text:
    No. 7849.
    State ex rel. Richard Sinnott vs. I. W. Falls, Seventh Justice of the Peace, Parish of Orleans.
    Article 90 of the Constitution of 1879 gives to this Court the control and general supervision <5i all inferior courts. This constitutional provision is addressed to the sound discretion of the Supreme Court. The authority thus granted should be most carefully exercised, and only in cases where there is a flagrant usurpation, of power, or where serious injury may accrue to parties to whom no other remedies are afforded, or where the intermediate courts are without power to grant relief. The case at bar is one in which this discretionary authority should be properly exercised.
    Act Ho. 10 of 1878, giving to Justices of the peace, in the parish of Orleans, exclusive jurisdiction over the territory of their respective districts, within the limits of the jurisdiction conferred upon them by law, is not unconstitutional.
    Application for Writ of Prohibition.
    B. Egan and E. N. Whittemore for the Relator.
    Defendant for himself.
   The opinion of the Court was delivered by

Levy, J.

The relator represents that on the 25th of February, 188ft, thirty-nine suits, each for the sum of three dollars, were brought against him in the Court of the Seventh Justice of the Peace, parish of Orleans, I. W. Falls befog judge of said court; that he, relator, now resides in the First District in the city of New Orleans, and has resided there for several years last past, in a district and ward different from that in which said justice of the peace holds his court, and avers that said justice of the peace is wholly without jurisdiction of said thirty-nine suits. He further avers, that he filed exceptions in each of said suits, setting up the aforesaid objections to said Seventh Justice of the Peace entertaining jurisdiction thereof, which exceptions were overruled, and said justice of the peace, after judgment overruling the exceptions was entered on the docket, erased the same and referred them to the merits, all which was done out of the presence of the relator or bis counsel, without giving them an opportunity oí being beard, and be has refused to re-instate said exceptions, but insists on exercising jurisdiction ; that the citations were made out accordingly, but before they were served on relator, the words “ owner of the steamboat Jesse K. Bell” were erased therefrom, and said words have been erased from said docket. He also avers, that when said suits were filed, the tax-costs required by law to be paid in advance were not so paid. Relator prayed for the issuance of a writ of prohibition by this Court, and for the perpetuation thereof, prohibiting said justice from proceeding further against him in said thirty-nine suits, or any of them.

The writ was issued, and in his return and answer thereto, the respondent, Justice of the Peace of Seventh Justice Court, parish of Orleans, says: “ The thirty-nine suits mentioned are personal actions against relator ; ” that the erasures of the words “ owner of the steamboat Jesse K Bell,” were made by direction of respondent before issuing the citations, to save clerical labor, these words having been inserted through a clerical error; ” that “ before the time of trial the tax-costs had been paid and finally, that “ act 10, Session 1878, has been declared unconstitutional by Hon. Third District Court, Respondent’s Supreme Court, and that Act No. 82, approved March 30th, 1871, creating Seventh Justice Court, gives it jurisdiction over entire Parish.”

In this application the relator relies upon article 90 of the Constitution of 1879, as giving jurisdiction to this Court. The decisions of the Supreme Court of this State prior to the adoption of the present constitution, are uniform on the subject of “superintending jurisdiction and general supervisory control” over inferior courts. In Laverty vs. Du-plessis, 3 M. O. S. 42, it was held, that “ under the authority vested in the seventeenth clause of the Judicial Act then existing, it was limited in its exercise of jurisdiction over the inferior Courts, to such acts as were necessary in aid of its appellate jurisdiction.” In State vs. Judge, 19 La. 183, the Court said (in regard to the power to grant writs of prohibition): “It is within the said discretion of the tribunal to which the application is made. We understand that the authority thus granted, being considered in relation to the constitution, which allows the Court appellate jurisdiction only, is to be confined to matters which have a tendency to aid that jurisdiction.” In 21 An. 123, and 26 An. 146, the same doctrine is held. The exercise of a general and supervisory control over the inferior courts has hitherto never been exercised unless in aid of the appellate jurisdiction of this Court.

Article 90 of the Constitution of 1879 plainly enlarges the powers of the Supreme Court. This article reads; “ The Supreme Court shall have control and general supervision over all inferior courts. They shall have power to issue writs of certiorari, prohibition, mandamus, quo •warranto, and other remedial writs.” Article 81 reads : “ The Supreme •Oourt, exoept in cases hereinafter provided, shall have appellate jurisdiction only.” Artidle '89 : “ The Supreme Oourt, and each of the jjudges thereof, shall have power to issue writs of habeas corpus, at the instance of all persons in actual custody, in cases where it may have appellate jurisdiction.”

Thus the constitution gives to the Supreme Oourt appellate jurisdiction only, except in cases thereinafter provided ; it gives the Court the power to issue writs of habeas corpus, restricting this power, however, to -cases where it may have appellate jurisdiction ; but it gives “ control and general supervision over all inferior courts,” and grants the power ■to issue certain writs without any qualification or restriction limiting the ■exercise of that power to cases in which it may have appellate jurisdiction. The use of this power must then be regulated by the discretion of the Oourt, and here,'it may be well to remark that we think the “ control and general supervision ” over inferior courts, addressed to our sound discretion, should be most carefully administered, and exercised only in cases where there is a flagrant usurpation of authority, or where serious injury may accrue to parties to whom no other remedies are afforded, •or where the .intermediate courts are without power to grant relief. Under such circumstances alone will this Court be disposed to use this discretionary power.

This seems to be a proper case for the exercise of our control and .supervision.

The act relied upon by the respondent, as giving him jurisdiction of the thirty-nine suits against the relator, is No. 82, approved March 30th, 1871, entitled “ an act creating an additional Justice Court for the parish of Orleans, designating.it as the Seventh Justice Court, establishing its territorial limits, and conferring upon its justice concurrent jurisdiction with the other six Justices in said parish. Sec. 2074, Bev. Statutes, declares that the jurisdiction of the Justices of the Peace of the parish of ■Orleans “ shall be concurrent, and shall extend over the parish of Orleans, with the exception of the right bank of the river Mississippi.”

Act -No. 10, entitled “ an act relative to the civil jurisdiction of Justices of the Peace, in the parish of Orleans,” approved February 4th, 1878, enacts as follows: “ That within the limits of the jurisdiction conferred upon them by-law the Justices of the Peace in the several districts of the parish of Orleans shall have exclusive original jurisdiction over the territory of their respective district.” This act repealed all laws and parts of laws in conflict or inconsistent therewith, and “ took ■effect from and after the expiration of the terms of office of the present incumbents.” The term of office, of the justices incumbent at the pas.sage of that act, expired in December, 1878, or January, 1879.

The respondent in his answer says : “ Act No. 10, session 1878, has. been declared unconstitutional by the Hon. Third District Court,” which respondent styles “his Supreme Court.” We are unable to perceive-that this act is in any manner unconstitutional; on the contrary, we regard it as binding, and distinctly limiting the jurisdiction of the Seventh Justice Court to the territory of the Sixth District of the parish of Orleans, and City of New Orleans.

The thirty-nine suits referred to are brought by thirty-nine different plaintiffs ; they are each independent of the others ; the amount involved-in each suit is less than ten dollars, and, therefore, not appealable. The-relator, defendant, in these suits is without remedy by appeal, and can-only be protected from the usurpation of jurisdiction of which he complains by the writ of prohibition. ■ .

It is therefore ordered that the writ of prohibition, heretofore-granted be perpetuated, and that the defendant do pay the costs of.' these proceedings.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 6465.
    Succession of J. F. Boutté. J. P. Guinault vs. LeBlanc & Boutté, Executors.
    Under articles 3069 and 3070 of tlie Civil Code, tlie surety on tlie bond of an Executor lias tlie light to be released from further liability, if the Executor has failed to deposit; all the moneys of the estate in banlr, or has paid out its moneys without order of court.
    ^PPEAL from the Second District Court, parish of Orleans. Tlssot,
    Jme. Meunier for Plaintiff and Appellee.
    McEnery, Ellis & Ellis for Defendants and Appellants :
    Articles 3069 and 3070 only apply to the wrongful maladministration of an estate and consequent danger to the surety. The evidence shows that the funds of the estate were strictly used to pay its legitimate and privileged debts. The executor, in such cases, is not a wrong-doer, and is entitled to the credit of whatever sums he has paid which should legally be paid. 11 Bob. 479 ; 7 Bob. 49 ; 2. An. 45 ; 4 An. 76. The surety is, therefore, in no danger.
   The opinion of the Court was delivered by

Fenner, J.

J. P. Guinault, who was surety on the bond of LeBlanc- & Boutt-é, as executors in above succession, filed his petition against them, alleging sundry acts of maladministration by them in the execution of their trust, by which he, as their surety, was in danger of being: subjected to serious damage, and asking judgment ordering them to-give a new bond with surety, as required by law, within three days, and releasing him from any further liability on his bond. The action is. brought under articles 3060 and 3070 of the Civil Code, which distinctly provide for the relief asked where it is shown that the executors are " mismanaging the estate under their charge, and that thereby the surety is in danger of being seriously injured by their conduct.” These articles-are imported into the Revised Code from the provisions of Act No. 222-of 1859, which is an act for the better protection of sureties of Executors,. Administrators, etc.

