author: Nici-iolls, O. J.

text:
    No. 11,105.
    The State op Louisiana vs. Arthur West.
    1. An order fixing terms of court, if spread the same day it is rendered upon the minutes and read, is substantially “ an order rendered in open court,” although written and signed at chambers.
    2. The mere fact that a judge in sustaining objections to the introduction of testimony does so on grounds different from those urged is not assignable error, particularly where neither the judge’s reasons nor those of the district attorney are questioned as to their correctness, nor given in the bill of exceptions.
    3. It is the duty of an accused in offering testimony not apparently relevant to disclose to the court the particular facts he expects to elicit, with explanations sufficient to show the admissibility of the testimony; it does not suffice to say in general terms that he proposes through it to establish his innocence, and that some one other than himself had killed the deceased.

      i. Where a third person some time after the commission of a homicide declares that he killed the deceased, such declaration would be rejected as hearsay if the party after making it had escaped. The character of the testimony is not changed by the accidental fact that he had died instead of escaping.
    5. Where the Supreme dourt is called upon to review the refusal of a trial judge to submit special charges the bill of exceptions must either recite the particular state of facts upon which they are made to rest, or the charges must contain correct statements of general law. If they can not stand that test the judge’s ruling will be sustained, it being his right, but not his duty, to qualify, limit or explaim special charges.
    ‘6. It is not true as [a general proposition that “ one who is assaulted by another with a dangerous weapon is justified in taking the life of the person so assaulting him,” nor that “ if * A5 assaults f B’ with a dangerous weapon, and * B’ believes his life in danger, and that he is in danger of great bodily harm, he is justified in shooting at ‘ A,’ and that if in so doing he kills * C’ the killing is justifiable or excusable,” nor that “ when a person is assaulted by another with a dangerous weapon, and the person assaulted is in danger, or if he believes his life is in danger, and has reason to so believe, or that he will suffer great bodily harm, he is not bound to retreat, but may kill his assailant.”
    7. A charge to the effect that “ it may be safely said that the bare fact that a man intends to commit murder or other atrocious felony without any overt act indicative of any such intention, will not excuse the killing of any such person by way of prevention” furnishes no ground of complaint to the accused.
    S. An instruction that “in order to justify a homicide on the ground of self-defence a person must employ all the means within his power consistent with his safety to avoid the danger and avert the necessity, and be must retreat if retreat be practicable,” is too broad. There are many cases where a person is not called on as stated to do either the one or the other.
    •9. A charge that “the fact that a person has deadly weapons, or even that he presents them, is not an excuse for killing him unless he manifestly intends to use them against the slayer, but where such intention plainly appears it affords grounds for the reasonable belief of imminent danger which will justify the killing,” when taken in connection withother portions of the general charge to the effect that the homicide is excusable when committed in the actual <md, necessary defence of the life or person of the slayer, and “that menaces or gestures which do not constitute an assault, however irritating or provoking they may be, will not excuse a homicide unless they show unequivocally an intent of the party making them to use a deadly weapon against the slayer,” and that “an actual assault under circumstances which create a just appre- ■ hension of death or great bodiiy harm to another is adequate ground for that reasonable belief or fear of imminent danger or great bodily harm which will justify the killing of the assailant,” placed higher than the law required of the accused the standard of the degree of certainty in the evidence upon which he was called to act at the time of the killing, and too high the standard of the correctness of the conclusions which he had to reach on that evidence. Such an instruction was calculated to injure the accused, although it was stated in the charge that in order to justify a homicide it must appear that the defendant at the time he catised the death of the deceased was acting under a reasonable belief that he was in imminent danger, and that it was necessary to act to save his life from a danger which was apparently imminent.
    APPEAL from the Eighteenth District Oourt, Parish of Lafourche. Caillouet, J.

      M. J. Cunningham, Attorney General, and M. J. Cunningham, Jr., for the State, Appellee:
    1. This court will not interfere when there is nothing in the record showing that the judge of the District Court acted contrary to the law in fixing terms of court.

      2. Evidence of what happened at the arrest and killing of A is not admissible on the trial of B when no connection is shown by defence between these two-events.
    3. The refusal by the court to give special charges to the jury is not ground for the reversal when the charge requested is substantially the same as the instructions already given, although clothed in different language. State vs. Garic, 35 An. 970.
    4. Gambling in the jury room will not vitiate the verdict unless it be shown affirmatively that the rights of the accused have been prejudiced.

      Beattie & Beattie for Defendant and Appellant:
    The Districts Courts can not fix their terms without authority from the Legislature.
    The District Courts organized under Acts of 1890, p. 56, could not fix their terms by an order in chambers prior to the Act of June 28,1892.
    The Act of June 28,1892, only went into effect in Lafourche on July 18,1892, and an order in chambers issued June 30, 1892, was illegally issued.
    When a person is assaulted by another with a dangerous weapon, this is proof sufficient of intent to kill or do great bodily harm to warrant the person assaulted in taking the life of his assailant, and he need not retreat. Bisli. Cr. L., Vol. I, Secs. 217, 314,346, 305,850, S44and849;Bish. Or.L., Vol.IX,664and 669 — Selfridge case — Wharton 1005, 1013, 1026, Coffman vs. Commonwealth; 10 Bush (Ky.) 493, 31 An. 803, 32 An. 1099, 35 An. 972; Runyan vs. State, 57 Ind. 80; Irwin vs. State, 29 Ohio St. 186.
    Intent to murder B by A once established, li need not await any overt act.
    If A assaults B with a dangerous weapon and I! believes his life in danger he is justified in.shooting at A, and if he kills Che is excusable. It is an act of necessity and he is only responsible for the grossest negligence. Bish. Cr. L., Vol. I, Sees. 217, 314, 346; Vol. II, Secs. 664,669; Wharton Cr. L. 1005, 1013.
    Evidence to prove that another was arrested for the same homicide, that he resisted arrest and was killed in so resisting, and what he said at the time he was arrested and killed, is competent testimony to establish the innocence of accused, and should be admitted subject to its effect.
    Gambling in jury room, while deliberating on capital cases, is gross misconduct and vitiates the verdict.
   The opinion of the court was delivered by

Nici-iolls, O. J.

The defendant was indicted for murder at the September term of 1892 of the Eighteenth Judicial District Court for the parish of Lafourche, and having been convicted of manslaughter he has appealed.

His first contention is, that the whole trial was illegal for the reason that the term of court at which he was tried and convicted was held at the wrong time if there was any law authorizing it to hold a term.

On this point he says that court was convened on the 5th of September, 1892; that by Art. 108 of the Constitution the District Court for Lafourche parish was the Twentieth District Court, and the jury terms of that district, as fixed under the law, were the first Mondays of April and October. That under Act No. 7 of 1880 the courts were only authorized to fix and change the terms in open court. That this was nob done, but the order fixing the terms of court for the parish of Lafourche was issued in chambers. That although the Act of 1892 authorizes this to be done in chambers, that act was only passed June 28, 1892, and the order referred to-was issued June 30, 1892, the new law having not yet been promulgated.

We are of the opinion that the term at which the accused was tried was a legal one. Assuming that the order fixing the terms was written at chambers it was at once on the same day spread on the minutes of the court, which minutes were read daily. The terms of court were in this way substantially fixed in open court.

