up by that question.” The question referred to was: “Now, sir, did you maintain that automatic fire alarm in your store during the time this policy was in existence?” But it was stated by the counsel for the defendant that he proposed to prove that the connections of the fire alarm were cut on the night of the fire, in order to' prevent the alarm from going out, and that they proposed, or would endeavor to fasten the cutting upon Mr. Dunn, “or some one connected with it” (meaning, as we understand it, some one connected with the firm of which Mr. Dunn was a member): And it was this “line” to which the objection was really made,, and upon which the court a qua ruled. If, therefore, anything is to be taken for confessed, it is what the counsel for the defendant proposed to prove and was not permitted to introduce evidence to prove, and not the answer to the particular question, which was merely the occasion and not the real cause of the ruling.

It is further suggested by the learned counsel that even if the court should conclude that the case must be remanded upon the issue of fraud, there is no good reason why the parties should not be held to be concluded by the transcript now before us as to the questions of the extent of the loss, and the values of the property affected, and the case remanded and opened only as to the issue first mentioned.

If, by this 'suggestion, it is meant that the casej, when remanded, shall be considered opened only as to the question which is here reviewed, the suggestion may be considered as adopted. But, if it is also meant that this court shall, in the meanwhile, and without waiting to ascertain what may be shown by the excluded testimony, proceed to decide the other issues in the case, the suggestion is not adopted. The charge of fraud is made against the whole conduct of the plain-, tiffs, in connection with the claim which they are here making, and should^ we think, be considered, at one and the same time, in connection with the different acts to which it is said to apply.

It is therefore ordered, adjudged, and decreed., that the judgment appealed from be annulled, avoided, and reversed, and that this cause be now remanded to the court from which the appeal was taken, with instructions to hear such testimony, otherwise admissible, as may be offered upon the question, whether the connection of the automatic fire alarm in the plaintiffs’ store was severed on the day of, or within a short time preceding, the fire out of which this suit has arisen, and, if so, whether the plaintiffs were parties to, or cognizant thereof.

It is further ordered, that the costs of the appeal be paid by the plaintiffs and appellees, and that all other costs await the final determination of the cause.


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 13,627.
    State of Louisiana vs. J. B. Atkins et al.
    Syllabus.
    Act No. 71 of the Acts of 1894, the title of which is: “To encourage the freedom of trade and to forbid the issuance by merchants or corporations of tickets redeemable only in goods at their place of business,” is held to be unconstitutional on the ground that its title indicates, and the act itself embraces, two or more distinct objects.
    APPEAL from the Eleventh Judicial District, Parish of Bed Eiver —Porter, J.

      Walter Guión, Attorney General, and W. A. Wilkinson, District Attorney, (Lewis Guión, of Counsel,) for Plaintiff, Appellant.

      Alexander & Wilkinson for Defendant, Appellee.
   The opinion of the court was delivered by

Blanchard, J.

Defendants were indicted, under Act 71 of 1894, for unlawfully issuing' tickets and cheeks redeemable only in goods at their place of business.

They appeared by counsel and moved to quaish the indictment on the ground of the unconstitutionality of the statute, setting forth in what particulars they deemed it unconstitutional and what provisions of the Constitution it infringed.

Erom a judgment sustaining the motion to quash, the State appeals.

The case is identical in its facts and law with that of the State of Louisiana vs. G. R. Eerguson et als, No. 13,625 on the docket of this court, just decided^ and for the reasons set forth in the opinion handed down in that case, the judgment herein is affirmed.

The Chief Justice, and Breaux, J., concur in the decree.


author: Breaux, J. Breaux, J.

text:
    No. 13,409.
    E. H. Chadwick vs. Menard Brothers.
    Syllabus.
    By Statute enacted in 1856, relative to rate oí interest, only the “owner” or “discounter” was authorized to capitalize interest at more than 8 per cent. This statute was interpreted to refer only to the discount of notes, bonds, and other similar paper.
    By Act of 1860, also relative to the rate of interest, the “owner” is permitted to exact a larger rate of interest than 8 per cent, when the interest is capitalized; and, in construing the statute, the rate was not limited to the “discounter.” The statute includes “owner” as well as “discounter.” Bank vs. Regan, 40th A. 17.
    The prescription of twelve months, when pleaded, is a bar to an action for the repetition of usurious interest.
    On Reheabing.
    Delay of payment of a loan, obtained for a price in excess of conventional rate of interest, is held to be without legal consideration, it not being a part of a written agreement covering principal and interest capitalized.
    IN RE Menard Brothers Applying for Certiorari or Writ of Review to the Court of Appeals, Parish of Orleans, State of Louisiana,

      Bernard TUche and Bernard I. Gabn for Petitioners.

      Benjamin Ory for Respondent, Chadwick.
   The opinion of the court was delivered by

Breaux, J.

The defendants, Menard Brothers, seek to have a judgment, originally rendered by the City Court, and affirmed on appeal to the Court of Appeal, decreed illegal. The said judgment condemns them, they aver, to pay excessive charges of interest.

The statement of facts, agreed to by plaintiff, Chadwick, and defendants, Menard Brothers, shows that five suits were instituted against the latter in the Fourth City Court of New Orleans on as many promissory notes on which plaintiff secured judgment, which was affirmed on appeal-to the Court of Appeal.

It appears, by this statement, that the notes sued on represent balances due after settlement at maturity of the notes given by the defendants. At these settlements, made when the notes became due, “the old ones were returned and new 'ones taken therefor and interest was calculated for the terms of the new notes, at the rate of two or three per cent, per month. This interest was paid either by check or with cash at the time when the new notes were given.” The claim would be nearly all liquidated by the amount paid, for asserted usurious interest if the court were to allow the repetition for which relator sues. Defendants pleaded usury in bar of the recovery of plaintiff, to which plaintiff, Chadwick, pleaded the prescription of one year.

Article 2895 of the Code of 1825 limited the maximum of conventional interest to ten per cent. The rate of interest was absolutely limited to that percentage, and interest in no way could be charged above that amount, and recovery of the principal was rendered difficult, if the rate stipulated was in excess of the ten per cent. Subsequent legislation limited the nullity growing out of usurious interest to the agreement for interest only and shielded the contract from attack on the ground of nullity, and the rate of interest was limited to eight per cent. Act 25 of 1844, p. 14. From the date just mentioned, the Legislature, at different times, gave the subject of interest some attention, which resulted in the enactment of several statutes in relation thereto. We are principally concerned with the interpretation of the act passed in 1856, and, afterwards, incorporated in R. C. C. 2924. It reads: “The owner or discounter of any note or bond, or other written evidence of debt for the payment of money, payable to order or bearer or by assignment, shall have the right to claim and receive the full amount of such note, bond, or other written evidence of debt, and all interest not beyond eight per, cent, per annum,, notwithstanding that the rate of interest or discount at which the same may be, or may have been discounted, has been beyond the rate of eight per cent, per annum; but this provision shall not apply to the banking institutions of this State in operation under existing laws.”

This article was interpreted in Crane vs. Beatty, 15th Ann. 329„ the court holding that the law had in view the sale of notes for the purpose of raising money, and that the words, interest or discount, used in the body of the act expressed the same idea. The court said, in substance, •that the provisions of the act could not be extended so 'as to authorize and legalize all transactions between debtors and. creditors wherein usurious interest is added to the sum really due (or capitalized), as a consideration for an extension of time, or for the indulgence of the creditor.

This decision was rendered in 1860. The same year the Legislature enacted another statute upon the subject of interest, which we judge was not considered at all by the court, in the 15th Annual case, as the claim passed upon was of a date long anterior to the passing of the statute just referred to, besides, the decision in question only refers to the Act of 1856.

The last statute provides that the owner of any promissory note, to order or bearer, shall have the right to collect it, although it includes a greater rate 'of interest or discount than eight per cent, per annum, provided that such obligations shall not bear a greater ratie of interest than eight per cent, after maturity.

The interpretation of the statute relative to interest came up again in 1888, in which year, in Bank vs. Regan, 40th Ann. 17, the court said: “Plaintiff appeals and complains in court that McCan’s mortgage should be further reduced by the amount of the usurious interest charged by McCan in the transaction. We do not see how this relief could be granted unless we should strike out Article 2924 of the Civil Code.” The court, in the ease from which we have just quoted, gave the following as the meaning of the statute, viz: The owner of a note, though it contain a greater rate of interest than eight per cent, per annum, “provided such obligations shall not bear more than eight per cent, per annum after maturity” shall be paid. The court, in that case, must have determined that the difference in the text of the statute of 1856, and that of the statute of 1860, justified a different conclusion from that arrived at in the case from which we quoted supra, i. e., Crane vs. Beatty, 15th Ann. 329. This latter interpretation has been followed in other decisions.