Their provisions, so far as they relate to the particular relief here-asked, are not penal in their character, and cannot be considered harsh. We- think sureties on the bonds of these officers must be considered as contracting with reference to them, and are entitled to have the full benefit thereof.

Their contracts are gratuitous, and, entail upon them responsibilities-for which they receive no consideration. They may justly demand from their principals a rigid compliance with all the requirements of law, and entire abstinence froto all violations thereof, which might result in damage to them; and whenever they detect their principals in disregarding-these requirements, it is only just that they should have the option of terminating their contract.

The acts of mismanagement here charged, which we consider serious, are,

First — Failure to deposit all moneys of the estate in bank ; and,

Second — Paying out moneys without order of court.

Both charges are conclusively established by the evidence. We pay-no attention to the payment, from the rents collected, before depositing,, of the ordinary eurrent expenses of administering the property, such as trifling repairs, water-rate, sanitary attention to privy-vaults, etc. But the payment of various privileged claims such as funeral expenses, tomb, sundry items of attorney’s fees, and others not necessary here to recapitulate, without having their standing and amount settled by the court, was clearly unlawful. The failure to deposit, and the paying out moneys without order of court, are both plainly prohibited by article-1150 of the Code, and they subject both the executors and their surety to a penalty of twenty per cent, per annum on the amount thereof. The provisions of this article, taken originally from the act of 1837, have-been frequently enforced by our courts.

Succession of Christy, 6 An. 427 ; Peale vs. White, 7 An. 449; Reed vs. Crocker, 12 An. 445 ; also, 2 An. 30 ; 7 Rob. 477 ; 4 An. 28.

Executors and curators, where their violations of these provisions, have been merely technical, such as the payment of debts found to be-really privileged and reasonable in amount, though without order, may plead equity against the enforcement of the- penalties of twenty per •cent, damages, and dismissal from office ; but the right of the surety to require,a termination of his liability and'the substitution of a new bond, is rather a privilege to the surety than a penalty on the executor ; and from the moment that the executor is guilty of mismanagement by doing illegal acts, subjecting the surety to the risk of serious injury, the latter’s privilege arises, and cannot be denied him. The Judge of the Court a qua seems to have taken these views of this case, and to have reached the same conclusion.

It is, therefore, ordered, adjudged, and decreed that the judgment appealed from be affirmed, and that appellants pay the costs in both courts.

The Chief Justice recused himself, having been of counsel in the •case.


author: Todd, J.

text:
    No. 7843.
    State of Louisiana vs. Henry Clark.
    It is proper for tlio District Attorney, in examining the jurors on tlic-ir vo ir dire. to ask each of them: “Have you any conscientious scruples as to inflicting the death penalty in case of murder ?” This point is no longer an open question.
    The law does not require that section 1000 of the .Revised Statutes he read to the jury by the District Attorney. "When the Counsel for the accused lias read it to them, and the Court in its charge has stated that, that section was the law, and that, under its provisions, the jury could qualify their verdict by adding “without cajútal punishment,” the statute is fully complied with.
    It is not necessary, for the validity of the verdict in ciiminal cases, that the accused he present in court, in person, when the case is assigned for trial, or wlien attachments aré ordered for witnesses, or when a motion for new trial is made.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Rouge. McVea, J.
    J. C. Egan, Attorney-General, for, the State, Appellee :
    It has been settled in 14 An. 570, and 30 An. 1134, that it is proper for the District Attorney to ask each juror, in a trial for murder, whether he has any conscientious scruples to inflicting the death penalty in case of murder.
    It is untenable to pretend, when the Counsel for the accused has read section 1000 of Revised Statutes to the jury, and has commented upon it, and the Court has charged that that section is the law, and the jury can qualify their verdict by acldmg “without capital punishment,” that still the District Attorney must read the section to the jury.
    R. W. Knickerborker, for Clark, Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant, Henry Clark, was indicted in the parish ■of East Baton Rouge for the murder of Henry Ralliat. He was tried, and the jury returned against him an unqualified verdict of guilty. He •applied for a new trial, which was refused, and from the sentence of death, imposed under the verdict, he has appealed.

He presents, by bills of exception and assignment of errors, these several grounds for the reversal of the sentence :

First — “That the District Attorney, in examining the jurors on their voir dire, questioned each juror as follows : 1 Have you any conscientious scruples as to inflicting the death penalty in case of murder ?’ ” Which question the District Judge allowed to be asked, though objected to.

The question here presented is no longer an open one. It has been expressly and repeatedly decided that the question is a proper one; State vs. Mellon, 14 An. 570 ; State vs. Baker, 30 An. 1134.

Second — “ Because the State, through the District Attorney, failed to read section No. 1000, Revised Statutes of Louisiana, 1870, to the jury, and informed said jury that a verdict of guilty without capital punishment is equally responsive to the law in the premises as a verdict of guilty.”

It is shown by the bill of exceptions that this section was read to the jury by the counsel for the accused and commented on at length ; that -the judge, in his charge to the jury, stated “that said section was the law, and that the jury could qualify their verdict by adding ‘ without capital punishment,’ ” and in the close of the charge reiterated this instruction.

If there was an express requirement of law that this statute should be read to the jury, and there is no such express requirement, we would regard such requirement as strictly complied with.

The statute was read to the jury. It was brought to their attention by the charge of the judge, and his charge upon this point was even reiterated. We are at a loss to discover how any instruction could be more fully impressed upon the mind of the j ury.

Third — That the record does not show that the accused was present when the following proceedings were taken in the case :

1. When the case was assigned for trial.

2. When attachments were ordered for witnesses.

3. When motions for new trial and appeal were made.

It is true that in the old English cases, which were followed by the-earlier American decisions, it was held that a prisoner, accused of a felony,, must be shown to be personally present in all proceedings relating to the prosecution. These decisions were mainly due to the fact that, in the early period of criminal jurisprudence in England, the accused was-denied the right to be represented by counsel, and therefore there was< an apparent necessity for his actual personal presence in court at every stage of the proceeding. But since a practice so abhorrent to every principle of humanity has ceased, the rigor of the rule requiring the-presence of the prisoner during the progress of the prosecution has greatly abated, and now while the courts uniformly hold that the actual; presence of the prisoner must be shown during the arraignment, trial, verdict, and sentence, his personal presence is not required or deemed necessary whenever each and every proceeding, however insignificant, is taken in the case.

Thus, Bishop, in his work on Criminal Procedure, vol. 1, sec. 265, observes : “ From the foregoing chapters it appears, in order to institute-proceedings against one suspected of crime, it is necessary to take preliminary steps in his absence.

“ The summoning of witnesses forms- no part of the trial. It is-merely the steps to prepare for the trial. The accused has no more right to claim personal attendance when steps are being taken to procure the attendance of witnesses, than he has to claim to be present when a grand jury are investigating his case.”

And in section 276, same volume, ir, is stated : Between the verdict and sentence, it has been said, that it is not necessary, although it may be highly proper, for the prisoner to be at any time personally present in court, even when the offense of which he stands charged is a capital one.

“His counsel may ask for a new trial in his absence.

“ A defendant, in the actual custody of the marshal, upon criminal process, in consequence of an indictment in the Court of King’s Bench, need not be present when a motion for a new trial is made on his behalf in the same court.” Rex vs. Hollingsburry, C. D. and R., 344 ; 4 B. and C., 329 ; State vs. Lou. Outs, 30 An. 1155.

This later doctrine commends itself to our -reason and common sense in view of the fact that, in every case of felony, the accused is-represented by counsel, learned in the law, chosen or appointed for the purpose of conducting his defense, and whose duty it is to watch with unceasing vigilance all the proceedings of the prosecution, and-interpose all the safeguards which the law allows for the protection of his client. And while the law, in its tenderness for one in its custody, •charged with a grave offense, may not, from this consideration, dispense with the personal presence of the accused in all the important material ¡stages of the trial, lest he might possibly suffer some injury from his .absence, it is not now required that he should be personally present at each and every step and proceeding connected with the case which are ■of minor significance and importance.

We find no error in the proceedings.

It is therefore ordered, adjudged, and decreed that the judgment ¡and sentence appealed from be affirmed.


author: Bermudez, C. J.