It is objected that on the trial of the cause the district, judge interposed an objection to the introduction of testimony which the parties themselves had not raised. This complaint loses all force as the matter is presented to us. It appears that the State did urge objections to the testimony, but that the court in excluding it did so for a different reason than that presented. In consequence of this action of the court the particular grounds set up by the State have not been made known to us. If the reason assigned by the district attorney was a valid reason for exclusion, and we have no right to assume it was not, the mere fact of itself that the judge placed the exclusion on a differnt one is not reversible error.

The exclusion of the testimony to which we have just referred for the reason given therefor by the judge is the subject of the next bill of exceptions.

The bill states that a witness for the defence being upon the stand was interrogated by counsel for the defendant as to whether or not he was nob present when one Jimmy Baptiste was arrested and when-he was killed, which testimony was objected to by the district attorney ; that subsequently the said witness was asked what the said Baptiste said at the time of his arrest, which was also objected to by the district attorney; that thereupon counsel for the defence stated to the court that the object of the defence was to show that said Jimmy Baptiste was the real party who had killed Thomas Lyall, of which killing the accused is charged, and that by said testimony the' .accused expected to prove that he was innocent and had not killed Thomas Lyall, but that; in reality Lyall had been killed by Baptiste, 'but that notwithstanding said statement the court sustained the objections and ruled out the evidence because it could not see what tendency or relevancy proof of what took place at the arrest and killing of Baptiste had to the establishment of the fact that Baptiste had killed the deceased, instead of the deceased being killed by the •accused.

We are not informed by the bill what the character of the testimony was which accused was seeking to elicit, and therefore do not know whether it should have been excluded or not. It is not sufficient to say in general terms that he proposed through certain testimony to prove that he was innocent of the crime charged and tha some one other than himself had killed the deceased.

The accused should have informed us of the particular facts he proposed to elicit, with explanations sufficient to show that the testimony was relevant and was admissible under the rules of law. We gather from defendant’s brief that Baptiste (who was the party with whom accused was fighting at the time Lyall was killed by a shot from the pistol of one or the other) was himself suspected of having killed the deceased, and that in an attempt to arrest him on that charge he had resisted, been wounded and soon after died, but that before dying he made some admission or declaration, which it is claimed would lead to the belief that it was he who had killed Lyall, and that it was this admission which defendant was trying to avail himself of. We think the ruling of the trial judge on this point correct. Had Baptiste made a direct admission that he had killed the deceased and then escaped and this declaration had been sought to be introduced in evidence through one who heard him make it, it would have been excluded as hearsay. The accidental fact of his death will not alter the character of the declaration and the testimony in support of it — it is still hearsay. Woolfolk vs. State (Ga.), 8 S. E. Rep. 780; XI S. E. Rep., 814.

Complaint is made of the refusal of the district judge to give two special charges submitted to him. When an accused asks this court to review such a refusal without a recital of the facts upon which the charges as presented are made to rest, he must be certain that they contain correct statements of general principles of law. The ¡special charges asked in this case can not stand that test. It is not true as a general proposition that ‘ ‘ one who is assaulted by another with a dangerous weapon is justified in taking the life of the person so assaulting him;” nor that “ if ‘A’ assaults ‘B1 with a dangerous weapon and £B’ believes his life in danger, and that he is in danger of great bodily harm, he is justified in shooting at £A,’ and that if in so doing he kills 0,’ the killing is justifiable or excusable;” nor that “when a person is assaulted by another with a dangerous weapon and the person assaulted is in danger, or if he. believes his life is in danger and has reason soto believe, or that he will suffer great bodily harm, he is not bound to retreat, but may kill his assailant.”

Although a trial judge may, he is not forced to give a special charge which requires qualification, limitation or explanation. State vs. Jackson, 35 An. 769; 35 An. 770, State vs Riculfi.

Having disposed of the special charges which were refused, we are next called upon to consider that actually made by the court, which was in writing, and brought up in the transcript, and to certain portions of which exceptions were taken. Before doing so it may be well to remark that in overruling the application for the special charges the district judge refers the court to his general charge.

The portion of the charge excepted to is that having reference to self-defence. On this subject the court said: “Homicide is excusable when committed in the actual and necessary defence of the life or person of the slayer, but in order to justify a homicide on the ground that it was committed in self-defence it must appear that the defendant at the time he caused the death of the deceased was acting under a reasonable- belief that he was in imminent danger of death or great bodily harm from the deceased, and that it was necessary for him to strike the fatal blow, or to perform such other act causing the death of deceased, in order to avoid the death or great bodily harm which was apparently imminent. By imminent danger is meant danger such as must be instantly met, and can not be guarded against by calling upou others for assistance or upon the law for protection. By “great bodily harm” is meant great bodily injury.”

“ No general rule is applicable to all cases as to what is, as a matter of law, sufficient ground to cause a reasonable belief of imminent danger, but the question must depend, to a great degree, upon the facts of each particular case.”

“ It may be safely said, however, that the bare fact that aman intends to commit murder or other atrocious felony without any overt act indicative of any such intention will not excuse the killing of such person by way of prevention. There must be some overt act indicative of imminent danger at the time. Mere words or threats uttered by the deceased, however abusive or violent, without any overt act or other indication to follow up the words with an assault to carry out the threats are not sufficient grounds for the reasonable belief of imminent danger which is necessary to support the plea of self-defence. Mere gestures or menaces which do not constitute an assault, however irritating they may be, will not excuse a homicide unless they show unequivocally an intent of the party making them to-use a deadly weapon against the slayer.”

The fact that a person has deadly weapons, or even that he presents them, is not an excuse for killing him unless he manifestly intends to use them against the slayer; but where such intention plainly appears it affords grounds for the reasonable belief of imminent danger which will justify the killing.”

“ An actual assault under circumstances which create a just apprehension of imminent danger of death or greatly bodily harm to another is adequate ground for that reasonable belief or fear of imminent danger which will justify the killing of the assailant; but an assault without a weapon apparently causing peril of a mere indignity to the person or of a mere battery from which great bodily harm can not reasonably be apprehended will not excuse the killing of the assailant as incase of self-defence. One who kills another under apprehension of death or great bodily harm from an assault must have been free from fault in bringing on the difficulty if he would contend that the homicide is excusable; but if the assailant by his conduct had before the killing was committed given notice of his desire to withdraw from the combat and had really and in good faith endeavored to decline any further struggle and the homicide was necessary to save himself from great bodily harm it might be excusable.”

In order to justify a homicide on the groand of self-defence, a person must employ all means within his power consistent with his. ■safety to avoid the danger and avert the necessity, and he must retreat if retreat be practicable.”

Whilst we have said that the trial judge is not forced to give a special charge which requires qualification, limitation, or explanation, it has been held (Wacara vs. People (Ill.) 25 N. E. 525) that when he throws aside all the instructions asked by one or both of the parties and proposes written instructions of his own, the latter must fairly instruct the jury on all the legal questions involved, and it must appear that no injury has been done to the defeated party by the refusal of the instructions asked by him.” Under this rule, coupled with the fact of the reference already alluded to by the judge himself to his written charge, we shall, wdthout going beyond the special objections raised to the general charge, consider the whole charge in reaching our conclusions as to those objections.