In Heirs of Williams vs. Sheriff, 47th Ann. 1285, the court said: “In the condition of our law and jurisprudence, it would serve no useful purpose to discuss the right of a mortgagor and borrower to contract for the payment of a greater rate of interest than eight per cent., provided it be capitalized and carried into the obligation,” citing R. C. C. 2924; Carruth vs. Carter, 26th Ann. 331; Martin vs. Sheriff, 37th Ann. 766; Bank vs. Regan, 40th Ann. 17; American Homestead Co. vs. Linigan, 46th Ann. 1119.

Again, in the matter of Leeds & Co. in Liquidation, 49th Ann. 509, the court said: “This was in the nature of an allowance of a higher rate than that of legal interest as a consideration for an extension of time for the payment of the principal, which is not considered usurious,” citing Foster vs. Wise, 27th Ann. 538. In this case a decision on the point was absolutely necessary in disposing of the question, and the meaning of the text is clear enough.

We understand the relator as conceding that the demand of a greater rate of discount than eight per cent, is permissible; but he contends, his client having paid cash for the extension, that his case does not fall within the permission of the stjatute just stated, for the reason, he argues, that there is' a difference between the cash payment of illegal interest and its inclusion in the note as part of the sum loaned; in other words, its capitalization. In a business sense, the difference between a promise to pay, which is included in the note, and the cash payment, amounts to very little, if anything. The consideration is the same, save that in the one case it is paid, and in the other it is to be paid. If the amount can be inserted in the note, and hold good as part of the note, it can as well be paid in cash. Where the transaction shows that cash was paid, representing the usurious interest, we think it as much protected in principle as the promise to pay which is capitalized and converted into an equivalent to cash. Both are, in reality, payments, one in cash and the other by’ converting a promise to pay into the equivalent of cash. After having approved, as legal, the promise to pay interest, as capitalized, there would be scant ground left to condemn, as usurious, the cash payments to the creditor instead.

Another question arises, upon which we specially rest our conclusion, even more serious and presenting greater obstacles to defendant’s plea of usury. More than twelve months have elapsed, and plaintiff interposes the prescription of one year as a bar.

In Walker vs. Villavaso, 18th Ann. 715, a case in point, the syllabus clearly sets out the principles laid down in the decision. A party, as in the case before us, paid a certain sum to obtain the extension of several notes. The court held that this payment could not be pleaded in satisfaction of the notes, and that the sum paid for delay was separate from the notes. The question was considered and passed upon in Boeto vs. Laine, 3rd Ann. 142, and in Cox vs. McIntyre, 6th Ann. 470. The court held that “sums distinctly paid as interest cannot now be recovered back, or imputed to the capital after the lapse of twelve months.” This position finds strong support in Perrillat vs. Puech, 2nd La. 421, in which it was held that money paid on an usurious contract could not be recovered back.

The right of the lender to compensation from the borrower for the loan made him dates from the earliest times. The rate has frequently 'given rise to discussion and legislation. It may be that it would be well to establish a maximum rate and not allow capitalization, but these are questions for the Legislature and not the courts to decide. Our predecessors have interpreted the will of the Legislature relative to the rate which can be charged and the time within which usurious interest-can be recovered.

We have found no good reason to change that interpretation, and, therefore, the application made for a writ of cerliorari, or writ of review to the Court of Appeal, is refused, the demand of the relator is rejected, and the rule msi, heretofore issued by this court, in this case, is recalled and discharged, at relator’s costs.

Monroe, J.. I concur in the decree.

On Rehearing.

Breaux, J.

Defendant complains of the decree in this case and says that it is admitted that the sums of twelve and 60-100 dollars, of three and 20-100 dollars, of two and 80-100 dollars, and four dollars have been paid as usurious interest on the notes in suits Nos. 2075, 1914, 1915, 1916, within the year preceding the institution of suits therein. These sums aggregate twenty-two and 60-100 dollars.

These amounts were paid within the year preceding the institution of said suits, and, in consequence, do not fall within the rule of prescription sustained in our original decree. The writer and organ of the court adheres to the view expressed in the opinion upon this point; that is, that there is in reality no difference betwieen payment in cash of usurious interest for the extension of a note and the capitalization of usurious interest in the note.

The majority of the court having concluded that bonus for an extension of time on a loan could not be recovered by the lender when in excess of the conventional rate, the decree is, accordingly, amended.

The majority holds that the hire of money is excessive and usurious, if not included within the terms of the statute, usually adopted to cover an excess over the conventional rate; that usury is against public policy and that excessive rates of interest agreed upon are not to he sanctioned unless they fall within the express provisions of the law; that interest not capitalized, in excess of the conventional rate, for the extension of the payment of a loan is not considered legal consideration.

It is, therefore, ordered, adjudged and decreed that the judgment rendered by the Fourth City Court, and that rendered by the Court of Appeal for the Parish of Orleans, in this cause, he amended by allowing defendant a credit of twenty-two and 60-100 dollars ($22.60) (in different amounts as before stated) on the respective amounts of plaintiff’s claim, to he credited from the date that the foregoing stated amounts were paid by defendants to the plaintiffs (i. e., each amount of plaintiffs’ claim is to he credited with the sum paid, for the time obtained for its payment as admitted), and that, as amended, the said judgment is affirmed; plaintiff to pay the costs in the Court of Appeal, and in this court.


text:
    No. 13,645.
    State of Louisiana vs. Young Wright.
    Syllabus.
    1. In an indictment for shooting with a pistol with intent to kill, the trial court charged the jury that one of two verdicts only could be returned— “guilty” or “not guilty.” No objection was raised on behalf of the accused at the time, no bill of exception reserved, and no special charge as to other verdicts requested. A conviction followed, and then, in a motion for new trial, it is set up that the court erred in the charge referred to, and that besides a verdict of “guilty,” or one of “not guilty,” 5t was competent for the jury to have returned a verdict of “assault with a dangerous weapon,” or of “assault with intent to kill,” or of simple “assault.” To the ruling of the lower Judge, refusing the new trial, a bill of exceptions was taken and the case brought here.
    Held : The objection comes too late when raised for the first time on a motion for new trial. The time to have raised it was at the conclusion of .the .charge. •
    2. The accused cannot be permitted to take his chances of acquittal under the charge as delivered, and, afterwards, when fche chance goes against him, object to the charge and urge it as grounds for new trial.
    3. Capital cases an exception to the rule.
    4. Admonition to District Judges to carefully instruct jurors as to the several verdicts that may be responsive under the law to indictments.
    APPEAL from the Fourth Judicial District Court, Parish of Lincoln — Dawkins, J.

      Walter Guión, Attorney General, and F. F. Preaus, District Attorney, {Lewis Guión, of Counsel,) for Plaintiff, Appellee.

      Barksdale & Barksdale for Defendant, Appellant.
   The opinion of the court was delivered by

Blanchard, J.

The defendant was indicted- for wilfully and feloniously, with a dangerous weapon — a pistol — shooting one Quincy LeGrand with intent to kill.

He was convicted and appeals from a sentence of twelve months at hard labor.

The case comes up on two bills of exception. Both are predicated upon motions for a new trial.

In. the first motion, as grounds for a new trial, it was averred tlie court, to the prejudice of the accused, had charged the jury that one 'of two verdicts only could he returned — “guilty,” or “not guilty.”

The motion was overruled and a bill taken.

The contention of the accused is that this charge was error; that besides the verdict of “guilty,” or “not guilty,” it was within the province of the jury, under the law and the indictment, to have found a verdict of “assault with a dangerous weapon,” or of “assault with intent to kill,” or of simple “assault.”

The judge, in the bill, says the failure to charge that other verdicts than that of “guilty,” or “not guilty,” could be found, was an oversight, but that neither defendant nor his counsel, both present at the tinm, raised any objection, and that, at the close of the charge, to the inquiry from the bench whether or not he desired any special charge given, counsel replied in the negative.

Ruling — This objection comes too late, when raised for the first time, on a motion for new trial. The court’s charge was not in writing. The objection should have been raised at the time the charge was given, or at once upon its conclusion, and a bill then and there reserved. The accused cannot be permitted to take his chances of acquittal under the charge as delivered, and afterwards^ when the chance goes against him, object to the charge and urge it as grounds for new trial. State vs. Bird, 38 La. Ann. 497; 35 La. Ann. 773; 34 La. Ann. 106, 1213; 45 La. Ann. 42; 41 La. Ann. 1066; 39 La. Ann. 229; 30 La. Ann. 536; 29 La. Ann. 364.