text:
    No. 7573.
    Valentine Vredenburg et al. vs. W. J. Behan et al.
    ‘The law is substantially complied with, when three partial Transcripts of Appeal have been filed in this Court under the same number of the Docket, and the Certificate of the Clerk, attached to the third Transcript, states that said third Transcript, together with the first and second, contains all the proceedings had, all the evidence adduced, and all the documents filed in the lower Court.
    Appellants are not bound to mention the names of the Appellees in their Petition for Appeal, It is sufficient for them to pray that the Appellees be cited; and it is the duty of the Clerk to issue citations to all those whom the record shows to be the Appellees,
    "When, out of a number of Appellants, some have acquiesced in the judgment appealed from, it is no reason to dismiss the Appeal as to those who have not acquiesced.
    APPEAL from the Sixth District Court, parish of Orleans. Eightor, J,
    E. Howard McCaleb for Plaintiff:
    'The plaintiff moves to dismiss the devolutive appeal on the following grounds:
    First — That the Certificate of the Clerk and the Transcript are imperfect and incomplete, and that the defects and omissions in said Transcript are attributable to Appellants. C. P. art. 896 and 898 ; 18 An. 229 ; 8 An. 433 ; 13 An. 288; 7 An. 442.
    :Second — That all the parties to the judgment have not been made parties to the appeal. 12 An. 333.
    'Third — That, after rendition of the judgment appealed from, one of the defendants died, and Appellants have failed to make his heirs parties to the appeal, or to ask for citation upon them. 29 An. 647 ; 22 An. 20.
    Fourth — That Appellants haveffailed to ask for citation upon all parties to the judgment.
    Fifth — That several of the Appellants have acquiesced in the judgment appealed from, and cannot be heard to contest its validity. C. P. art. 567 ; 28 An. 743 ; 18-An. 59 ; 18 An. 296 ; 4 An. 150 ; 14 La. 523 ; 15 Missouri Ii. 441; 3rd Illinois R. 212 ; 1 Wis. R. 455 ; 25 An. 538.
    Erancis W. Baker for Defendant and Appellant:
    The grounds for dismissal are entirely without merit and frivolously technical.
    The Certificate and Transcript are sufficient, and if they were not, the fault would not be that of Appellants. 27 An. 507 ; 28 An. 343 ; Rev. Stats, sec. 36 ; 28 An. 52 ; 31 An. 427 ; 9 An. 292 ; 10 La. 514.
    The fact that some of the Appellants, after the appeal was taken, have acquiesced in the judgment, cannot affect or prejudice the rights of other Appellants. 23 An. 37 ; 29 An. 576 ; 28 An. 343.
    The heirs of the deceased Appellant have been made parties ; but they have no interest, as they acquiesced in the judgment. 3 An. 558 ; 4 An. 14 ; 25 An. 476 ; 6 An. 79 ; 6 An. 115.
    Appellants are not required by law to do any more, in having parties cited as appellees, than to designate to the Clerk those who are to be cited.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The order for a suspensive appeal, first obtained in this case by the defendants, from the judgment against them, having been set aside and another order, but for a devolutive appeal, having since been allowed, the plaintiff and appellee move to dismiss that last appeal, because,

Eirst — The certificate of the clerk and the transcript of said appeal are imperfect and incomplete. The defects, and imperfections, and omissions in said transcript are attributable to the appellants, or to their counsel, under, whose supervision the same was prepared.

Second — All the parties to the judgment have not been made parties to the appeal.

Third — After the rendition of the judgment appealed, from, one of the defendants, M. Buck Miller, died, and the appellants have failed to make his heirs and legal representatives parties to the appeal, or to ask for citation upon them.

Fourth — The appellants have failed to ask for citation upon all parties to the judgment.

Fifth — W. J. Behan, N. T. Yaudry, John Thorn, Jas. Buckley, and L. T. Manning, appellants, have acquiesced in the judgment appealed from,, and cannot be heard to contest its validity.

On the first ground r

After the defendants had obtained a suspensive appeal from the judgment against them and furnished a bond, in appearance sufficient, they filed in this Court a transcript containing 545 pages, to which is attached the certificate of the clerk of the lower Court establishing its fullness, in every particular. A rule having been taken by the plaintiffs in the lower Court, to rescind the order for a suspensive appeal, because the sureties were not good and solvent, as the law required, and judgment having been rendered, dismissing that rule and maintaining the order of appeal, the plaintiffs appealed, and filed in this Court a transcript containing 235 pages, attested by the clerk of the lower court, so as to show its completeness, on the rule proceedings..

Subsequently, as already observed, the judgment of the lower court, refusing execution, having been reversed by this Court, and the order for a suspensive appeal having been rescinded, a number of the defendants, obtained a devolutive appeal, and have filed in this-Court a transcript containing 80 pages, in which the clerk of the lower court certifies that “ the foregoing eighty pages and eight lines, and transcript Nos. 1 and 2, on file in Supreme Court, do contain a true, correct, and complete transcript of the proceedings had, and all documents filed,” etc. To this transcript is attached another certificate, in which the Clerk further attests that the transcript contains “ all the evidence adduced ” in the case.

The second transcript on the appeal, taken by the plaintiffs from the judgment refusing the issuing of execution, was filed by the appellants under the number placed upon the first transcript, No. 7573. The plaintiffs show no objection to such a course on their part, and the defendants acquiesced in it. With what grace can the plaintiffs now contend that the defendants did an illegal act when they caused the third transcript to be registered, as they themselves had done, under the same number ? Unquestionably it would have been preferable, for the convenience of all, if the appellants, under their devolutive appeal, had caused a transcript to be made of the entire record of the lower court; but this was not essentially necessary. The Clerk, in his attestations to the third transcript, might have been more explicit, and designated more specifically the transcripts Nos. 1 and 2, to which he refers, but the ap-pellees do not complain of this, and the identity of the transcripts referred to. is not at all disputed, but rather admitted, as it necessarily should be. The law was substantially complied with. The three transcripts bearing the same number, certainly, together, contain all the proceedings had, all the evidence adduced, and all the documents filed in the lower-court, in this case. It would be uselessly, nay,, injuriously, onerous, to require a new complete transcript of the whole very voluminous record of the lower court. 31 An. 427 ; 10 La. 514 ; 9 An. 292.

The authorities in. 8 An. 483, 18 An. 229, 7 An. 442, 13 An. 288, cited by appellees, have no application to this case, which is sui generis.

On the second and fourth grounds, which we will consider together •as germane:

In the case of Seghers vs. Soulé, not reported, O. B. No. 46, p. 16, this Court said, on a motion to dismiss : “ Appellants were not bound to mention the names of appellees in their petition for appeal. They praiyed that the plaintiffs (who are the appellees), be cited. This was sufficient. It was the duty of the clerk to issue citations to all the ¡plaintiffs mentioned in the petition ; and it was the duty of the sheriff to ¡serve the citations. No appeal should be dismissed, unless the fault is •attributable to appellants. Such was not the case here.”

A reference to authorities on the subject shows that this late ruling .is well founded. 6 1.1; 17 La. 516 ; 6 R. 127 ; 7 R. 10 ; 2 An. 769 ; 12 . An. 332 ; 13 An. 259 ; 14 An. 698 ; 20 An. 37.

On the third and fifth grounds:

There were fourteen defendants in the suit, and they were all condemned by the judgment, based on the verdict of the jury, to pay, in solido, fifteen thousand dollars to' the plaintiffs. The petition for a de-volutive appeal was made on behalf of eleven of them.

If it be true, that Vaudry, Thorn, Buckley, and Manning have acquiesced in the judgment, it is no reason to dismiss the appeal as regards the others, who have not acquiesced, who cannot be divested of their right of appeal by any act of any of their co-defendants, and who •continue to have a standing in this Court. When it will be made to appear to this Court, at the proper time, and in the proper form, that such .acquiescence has taken place, the Court will abstain from adjudicating as to those parties. If it be true that M. B. Miller be dead, the omission, if any exist, to make his representatives parties, cannot prejudice the appellants, who have apparently done every thing that the law required of them to put themselves in the attitude of appellants. There is no intimation as to the time of his death in order to establish whether it occurred before or after the date of appeal; and there is nothing to •show that when the petition was filed the appellants knew of his death. The irregularity, if any, in this particular, can still be urged.

The judgment was signed on the 30th of June, 1879, and the delay for a devolutive appeal has not elapsed. Boutté vs. Boutté, 30 An. 181. The counsel for appellants, in his brief, informs us, however, that the heirs of Miller have no interest, as they have voluntarily acquiesced in •and executed the judgment.

The motion to dismiss is denied, with costs.


author: Levy, J.

text:
    No. 7858.
    State of Louisiana vs. Edward C. Palmer.
    Iii all prosecutions for the violation of tlio laws of the State, the utmost certainty and distinctness of pleading, the strict construction of the provisions of penal statutes, according to the usual and reasonable meaning of words and terms, and the admission or rejection of testimony according to the rules of pleading and law of evidence, are required.
    Charging the accused, in the first Count of the Indictment, with embezzling and converting to his own use money "belonging to the Bank; and in the second Count, with embezzling and converting to his own use money deposited with tko Bank, thus charging conjunctively both embezzlement and conversion, and the embezzlement and conversion of both money belonging to the Bank, and money deposited with it, does not render the Indictment obnoxious to the obiection of either duplicity or uncertainty, under the provisions of Sec. 907 of the Revised Statutes.
    In prosecutions under that Section, it is not necessary that the Indictment should charge that the President or other officer of the Bank had the actual custody or possession of the money embezzled or converted. In that Section, which applies only to Bank officers, the ingredient of “custody,’ “possession,” or “being entrusted with,” is not mentioned as a requisite to constitute the offenses therein denounced, as it is in other statutes providing for the definition and punishment of embezzlement.
    The description of the money, as contained in the Indictment, being “ a general allegation of the amount and the thing,” is sufficient in a proceeding under the same Sec. 907, as provided in Section 906 of the Revised Statutes.
    But in this case, the Indictment should have been confined to the provisions of said Sec. 907, instead of which it has been extended to those of Section. 9Q5, which applies to other and distinct cases of embezzlement and breach of trust. Thus, in this Indictment, there are grouped in each Go wit the offenses described in these two different Sections., which define different and distinct classes of offenses. Por that reason the Indictment in both its Counts is bad for duplicity, and defective for uncertainty.
    Several offenses, distinct in kind and degree, cannot be included in the same Count, unless they are cumulative offenses denounced in the same clause or section of a criminal statute.
    "When tbe objections urged in the Motion in arrest of judgment are defects of substance, and not of form, they are not waived by pleading to the Indictment, nor cured by the verdict.
    Testimony which is wanting in direct connection with the offense charged, though offered to prove the intent of the accused, is irrelevant, and calculated to operate to his prejudice on the mind of the jury, and therefore inadmissible.
    APPEAL from the Superior Criminal Court, parish of Orleans. Whitaker, J.
    J. C. Egan, Attorney-General, for the State :
    The accused is indicted under Sec. 907 of the Rev. Stat. of 1870, which does not require that the bank officer charged with embezzlement should have been in possession of the money.
    A defendant may move an arrest of judgment for all defects which are not cured by verdict; but not for a mere formal defect. The reasons alleged in this Defendant’s Motion are all matters of form. 1 Archbold, 671; 4 Burr, 2287 ; 1 Lord Roym, 281; 1 Salk. 77, 315 ; 1 Sed. 65 ; 7 Black, p. 282 ; 8 Sm. and Marsh. 573; 2 Poll. Ab. 716; 3 Black. Com. 394; Oaruth. 389 ; Bishop, Crim. Proc. vol. 1, sec. 443.
    There is no duplicity or uncertainty in the Indictment; the accused is charged with but one act, and that act is clearly defined under the statute. Bishop, Crim. Proc. yol. 1, sec. 436 ; 4 Allen, 305-6 ; 15 Pick. 273 ; 15 An. 498 ; Rev. Stat. sec. 906.
    The law of the State makes the description of the money embezzled and converted sufficient. If it were not, it is a mere defect of form, which is cured by verdict. 30 An. 601; Rev. Stat. sec. 1064.
    Henry C. Miller, Branch K. Miller, and Singleton & Browne for defendant :
    An overdraft of its bank account by a partnership does not constitute an embezzlement or conversion to his own use by a member of the partnership.
    The transfer of a credit by check, no money being paid on said check, is not an embezzlement or conversion to one’s own use.
    The drawing of the check did what the law would have effected proprio vigore.