“ The first special objection is to the instruction of the court to the effect that it may be safely said that the bare fact that a man intends to commit murder or other atrocious felony without any overt act indicative of any such intention will not excuse the killing of such person by way of prevention.”

We see nothing that the accused has to complain of in this charge, particularly taken in connection with the whole charge.

The next objection is to the instruction that “ in order to justify a homicide on the ground of self-defence a person must employ all the means within his power consistent with his safety to avoid the danger and avert the necessity, and he must retreat if retreat be practicable.”

This statement is too broad. There are many cases where a person is not called on to employ all the means within his power consistent with his safety to avoid a danger and avert its necessity, and there are many cases where a person must not necessarily retreat where retreat is practicable. 12 S. W. 778.

The next objection is to so much of the general charge as declares that the fact that a person has deadly weapons, or even that he presents them, is not an excuse for killing him unless he manifestly intends to use them against the slayer; but where such intention plainly appears, it affords grounds for the reasonable belief of imminent danger which will justify the killing.”

On this point defendants’ counsel contend that “ the words manifestly intends to use them, etc., misled, and was easily the cause of misleading the jury; that a person to be justified in killing another-who assaults him with a deadly weapon is not bound to be certain that he will be killed; it is not necessary that his danger be manifest. It is only necessary that he fear great bodily harm or danger-to his life, and that he have good cause so to fear; that if without fault or carelessness he is misled concerning them and defends himself correctly according to what ¡he supposes the facts to be he is justifiable, although they are in truth otherwise and he has really no occasion for the extreme measure.” Citing Bishop Crim. Law, Vol. 1, Sec. 305, pp. 171, 172; S. 850, p. 474.

We have found several reported cases bearing on this objection. In the case of Barnard vs. The State (Tenn.) 12 S. W. Rep. 442, where the complaint was that the judge had told the jury that defendant’s apprehensions must have been based on conduct of the deceased “clearly ” indicative of a present intention to do him great-bodily harm, the Supreme Court held that the charge was not objectionable. In 4 S. E. 894, the words u evidently intended” were-declared not unwarranted, bub this was under the precise wording of the Georgia statute.

In the case of Gonzales vs. The State (Texas), 12 S. W. 773, the words “ well founded apprehension” were used and sustained.

On the other hand, in the case of Pinder vs. The State (Florida), 8 South. Rep. 840, the Supreme Court, speaking of the charge in that case, said: “ It is erroneous because it misstates the law of excusable homicide as defined by this court in Smith vs. State, 25 Fla.. 517 (6 South. Rep. 482).” In it the jury are instructed that in order to sustain the theory of self-defence it is necessary that the defendant should have perpetrated the act under the “well grounded belief,” justified by the surroundings, that it was necessary to take the life of the person slain in order to save his own life or to prevent great bodily harm to himself at the time he fired the fatal shot. In the case last cited this court has in effect defined the law to be that the belief or fear of imminent danger need not in fact be well grounded. But if the conduct, the actions, coupled with the threatening language of the prisoner’s assailant, be such as to induce a reasonable, cautious man to believe from the circumstances by which he was surrounded that his life or person was in imminent danger unless he fired the fatal shot, then the killing would be excusable, and from these circumstances as they appeared to the slayer in the-light of the evidence mnst be deduced 'the excusing belief of the-existence of imminent danger to life or person. All that could be required of the prisoner in such cases would be to show that he was-surrounded by such a condition of affairs as made it from his standpoint reasonable for a cautious and prudent man to believe that it-was necessary to fire the fatal shot or to strike the fatal blow in order to save himself from death or great bodily harm, even though it may turn out afterward that the surrounding circumstances were deceptive and that in reality his life or person were in no danger at the time. The reasonableness of the belief or fear of the existence of such peril as will excuse the killing is for the jury to determine from all the facts and circumstances adduced in evidence. Though it may be proven at the trial, in the calm solemnity of the courtroom, after the heat and excitement of the affray has long subsided, that in point of fact the prisoner was in no danger at the time, yet-if the jury, after mentally putting themselves in the prisoner’s shoes at the time of the killing, seeing from the evidence only as he-then saw, and hearing from the evidence only as he then heard, believe from the whole evidence that a cautious and prudent man would, under like circumstances, have been led reasonably to believe his life or person in imminent danger unless he did the act that caused death, then they should under the law, by their verdict, excuse the killing. Under this view it was error to instruct the jury that the belief of danger must be “ well grounded.”

In the case at bar the court, as we have seen, instructed the jury that “the fact that a person has deadly weapons, or even presents-them, is not an excuse for killing, unless he manifestly intends to use them against the slayer, but where said intention plainly appears it affords grounds for the reasonable belief of imminent danger which will justify the killing.” Turning now to the charge generally, we-find its opening sentence to be that “homicide is excusable when committed in the actual and necessary defence of the life or person of the slayer.” This is followed, it is true, by the declaration that in order to justify a homicide it must appear that the defendant at the-time he caused the death of the deceased was acting under a reasonable belief that he was in imminent danger, and that it was necessary to act to save his life from a danger which was “ apparently ” imminent; but the court immediately thereafter says that the menaces, must show “ unequivocally ” an intent on the part of the party making them to use a deadly weapon against the slayer, and in the only attempted definition given of a reasonable belief it is declared that an actual assault under circumstances which create a “just” apprehension of imminent danger is adequate ground for that reas■onable belief or fear of imminent danger which will justify, etc.

Taking the paragraph of the charge specially objected to, and reading it in connection with that portion of the general charge bearing upon it, so as to enable us to judge of its probable effect upon the mind of the jury, we can not help reaching the conclusion that the court placed higher than the law required of the accused the standard of the degree of certainty in the evidence upon which he was called to act at the time of the killing, and too high the standard of the corrrectness of the conclusions which he had to reach on that evidence.

For the reasons herein assigned, it is ordered, adjudged and decreed that the verdict of the jury and the judgment of the court therein rendered be and the same are hereby annulled, avoided and reversed, and that this case be remanded to the District Court for further proceedings according to law.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 11,140.
    The State of Louisiana vs. Felix Lewis.
    Refusal of continuance on ground of absent witness will not be interfered with when the judge’s statement on the bill shows want of due diligence.
    APPEAL from the Tenth District Court, Parish of Rapides. Andrews, J.

      M. J. Cunningham, Attorney General, and M. J. Cunningham, Jr., for the State, Appellee.

      J. E. Reynolds for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

There appears but a single bill of exceptions, which was taken to a refusal of.a continuance applied for on the ground of absence of a material witness.

The affidavit discloses no diligence except the statement that the witness “ has not been summoned and is not present, although ■defendant used all means in his power to have him here and left an order with the clerk of the court on the order book for the summons of said witness.” The judge states as his reason for refusing the bill “no diligence was shown, and the place of residence of witness was not discovered to the sheriff or the clerk, and the sheriff’s return shows that the witness could not be found in the parish.”

We do not lightly interfere with rulings on the subject of continuance, and certainly the showing here made does not justify such interference.