An exception to the above is made in’capital cases. Eor instance, in murder trials the charge of the court to the jury must inform them that, should they find the accused to be guilty of murder they may^, in their discretion, qualify their verdict by the addendum “without capital punishment,” or may, on an indictment for murder, bring in a verdict for manslaughter; and the failure to do this may be taken advantage of later, though not excepted to at the time of the charge. State vs. Brown, 40 La. Ann. 725; State vs. Obregon, 10 La. Ann. 799; State vs. Brown, 41 La. Ann. 410; State vs. Jones, 46 La. Ann. 1395; State vs. Thomas, 50 La. Ann. 148.

In the latter case, which was a murder trial, the court, on page 155, said, in substance, that the rule is limited to cases such as the one then before the court, and did not apply to trials for crimes of less magnitude than murder.

We deem this, however, an opportune occasion to admonish district judges that they should, in all cases where the law permits of other conclusions than that of simple “guilty” or “not guilty,” carefully instruct the jury as to the several verdicts that may be responsive to the indictment.

In the second motion for new trial it was averred in substance that one of the jurors (naming him), who had sat on the case, was disqualified and incompetent by reason of the fact that owing to prejudice against the negro race, to which the accused belonged, he was incapable of the same fairness and impartiality on the trial of a negro that would characterize him were a white man being tried for the same offence.

Evidence was adduced on the trial of this motion, and it all comes up attached to the bill reserved to the -court’s ruling denying the motion.

Ruling — It suffices to say that an examination of this evidence does not satisfy us that the charge against the juror of want of fairness and impartiality was made out.

Judgment affirmed.


text:
    No. 13,586.
    Succession of Jules M. Burguieres.
    Syllabus.
    1. To constitute an adjudication of property, owned in indivisión between a father and his minor children, to the former, something more is required than the recommendation of a family meeting that the adjudication be máde, than the appraisement of the property by experts, and than an order of court homologating and approving the proceedings of the family meeting.
    2. These are proper and necessary as far as they go, but in addition there must be a judgment or decree of court formally adjudicating the property to him, and this judgment, or an act of adjudication based upon the same, must be recorded in the mortgage records.
    APPEAL from the, Civil District Court, Parish of Orleans.— Ellis, J.

      Philip H. Mentz for Mrs. Ida L. Burguieres, Tutrix, Appellee.

      Saunders & Gurley for Movers to Correct Inventory, Appellants.
   The opinion of the court was delivered by

Blanchard, J.

The late Jules M. Burguieres was twice married. His first wife died February 28, 1890.

He opened her succession, obtained an order for the taking of an inventory of the property and effects of her estate and applied for confirmation as natural tutor to the children of the marriage, all of whom were then minors.

The inventory was taken, an abstract thereof recorded in the mortgage records and an order then issued for his appointment and confirmation as natural tutor and for the appointment of- Lenfray P. Patout as under-tutor.

They both qualified and letters of authority were issued to them.

A few days later Mr. Burguieres petitioned the court to have certain property which had belonged to the community between himself and his dead wife, and which was then owned in indivisión by him and his children (her heirs), adjudicated to him pursuant to the provisions of Article 343 of the Civil Code.

Experts were appointed by the court to estimate and appraise the value of the property and a family meeting was ordered convened to consider the advisability of the adjudication.

The experts duly appraised the property and fixed its value, and the family meeting was held and recommended the adjudication of the same to the surviving husband and father at the valuation fixed. In this recommendation the under-tutor concurred.

On the same day Mr. Burguieres applied to the court to homologate the proceedings of this family meeting.

The prayer of the petition was as follows:—

“That your Honor homologate the proceedings of the family meeting held before J. Sully Martel, notary public, on the 18th of March, 1891, advising the adjudication to Jules M. Burguieres of certain property belonging to the community heretofore existing between said Burguieres and his deceased -wife, Marie Corinne Patout, and inherited by the minor heirs of the latter, which property is fully described in said proceedings, at the price of the estimation placed thereon by the experts appointed.”

Whereupon the clerk of the court, in the absence of the judge from the Parish (St. Mary), made and signed this order:—

“Let the proceedings of the family meeting of the friends and relatives of the minors, J. P., Denis, Joseph E., Mlarie Louise, Florence 0., Jules M., Ernest, ITenry I. and Charles P. Burguieres be and they are hereby homologated and approved.”

The family meeting had done nothing more and could do nothing more than advise and recommend the adjudication.

The petition to the court which followed prayed only that the proceedings of the family meeting be homologated.

There was no prayer for an order, decree, or judgment adjudicating the property to Mr. Burguieres.

The only order in the premises was made by the clerk of court, and that did nothing more than approve and homologate the proceedings óf the family meeting. It does not purport to adjudicate the property.

There does not, then, appear to have been either a decree of adjudication of the property to Burguieres, nor the execution of any kind of an act making the title over to him). Neither were the proceedings of the family meeting or the order of the clerk homologating the same recorded in the conveyance or mortgage records of the parish during his lifetime.

Less than a month following the holding of this family meeting Mr. • Burguieres married a second time.

Some four years later, in March, 1895, he presented a petition to the court wherein he averred that on the advice of a family meeting held in March, 1891, certain property was “by the order homologating the proceedings of said family meeting adjudicated to him as surviving partner in the community which had existed between himself and his deceased wife.”

It was then set forth that he desired to be authorized to give a special mortgage in lieu of the general mortgage resulting from the adjudication then made to him.

The prayer of the petition was that a family meeting be convened to advise touching the interest of his minor children “in the matter of annulling 'the mortgage arising from the aforesaid adjudication and substituting therefor a special mortgage on the two plantations above referred to.”

These plantations were those which figured on the inventory as the “Cypremort” and “Elorance” plantations.

The family meeting was ordered and held. It advised that certain described property:

“be released from the-general mortgage now existing in favor of the said minor children, which mortgage results from the adjudication to said Jules M. Burguieres of a ^art of the said community property under the advice of a family meeting held before the same notary public on the 18th of March, 1891, duly homologated and approved and * * * in lieu thereof that the said Jules M. Burguieres be and he is hereby authorized and empowered to substitute therefor a special mortgage in favor of his said minor children for the sum of $75,644, this being one-half of the price at which the said property held in common between him and his said minor children was adjudicated to him.” '

This was followed by advising upon what property the special mortgage should be placed, which was the “Cypremort” and “Elorance” plantations aforesaid.

The under-tutor approved these recommendations, and the judge made an order homologating the proceedings and directing that the proposed special mortgage:

“be accepted and that the general mortgage resting on the property adjudicated to J. M. Burguieres on March 18th, 1891, be annulled.”

On the same day the special mortgage was executed, the under-tutor accepting same for and on behalf of the minors. It was duly registered in the mortgage records on April 8, 1895.

In October, 1899, Mr. Burguieres died. His succession was opened ip the Parish of Orleans where he then resided.

On the inventory taken of the property of his estate the “Cypremort” and “Elorance” plantations were put down as belonging at the time of his death io himself and his -children of the first marriage.

In other words, the position was taken that no sufficient adjudication of the minor’s interest in the property had ever been made to divest their title and to invest the ownership of the same solely in the father.

Whereupon, his surviving widow, who had qualified as natural tutrix of her minor daughter, the only issue of the second marriage, brought the present action to have the two plantations aforesaid declared the separate property of her deceased husband, as having been duly adjudicated to him as surviving spouse in community of the first marriage, and to have the inventory corrected so as to show ownership of the Whole of said property in the succession of Jules M. Burguieres, instead of the undivided half thereof.

The prayer is that the property be decreed to have been duly 'adjudicated to said Burguieres before his marriage with the petitioner.

Before the suit was brought- she caused the proces verbal of the family meeting which advised the adjudication, together with the petition for its convocation, the order therefor and the arder homologating the proceedings, to be recorded in the»mortgage records of the Parish of St. Mary. This was six months after the death of Jules M. Burguieres.

It does not appear that registry of the same ever took place in the conveyance records of the parish.

The testamentary executors of the deceased, the major heirs of the first marriage, and the tutor of the minor heirs were made parties defendant.