    Civil Code, art. 2207 et seq.; 7 Robinson, 466; Case vs. Beauregard, 1 Otto, 134.
    The voluntary liquidation of a corporation does exempt it from compensation.
    Civil Code, art. 2207 et seq.; 6 Rob. 387.
    Hennen’s Digest, p. 258, No. 1 et seq.; Louque’s Digest, 119, No. 1.
    On a trial for a specific offense evidence of other and distinct offenses is inadmissible. Such testimony, if admitted to show intent, must tend to prove intent with reference to the offense charged.
    To constitute embezzlement, the property charged to have been embezzled must have been entrusted to the accused by virtue of his office, duty, or employment. The president of a bank is not so entrusted with its money or deposits.
    2 Archbold’s Crim. Law. p. 560.
    1 Wharton’s Precedents, pp. 467, 468, et seq.

    Roscoe’s Crim. Evidence, p. 438 et seq.

    2 Wharton’s Crim. Law, p; 1907-8 ; Edition 1868, note.
    The charges asked for were necessary to protect the defendant from an erroneous verdict; they were so qualified by the court as necessarily to prejudice Defendant.
    The Indictment is bad for duplicity.
    Revised Statutes, SS. 905, 907.
    1st Archbold’s Crim. Law, p. 313.
    State vs. Pant, 2 A. 837.
    State vs. Adams, 31 A. 717.

      The Indictment is bad for want of a proper description of the money. Revised Statutes, S. 906.
    10 A. 229 ; 31 A. 442 ; 20 A. 48 ; 26 A. 337.
    ‘The Indictment does not sufficiently describe any offense known to the law. 20 A. 147 ; 9 A. 210 ; 3 A. 326 ; Revised Statutes, S. 976.
    Defects of substance are not cured by verdict. Revised Statutes, 1063, 1064; 11 A. 648 ; 14 A. 688; 5 A. 327 ; 10 A. 229; 20 A. 147 ; 20 A. 408. '
    Henry O. Castellanos on same side :
    "The Indictment is bad for duplicity.
    Devised Statutes, S. 907, Acts 1821.
    •Bishop Crim. Proc. S. 432 ; 31 Maine, 386.
    ■5 Howard, (Miss.) 250 ; 36 N. H. 539 ; 1 Parker, 481.
    .2 Mass. 163 ; 2 A. 837 ; 4 A. 31; 14 A. 678; 15 A. 498 ; 31 A. 487, 717.
    The Indictment is bad for uncertainty. The offense must be charged in apt and technical terms on the face of the record.
    “Starkie Crim. Pleading, pp. 73, 235, 242, 247 ; 29 A. 602 ; 20 A. 403,164 ;
    5 A. 326 ; 9 A. 210 ; 10 A. 195 ; 10 A. 191 ; 29 A. 602 ; 8 Rob. 590. . The Indictment is bad for want of a proper description.
    Revised Statutes, SS. 1061, 906; 20 A. 49 ; 26 A. 377 ; 22 A. 425 ; 21 A. 442.
    These objections do not come too late.
    .Archbold, 49,78, 38 ; Revised Statutes, S. 1063 ; 22 A. 77 ; Archbold, 46 ; 20 A. 49 ; 11 A. 648 ; 10 A. 265, 230; 28 A. 5 ; 26 A. 71; 14 A. 827 ; 14 A. 785 ; 18 A. 720.
   The opinion of the Court was delivered by

Levy, J.

The defendant, Edward C.' Palmer, was indicted, tried, convicted, and sentenced to three years imprisonment at hard labor, on the charge as set forth in the two counts of the indictment; 1st. That “ being the President of a bank chartered by the State of Louisiana, to wit: the Louisiana Savings Bank and Safe Deposit Company, and acting • as such, feloniously, knowingly, and willfiilly, did wrongfully use, dispose -of, conceal, and otherwise embezzle and convert to his own use certain •money, to wit, the sum of forty-seven thousand four hundred and thirty-seven dollars and thirty-four cents, belonging to the said Louisiana Savings Bank and Safe Deposit Company.” 2d. That being President of the said Bank, etc., and acting as such, he did feloniously, knowingly, ■ and willfully, wrongfully use, dispose of, conceal, and otherwise embezzle and convert to his own use ” the aforesaid sum of money, f‘ deposited in the said Louisiana Savings Bank and Safe Deposit Company.” A motion ,for new trial having been denied, and motion in arrest of judgment overruled, the accused was sentenced as above stated, and has appealed from the judgment and sentence of the Court.

The defendant during the progress of the trial filed five Bills of Exceptions to various rulings of the Court, and made an assignment of errors, and additional and supplemental assignment.

The first Bill of Exceptions is to the charge of the Court on the-request of the defendant to instruct: “That if the Jury find from the’ evidence that the money from the Louisiana Savings Bank and Safe-Deposit Company, whether belonging to the Bank or composed of its deposits, was under the mode of doing business observed in said Bank,, entrusted to the cashier or teller, or some officer of said Bank, other than the President, and that in point of fact, the defendant never had' the custody or possession of said money, he cannot be convicted of' having embezzled or converted said money to his own use, it being essential to constitute said embezzlement or conversion, that the money, the subject of the charge, was in his actual possession or custody, and entrusted to him as President, and so being in his custody or possession as President, was embezzled or converted by him.”

The Court refused so to charge, on the ground that in its opinion,t “ the actual personal custody of the funds was not essential as a basis-for the crime charged.” On the request to instruct that: “ The cashier of the bank is presumed to have the actual custody and possession of' the money of the bank, whether the money belongs to the bank or represents its deposits, and the President is presumed not to have that possession and control, and the Jury must accept and g,ct on that presumption, unless it is removed by proof,” the Court charged : “ The question of actual custody does not seem to affect the issue. In the opinion of the court, it is immaterial whether the funds of the bank were in the possession of the President or the cashier.” The defendant requested the court to charge further in his behalf : “'That if the Jury finds from the testimony adduced, that the money which the defendant is charged with having embezzled or converted to his own use, was obtained by overdrafts on his check, or the check of his firm, E. C. Palmer & Co., then the jury are instructed to find that the obtaining of money by said overdrafts was neither an embezzlement by defendant, or a conversion to his own use of the money belonging to or composing the deposits of said bank,”

The court refused to give such charge for the reason: " The question of fact before the jury is not merely whether the accused obtained any money by an overdraft. The question is, whether he embezzled or converted to his own use any money belonging to the bank, or deposited therein.”

The Court instructed the jury “ that if Mr. Palmer drew on his in■dividual account, on the twenty-eiglith. of June, 1879, or any other day, having to that account a proper credit in his favor, and transferred tho amount of his check to the credit of his firm, it was a legitimate transaction, ‘provided that the bank ivas then in regular course of business.”

Tho second Bill of Exceptions is directed to the ruling of the Court, refusing to instruct the jury that the actual custody or possession of the money in the President, and entrusted to him as President, was essential ■to constitute the embezzlement or conversion charged, and that the ■cashier is presumed to have the actual custody and possession, and the President is presumed not to have that possession and control, and this presumption must be removed by proof.