Judgment affirmed.


text:
    No. 11,162.
    The State of Louisiana vs. Rudolph Terrebonne and Peter A. Boulet.
    1. Sec. ION oí Revised Statutes applies only to amendments of indictments, which, being found by a grand jury, would not be amendable by the court in absence of special statutory authority.
    2. Such statutes are not necessary to authorize amendments to informations, because the officer prosecuting them is always present in court and competent to malte amendments with leave of the court to any extent consistent with public interest and private rights.
    3. Crimes not capital can only be prosecuted by information, “ with the consent of the court first obtained; ” and amendments thereto are peculiarly within the discretion of the court, especially as to the denial thereof.

      i. Appeals by the State from such rulings are vain and profitless, because the prosecuting officer may instantly frame a new information and secure greater expedition of trial without undergoing the delay of appeal. We shall not encourage such practice by interfering with the discretion of the court at the instance of the State.
    APPEAL from the Twenty-first District Oourt, Parish of Jefferson. Host, J.

      M. J. Cunningham, Attorney General, and M. J. Cunningham, Jr., for the State, Appellant.

      G. V. Soniat for Defendants and Appellees.
   The opinion of the court was delivered by

Fenner, J.

The State appeals from a judgment of the court ■below quashing the information on the ground of misnomer and denying an application made by the district attorney to amend the information.

The prosecution was against Rudolph Terrebonne for embezzlement and against P. A. Boulet for aiding and abetting him therein. After setting forth that said Rudolph Terrebonne was in possession of the goods charged to be embezzled, the information proceeds to charge that “ Theodule Terrebonne did, feloniously and wrongfully, use, dispose of, conceal and otherwise embezzle same.”

Obviously, Rudolph is not charged with any crime on the face of the information, and the charge againstBoulet of aiding and abetting him was, therefore, equally nugatory.

The error was doubtless clerical and would have been amendable-with leave of court; but we think the granting of such leave to-amend was a matter entirely within the sound discretion of the court.

Counsel on both sides are mistaken in supposing that the case is governed by Sec. 1047 of Revised Statutes, which applies only to amendments of indictments, which, being found by a grand jury, are not amendable at common law, except on process issued to the-grand jury to come in for that purpose. IBishopCr. Proc., Sec. 710.

Various statutes of Jeofails and amendments have been passed in England and in this country conferring upon courts the power of amending indictments within certain limitations, of which See. 1047 of our Revised Statutes is an example.

But such statutes are not necessary to authorize the amendment of informations. As Mr. Bishop says, “ an information is quite unlike an indictment as to amendments. The officer prosecuting it being-always in court, it may on his application be always amended to any extent consistent with the orderly conduct of judicial business, with the public interests and with private rights,” but he adds, “the application may, indeed, be denied.” 1 Bish. Cr. Proc., Sec. 714.

The court’s discretion in regard to such amendments is much-larger than in the case of amendments to indictments; and we are less disposed to interfere with it, in whichever way it is exercisedInformations are peculiarly under the control of the court as to such matters. Sec. 977 provides: “ Prosecutions for offences not capital may be by information, with the consent of the court first obtained.”

Appeals by the State from rulings denying such amendments are-profitless ; because the officer is present and may instantly frame a new information and expedite a trial under it more rapidly than by undergoing the delay of a useless appeal.

We are not disposed to encourage such a practice or to interfere at the instance of the State with the discretion exercised by the court in such a matter.

Judgment affirmed.


author: Watkins, J.

text:
    No. 11,058.
    The State of Louisiana v. P. B. Callac.
    1. A motion to dismiss an appeal because no appeal bond was given must be filed within three judicial days after the transcript is filed.
    2. Our jurisdiction to examine and determine the legality and constitutionality of a city ordinance is controlled by the Constitution, and is restricted to guestions of law, in such case as this.
    3. A particular is not repealed by a general law, unless the two are so repugnant that they can not stand together under any circumstances.
    APPEAL from the Second Recorder’s Court of New Orleans. Moulin, J.

      Louque & MoGloin for Plaintiff and Appellee:
    1. A document in the nature of reasons for judgment can not serve the purpose of a statement of facts. 3 An. 219.
    2. The statement of facts required by C. P. 602 is a statement of the ultimate and determined facts of the case.
    3. A mere epitome of what various witnesses have sworn to is not a statement such as provided for by C. P. 602.
    4. Act 82 of 1882, regulating adulteration of food, is a general statute, not impairing the force of Act 20 of 1882, in so far as the latter empowers the city of New Orleans, within its own limits, to deal with the same matter. 39 An. 513.
    5. A municipality with legislative sanction may impose a penalty upon any act committed within its own. limits and against the health and peace of its citizens, even though the State, by statute, has likewise imposed a penalty upon the same act. Nor does prosecution under one of these prohibitions bar prosecution for the same act under the other. American and English Encyclopedia of Law, Vol. 17, p. 252; Cooley, Constitutional Limitations, p. 242 (199); Dillon, Municipal Corporations, Sec. 301; 46 N. W. Rep. 735.
    6. Articles V and VI of the amendments to the Constitution of the United States apply only to prosecutions under Federal law. 7 Wallace, 321. ,
    7. The principle that courts are loath to declare legislation unconstitutional applies to municipal ordinances adopted under legislative sanction.
    8. He who demands a declaration of the unconstitutionality of a law must specify the character of his objections. To plead that particular articles of the Constitution are violated, when those articles cover more provision than one, is not sufficient.
    9. A proceeding before a recorder of the city of New Orleans for the enforcement of a police ordinance of the city is not a criminal proceeding, hence Articles V, VI, VIII, of the Constitution of this State do not apply to them. 4
    An. 337; 2 La. 427; 43 An. 836; 42 An. 1112; 42 An. 272; 35 An.1193.

      P. L. Fourehy and Albert Voorhies for Defendant and Appellant:
    1. In a criminal prosecution on appeal the accused furnishes no bond of appeal; but, pending the appeal, remains a prisoner in the custody of the court a qua, or in the custody of his surety on a bail bond. Con., Art. 9; State vs. Gutierrez, 15 An. 190.
    •2. The Code of Practico does not apply to criminal proceedings on appeal. Besides, motion to dismiss comes too late after case fixed for trial on merits.
    3. Sec. 6 of City Ordinance No. 6022, A. S., of June 25, 1879, under which appellant is now prosecuted, has been repealed by the subsequent passage of two other city ordinances, No. 6583, A. S., of June, 1880, and No. 6596, C. S., of August 5,1892.
    4. The said City Ordinance No. 6022, A. S., is, besides, inoperative, being superseded by the passage of two statutes, Act of 18S0, No. 20, p. 23, and Act of 1882, No. 82, p. 103.
    The power hcretofored elegated tojtliecity to punish the offence of adulterating milk has, for the time being, been superseded by the State, which now chooses to resume the exercise, directly and exclusively according to its own sovereign will, of the delegated power.
    5. The city has no power but such as is delegated by the State; and the State may, at any time in its own discretion, withdraw, modify, suspend or supersede the exercise of such delegated power.
    6. When a new law contains provisions contrary to or irreconcilable with the other law, there is an implied appeal. The provisions of City Ordinance No. 6022, A. S., are contrary to and irreconcilable with the other subsequent city ordinances and State statutes above recited; it is, therefore, repealed by the ordinances, and superseded by the statutes.
    7. When a statute or ordinance creating an offence is repealed, even after sentence, but pending appeal in the Supreme Court, the judgment must be reversed.. The court will ex officio notice the repeal; nor is it necessary to assign such repeal as error. But in this case the assignment of error is formal and precise.
   On Motion to Dismiss Appeal.