They answered to the effect that no sufficient legal or valid adjudication of the interest of the children of the first marriage in the property had ever been made or perfected to their father during his lifetime,, that the same had continued to be owned by him and his said children of the first marriage up to the time of his death, and that, therefore, the inventory correctly described and fixed its status.

The judgment below held the adjudication to have been sufficient and ordered the inventory corrected so as to show full ownership of the property in the deceased at the time of his death.

This appeal by the executors and heirs followed.

'The question arising for determination is: — Did the acts and things done relied on by plaintiff as establishing Burguieres’ acquisition of his deceased wife’s interest in the property constitute its adjudication to him?

Did his petition for the adjudication, the appraisement by experts, the recommendation of the family meeting and the order approving and homologating this recommendation — nothing else, not even registry in the conveyance and mortgage records — suffice to divest the ownership of the minors in the property?

We must hold not. The law contemplates a formal order, or judgment, or decree of adjudication. This is something very much more than a mere order homologating the proceedings of the family meeting. The order of homologation was proper and necessary and good as far as it went, but it did not go far enough. It should have been followed by a decree of adjudication.

O. C. 343, which is the law authorizing the parent to thus acquire the interest in property held in indivisión with the minor children, recites that such parent may “cause to be adjudicated” to him or her after a family meeting shall have declared that the adjudication is for the interest of the minor.

“Adjudication,” in the sense of this article of the Code, means “an assignment by judgment; the adjudging of the ownership of a thing by a court.”

See Burrell’s law Dictionary, verbo “Adjudicatio.”

This author says, referring to and naming three actions for partition recognized by the Roman Civil Law:—

“In these actions the judge has the right to adjudge to one or the other of the co-heir or part owner the exclusive proprietorship of a thing hitherto1 held in common, and his judgment transfers, ipso jure, the property in the thing adjudged.”

The family meeting must act favorably on the proposition to adjudicate, the court must approve and homologate these proceedings, and then must follow a formal judgment or decree making the adjudication. Without the latter the investiture of the title in the parent does not take place.

There has been here no act of adjudication such as the law directs.

“When mortgagable property has been adjudicated to either parent of the minor,” declares R. S. 2363, “the act of adjudication shall be recorded in the book of mortgages in the parish in which the property is situated, and it shall operate a mortgage and vendor’s privilege; the amount of the value of the property, as stipulated in the act, shall operate a mortgage against such property in favor of the minor; and no such adjudication shall have any legal or bindlmg effect until such record is made.” (Italics ours).

Not only must there be a decree of adjudication, but this decree or act of adjudication must be registered as R. S. 2363 directs. Else there is no divestiture of the title of the minors.

In Winters vs. Tournoir, 25 La. Ann. 611, the court said:—

“John C. Clark, the father, of plaintiff, died in 1853, leaving a widow, two minor children and a considerable estate, all community property. One of the children died soon after and on twenty-eighth March, 1855, judgment was rendered and signed, adjudicating all the property to the widow at the appraised value, which judgment was recorded, etc.” (Italics ours).

Further along in the same case, the court said:

“The judgment, which in this instance is the act of adjudication, stipulating the amount of property held in common with the minor and adjudicated to the widow, was duly recorded in the book of mortgages and was, we think, a compliance with the said law.”

This authority is pertinent here in that it sustains the view that a judgment or decree of adjudication is necessary.

The same is true of Succession of Boullemet, 39 La. Ann, 1046, and of Orr vs. Thomas, 3 La. Ann. 582.

In Heirs of Bedell vs. Hayes, Tutrix, 21 La. Ann. 643, language is used which would seem to indicate the view of the author of the opinion to be that the mere approval and homologation of the proceedings of the family meeting recommending the adjudication sufficed to transfer the property. But the facts of that case are considered too dissimilar, and the point at issue too inapposite, to constitute it an authority to be followed here.

What was done in 1895, looking to the substitution of a special mortgage in lieu of the general mortgage, did not have the effect of curing the antecedent lack of formal adjudication of the minors’ interest in the property to their father.

The status of the property as to its ownership, between the father and his children, is to be judged at the time the father died. The registry in the mortgage book, subsequent to his death, of the proceeedings of the family meeting held in 1891, and the order of court homologating same, did not alter that status, which was one of ownership in indivisión between the father, 'on the one hand, and his children of the first marriage on the other hand.

For these reasons, it is ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, and that the demand herein be rejected at plaintiff’s costs in both courts.


author: Nicholls, C. J.

text:
    No. 13,595.
    New Orleans and Northwestern Railway Company vs. Linehan Ferry Company.
    Syllabus.
    Courts will not construe contracts until actual issues have arisen from them.
    APPEAL from the Tenth Judicial District, Parish of Concordia— Dagg, J.

      Lazarus & Luce for Plaintiff, Appellant.

      Samuel L. Elam for Defendant, Appellee.
   The opinion of the court was delivered by Nicholls, C. J.

Statement of the Case.

Nicholls, C. J.

The plaintiff alleged lihat it was a railway corpora-

tion organized under the laws of the State of Louisiana, and of the State of Mississippi; that it entered into & certain contract with the defendant, a copy of. which was annexed to its petition, to transfer its engines, cars, passengers and freight across the Mississippi Eiver from Natchez to a point opposite; that by its terms, the contract would terminate on the 1st of November, 1900; that the right-of-way, road-bed, rails, fastenings, on both the Louisiana and Mississippi sides of the river, belonged to it; that they were furnished to the defendant for the purpose of assisting it and enabling it to carry out the contract; that it was entitled to have the same returned and delivered to it at the termination of the contract; that it had notified defendants that it would exercise, after the 1st of November, its right of performing its own transfer by boats, etc., of its own freight, etc., and would not exercise the option given it in the contract of buying the boats, etc., of the defendant company; that the defendant was claiming and pretending that the contract did not terminate on the 1st of November, 1900, but would continue until terminated by mutual consent, and it claimed the ownership' and the right of possession of the property on the inclines, Until the termination of the contract under its view as to the date of that termination; that this claim was illegal and unwarranted, and was giving plaintiff great trouble and injury, and it was important to plaintiff to have it presently declared to be incorrect, as it ivas necessary for plaintiff to know the fact before going to the outlays called for by the building of boats, etc., for itself, to supersede those now furnished it by the defendant.

In view of the premises, it prayed that the defendant be cited, and that plaintiff recover judgment, recognizing the termination of said contract as taking place from and after November 1st, 1900, recognizing the right of petitioners to construct and complete, or to have constructed and completed, and thereafter to operate its own transfer plant and property, and to do and perform its own transfer service, and recognizing and declaring petitioner to be the owner of the rails and fastenings in use by the defendant in the inclines, on both sides of the Mississippi River, and on the transfer barge, and that defendant be ordered to remove from the premises of petitioner, as speedily afe possible, from and after November 1st, 1900, all of its property and effects; and that the defendant be enjoined and restrained from interfering or attempting to. interfere with, or obstruct petitioner in the construction or completion of the transfer, inclines, cradles ánd any or all parts of the transfer plant and property necessary for the performance of transfer service by petitioner; and that the.injunction be perpetuated.

Defendant, after pleading the general issue, admitted having made a contract 'with the plaintiff, as shown by a copy of the same, annexed to its answer.

It alleged that, as shown by the same, it could not be terminated except by consent of all parties; that it was not willing that the contract should end on the 1st of November, 1900; that it denied that plaintiff had any right to apply to the court for the purpose of raising the question as to what time the contract should end, because it was distinctly understood that the contract should exist until it was dissolved by mutual agreement of the parties.

It further declared that, it was willing to continue, until the contract was ended by mutual consent of both parties, to perform for the plaintiff the same service that defendant had rendered plaintiff since the execution of the contract, and for the same compensation paid by plaintiff for said service, being the same compensation and service as stated in tlie contract. Defendant asked that such right be granted and enforced, but that in the event the court should hold that the contract did not cover such a right, then the defendant asked, without waiving any of the above rights, that the court decree in favor of the defendant any other right arising from the contract.

Defendant averred that the incline cost it the sum of fifty thousand dollars to have the same constructed, and that it was still worth said sum, as the same was in as good a condition as when constructed; that all of said inclines were the property of the defendant, including the barge and tug, except the rails and fastenings on the incline, which did not include the rails and fastenings on the cradle, the wedge rails and cradle points; that before the plaintiff company would agree to the construction of the railroad, it required contribution from the people in Mississippi and Louisiana, amounting to something over five hundred thousand dollars, and. that the amount had been paid in taxation in Mississippi and Louisiana, and some part thereof by voluntary contribution from individuals in money and in land; that said railroad had only constructed a line from Natchez, Mississippi, to Bastrop, Louisiana; that if the court should hold that the contract ended on the 1st of November, 1900, and that defendant was not entitled to any rights under the contract, then the inclines would be of no value to defendant', as the same could not be removed or used by defendant for any purpose.