The third Bill of Exceptions is to the ruling of the Court, on the request to charge the Jury that “ the State having proved the charter of ■said Bank under the laws of this State ; that on the 28th of June, 1879, ■and for years previous, the defendant, E. C. Palmer, has and had been ' President of said Bank ; that on the 28th June, 1879, the deposit-account ■of defendant’s commercial firm of E. C. Palmer & Co. with said Bank was overdrawn in the sum of forty-seven thousand four hundred and thirty-seven 34-100 dollars, the amount charged to have been embezzled in the indictment, said overdraft on the checks of said firm having been made while defendant was President of said Bank ; and the defendant having proved that those overdrafts had run through a series of yeais, and that the money he is charged to have embezzled and converted to his own use was obtained by and through the checks of his said firm, and credited to his said firm, in their said account, resulting in said overdraft, as appears by said account, and that interest was charged by said Bank in said account of E. C. Palmer & Co., “ and, that if the jury finds from the testimony adduced that the money which the defendant is charged with having embezzled or converted to his own use was obtained by overdrafts on his check or the chocks of his firm, the obtaining of money by said overdrafts was neither an embezzlement by defendant, or a conversion to his own use of the money belonging to or ■composing the deposits of said Bank.”

The fourth Bill of exceptions was taken to the ruling of the Court, permitting the testimony of J. S. Walton, the cashier of the bank, to be given, as to his (witness) having, under the direction of the defendant, made certain entries to profit and loss account on the books of the ■bank of the following items : W. A. Yan Norden’s accommodation note ■of E. C. Palmer & Co., $20,000 ; W. A. Weed, $1036 52 ; W. A. Yan Norden’s accommodation note of $7528 50 ; and that said entries were false and improperly made, and that said E. C. Palmer & Co. got the benefit of said obligations, and that witness, when asked to make said entries, stated to Palmer they would not look well, but that Palmer insisted upon their being made, and they were made on the 30th June,, 1879, but credited as of the 28th June, 1879, and that said bank was then in the hands of liquidators. Defendant objected to the reception* of this testimony, on the ground that the alleged false entries had no-connection with or relation to the offense charged ; but this objection was overruled by the Court, and the testimony admitted to show the-intent of the accused with reference to the offense of embezzlement charged; and the State proving afterward that the account of E. C.. Palmer & Co. with the Bank was overdrawn on the 28th June, 1879, and' that on June 30th, or July 1st, 1879, he drew his check for the amount; of $52,938 13, an amount greater than said overdraft, said check being-drawn upon and debited to account of E. C. Palmer individually, on-which he had a credit of $55,000, the amount of said overdraft being-admitted, and the testimony tending to show intent.

The fifth Bill of Exceptions was to the ruling of the Court, admitting-the testimony of J. C. Egan, by whom the State offered to prove that; the accused, E. C. Palmer, the President of the bank, had stated to witness that the Louisiana Savings Bank and Safe Deposit Company was; good and solvent; that there was no possibility of its failure ; that if the witness, as Attorney-General, would give time, a judgment of the-State for taxes against the bank would be paid ; that these statements-were made to procure time for the bank, and that a short time after, the-bank failed ; this testimony being offered to show concealment and intent, and for no other purpose. The defendant objected to said testimony, on the ground that the testimony was wholly irrelevant to the charge on which the prisoner was on trial; was calculated to excite the prejudice of the jury against him, and to mislead and divert their attention from the issue made by the indictment.

The defendant after conviction and before sentence filed a motion-in arrest of judgment, on the grounds : That the indictment is bad for-duplicity, insisting that the theory maintained in the charge of the Court-is, that the section of the Revised Statutes (sec. 907), under which the-defendant is indicted creates two distinct offenses, embezzlement and-conversion, the court maintaining in its charge that because of this distinctness of the offenses it was not necessary, in order to convict, that-the jury should find the prisoner was entrusted with the funds he is-charged to have embezzled ; and that if this theory announced by the-Court be correct, and was adopted by the jury, though controverted by-the defense, the indictment is bad for duplicity, and two distinct offenses-are joined in each count; that on this theory maintained by the Court,, the indictment is bad for duplicity, as it joins and combines the offenses did wrongfully use, dispose of, conceal, and otherwise embezzle and? convert to his own use certain moneyand he contends that the offenses. of wrongfully using, disposing of, and concealing being each, distinct and different, as well as distinct and different from the embezzlement and conversion charged, and that this distinction is recognized in Sections 905 and 907 of the Revised Statutes ; that the indictment contains no sufficient description of the money which the defendant is charged to have embezzled, converted, used, disposed of, and concealed, which the law requires to identify the offense, to protect defendant from a second prosecution, and to make the charge certain ; that these defects and insufficiencies are material and substantial, and not cured, by plea, trial, or verdict. In his supplemental motion in arrest of judgment, the defendant urges: That if on the other hand the indictment contains but one offense, then the same is fatally defective, because no offense known to the law is therein described. The motions in arrest of judgment were overruled by the Court, on the ground as to the point raised, that two distinct and different offenses, embezzlement and wrongful conversion, are joined in each count of the indictment, it was “too late to raise the question, and it does not affect the worth of the verdict.”' As to the point that there was no sufficient description of the money, the Court held it to be sufficient, and also held as to the point raised in the supplemental motion in arrest, that the offense is clearly defined under the law.

The defendant .assigns as error the charges given by the lower Court, the refusals to instruct the Jury as requested by the defendant, the admission of the testimony of J. S. Walton, and of J. C. Egan, and the rulings which were excepted to, and to which Bills of Exceptions were filed by defendant.

This Court is not called upon, nor is it within its province, to decide-upon the guilt or innocence of the accused. It can deal only with the-application or operation of the law to a given state of facts embodied and admitted in the bills of Exceptions certified by the lower court. In all prosecutions for the violation of the laws of the State, the utmost certainty and distinctness of pleading, the strict construction of the provisions of penal statutes, according to the usual and reasonable meaning of words and terms, and the admission or rejection of testimony according to the rules of pleading and law of evidence are required.

In his charge to the Jury, the Judge of the Cour,t a qua declared that the indictment is framed under Section 907 of the Revised Statutes of the State, which provides that any President, cashier, teller, or other officer or person employed in the service of any bank chartered by this State,”' * * * “ who shall knowingly and willfully embezzle and convert to his own use, or shall knowingly aid and abet any person in embezzling or converting to his own use any money belonging to such bank or deposited therein, shall, on conviction, be imprisoned at hard labor not more than seven, nor less than one year.”

It is true, that in both counts of the indictment, the defendant is charged with “ embezzling and converting to his own usein the first count, these charges are as to money belonging to the bank, and in the second count, as to money “ deposited ” therein. Sec. 907, Rev. Stat., denounces the offenses of embezzling or converting to his own use, by certain bank officers and employees, money either belonging to or deposited in the bank. We think that under this section embracing only the bank officers and employees designated therein the allegations of embezzling money belonging to the bank or deposited in it, would embrace, as an ingredient essential to constitute the offenses, the conversion of such money ; that while embezzlement in its very essence includes conversion, without which conversion embezzlement has no existence, conversion does not include embezzlement. Under this Section, any of the officers named might be prosecuted for knowingly and willfully converting to his own use, a's an offense distinct from embezzlement, and while, as we have stated, conversion is necessary to embezzlement, and is an ingredient of the offense, charging both embezzlement and conversion con-junctively does not render the indictment obnoxious to the objection of either duplicity or uncertainty. 1 Bishop on Crim. Proced. Sec. 436 ; 4 Allen, 305 ; 15 Pickering, 273.

We are of the opinion that in prosecutions under See. 907, Rev. Stat., it is not necessary that the indictment should Charge that the President or other officer is being in the actual custody or possession of the money charged to have been embezzled or converted. In that section which applies only to Bank officers, the ingredient of “custody,’’.“possession,” or “ being entrusted with,” is not mentioned as a requisite to constitute the offenses therein denounced; while in other Statutes in which embezzlement by persons or officers other than those specially designated in Section 907, those conditions are expressly made elements of the offense. We are also of opinion that the description of the money as contained in the indictment, being a “general allegation of the amount and the thing,” is sufficient in a proceeding under sec. 907, as provided in Section 906, Rev. Stat.

The indictment in this case, however, does not confine itself to See. 907, Rev. Stat., and it is difficult to perceive how and wherein it is framed under that Section. That denounces the embezzlement or conversion of money belonging to or deposited in a Bank, by certain officers of such Bank; it is limited to those two offenses. We think it may be safely assumed that in contemplation of that Statute, each of the several officers designated therein was entrusted with the custody, keeping, care, or possession of the funds of the bank, and under. that section •could only be prosecuted criminally for the commission of the offenses of embezzlement or conversion to his own use.