The opinion of the court was delivered by.

Watkins, J.

The motion is grounded upon the absence of any bond of appeal: but conceding that this case has not the status of a criminal proceeding, entitling defendant to be dispensed from furnishing an appeal bond, it must be taken and construed as a civil case, and the motion considered accordingly; and it is well settled that a motion to dismiss an appeal for such cause as an alleged in formality or irregularity in an appeal bond must be filed in this court within three judicial days after the record is filed. And the same rule applies in case there is no bond.

Vide Webb vs. Keller, 39 An. 55, in which the court held that “ a motion to dismiss on account of informality in the appeal bond, or order of appeal, or even the want of the latter, must be made within three judicial days after the record is filed,” citing various decided cases.

The plaintiff’s motion was filed in this court on the 17th of November, 1892, and the record was filed on the 19th of May, 1892.

The motion to dismiss is refused.

On the Merits.

The accusation preferred against the defendant is, that he did wilfully, malieiouslv and unlawfully violate section six of city ordinance No. 6022, administration series, in selling and offering for sale, adulterated milk.

Preliminarily, the defendant, through counsel, tendered in the recorder’s court an exception to further proceedings being had on the ground that said city ordinance was illegal and unconstitutional, on the ground that it conflicts with the provisions of Act 82 of 1882 — a statute upon the same subject matter — and, further, on the ground that it is violative of articles five (5), six (6) and eight (8) of the Constitution of the State, and of articles five (5) and six (6) of the Constitution of the United States, and was, consequently, null and void, and deprived the recorder of jurisdiction to try the charge preferred against him.

Said objection having been overruled, the defendant’s counsel retained a bill of exceptions and the trial was proceeded with; and it resulted in the defendant’s conviction and sentence to pay a fine of $25, and in default of payment, to suffer imprisonment in the parish prison for a term of thirty days.

It is from this sentence and decree that defendant prosecutes this appeal.

In sueh case, our jurisdiction is confined to an examination into and determination of the legality and unconstitutionality of the ordinance under which said fine and imprisonment were imposed.

With the evidence in the case on which the recorder founded his judgment, we have nothing whatever to do — hence there are only two questions presented for decision: (1) whether there is a conflict between the ordinance and statute referred to; and (2) whether the latter violates the Constitution of the State or that of the United States.

The contention of defendant’s counsei with reference to Ordinance No. 6022, A. S., having been impliedly repealed by the subsequent enactment of Ordinance No. 6533, and Ordinance No. 6596, C. S., can not be considered for the reasons, first, that this objection was not raised in the recorder’s court at the trial; and, second, the alleged repealing ordinances were not filed in evidence in the recorder’s court and constitute no part of the record in this case. State vs. Prank Olesi, 44 An. 85; City vs. Labatt, 33 An. 10Y.

Concerning the supposed conflict between section six of Ordinance No. 6022 and the Act of 1882, counsel’s contention is, that inasmuch as that statute was enacted since the adoption of said ordinance the latter is impliedly repealed on the ground that-the State did thereby take in hand the exercise of all the police power for the preservation of the public health in so far as the adulteration of milk is concerned.

The section of said ordinance under which the defendant is prosecuted declares that no “ person shall sell, or offer for sale, any unwholesome, watered or adulterated milk * * * or any butter, or cheese made from any such milk, or any unwholesome butter or cheese.”

It is strictly confined to the adulteration of milk and its products; while on the contrary, the act of 1882 declares, in general terms, that “no person shall, within this State, manufacture, have, offer for sale, or sell any article of food or drugs which is adulterated.”

That act contains no repealing cluase, and its inconsistency with the provisions of the ordinance can not be readily perceived.

And at the same session of the General Assembly at which that statute was enacted, the Legislature adopted a charter for the city of New Orleans, and especially delegated to the council thereof the power and imposed upon them “ the duty to pass such ordinances, and to see to their ¡faithful execution as may be necessary (1) to preserve the peace and good order of the city; (2) to maintain its cleanliness and health; * * * * and to adopt such ordinances and regulations as shall be necessary and expedient for the protection of health, and to prevent the spread of disease,” etc. It further delegated to them the power “ to prevent the sale of adulterated or decayed food, and punish the same (and) to punish the sale of adulterated drinks,” etc.

From a careful perusal of the provisions of the two foregoing acts it seems manifestly to have been the legislative intent that they should not conflict with each other, but that the power of the city council over the questions of the health and good order of the city and its' inhabitants should be maintained and exercised, as it had been prior to the enactment of that charter. Such being accepted as a proper and correct interpretation of the act in question, the force and effect of Ordinance No. 6022, A. S., remain unaffected thereby, and defendant’s complaint of its illegality fails, as matter of course.

The aforesaid statutes of 1882 were held by this court not to be inconsistent, in State vs. Labatut, 39 An. 513; vide Cooley’s Con. Lim., p. 242; Dillon’s Munic. Corp., Sec. 301.

In counsel’s brief no argument is presented on the objection of the unconstitutionality of the ordinance, and the only inference that we can draw from the perusal of the several articles of the State and Federal Constitutions cited is that in ease we maintain the legality and compatibility of the ordinance and the act of 1882, the defendant may become liable to a double prosecution in violation thereof. Of course we can not anticipate what may be the results of our decision in case the defendant should be hereafter indicted under that act for the adulteration of milk. There will be sufficient time to consider and decide the question when the defendant raises that issue, and presents it in avoidance of such a prosecution.

We find no error in the recorder’s decision.

Judgment affirmed.

Rehearing refused.


text:
    No. 11,149.
    The State of Louisiana vs. Angelas Guillory.
    1. The provisions of Act 139 of 1890, require that an accused, when on final trial, shall not be allowed more than six witnesses for his defence to be summoned, unless he or his counsel shall mate oath that same is necessary; and, the record disclosing that six witnesses had been already summoned, he is disentitled to delay to summon additional witnesses, without such prerequisite condition has been observed.
    2. A continuance may be properly refused, if application is based upon the necessity for the presence of me ft witnesses, on the state of facts herein recited. 3. It is not good ground for admitting hearsay testimony, as part of the affirmative evidence for the prosecution, that it is in supposed corroboration of the statement of another witness, which might be the subject of attach: or impeachment.
    APPEAL from the Eleventh District Oourt, Parish of St. Landry. Ferrault, J.

      M. J. Cunningham, Attorney General, and M. J. Cunningham, Jr., for the State, Appellee.

      E. P. Veazie and Laurent Dupré for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

The defendant was indicted and tried for murder and found guilty of manslaughter, and having been sentenced to imprisonment in the penitentiary for three years, prosecutes this appeal, relying upon several bills of exception for relief.

I.

The first ground of complaint urged is, that it appearing on the day fixed for the trial of the case that two of defendant’s witnesses had not been summoned, his counsel made an order for alias summonses to be issued and served, and demanded a delay sufficient to obtain their attendance. This request being refased, an application for a continuance, in due form, was made, and same was by the court refused — the defendant reserving a bill of exceptions to the ruling.