In view of the premises, defendant prayed that plaintiff’s demand be rejected, and that the court decree said contract to be valid between the parties, and that the same could not be set aside or terminated except by consent of the parties; further, that all the rights granted by said contract in favor of defendant, be enforced, and defendant be decreed the owner of said property.

It was admitted on the trial, that all the rails, fastenings in the inclines, and cradle, belonged to the railway company, except the cradle points and swinging rails, and that the rails on the barge were included in the sale of the barge to the barge company. It was further agreed, that all the material and parts of the incline, other than the rails and fastenings above mentioned, were the property of the transfer company. It was admitted, that the incline and barge for the transfer business could not be constructed and completed in less than ninety days, so as to be ready for transfer service.

The district court rendered judgment, dismissing the case as of non-suit- — the judgment reading:

“The court, in this case, seems to be called on to construe an agreement, none of the stipulations of -which have been violated by either of the contracting parties, and is asked to render a judgment, which, so far as I am able to see, can have no other effect than to advise the litigants as to the course they should pursue in the future. It is not the province of courts to decide abstract questions, and the issue presented to the court in this case can hardly be considered in any other light.
“Certainly neither of the parties is demanding present relief, and under the pleadings and evidence, no judgment could be rendered which could be enforced by any order, writ, or process from this court. It will be observed that the only relief susceptible of present enforcement that plaintiff asks, is that defendant be enjoined from interfering or attempting to interfere with him in the construction and completion of the transfers, inclines, etc.
“He does not allege nor prove that defendant has interfered with him in his proposed constructions, or that he contemplates doing so. Without some evidence of such wrongful acts or contemplated acts on the part of the defendant, it would not be proper to issue an injunction.
“It has been held that even apprehension of a threatened wrong is not enough to justify the issuance of the writ. A. & E. Ency. of Law, vol. 10, p. 783; 2 Xnn. 337.
“Under the pleadings and evidence in this case, I doubt whether the court has any jurisdiction. See A. & E. Ency. of Law, vol. 12, p. 301, note 3. In any event, I do not think the plaintiff has set forth a state of facts which justifies the interference of the court just at the present time.
“It is, therefore, ordered, adjudged and decreed, that the plaintiff’s' demand be dismissed as in case of non-suit.” ■

The plaintiff appealed.

Opinion.

We understand the desirability to the plaintiff of a judicial construction at the present time, of the contract referred to in the pleadings, but it is not our province to construe contracts independently of existing issues arid controversies making the same necessary. This case, as properly stated by the district court, calls for no action of the court, under present circumstances.

The disposition to be made of it is controlled by the principles announced in the St. Mary’s Wholesale Fruit and Vegetable Market Co. vs. City of New Orleans, 47 Ann. 212; Railroad Company vs. Construction Company, 49 Ann. 51; and State ex rel. Marr vs. Otero, 52 Ann. 1.

Eor the reasons assigned the judgment appealed from is affirmed.


author: Breaux, J.

text:
    No. 13,660.
    State of Louisiana vs. Nathaniel Washington.
    Syllabus
    1. In a prosecution for assault to commit' rape, the one question propounded in general terms: “Has complaint been made'!” and the answer “yes” or “no,” do not indicate that any indignity has been offered, nor do they prove, or tend to prove, that defendant is guilty of having attempted to commit the crime charged. ,
    The following, from Greenleaf, sufficiently points out the character of the question to be propounded, which, while not sacramental as to form, sufficiently indicates that it must appear that a crime is referred to. “The practice has been merely to ask whether she made complaint that such an outrage had been perpetrated upon her and to receive only a simple ‘yes’ or ‘no.’ ” Unless it appears that the question tends to the proof of a crime, and a complaint in that direction, it will not be held that the ruling was prejudicial and the finding of the jury erroneous.
    But, considered as a proposition of law, the mere fact of a complaint of a wrong attempted made by an asserted victim of an attempted crime upon her person to a third person, if contemporaneous, and part of the res gestae, may be testified to by a third person to whom the complaint was' made.
    2. A witness may testify as to the identity of the defendant as one whom she knows, without giving ground for the objection that the defendant in a case of rape, or attempted rape, should be identified by the one upon whom the outrage has been committed, or, upon whom the attempt was made.
    0 N APPEAL from the Fifteenth Judicial District, Parish of Calcasieu — Miller, J.

      Walter Guión, Attorney General, Joseph Moore, District Attorney (Lewis Guión of Counsel), for Plaintiff, Appellee.

      Robert L. Bolden for Defendant, Appellant.
   The opinion of the court was delivered by

Breaux, J.

The defendant was brought-before the court to answer to an indictment charging him with an assault with intent to commit rape upon a child named in the indictment, aged less than ten years.

lie was found guilty as charged, and was sentenced to a term of five years in the penitentiary. lie appeals, and sets out his grounds of appeal in three bills of exceptions.

By the first bill of exceptions, his (defendant’s) contention before this court is that the trial judge having decided that the one upon whom the assault with intent to rape had been committed was not a competent witness, testimony of any complaint made by her was not admissible. The child in question was not permitted to testify, for the reason, the trial judge held, that “though she had an intelligent face, she was only three years old.”

'Jfhe question propounded by the prosecuting officer to a witness, Mrs. Brown,, to whom it was asserted complaint was made by the child, was.: “Did the child malse any complaint to you ?” In support of his ruling admitting the testimony, the trial judge stales, and incorporated his statement in the bill of exceptions, that he permitted the witness to answer to this question “yes” or “no,” and that is all she was permitted to say in reply.

It appears that, subsequently, during the course of the trial, on account of her tender years, the court ruled that this child was not a competent witness. The question before us for decision grows out of the asserted inadmissibility of the testimony of Mrs. Brown, for the reason that, as the child was not a competent witness, no statement of hers, made to a third person, was admissible. In other words, that Mrs. Brown could not testify that the child had made a complaint; that no one could be heard to say, as a witness, that she, whose testimony was excluded, had complained.

The issue, as presented, does not seem to us to have been in the least prejudicial to the accused. He was not charged with an offence, either by the question or the answer, nor is it intimated by either the question or the answer that the child complained of any indignity offered to her by the defendant or any one else. The nature of the •complaint (in so far as relates to the question propounded) is left to conjecture, and the question is not, with any degree of certainty, directed to elicit information as to whether an assault of any description had been committed. True, in direct examination, no statement was admissible from the asserted victim of details of any offence, and nothing was admissible pointing to the defendant as the guilty party, but enough statement was admissible to indicate that, the child had been submitted to some sort of indignity. It should be made to appear as a fact that complaint was made of the injury by the alleged victim. “On the direct examination, the practice has been merely to ask whether she made complaint that such an outrage had been perpetrated upon her and to receive simple ‘yes,’ or ‘no.’ ” Green-leaf, Ev., sec. 213. On cross-examination further latitude is permissible and further details may be inquired into. Here there was nothing of the sort. The defendant did not press the inquiry.

While it is true that a statement of the particulars is not admissible, the answer sought from the witness on direct examination, in order that it may have any bearing upon the case, must be specific enough to indicate that it is a complaint of a crime which defendant attempted to perpetrate.

Conceding for the moment that the question objected to, as before stated, sufficiently indicates that some one attempted to commit a crime, even then the decisions are not of one view upon the subject. In a case of comparatively recent date, it was decided that on an indictment for an assault with intent to commit rape on a female under seven years of age, there was no error in allowing the mother to testify that, immediately after the time at which it was laid, the child complained thereof, and, also, of a pain in her abdomen. Territory vs. Goffery, 50th Northwestern, p. 481. Roscoe’s Criminal Evidence is referred to as sustaining that view. ' “It thus appears that these cases are unanimous, that where the person who makes the complaint is called as a witness and is competent, the fact that the complaint was made, and the hare nature of it may be given in evidence. Where the person who makes the complaint is not called as a witness, or, on being called, is found to be incompetent, the decisions are found to be somewhat conflicting. On the one hand, it has been'sought in such a ease to introduce the whole statement; on the other, attempts have been made to exclude, under these circumstances^, all evidence about the statement whatever. Both contentions have some countenance of authority, but it is conceived that neither is strictly accurate, the rule being, as is submitted, to admit evidence of tihe fact of complaint in all cases, and, in no case, to admit anything more.” (Italics ours.)