Section 905, Rev. Stat. 1870, under title “ Crimes and offenses,” heading “ Embezzlement or breach of trust,” creates other and distinct offenses than those contained in See. 907 ; it reads as follows : “ Any servant, clerk, broker, agent, consignee, trustee, attorney, mandatary, depositary, common carrier, bailee, curator, testamentary executor, administrator, tutor, or any person holding any office or trust under the executive or judicial authority of this State, or in the service of any public or private corporation or company, who shall ‘ wrongfully use, dispose of, conceal, or otherwise embezzle any money, bill, note, check, order, draft, bond, receipt, bill of lading, or any other property which he shall have received for another, or for his employer, principal or bailor, or by virtue of his office, trust, or employment, or which shall have been entrusted to his care, keeping, or possession by another, or by his employer, principal or bailor, or by any court, corporation, or company, upon conviction thereof * * * * shall suffer imprisonment at hard labor, not exceeding seven nor less than one year.” Thus it will be seen that in this indictment there are grouped in each count the offenses described in these two different sections, which define different and distinct classes of offenses. While embezzlement necessarily includes conversion to his own use, neither embezzlement nor conversion to his own use necessarily includes every species of wrongfully using, disposing of, or concealing. Sec. 907 denounces the offenses of “knowingly and willfully” embezzling or converting to his own use money belonging to or deposited in a Bank. Sec. 905, the offenses of wrongfully using, disposing of, concealing, or otherwise embezzling any money, etc., which he may have received for another, or by virtue of his office, trust, or employment, or which shall have been entrusted to his care, keeping, or possession by another, or by his employer, principal or bailor, or by any Court, corporation, or company. Bishop on Crim. Procedure, Sec. 323 et seq.; State vs. Adam et al. 31 An. 717, the Court held : “ Several offenses, distinct in kind and degree, cannot be included in ¡the same count; but this rule does not apply to cumulative offenses denounced in the same clause or section of a criminal statute. .Such clause or section may, and often does, enumerate several offenses linked to the same acts, or enumerate disjunctively the intent necessary to constitute each of the offenses, and in such cases they may be charged ■cumulatively in one count.” State vs. Markham, 15 An. 498 ; 40 Maine, 592 ; 36 N. H. 359.

We think the indictment, in both its counts, is bad for duplicity, and •defective for uncertainty.

As to the objections above discussed, urged in the motion in arrest of judgments, it is held by the Judge a quo that they come too late, and-aré cured by verdicts. This point is determined by the character of the-defects which are alleged to exist, i. e. whether they are formal or of substance. We are of opinion that they are defects of substance, and not of that class and description, covered by sec. 1063, Rev. Stat., and By sec. 1064, Rev. Stat., objections to which should be taken by demurrer or motion to quash before the Jury is sworn.

In State vs. Deleono, 11 An. 648, the Court-held that where the indictment is “ for selling liquor to a slave without the consent in writing of his master,” when the Statute denounces the offense of "selling without-the consent in writing of the owner, overseer, or employer,” this defect, was one of substance, and not of form, and was not waived by pleading-tó the indictment nor -aided by verdict; and not regarding it as a formal defect, considered that the motion in arrest of judgment on that ground should- have prevailed. The decisions in 5 An. 327, 10 An. 229, 20 An. 147, 408, sustain this view.

The defendant filed Exceptions as to the admissibility of the testimony of Walton, he being cashier of the Bank, admitted to prove that he made certain entries to profit and loss account on the books of the bank; that said entries were made under the direction of the defendant,, and that they were false and improperly made; and that E. C. Palmer & Co. got the benefit of said obligations, they having been discounted for said firm, and the proceeds passed t.o their credit in the year 1874, the-dates of these obligations, and that witness stated to defendant when, asked to make these entries they would not look well, but defendant insisted they should be made, and they were made on the 30th June,. 1879, but credited as of the 28th June, 1879, and the bank was then in hands of liquidators. Defendant objected to the admission of this testimony on the ground that the alleged false entries had no connection with,, or relation to, the offense charged, but the Court overruled the objection and permitted the testimony to be given, to show the intent of the accused with reference to the offense of embezzlement charged in the-indictment under which he was being tried. Of the like nature is the-objection as recited in the Bill of Exceptions to the adoption by the-Court of the testimony of J. C. Egan, Esq., who was offered by the prosecution to prove that the accused had stated to the witness that-the bank of which he was President was good and solvent; that there-was no possibility of the failure of said bank; that if the witness, an Attorney-General, would give time, a judgment of the State for taxes-against the bank would be paid; that these statements were made to procure time for the bank, and that a short time thereafter the bank failed ; this testimony being offered to show concealment and intent,, and for no other purpose. The defendant objected on the ground that, the testimony was wholly irrelevant to the charge on which the prisoner-was on trial, was calculated to excite the prejudice of the jury against him, and to mislead and direct their attention from the issue made by the indictment; the Court overruled the objection and allowed the testimony to go to the Jury. We think the objections of the defendant to-this testimony of both-witnesses, Walton and Egan, were well taken and ’ should have been sustained. The facts offered to be proved by them, respectively, as to the alleged false entries by Walton, and the declarations of the accused to Egan as to the solvency of the bank, at the time-the conversation between them took place, have no such direct relation to the offense charged as to connect them therewith, and are not such part of the res gestee as render them admissible to prove the intent of the accused, existing at the time the offense is laid in the indictment. Being, then, irrelevant and wanting in such direct connection, they were calculated to operate to the prejudice of the accused in the-minds of the Jury, and affect its members injuriously toward him by this interpretation in the issue which they were to decide.

The other objections are to the refusal of the Court a qua to charge-as requested by the defendant, and to the charge as given in regard to-the law as applicable to the proof made by the State and the defendant in relation to the existence of an overdraft by the firm of E. C. Palmer- & Co., of which firm the defendant was a member, of the sum of $47,487 84 appearing on the books of the Bank to the debit of the account of said ñrm, and the drawing by the defendant of his cheek on his individual account in said bank for $52,938 13, defendant directing said check to be credited to said firm’s account, which was done, thereby balancing said firm’s account, and that when said check was drawn by defendant and credited to said firm’s account, said bank had resolved on liquidation and elected liquidators, the bank having ceased to receive-deposits on the 28th of June, 1879, up to which time it did business, and said check was dated on the 28th of June, 1879, though drawn oh the 30th June, 1879 ; that at the time said overdraft existed, and when the money was obtained on the overdraft defendant had a credit on his individual deposit-account with the bank of $55,299 26, on which individual credit-said check was drawn, and that it was debited to his said individual account; that it had been agreed upon by the Bank that it should allow interest on the said credit at eight per cent from July 1st, 1874, and that like interest had been charged on the overdrawn account of the firm that the money charged in the indictment to have been embezzled had been obtained by and through said overdrafts in said deposit-account off said firm; that they had run through a series of years ; that no money was paid to or obtained by defendant on his said check, but defendant directed it to be credited to the firm’s account to balance the said over■drafts, as stated in the bill of Exceptions and set forth in a preceding .portion of this opinion. The Judge a quo in his charge ruled that “if Palmer and Palmer & Co. had separate accounts with the bank, and it was understood with the bank that as to drafts by Palmer or by Palmer -& Co. said accounts should be treated as essentially one account, there can be no doubt that’ an overdraft on one account might be offset by the •other. If Palmer’s individual account was really in his favor, he had a right to draw to the credit of the firm.” Also, that “if a chock was drawn by tho accused upon an account lawfully to his credit and was ■fairly placed to tho credit of any other account at his discretion, there can be no doubt that there could bo no embezzlement in such chocking and crediting. Tho position of tho account and chocks are matters of fact before the Jury, and they will consider the circumstances as disclosed 'by the testimony in coming to a conclusion as to their verdict.” The Court further instructed that if defendant “ drew on his individual account on the 28th of June, 1879, or any other day, having to that ae-•count a proper credit in his favor, and transferred the amount of his ■check to the credit of his firm, it was a legitimate transaction, provided ■that the hank toan then in the regular course of business, and unless there were some interposing contract with this bank, or regulation of tho bank •equivalent toa contract compensation, a set-off would be legal under ■such circumstances.” The defendant excepted specialty to that portion of the charge which contains the proviso, or qualification in italics.

We are of the opinion that the Court erred in making this proviso a qualification ; that if this right of compensation or set-off existed, based upon the proof as recited in the bill, it was not affected by the proviso or qualification announced in the charge, and if not thus affected, •the charge as given was calculated to prejudice the defendant with the Jury and affect his case to his injury. The qualification or proviso is inconsistent with the enunciation of the law as made by the Judge a quo in previous portions of his charge, and was, in our opinion, in itself improper, and, therefore, prejudicial to the defendant.

We think it proper to model our decree herein according to that rendered by our predecessors in the case of State vs. Curtis, 30 An. 814; also, State vs. Morrison, 30 An. 817 State vs. Williams, 30 An. 1028.

It is therefore ordered, adjudged, and decreed that the verdict and sentence appealed from be set aside, and the indictment quashed as not good in law, and that the defendant remain in custody, subject to the ■orders of the Superior Criminal Court for the parish of Orleans, for fur■ther prosecution according to law.

Rehearing refused.


author: Poché, J.

text:
    No. 6482.
    Henry Street et al. vs. the City of New Orleans
    The City of New (Moans cannot be held responsible, under Section 2453 of the Revised-Statutes of 1870, for damage done to private property on the 14th of September, 1874, because the body of men, who took possession of the State Government on that memorable day, were not, in the sense of the Statute, a mob or riotous assemblage.
    Furthermore, the police force of New Orleans, which, by the then existing laws, was not-under the control of the City Authorities, but under the orders of the Governor of the-State, had been removed from its post of legitimate duty and made to leave private property unjn'otected. This fact, of itself, should release the City from the responsibility sought to be placed upon her.
    A PPEAL from the Superior District Court, parish of Orleans. Lynch, A J.
    R. King Cutler and Alfred Shaw for Plaintiffs and Appellants :
    Plaintiffs’ property was destroyed by a mob, which held possession of the Oity on the 14th of September, 1874, and on the following days-in defiance of its police or militia. Under section 2458 of Rev. Stats., of 1870 the Oity is responsible. 28 An. 936.
    E. Howard McOaleb, Oity Attorney, for Defendant and Appellee :
    The judgment appealed from is correct, and should be affirmed, because :
    First — The troops engaged in the memorable struggle of the 14th of September, 1874, were neither a mob nor a riotous assemblage, and hence the Oity is not liable. Rev. Stats, of 1870, sec. 2453 ; Dillon on Municipal Corporations, § 760.
    Second — The Oity had been deprived of all power to preserve the peace by the enactment of the Metropolitan Police Law.
   The opinion of the Court was delivered by

Poché, J.