Amongst the various reasons assigned by the district judge for his ruling is one to the effect the defendant’s counsel had failed to observe or comply with the provisions of the law which declares that the accused when on final trial shall not be allowed to summon more than six witnesses for his or her defence, provided when an additional number is required, it shall be' necessary, before such additional number is summoned, for the accused to make oath, either in person or by counsel, that same is necessary to enable him to make out his defence” (Sec. 2, Act. 139 of 1890); neither the accused nor his counsel having made any oath that the attendance of the witnesses named was necessary, and the record disclosing that more than six witnesses had already been summoned on the part of the accused.

It was certainly obligatory on the part of the defendant that he should have brought himself within the pale of the statute; and, failing in this, he is without just ground of complaint.

II.

The second ground of complaint rests upon the theory that the accused was improperly refused a continuance of the cause to the next regular term of the court. The application was based on the absence from the court of the two witnesses above referred to; and it goes without saying, that if the defendant was disentitled to summon the witnesses at all, on the ground of his failure to comply with the provisions of the statute in question, he was, necessarily, disentitled to a continuance for the purpose of procuring their testimony at the trial.

III.

The third ground of complaint urged is to the ruling of the judge in admitting certain testimony, which was objected to as hearsay and irrelevant, amongst other reasons assigned. During the progress of the trial, and whilst the State was introducing its evidence in chief before the jury, and before the defence had opened its case, one of the prosecuting witnesses was, over objection, permitted to say and testify “that Ambroise Guillory had admitted to him, out of the presence of the accused, that he, Ambroise Guillory, had handed a pistol to the accused just before the shooting began” — it having been previously shown that the deceased had been killed with a pistol.

The trial, judge assigns as his reasons for permitting this testimony to be introduced, first, that it was in corroboration of the testimony of one of the witnesses for the State, who had testified that he saw Ambroise Guillory hand a pistol to the accused when the quarrel began; second, that the testimony of said witness was the subject of an attempt by the defence to impeach and contradict him on that point.

These reasons are,, in our opinion, insufficient to justify this radical departure from elementary principles, in permitting hearsay testimony as part of the affirmative evidence on the part of the prosecution. The judge’s ruling was clearly erroneous, aud the accused is entitled to relief. It is therefore ordered and decreed that the judgment and sentence appealed from be annulled and reversed; and it is further ordered that the cause be remanded to the District Court for further proceedings according to law, and the views herein expressed.


author: McEnery, J.

text:
    No. 10,954.
    The State of Louisiana vs. Thomas Burns.
    The ordinances of the city of New Orleans, where no power is conferred for that purpose, can not enlarge the statutes of the State.
    A city ordinance inconsistent with and in conflict with the general policy of the State is illegal, null and void.
    That part of See. 1, Ordinance No. 504G, which authorizes the imposition of a fine upon the husband or wife for neglecting to aid and support the family, the party not being charged with habitual drunkenness, is illegal, null and void.

      Bringier, J. PPEAL from the First Recorder’s Court of New Orleans.

      E. A. O’Sullivan, City Attorney, and Henry Renshaw, Assistant City Attorney, for Plaintiff and Appellee.

      Aug. Bernau for Defendant and Appellant.
   The opinion of the court was delivered by

McEnery, J.

The defendant was prosecuted, convicted and fined before the Recorder’s Court in the city of New Orleans, for violating See. 1 of Ordinance No. 5046, A. S. He appealed. Among the several grounds selected for attacking the ordinance it is alleged that it is ultra vires, illegal and unconstitutional.

The ordinance is intended to punish idle persons. It prescribes the conditions which shall constitute idleness.

Article 1 of said ordinance provides “ that any person being able, wholly or in part, to maintain himself or herself or his or her family by work or other means and fails to do so * * * shall be deemed an idle or disorderly person.”

The defendant’s wife, upon whose testimony he was convicted, made an affidavit against her husband, as follows:

“That on the 21st day of December, 1891, at about 10 o’clock A. M., on Bolivar street, between Gravier and Perdido, in this district and city, one Thomas Burns did then and there violate Ordinance No. 5046, A. S., Sec. No. 1, in this to-wit, by failing to provide for his lawful wife and children.”

The city attorney in an elaborate brief contends that the authority for the city to enact said ordinance is fully covered by the city charter of 1870, under the power granted to the city by the Legislature to regulate and preserve the public peace and good order of the city and to provide for and maintain its cleanliness and health. There can be no doubt, as stated by the learned city attorney, that the city is interested that a husband and father may not permit his wife and children to be dependent upon public charity, and that being well provided for, this tends to promote the health of the city by inducing cleanliness, and prevents temptation to vice and crime. But the utmost latitude of construction could not vest in the city, under its charter, the power to regulate the domestic relations. There are certain moral and civil duties, the violation of which the State has not made a penal offence. Some matters of individual conduct are left to the individual conscience by the State, to which no penalty is attached for their violation. When they amount to civil duties means are provided by the legislative policy of the State for their enforcement.

The general policy of the State has made marriage a civil contract. To enforce the obligation resulting from it civil remedies are provided, to which the complaining party must resort for redress.

The Ordinance No. 5046, Sec. 1, or that part of it under which the defendant was convicted, is, therefore, inconsistent with and in conflict with the general policy of the State, as it has in its general laws regulated all the civil duties arising from the marriage contract, and has not authorized the city of New Orleans to make any change in relation thereto. 1 Dillon Municipal Corporation, Sec. 329.

The city has the power to punish idle persons or vagrants. But it must be done under the general law of the State, since the Legislature has enacted one on this subject and defined the limits of the city’s power thereunder.

Sec. 3877, Revised Statutes, provides that “ all idle persons who, not having visible means to maintain themselves, live without employment; all persons wandering abroad and lodging in groceries, levees, beer houses, market places, sheds, barns, uninhabited buildings, or in the open air, and not giving a good account of themselves ; all persons wandering abroad and begging, or who go about from door to door, or place themselves in the streets, highways, passages, or other public places, to beg or receive alms; habitual drunkards who shall abandon, neglect, or refuse to aid in the support of their families and who may be complained of by their families shall be deemed vagrants.”

The city ordinance can not enlarge this statute. The laws of the State operate within the corporate limits of the city of New Orleans and upon its inhabitants as elsewhere in the State. The city has not been exempted from the effects of this general law. The city ordinances must conform to this statute, when punishing vagrancy, unless the vagrant is armed with picklock or other instrument, with the probable intention of committing a felony, when it must conform to Sec. 3883, R. S., and following sections.

It is not alleged that the defendant was an habitual drunkard who had abandoned his family or who refused to aid in their support. A subsequent clause in Sec. 1, Ordinance 6046, conforms to this requirement of legislative policy. But the first part of said section quoted above, under which defendant was convicted, is not embraced within the general statute of the State regulating vagrancy, and it is in conflict with the laws of the State relating to the marriage contract and it is, therefore, illegal, null and void.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and the defendant discharged.


text:
    No. 11,080.
    The State of Louisiana vs. Lewis Chambers et als.
    Statements of the accused when made to the trial judge freely and voluntarily are admissible in evidence.
    When three parties are indicted and two of them have been arrested and tried, a verdict of guilty has reference only to the two on trial. It was not necessary for the jury when returning the verdict to refei to the two defendants on trial as the parties to be affected by the verdict.
    Any fact or circumstance is admissible in evidence to identify the accused. It is no objection to it that it is remote. The objection goes to the effect of the evidence.
    After the discovery of the prejudice alleged to exist against a defendant, it is his duty to apply as soon as practicable for a change of venue, either in chambers or open court. Ef several months elapse after the discovery is made it is too late to apply for a change of venue in open court, when the defendant had the opportunity of applying to the judge in chambers. Inreorganizing the judicial districts throughout the State, there was no necessity for an enabling act, conferring jurisdiction on the district courts, which were in existence in pursuance of constitutional provisions.