We must say that, considered as part of the res gestae, also, we are of the opinion that .the testimony is admissible.

We will not attempt to reconcile the conflicting opinions upon this point, but we have not found wherein the defendant could have been prejudiced by the question and the answer sought to be obtained, “yes” or “no.” That is the only ground on which objection is made.

This brings us to the consideration of the second bill of. exceptions to the court’s ruling in permitting the district attorney to propound the following question to a witness: “Do you know Nathaniel Washington?” This was objected to by counsel for the accused upon the ground that the injured party was the one to identify the accused and not the witness who was then being examined. The objection was overruled by the court for the reason that it was pertinent to inquire of the witness if she knew the accused. ,

We take it that it was assumed by the court that the purpose of the question was to identify the accused in connection with the alleged crime. Here, again, we do not find that any prejudicial error was committed. If this witness knew the defendant, there was no good reason to exclude her testimony. The identity of the defendant as one Nathaniel Washington, whom this witness knew, -did not connect him in any manner with the crime charged. Moreover, even in case of rape, or of an attempt to commit rape, a witness may be asked,, if it be within her own knowledge, by whom the offence was committed, when the one upon whom the crime has been committed, or the indignity offered, is not mentally in a condition to testify.

The third bill of exceptions sets out that the child upon whom the alleged rape, or attempt to rape, was committed, having been pronounced incompetent to testify on account of her tender years, the court should have excluded the previously admitted testimony of a witness regarding a complaint made by the child, as before stated, for the reason that the child was not a competent witness. (We will here state that no objection was urged by the prosecution to the court’s ruling excluding the testimony of the child.) The ground incorporated in this bill has, already, been passed upon in deciding the two other bills, and pronounced not tenable. No further comment need be made upon the subject.

We have found no good reason to set aside the verdict of the jury and the judgment of the court.

It is, therefore, ordered, adjudged, and decreed that the verdict and judgment are affirmed.


text:
    No. 13,617.
    Louis Grunewald Company, Limited, vs. C. J. Thompson.
    ' Syllabus.
    The rights of a wife in community cannot be advanced to the prejudice of the claims of community creditors. Movables sold to the community on a credit pass to the wife, under a nation en paiement from the husband, subject to the privilege of the vendor.
    Certified from the Court of Appeal, Third Circuit, by the Judges thereof, applying for instructions.
   The opinion of the court was delivered by

Nicholls, C. J.

The Court of Appeals for the Third Circuit, stating that the above case is before it on rehearing, “submits to us the following propositions, asking for instructions before deciding it”:

1st. Can the wife be considered a third party without notice in a dation en paiement in reference to her husband’s creditors ?

2nd. Is there a presumption of law precluding her from showing that she had no actual knowledge that a privilege existed on property acquired by her from her husband by dation en paiemsnt, made during the existence of the community?

3rd. Is the question of good or bad faith an element to be considered in such a controversy?

Accompanying the questions is the following statement of the pleadings and facts of the ease:

Pleadings.

Plaintiff sues defendant for the sum of one hundred and sixty dollars, balance of the purchase price of a piano, and prays for the recognition of his vendor’s privilege thereon. A writ of sequestration issued in the suit, and the piano was seized thereunder.

Lelia Lott, wife of the defendant, Thompson, filed an intervention in the suit, in which she claims the ownership of the piano by virtue of a dabion en paiement made to her by her husband.

Facts.

Plaintiff, Grunewald, sold the piano to the defendant, Thompson, on the 15th of July, 1896, and Thompson on the 30th of January,' 1899, about two years and six months after he had acquired the piano, transferred it to his wife by elation en paiement.

The piano was sold to Thompson on credit. The wife testified that she knew her husband had bought the piano on credit, but said that she did not know when she acquired it, that ¡a balance of the purchase price was still due on it.

The elation en paiement was passed by notarial act and duly recorded more than seven months before this suit was instituted, and the piano sequestered, the validity of the daiion en paiement is not questioned.

The district court rendered judgment in favor of the intervenor, Mrs. Thompson. This judgment was affirmed, at first, by the Court of Appeals, but a rehearing was granted.

Opinion.

The privilege involved in this case is the vendor’s privilege. By Article 3227 of the Civil Code, the unpaid vendor has a preference on the price of his property over the other creditors of the purchaser, “if the property still remains in the possession of the purchaser.” Under the statement of facts submitted, the piano sold by the plaintiff company was purchased by O. J. Thompson, during the existence of the community of acquets and gains between himself and the intervenor, and it was, also, during the existence of the community transferred by the husband to the wife by way of "dabion en paiement.”

We are of the opinion that under that condition of things, it went into the wife’s ownership affected with the vendor’s privilege, and that her right of ownership is subordinated to the right of the community vendor.

We have, on a number of occasions, held that the rights of a wife in community cannot be advanced to the prejudice of the claims of the community creditors — this independently of any question of a technical privilege. See the Succession of Dejean, 5 Ann. 593, and the decisions of this court affirming the principles therein announced.

It was precisely for this reason that Mr. Justice Breaux and the writer declared, in Hewitt vs. Williams, 47 Ann. 742, in reference to the asserted rights of Mrs. Williams, that “the circumstances connected with the dation set up, are not such as to call for a decision on the question of privilege as affected by the sale of the property.”

Watkins, J., dissenting, handed down a separate opinion.


author: Watkins, J.

text:
    No. 13,650.
    State ex rel. Fred. Haab vs. James C. Moise, Judge of the Criminal District Court for the Parish of Orleans, Section “B.”
    Syllabus.
    As the only evidence which the Supreme Court Is authorized to review in a criminal case, is that which is annexed to and forms a part of a bill of exceptions appertaining to some question of law, the trial judge should not allow testimony exclusively applicable to the merits of the cause to be incorporated in the transcript of appeal; and mandamus will not go to compel him to do so in case he has refused to allow such testimony to be thus incorporated in the transcript of appeal.
    ON Application for Writ of Mandamus.

      Chandler C. Luzenburg for Relator.

      Walter Guión, Attorney General, and J. Ward, Gurley, District Attorney, (Lewis Guión, of Counsel,) for Respondent.
   The opinion of the court was delivered by

Watkins, J.

Alleging that he had been convicted of manslaughter in the respondent’s court, and had prosecuted an appeal to this court from the judgment of conviction, the relator applies for relief by way of mandamus in aid of his appeal, on the following grounds, viz:

“That petitioner reserved many bills of exceptions upon the trial of the said ease, which are now part of the record and contained in the transcript of appeal. That the testimony of the witnesses was taken by the official stenographer of the court as provided by Act 132 of 1898, the stenographic notes transcribed, and a copy furnished to petitioner, after motion made by his counsel in open court, as appears on page 18 of transcript of appeal.
“That the relator desired to have the said testimony before the Honorable the Supreme Court, and in filing his motion for a new trial, made the entire testimony, as taken by the official stenographer, part of his said motion. Transcript page 24.
“That this testimony, relator believes in the interest of justice, should be before the Supreme Court, in order that defendant’s bills of exceptions should be thoroughly understood, and so that defendant can show that the facts as set forth in his bills of exceptions were in evidence.”

His further averment is, that he made reference to the aforesaid testimony in his various bills of exception, and that the respondent not only refers to same in his different rulings in the bills of exceptions, but made extracts therefrom in support of his conclusions, and that, in consequence thereof, it will be necessary that this court should have said testimony before it in examining the case on appeal.

He further avers “ that he believes that this testimony will show that the trial judge, in his statement * * * that -there were no facts in the case to justify (a requested special charge) is in error,” etc.

He avers that he applied to the respondent to have the said testimony, as taken by the official stenographer of the court and reduced to writing, transcribed into and made part of the transcript of appeal, and his application was refused.

The respondent made an extended return, and amongst the numerous reasons he assigned, why the writ of mandamus should not go, are the following, viz:

First. — That as the jurisdiction of the Supreme Court, in criminal matters, is limited to questions of law alone, the relator is not entitled to have all the evidence adduced upon the trial, taken down in writing and incorporated in the transcript of appeal.

Second. — That in order to present to the appellate court the questions of law upon which he relies for the reversal of the rulings of the trial judge in a criminal case, it is permissible for defendant’s counsel to have reduced to writing and annexed to bills of exception all the testimony which appertains thereto, and have said bills and annexed testimony incorporated in the transcript of appeal.