Henry Street and nine other plaintiffs, joining together, sue the city of New Orleans for damages alleged to have been done to their property in this city, on the 14th, 15th, 16th, and 17th days of September, 1874, by a body of rioters, who took violent possession of the State House and other public buildings in the city, and used, carried away, destroyed or otherwise illegally disposed of, plaintiffs’ property, which is fully described in several statements annexed to their petition.

The city filed a general denial, and urged as special defenses that, on the 14th of September the city government. was suspended in its functions; that the then existing State Government which had under the law the exclusive control of the police, had been subverted, or had ceased to exercise its authority, and that both State and city Governments were, during the days mentioned by Plaintiffs, under the control of a “ de facto ” Government which had supplanted the previous State Government, thus rendering the bity powerless to hinder or prevent the acts complained of.

The case was tried by a Jury, who returned a verdict in favor of the city, upon which judgment was entered accordingly, and two of the .Plaintiffs, Henry Street and Otto Burauld, have appealed.

The evidence shows that considerable property of Plaintiffs was ■destroyed or lost to them on the occasion referred to, and they claim damages therefor under the provisions of article 2453 of the Revised Statutes of 1870, under which all municipal corporations in this State are made liable for damages - done to property by mobs or riotous assemblages in their respective limits. In order to recover in this suit, Plaintiffs must bring their case within the strict provisions of this ■statute, and they must therefore prove, beyond doubt, that the body of men who took possession of the State House, and in fact of the State Government, on the fourteenth of September, 1874, and held and controlled the same during the three succeeding days, was a mob or a riotous assemblage within the meaning of the Statute, and in default of such proof they must fail. The record is very voluminous, and the ■evidence decidedly conflicting, but after a careful perusal of the testimony, we are clear that the body of men, who co-operated in that movement, and on that memorable occasion, was not a mob or a riotous assemblage, nor unruly and wanton destroyers of property.

We are satisfied, on the contrary, that it was a well-organized body of citizens and patriots, acting under the orders of, and in obedience to, a State Government ordained by the people, and wielding legitimate power, and that those citizens were exercising the sacred rights of resistance to oppression and usurpation, under which their dearest rights were being destroyed.

And, therefore, the property which was destroyed, and the victims who fell, during the conflict were the inevitable results of a collision of arms between organized and contending forces, and under such a state of facts no municipal corporation can legally be held liable in damages for property destroyed.

The occurrences of the 14th of September, 1874, although they. failed to bear the fruits which immediately resulted from the events of the 9th of January, 1877, from which the true Government of the State sprang into life, were not more than the latter, the deeds of a mpb or of a riotous assemblage.

Both are marked epochs in the history of Louisiana, of which we take judicial cognizance; both contributed to the re-establishment of ■justice and order in the State ; and neither could entail any liability for •damages on the city of New Orleans, because, by accident, she happened ‘to be the scene of the two movements.

And, besides, at that time, the city authorities had no control over ■the police force, which under the laws, was part of the existing State -Government. The evidence in this case also shows that, on the 14th of .September the police force of New Orleans had been removed by the State authorities from its post of legitimate duty, that it was converted .into a Militia Brigade, and that, armed and equipped and officered as for war, that same police was marched out to disperse the citizens who had assembled to petition and remonstrate against the abuses and outrages perpetrated by the usurping State Government. This fact of itself should release the city from all liability in the premises.

Plaintiffs having utterly failed to make out their ease, the verdict 'of "the Jury, and the judgment of the lower Court, are therefore correct and ■are affirmed with costs.


text:
    No. 7845.
    State ex rel. A. Barbin vs. Secretary of State.
    'Under the laws now in force in the State, prescribing the manner in which election returns and tally-lists shall be forwarded ^y the returning officers to the Secretary of State, and the compilation and promulgation of said returns shall be made by the latter officer, his duties are purely ministerial, without any discretion whatever on his part. ■
    If he has made the compilation and promulgation upon other returns than those prescribed by the law, he must make them over again, in a way to conform strictly to the Statute.
    The writ of Mandamus lies to compel him so to do.
    Tut the Decree of the Court, issuing the 'Writ, does not decide the question of title to the ' office to which the Relator claims to have been elected; it only gives him a prima facie title to the office in controversy.
    A PPEAL from the Fifth District J. Court, parish of Orleans. Bogers,

    A. & W. Voorhies and F. C. Zacharie for the Relator and Appellant:
    'The Statutes of 1877 and 1878 provide exactly for the manner in which election returns shall be forwarded to the Secretary of State and by. him tabulated and promulgated. The very object of those laws is to take away from him all discretionary power in that respect. In the case at bar, that officer has, under compulsory process of Court, tabulated the official returns of election with spurious returns. He must be compelled by Mandamus to correct his mistake. His reason, that he has exhausted his power and cannot legally make another compilation and promulgation, is untenable. 7 Bush (Ky.) 527 ; 29 Ill. 414; 4 W. Va. 371 ; McCreary’s Am. Law of Elections, 321, 322; 2 Gray, 370.

      Oqr Courts, under our Code oí Practice, have even more extensive-powers to issue the writ of Mandamus than those of the common-law. 1 Rob. 470.
    J. C, Egan, Attorney-General, for Defendant and Appellee :
    The mandamus should be refused—
    First — Because it does not appear from the record that the relator has-been elected Judge, and he cannot therefore be so declared.
    Second — That this disputed question of fact cannot be litigated in a proceeding by mandamus.
    Third — It is only pre-alsccrtained rights that-can be enforced by law. Fourth — The relator has adequate relief at law by direct suit against Blackman to obtain any rights he may have.
    Fifth — -The Secretary of State had discretion as to whether he would' count the vote from the disputed poll, and this discretion could not be controlled either to make him count it or to prevent him from counting it.
    Sixth — The law does not require the Secretary of State to make but one official promulgation of the result of a general election.
    Seventh — This is evidently an effort to try the question of title to office.. See. 77, High on Extraordinary Legal Remedies.
    James Lingan on the same side:
    Authorities cited: Moses on Mandamus, pp. 17, 18; 3 Stephens’ Nisi Prius, 2291; 1 Swift Dig. 564; 4 Hill, 581 ; McCreary on Elections, sec. 98; 29 An. 610 ; 15 An. 464; 47 Pa. 292 ; 45 Mo. 350 ; 33 N. Y. 603 ; 27 An. 514 ; 9 An. 577 ; 1 Kansas, 270 ; 7 Bush, (Ky.) 527 ; 29' Ill. 414 ; 2 Gray, 370.'
   The opinion of the Court was delivered by

Todd, J.

The Relator, Aristide Barbin, alleges, in substance, that at the general election held on the 2nd December, 1879, he was elected Judge of the Twelfth Judicial District Court; that the official returns of said election, forwarded to the office of the Secretary of State and filed therein, as shown by the annexed certificate of said officer, were as follows:

A. Barbin. W. F. Blackman. H. L. Daigre.
Grant 42 356 51
Avoyelles. Rapides .. 2550 352 318 2230 114 201
Total. 2944 2904 366
Plurality for A. Barbin 40 votes.

That in conformity with said official returns, it was the ministerial 'duty of the Secretary of State to tabulate and promulgate the said result; ■ that he was prevented from doing this by the j udgment of the Court (of the Fifth District Court), rendered in the matter of .the State ex rel. W. F. 'Blackman vs. Secretary of State, which commanded the said officer to count certain alleged votes which had been returned by an order of the Parish judge of Grant, sitting as District Judge in chambers, the District ■Judge, W. F. Blackman, being recused by reason of being party to the proceeding ; that in obedience to this judgment, the Secretary of State had included these additional votes in his official count, which changed the result of said election, shown by the returns first forwarded to the 'Secretary of State, and showed a' plurality of twenty three votes for Blackman; that relator had appealed from this judgment, to the Supreme •Court of the State, and that this court reversed the judgment of the District Court, and ordered the Secretary of State to tabulate and promulgate the official returns of the election in accordance with the returns first received at his office; that the relator had submitted this decree of the Supreme Court to the Secretary of State, and requested him to comply with the same, and to rectify the error he had committed in counting and tabulating the additional votes returned under the judgment rendered by the Parish Judge of Grant, but that the said officer had declined to comply with this decree and make the tabulation ■and promulgation demanded by the relator. He prayed for a writ of Mandamus to compel him to do so.

The answer of the Secretary of State to the petition was as follows :

“ Will. A. Strong, Secretary of State, defendant herein, for answer to relator’s application for Mandamus, denies all and singular the allegations in his petition contained.
“ Respondent further avers that he has already, in pursuance of law, made a promulgation of the result of the last general election held in ■this State, and that he has exhausted the power to make promulgation of the result of the said election.
“ Respondent avers that the law does not authorize or direct him to ■make any amendment of his said promulgation, and that the court has ■no power to compel him to correct or amend the same.”

The Mandamus was refused by the Judge a quo, and the relator has appealed.