      A correct list of the jury -which is to pass on the case of defendant, drawn by the jury commissioner and served on him two entire days before the trial of his case and before the jurors are summoned, is a full compliance with the law.
    Under Act ii of 1877 the district judge has the power to order the drawing of tales jurors by the jury commission. It is no objection to the order that it specified the cases for which they are drawn.
    Act 69 of 1890 made no change in the autonomy of the district courts in the several parishes. The courts in the several parishes remained the same though differently distributed as to districts. All proceedings, rules or orders of court continued in force until changed, and the existing orders as to terms of court remained in full force.
    Act 22 of 1892 does not affect the terms of court as fixed by Act 7 of 1880. This act is merely a reproduction literally of Act 7 of 1880, which made no change in the law, except the special provision made for the parish of Cameron.
    APPEAL from the Nineteenth District Court, Parish of St. Martin. Voorhies, J.

      M. J. Cunningham, Attorney General, and M. J. Cunningham, Jr., for the State, Appellee, cited: 11 An. 81; 32 An. 34; 35 An. 28; 23 An. 326, 33 An. 310; lb. 679; lb. 1344; 35 An. 96; 36 An. 341; 38 An. 497; 39 An. 19.

      Edward Sim'on, for Defendants and Appellants, cited: 16 An. 376; 30 An. 384; 1 Bi. 1228; Wharton on Ev. 662, 663; 1 Greenlief, 228.
   The opinion of the court was delivered by

McEnery, J.

The defendants were indicted and convicted for committing the crime of murder. They appealed from the verdict and sentence. They urge their defence in several bills of exceptions. In discussing the same we will not follow the order in which they are presented.

J. E. Mouton, judge of the district court, before whom the defendants were first tried, visited the defendant Michel in prison and interrogated him.

On the second trial, his successor in office presiding, he was placed on the witness stand. The objection was made by the defendants to his testimony that, being the judge before whom the defendant was to be tried, his presence in his official capacity in the prison intimidated the defendant, and his answers to the interrogatories were not free and voluntary. While we do not approve of the course pursued by the then district judge, we find no legal and valid reason to set aside the verdict on this account. • His testimony shows that he warned and cautioned the defendant, and that he conversed freely and voluntarily. The answers to the interrogatories are not important, and have only a remote, if any bearing on the case.

Objection was also made by defendants to the testimony of one Delia, a colored witness on behalf of the State, on grounds which go only to the effect of her testimony.

The object of the testimony was to identify the defendant Michel. Any fact or circumstance can be shown to identify the defendant. Because the fact sought to be proved is remote from the issues involved ” does not make it irrelevant, and incompetent evidence. It goes only to the effect of the evidence. There were three parties indicted for the murder. One was not arrested, and therefore not on trial. The two defendants were tried. The verdict was guilty and necessarily referred to them. The contention of defendants is that the verdict was null and void because it did not refer specifically to them. They were only on trial and the verdict could not refer to any other party charged in the indictment. It was not necessary-that the jury in returning the verdict should refer to the defendants specifically, as the parties to be affected by it.

In reorganizing the judicial districts of the State, the defendants urge there was no enabling act conferring jurisdiction on the courts of cases pending in the old districts, and therefore the court had no jurisdiction to try defendant. There was no new court created in the parish of St. Martin. The court still remained as it existed before the reorganization or change of districts. It was and is the District Court of St. Martin, established by the Constitution of the State, and will remain so until that instrument is changed so as to affect that court. It had original jurisdiction of the case, and as the court remained intact, no enabling act was necessary to invest it with jurisdiction. Notwithstanding the change in the grouping of parishes in districts, the court still had the power to exercise the jurisdiction conferred upon it by the Constitution.

After the first trial the defendants applied for a change of venue. It was denied by the trial judge on the ground that the application was made too late.

The defendant has the right to apply for a change ef venue either in chambers or in open court. The law requires him to make his application as soon as practicable after the discovery of the prejudice existing against him. The defendants failed to exercise this diligence. They conld have presented their application to the judge in chambers, whose duty it was to hear testimony on the application.

Several months elapsed before their application was filed in open court, at a term at which they ought to have been tried in the regular course of business of the court.

Oomplaint is also made by the defendants that the trial judge ordered tales jurors to be drawn to try the defendants, and that no list of the jurors as contemplated by the law was served on them. The judge ordered the jury commissioner to assemble and draw seventy-five tales jurors to serve on the trial of defendants. The jury was drawn, and on the same day that it was drawn the list of jurors was served on each of the defendants. The authority of the judge to order the drawing of the tales jurors is amply conferred by Act 44 of 1877. That he specified the particular cases in which they were to serve does not detract from the power conferred upon him to order that they should be drawn. They are to serve in the trial of criminal cases on trial before the court, and there is no reasonable objection that can be urged against his specifying the particular cases to be tried. They are tales jurors although regularly drawn from the box instead of being summoned instanter. When summoned in the latter manner they are called to serve in a particular case. The object of the statute in requiring a list of jurors to be served on the defendant is that he may have an opportunity of inquiring into the character and qualifications of the jurors who are to pass on his case and be able to prepare with intelligence and deliberation the challenges which he may wish to present. State vs. Howell, 3 An. 50.

There is no law requiring that the jurors shall be summoned before the list is served on the defendant. When the names are taken from the general venire box, they are designated as the jury which is to serve at the time for which they are drawn. The defendant must presume that they will be summoned and will be in attendance at the time for which they are summoned and on the day fixed for his trial. It has been held by the court in several cases that the defendant has no cause of complaint, when some of the jurors on the list served on him have not been summoned, or have been excused, or that some have been unintentionally omitted from the list. The summoning of the jurors is only a notification to him that he has been drawn and must appear. He may wilfully disregard the summons and absent himself. But he is still a juror and may be attached and compelled to serve. The fact of the summons does not, therefore, have any relation whatever to his qualification as a juror, or his ability and capacity to serve. There was nothing incomplete in the drawing which the summons of the juror could complete. The list of jurors was, therefore, perfect and complete when the jury commission drew the names from the box and made the list, duly certified by the process verbal. The list of jurors was served on the defendant two entire days before the trial.

- The last bill which we will discuss is intimately associated with that relating to the jurisdiction of the court.

The predecessor of the present trial judge, in pursuance of Act 7 of 1880, fixed the terms of the courts in his district. The present judge made no order fixing the terms of the courts in the district, but held court according to the terms as fixed by the judge under Act 7 of 1880. The case of the defendants was fixed for trial at a term of court as ordered by Judge Mouton, under Act 7 of 1880. The defendants objected, which was overruled and they took a bill of exceptions.

Article 117 of the Constitution says: “ That until provided by law, the terms of the District Court in each parish shall be fixed by a rule of said court which shall not be changed without notice of publication at least thirty days prior to such change.”