Third. — That Act 113 of 1896 only provides for the manner of preparing bills of exception in criminal cases, and indicates the testimony that may be taken down in writing, is only that which relates to the bill of exceptions which has been retained; and that- the attempt on the part of the relator to compel him to send to the appellate court “(he entire record of fact” would, if successful, be an innovation of the settled jurisprudence, contrary to all precedents, and unauthorized by any statute of this State.

In our opinion, the foregoing reasons are full and complete, and dispense us from any consideration of others which the respondent assigned.

The criminal jurisdiction of this court is regulated and determined by the organic law, and cannot be modified or enlarged by statute. That jurisdiction is restricted to questions of law alone.

But, when questions of law have arisen during the progress of the trial in the lower court, and testimony has been adduced in relation thereto, it has been adjudged competent for the appellate court to examine and consider same when it has been properly annexed to, and made part of bills of exception; though it cannot examine or inquire into any question of fact which was submitted to, or passed upon by the jury in disposing of the guilt or innocence of the accused.

That this has been an established canon of construction by this court for many years, is evidenced by numerous adjudications.

One of the leading cases on (his question is State vs. Nelson, 32nd Ann. 845, in which the court said:

“The prohibition to the exercise of the jurisdiction of this court lies to its power to find pure questions of fact, such as were submitted to and found by the jury. The inhibition does not extend to the questions of law based upon the facts submitted to and determined by the judge.”

That case was followed and affirmed by State vs. Trivas, 32nd Ann. 1088.

•In order that relief be made effective, it has been held constantly that the testimony, of the witnesses necessary to a clear and proper undery standing- of the question of law presented, should be reduced, to writing and appended to a bill of exceptions, “by which the merits of. the decision of the 'inferior court may be tested.”

State vs. Charlet, 8 R. 529.

■ These cases, and the principles upon which they rested, were carefully reviewed, and affirmed, after a complete research of authorities, in State vs. Seiley, 41st Ann. 143.

This court had occasion, quite recently, to review that jurisprudence; ■ and it re-announced same in State vs. Scanlan, 52nd Ann.' 2058, and, in the course of its opinion, said:

“The questions of fact that are at all reviewable on appeal for a new trial, are those it is needful to consider in deciding questions of law raised. They are questions of fact blended with those of law; incidents of fact so connected in determining the law applying, that the facts must be considered.” ,

' ■ This -question is so firmly settled and so completely' harmonizes with the precept.’of the Constitution, that no further elaboration of it is deemed necessary. ' ’

That relator’s application trenches upon' this .constitutional safeguard, appears evident. It- declares that defendant’s counsel reserved many bills of exception in the course of the trial, and that he no.Vv desires to have the testimony of all witnesses, as it was taken by the official stenographer of the court, transcribed and incorporated into the transcript of appeal, because, as he avers, that he “desired to have thé said testimony before the Supreme Court; and in filing his motion for a new trial (he) made the entire testimony, as taken by the official stenographer, part of his said motion,” etc.

'.• That which was a:matter of jurisprudence, theretofore, was made a matter of law by Act 113 of 1896, thé object of which was to “provide for1 the manner in which bills of exception shall be taken in the trial of criminal cases.” It did not 'attempt to enlarge the jurisdiction of this court at all. '

•• ' The: provisions of Act 132 of 1898 have no bearing whatevér on the question at issue. It purports to be an amendment of a prior 'act relative to the' organization of the Criminal District Court for the Parish of Orleans, the pertinent provision of which is as follows, viz':

“It shall be their (the official stenographers’) duty, under the direction. of the clerk of the Criminal District Court, to prepare and make up the transcripts of all appeals taken from the judgments of the Criminal District Court for the Parish of Orleans, to report the proceedings in the trial of all capital cases and'felonies; * * * and in such other proceedings as, in the opinion of the court, may be important and necessary.”

• Manifestly, it was not the intention of the Legislature, to require the official stenographers to transcribe all the testimony of the witnesses in a capital case, when it said they should “report the proceedings in the trial; and if on that supposition, the stenographer of the respondent’s court hás done so, it does not follow that the testimony thus transcribed should be incorporated in the transcript of appeal.

Had this course been pursued with the sanction and approval of the respondent, we would not have considered it as properly forming part of the transcript.

■ On reason .and authority, the relator’s application must 'be denied.'

It is, therefore, ordered and decreed, that the order nisi be set aside, and that the application for a peremptory mandamus be refused at relator’s cost.


text:
    No. 13,396.
    State of Louisiana vs. Harry Seipel.
    Syllabus.
    An indictment for obtaining money under- false pretences which in substance avers, that the accused did unlawfully, falsely and designedly pretend that he had certain monies deposited to his credit in bank, against which he could draw a check, and upon which he did draw a check on which he obtained money, is sufficient averment, notwithstanding it does not 'allege' that the check was presented and payment refused, it being averred that the accused had no money deposited, or to. his credit in bank, nor any monies therein upon which he could draw a check; and that same was a! false pretence, as the accused well knew at the time, and that by means of said false pretence he did then and* there feloniously and unlawfully obtain the sum of money named.
    APPEAL from the Nineteenth Judicial District, Parish of Iberia. Voorhies, J.

      Milton J. Cunningham,, Attorney General, and James Simon, District, Attorney, (Charles M. Cunningham, of Counsel,) for Plaintiff, Appellee.

      Todd & Dqvis for Defendant, Appellant.
   The opinion of the court was delivered by

Watkins, J.

The defendant was tried and convicted of a charge of obtaining money under false pretences, and sentenced to imprisonment in the State penitentiary for twelve months,- and from that verdict and sentence, he prosecutes this appeal.

The charge with which the defendant stands indicted was, for securing fifty dollars in currency on his check on the State National Bank of New Iberia; and the grounds upon which his counsel rely for a reversal of the sentence, are, in substance; (1) That the indictment does not charge that the defendant claimed to have money in the bank at the lime he drew the check; but, on the contrary, it expressly states that he claimed to have had. money there.

That the indictment fails to state in whose favor the check was drawn, or that the check was endorsed to party claiming to have been defrauded, or that the check was presented at the bank and refused payment.

At the incipiency of the proceedings, and before the jury was empanelled, defendant’s counsel filed a motion to quash the indictment; from which we make the following extract, to-wit:

1. “That there is no allegation therein that the defendant pretended to the said Wallet” — the party named in the indictment as the person upon whom the fraud was practiced — “that he had any money in the State Bank of New Iberia at the time the check was drawn; nor is it “ alleged that he pretended that said cheek was at the time good, or “ that it would be paid.

2. “Because all pretences, even if false, that defendant had had “ money in the State Bank of New Iberia, and not that he then had “ money, could not mislead.

3. “That it is not alleged that the said check was drawn in favor of “Wallet, nor endorsed to him, nor that it was signed by the defendant, “nor that it was delivered to him when the money is alleged to have “been obtained; but that, on the contrary, it is alleged that he pre“tended lie did give said check to Wallet at a time not stated in the “ indictment; and that said allegation is a mere allegation of a promise, “ and not of a false pretence.

4. “That there is no allegation that defendant intended to defraud “Wallet of the said money; and that an allegation or attempt to “ defraud without alleging anything to defraud out of the very money “ in question, will not support the indictment for obtaining money “ under false pretences.

5. “That there is no allegation as to ownership of the money in “ question; that while the said indictment alleges something not “ therein specified to be the property of Wallet, it does not state that “ said money belonged to him.”

For the foregoing reasons, the motion shows that the indictment is insufficient, and should be quashed.

This motion was subsequently tried and overruled, and to the ruling of the court counsel retained a bill of exceptions.

The following is an extract from the indictment, to-wit:

“That one, Harry Seipel * * * on the 9th' day of September, ''1899, * * * devising and intending to cheat and defraud one “Walter T. Wallet of his money, goods and chattels, unlawfully did “ falsely and designedly pretend to the said Walter J. Wallet, that he “had certain monies deposited and to his credit in the State Bank of “ New Iberia, which said bank is situated and located in the town of “ K ew Iberia, against which he could draw sight drafts; and that he “ desired him, Walter J. Wallet, to let him have the sum of fifty “ dollars, for which he would give him, the said W. J. Wallet, the sight “ draft drawn by him on said State Bank, and against said fund in the “said State Bank of New Iberia * * * for said sum of fifty “ dollars; which he, the said Henry Seipel did then and there draw and “execute against said State Bank of New Iberia for the said sum of “fifty dollars, and on which he secured the said sum of fifty dollars “from the said W. J. Wallet; whereas, in truth and in fact the said “Harry Seipel had no monies deposited 'or to his credit in the said “ Bank of New Iberia, n.or any monies therein upon which he could “draw sight drafts, which said pretences, he the said Harry Seipel “ then and there well knew to be false, and by color and means of which “said false pretences, he the said Harry Seipel did then and there “feloniously and unlawfully obtain from the said Walter J. Wallet, “ the sum of fifty dollars, lawful currency 'of the United States of “America, and thereupon gave to said W. J. Wallet the said draft for “ said sum drawn’against said State Bank against monies he pretended “ to have had in said bank, being then and there the property of said “Walter J. Wallet, with intent to cheat and defraud him, the said ■“ Walter J. Wallet to the great damage of said Walter J. Wallet, etc.”