We learn from these pleadings and the evidence in the record, that •the relator and W. F. Blackman were both candidates for District Judge of the Twelfth Judicial District, composed of the Parishes of Rapides, Avoyelles, and Grant. That according to the election returns first forwarded by the returning officers to the office of the Secretary, of State, fit appeared that the relator received a majority of forty votes. Before such a result, however, could be promulgated, Blackman instituted proceedings against the commissioners oí an election precinct in Grant-Parish for the purpose of having returned the votes from the precinct, which were alleged to have been destroyed or taken from the possession of the returning officers. This proceeding was instituted in the District-Court of Grant Parish, and Blackman being Judge of that Court, recused, himself, and the Parish Judge officiated and rendered an order in chambers, under which these additional returns were forwarded to the-office of Secretary of State. Thereupon proceedings were instituted on the relation of Judge Blackman in the Fifth District Court, Parish of Orleans, against the Secretary of State, to compel him, by mandamus, to count and tabulate these additional returns from the parish of Grant, The Secretary of State, in answer to that application, alleged in substance that he had received no election returns from ward No. 2, of Grant Parish, but that he had received returns made under protest of two of the three Commissioners of that ward under order of the Parish Court; that he declined the responsibility of counting said returns, and that his duties relating to the counting of the votes and tabulating the-returns, were purely ministerial.

The mandamus was made peremptory. An appeal was applied for by the Secretary of State, but subsequently abandoned by him; and one was taken by A.'Barbin, the relator in this case, from such judgment.

On the trial of the case in the Supreme Court, the judgment of the-lower court was reversed, and as the opinion of our predecessors, rendered in that proceeding, bears materially upon the issues presented in-the case before this court, we give it in extenso:

“ On the merits, we are clear that the Court below erred. The duty of the Secretary of State to compile the returns under the provisions of Act No. 58 of 1877, and Act No. —, of 1878, is manifestly ministerial to the extent that he acts within the purview of the law. But his duty, if any there was, with reference to the return in question, was clearly not ministerial, as it involved the decision by him under the responsibility of his oath of office, whether or not the judicial Count and return was a valid return. The duty not being ministerial, could not be enforced by mandamus.

“ But were it conceded that the function to be exercised by the Secretary of State, in passing on the return in question, was ministerial, we are clear that he properly declined to canvass it: because it was not the-return of the returning officer of the Parish of Grant, or the commissioners of the election of the poll of Ward Two in that Parish ; nor of the returning officer, because it did not purport so to be ; nor of the commissioners, because two out of the three, who signed it, protested that ■they signed under compulsory order of the Parish Court, and that the ballot-box, as counted under the order of the Court, had been tampered with, and that the result did not correspond with the count at the precinct. In fact, the return was in reality the return of the Parish Judge* who was without authority to that end.” ■ #

In the meantime, however, before this decree of the Supreme Court had been rendered, the Secretary of State had complied with the order of the Judge of the district Court,, and tabulated the contested returns from Grant Parish, thereby changing the result shown by the original returns, and declaring Blackman elected over Barbin by twenty-three majority.

After the decree of the Supreme Court referred to was rendered and submitted to the Secretary of State, having already tabulated and promulgated the returns of election, he declined to amend or alter the same, when this proceeding was instituted by Barbin, the relator, to compel him to do so.

It is resisted by the Secretary of State upon the ground shown in his answer, which is, substantially, that having once tabulated and promulgated the returns of the election, that his power over the matter was exhausted, and he could not legally change, correct, or amend the same ; and it is the issue thus presented that is before us for adjudication.

Section 2, of Act No. 99, of 1878, amendatory of section 38 of Act No. 58, of 1877, provides :

“ That it shall be the duty of the returning officer of each parish to make out duplicate returns, to be certified by the clerks of court, in whose office the ballot-boxes are deposited, to be correct. He shall forward one of the returns, and the tally-lists from which it is made, immediately by mail to the Secretary of State ; he shall deliver the other two to the clerk of the court, who shall immediately forward one of them to the Secretary of State, and shall file and preserve the other one in his office.”

Section 39, of Act No. 58, of 1877, provides :

“ That it shall be the duty of the Secretary of State, or in his default, the State Auditor, not less than ten, nor more than twenty, days after the holding of an election, to begin the compilation of the returns, and shall publish in the official journal the names of all the candidates voted for, the office for which each was voted for, and the number of votes actually cast for each, as shown by the returns, and shall declare that the person receiving the greatest number of votes cast for the office for which such person was a candidate has been duly elected.”

And section 45 of same act declares : “ That the clerks, of the several courts, with whom election returns are filed, shall preserve such returns until the time of the succeeding general election, and the returns so filed with the Secretary oí State and clerks of courts shall be prima facie evidence of the result of the election in the Parish for which the returns were made.”

These Statutory provisions point out with clearness and precision the duties of the Secretary of State with reference to the counting, compilation, and promulgation of election returns. The very terms of Section 89, of Act 58, above quoted, expressly exclude the idea that this officer can count, compile, and promulgate any other returns of election than those forwarded to him by the returning officers of the several parishes, made out and certified in the manner prescribed by law. There is not a single provision of these statutes that by the most liberal construction would authorize him to count or compile returns forwarded by any other person or authority than these returning officers, or that could giv,e him any color of right to consider or weigh any evidence of the votes of any parish or ward alleged to be lost or destroyed, or abstracted, or, in short, accept or count any return not certified and forwarded in strict conformity to the Statute. In other words, his duties are purely ministerial. This is the construction of the law made by this officer himself, as disclosed by his answer in the case of the State ex rel. W. F. Blackman vs. Will. A. Strong, Secretary of State, above referred to, and such we construe to be the fair intent and meaning of the decision of our predecessors in the same case above quoted. Did the language of the statute leave any room for doubt on this subject, that doubt would be renounced when we consider the time of the legislation and the evils intended to be corrected, growing out of the enormous powers usurped by returning boards in the recent history of our State under the specious pretext of exercising discretionary powers. These statutes were intended to strip, and did strip, the Secretary of State, who was constituted the final canvasser of the election returns, of all discretionary powers, and made his duties strictly and exclusively ministerial. Any irregularities in elections resulting from fraud, violence, or other cause, are to be corrected, not by the Secretary of State, but by the proper proceedings before the courts.

If this view of the subject be correct, and the Secretary of State only authorized to compile and promulgate the result of election returns in strict accordance with the triplicate returns required by the statute, then it would follow as a legal corollary, that whenever this officer, in the discharge of this duty, in any instance, goes beyond the limits and restrictions prescribed by law for the compilation and promulgation of the returns of election, his acts and errors become proper subjects for correction, as fully as those of other executive officers exercising purely ministerial functions. We cannot recognize the doctrine that there is any thing sacramental in either the compilation or promulgation of election returns by this officer, and that when once done, he has exhausted his powers over the subject, and that his acts in this respect are conclusive, and possess an immunity from revision or correction by any authority or process whatsoever.

It is urged that the objects sought to be accomplished in this proceeding are beyond the legitimate scope and intendment of the writ of mandamus, and we are referred to some very respectable common-law authorities in support of this position. We are of a different opinion.

It has been frequently held that even under the common-law construction of a mandamus proceeding, that it is the proper remedy for the correction of such errors and the redress of such grievances as are complained of in this case. 7 Bush (Ky.) 527 ; 29 Ill. 414 ; 2 Gray, 370; 4 W. Va. 371.

Besides, it has been expressly decided by this court that under the articles of the Code of Practico our courts have more extensive powers than those of the common law in issuing this writ. 1 R. 470. It will be seen by a reference to the articles of the Code of Practice that the remedy by Mandamus seems specially provided for just such a ease as we have now before us.

Article 830 C. P. provides :

“The object of this order is to prevent a denial of justice or the consequence of defective police, and it should therefore be issued in all cases where the law has assigned no relief by ordinary means, and where justice and reason require that some mode should exist of redressing a wrong or an abuse of any nature whatever.”

Art. 831. “ This order may be issued at the discretion of the judge, even when a party has other means of relief, if the slowness of ordinary forms is likely to produce such a delay that the public good and the administration of justice will suffer from it.”

In this case, not only the rights of individuals are involved, but a great public interest, since the contest is for the office of District Judge, the duties pertaining to which are of such a grave and responsible character, and which so immediately relate to the “ public good and the administration of justice,” and where these cannot but suffer if the parties are left entirely to “ the slowness of ordinary forms ” for a settlement of matters pertaining to this controversy.

It must not be inferred from the language of this decision that we have undertaken to decide any thing relating to the merits of this contest or to express an opinion on the subject. The question of title to this office of District Judge is not now before us, and we do not decide who was and who was not elected to it. What we do decide is, that the Secretary of State committed an error in compiling and tabulating any votes from the twelfth judicial district, except such as were shown by the returns forwarded by the legal returning officers, and that error must be corrected. This will give to the relator, A. Barbin, a prima facie showing of title to the office in controversy, as provided by a section of the statute above quoted. To this he is entitled ; and no error committed by the Secretary of State in the compilation and tabulation of the returns can affect his status under this prima facie showing, and place him in the position of a contestant for an office to which the legal returns of the votes in the office of Secretary of State declare he was elected.

It is therefore decreed that the judgment of the lower court be reversed, and the mandamus applied for is made peremptory, at the cost of the defendant.

Rehearing refused.