The motion to quash proceeds upon the theory, mainly, that the indictment fails to aver that the defendant claimed that he had any money in the State Bank of New Iberia at the time the check was drawn; and that it is not alleged therein that the defendant pretended that the chock given to Walter J. Wallet was good at the time it was given, or that it would be paid.

The extract made from the indictment clearly shows this is a mistake, as the same, in terms, declares, that the defendant did “unlaw- “ fully, falsely and designedly pretend to the said Walter J. Wallet “ that he had certain monies deposited and to his credit in the State “ Bank of New Iberia * * * against which he could draw sight “ drafts;” and it further declares, that he “desired him, the said Walter J. Wallet, to let him have the sum of fifty dollars for which he would give him, the said W. J. Wallet, a sight draft drawn by him on said State Bank and against said’fund in the said State Bank of New Iberia, * * for the sum of fifty dollars, which he, the said Harry Seipel, did then and there draw and execute against said State Bank of New Iberia for fifty dollars, and on which he secured the said sum of fifty dollars from the said W. J. Wallet.”

True it is that there is no averment in the indictment, in terms, to the effect that the check was good, or that it would be paid; but the substantial allegation is made that he had funds in the bank on which he could draw and that he obtained the money upon a check he did draw on the bank, and which sum the said Wallet parted with upon the representations made.

The averment of the motion, that it is not alleged in the indictment that “the said draft was drawn in favor of Wallet nor endorsed to him, nor that it was signed by the defendant, nor that it was delivered to Wallet when the money is alleged to have been obtained, “is, likewise, disproved by the language of the indictment above quoted, which is to the effect: “That he (defendant) desired him, the said Walter J. Wallet, to let him have the sum of fifty dollars, for which he would give him, the said Walter J. Wallet, a sight draft drawn by him (defendant) on said State Bank, and against the said fund in the said State Bank of New Iberia.” It, also, contradicts the statement of the motion, that it is not alleged that the draft “was delivered to him (Wallet) when the money is alleged to have been obtained,” as is shown by the averment that “the said Harry Seipel, did then and there feloniously and unlawfully obtain from the said Walter J, Wallet, the sum of fifty dollars, lawful currency of the United States of America, and thereupon gave to said W. J. Wallet the said sight draft for said sum drawn against said State Bank,”

The language of the indictment likewise negatives the averment of the motion^ io the effect “that there is no allegation that defendant intended to defraud him of the said money.”

For, it avers, “that Harry Seipel * * * unlawfully, feloniously and designedly, pretended to the said Walter J. Wallet, that he had certain monies deposited and to his credit in the said State Bank of New Iberia * * * whereas, in truth and in fact, the said Harry Seipel had no monies deposited to his credit in the said State Bank.of New Iberia, nor any monies therein upon which he could draw sight drafts, which said pretences, he, the said Harry Seipel, then and there well knew to be false; by color and means of which said false pretences, he, the said Harry Seipel, did then and there feloniously and unlawfully obtain from the said Walter J. Wallet, the sum of fifty dollars.” The point taken in the motion' to quash, to which attention was chiefly directed in the argument is, that “all pretences, even if false, that defendant had had money in the State Bank of New Iberia, and not that he then had said money, could not mislead.”

The averment in the indictment to which that objection is directed, is as follows:

“By color and means of which said false pretences, he, the said Harry Seipel, did then and there feloniously and unlawfully obtain from the said Walter J. Wallet, the sum of fifty dollars, lawful currency of the United States of America; and thereupon gave to said Walter J. Wallet, the said sight draft for said sum drawn against said State Bank against the monies he pretended to have had in said bank, being then and there the property of said Walter J. Wallet, with intent to cheat and defraud him, the said Walter T. Wallet.”

Whilst somewhat inartistieally stated, the language of the indictment evidently relates to the date at which the draft or check was executed by the defendant to W. J. Wallet and against funds lie pretended to have had in tlie bank at the time; and taken in that sense, the argument pressed upon our attention is not admissible.

A careful scrutiny of th© indictment, in connection with the motion to quash, has satisfied us that it is sufficient in law to support the charge preferred against the defendant, and that the motion to quash was properly overruled.

Defendant’s counsel complains of the refusal of the trial judge to give the following requested special charge^ to-wit:

“That the jury must be satisfied that the accused got the money under false pretences, and the mere giving of a check on which the money was obtained without the false pretence that there was money in the bank to meet the check, is not sufficient evidence to support a conviction.”

The reasons assigned by the judge for refusing to give the special charge, are as follows, viz:

. “The court had charged the jury and repeated to them, that there must be a false representation by words written or spoken to constitute a false pretence; that is, words usedhy the offender or accused himself, or used by another and assented to by him; that the intention to defraud is essential to constitute the offence of obtaining money under false pretences. That this intent is a question of fact for the jury and inseparable from a deliberate act, and the circumstances surrounding the act.”

While it is true that the reasons of the judge for refusing the special charge requested, are not quite clear, yet we think them sufficiently responsive to meet the exigencies of the case.

The gravamen of the charge asked was, that the jury must be satisfied that the accused got the money under false pretences; and that is the question to which the judge directed the attention of the jury in a general charge to which he referred.

.. True it is that the charge requested goes a little further and refuses the correlative request that the jury be instructed, “that the mere giving of a check on which the money was obtained without the false pretence that there was money in the bank to meet the check, is not sufficient evidence to support the conviction;” but this, to our thinking, is opposed in meaning and in terms to the first part of said requested special charge, to the effect that “the jury must be satisfied that the accused got the money under false pretences.”

We feel sure, that under the circumstances related, the giving of the special charge requested to the jury subsequent to the giving of the general charge would have had the effect of confusing, instead of enlightening their minds. The simple statement that the jury must be satisfied that there was a false representation by words spoken by the accused, or assented to by him, whereby the party receiving the check was deceived and parted with his money upon such representations, is deemed sufficient for all necessary purposes; and we, therefore, affirm the ruling of the trial judge in this respect.

Counsel for the accused made an application for a new trial, based mainly on the ground, that the verdict was contrary to law and the evidence; but the motion also gives a partial analysis of the testimony .adduced at the trial. This motion was submitted and overruled by the trial judge, and counsel reserved a bill of exceptions to his ruling.

From the bill of exceptions we make the following extract:

“The court, in giving reasons for overruling said motion, declared, as a basis for such decision, that a motion for a new trial, based merely on the ground that the verdict of the jury was contrary to the law and the evidence, should not be considered by the trial judge, and should not be granted. The court further declaring in overruling said motion that the Supreme Court had so decided.”

The bill of exceptions was signed by the trial judge, but no reasons were given for overruling the motion.

In our opinion, he was Under an erroneous impression as to what this court had decided; and we take it for granted that it was the result of simple inadvertence on his part. This court has frequently held that as it did not have constitutional jurisdiction to examine the facts adduced on the trial of a criminal case, it could not review facts of a case, or a motion for new trial based on the ground that the verdict was contrary to the law and evidence; but it has not decided that the trial judge could not do so. On the contrary, the special province of the trial judge is to supervise the trial and pass upon motions for a new trial, for the purpose of determining whether the verdict was responsive to the law and evidence or not.

Entertaining this view, we deem it our duty to reverse the judgment and sentence pronounced against the defendant, and remand the case to the said court below, with instructions to the trial judge to entertain and decide the motion for now trial; but not to interfere otherwise with the trial and disposition of the case.

It is, therefore, ordered and decreed, that'the judgment and sentence pronounced against the defendant be annulled and reversed; and that the cause bo remanded to the court below with instructions to the trial judge to examine and decide the motion for a new trial. And, it is further ordered that the verdict of the jury .and other proceedings in the case be left undisturbed, pending the action of the trial judge upon the motion for a new trial.

Rehearing refused.