The Legislature has passed no act fixing directly the time at which the terms of court shall be held, except in the case of the parish of Cameron.

Act No. 7 of 1880, literally re-enacted in 1892, only gave effect to said article of the Constitution. The judge of each district still had the power and authority to fix the term of court in each parish, and the terms once having been fixed, they can" not be changed except’ in the manner directed by said article.

The Act No. 69 of 1890 confines itself to a reorganization of the judicial districts into which the State is divided. It contains nothing indicating the slightest purpose to change or interrupt the autonomy of the District Courts in the several parishes. If such had been intended and new and distinct courts were created, provision would have been necessary for transfer of proceedings pending in the old, to the new eourt. But no such provision is made. The courts for the several parishes remained the same, though differently distributed as to districts. All proceedings, rules or orders of court continued in force until changed, and this fully applies to existing orders fixing the terms of court.

The case is not affected by Act 22 of 1892, which simply reproduces literally and continues in force See. 2 of Act 7 of 1880, making no change whatever except in the number of the district used in describing the parish of Cameron in the special provision in regard to that parish.

The existing orders fixing the terms of court in the parish of St. Martin remained in full force and effect until changed by new orders, and this exception is without merits.

Judgment affirmed.


author: Breaux, J.

text:
    No. 11,138.
    The State of Louisiana vs. Esteve Marqueze.
    The trial judge gave a full statement of the statute under which the accused was prosecuted.
    No objection was made to the charge and no instructions were asked.
    The error charged is one which must be excepted to at the proper time.
    APPEAL from the Twenty-first District Court, Parish of St. John the Baptist. Rost, J.

      M. J. Cunningham, Attorney General, and Gervais Leche, District Attorney, and J. L. Gaudet, for the State, Appellee:
    1. The judge is not bound to give a charge although correct when in his belief there is no fact proved to which it is pertinent. A charge not objected to when it is given and properly presented by bills of exception wili not be considered on appeal, nor will the verdict of the jury be disturbed even in capital cases, when no opportunity is given the judge to explain or correct his charge. 38 An. 497 ; 37 An. 543, 773 ; 34 An. 106,1513.
    2. Motions for new trials as to questions of fact can not be reviewed by the Supreme Court. 38 An. 871; 30 An. 1323.
    3. It is not the duty of the judge to appoint counsel forjthe accused unless request is made by him. 38 An. 19; 36 An. 91.
    Motion in Ajrkest.
    . In an information for shooting with intent to murder, it is not necessary to charge both the act and intent as malicious. It is sufficient to charge malice in the intent. 33 An. 921; 36 An. 336; 38 An. 451.

      H. N. Gautier, for Defendant and Appellant,
    cited: 30 An. 1173; 28 An. 434; 35 An. 53; 40 An. 729; 41 An. 410; 33 An. 310; 36 An. 87, 159; 30 An. 536; 34 An. 100.
   The opinion of the court was delivered by

Breaux, J.

The accused appeals from a sentence of ten years at hard labor, on a verdict of guilty of shooting with intent to murder.

He was not represented by counsel before the jury.

After sentence the accused employed counsel and moved for a new trial upon several grounds, only one of which is argued before this court.

The recital of the trial judge in the bill taken shows, that in bis charge to the jury, (to which no bill of exceptions was reserved at the time,) he read to them Sec. 791 of the Revised Statutes, with reference to whomsoever shall shoot, stab or thrust any person with a dangerous weapon, with intent to commit murder, under any other circumstances than those mentioned in Sec. 290 of the Revised Statutes under the amendment, being Act 43 of 1890, which reads: “ Whoever shall shoot, stab, cut, strike or thrust any person with a dangerous weapon with intent to commit murder, under any other circumstances than those mentioned in the preceding section, shall, on conviction, suffer imprisonment at hard labor or otherwise for not less than one nor more than twenty-one years.”

The accused did not object to the charge and made no request for special instruction to the jury.

The court states: “Under the state of facts and in the absence of any request for a special charge the court did not charge that the accused could be convicted under Act 44 of 1890.” The counsel for the accused moved for a new trial, and in his bill to the court’s refusal to grant the new trial on said ground, recital was made as just stated.

The counsel for the accused argues that Acts 43 and 44 of 1890 describe offences of the same generic class, with this difference, that in the first the intent must be to murder; in the second, the intent mnst be to kill; that the crime denounced in the information under Act 43 included necessarily a prosecution of the lesser offence “with intent to kill,” under Act 44 of 1890, and that without special request it devolved upon the judge to specially instruct the jury that they were authorized, should the state of facts justify, to find a verdict of guilty of shooting with intent to kill, under Act 44.

In support of this argument counsel refers us to State vs. Stouderman, 6 An. 286.

In that case the trial judga was requested to instruct the jury that the prisoner being charged under section of the Act of 4th May, 1805, which denounces an assault with intent bo commit murder, it was necessary that the circumstances which would amount to murder in law, except the death, should exist in order to authorize conviction. The court charged that the jury might ñnd the accused guilty of assault with intent bo kill, should the jury be satisfied that he was guilty of that offence.

The court affirmed the judgment of the trial court.

It is at once manifest that the case referred to is not parallel to the case at bar.

In the second case referred to by counsel in his brief, State vs. Jessie, 30 An. 1171, the court charged that the prisoner might be found guilty of the lesser offence; and complied with counsel’s request in that respect.

In State vs. Louis Gilkie, the request received attention and the jury was instructed as to the less offence. State vs. Delany, 28 An. 434, supports the proposition that a Verdict must be responsive to the' indictment.

The judge in the case of the State vs. Brown, 40 An. 727, had been entirely silent throughout the whole charge on the subject of manslaughter.

The accused was prosecuted for conspiracy and murder. Counsel for the defence requested the trial judge to instruct the jury that on trials for murder the jury may find the prisoner guilty of manslaughter.

In these cases, to which our attention is directed, the accused availed themselves of their right to request special charges. In not one of these cases the accused had omitted to request in reference to the different degrees of the offence.

The failure therefore to except to the charge at the proper time was not an issue in any of these cases.

It is stated in State vs. Curts, 34 An. 1213, in which the accused as in the case at bar had omitted to ask for a special charge, that this court restricts the right to review failures to charge not objected to in time to cases of gross and unambiguous error.” No objection was made to the charge in State vs. Sheard et al., 35 An. 543, no bill of exceptions was taken thereto and there was no proper assignment of errors.

The sentence was not disturbed.

From these authorities we conclude that objections to the charge, unless timely made and formally brought up, will not be considered. State vs. Sweeney, 37 An. 11; State vs. Bird, 38 An. 497.

The authorities in other States and the text-writers are not entirely in accord upon the subject.

Seymour D. Thompson in his work, “ Charging the Jury,” p. 108, relying upon the 39 Ind. 88. and the 26 Ind. 141, says: “But if a neglect to instruct the jury is an error it is one which must be excepted to at the proper time, even in a criminal ease, or it will not be considered by a court of error.”

The proposition is sustained in Cato vs. State, 9 Fla. 163; State vs. Reed, 62 Maine, 129; State vs. Oneal, 7 Ired. 25, and in a number of other eases.

Bishop in the third edition on Criminal Procedure lays down the rule that in various circumstances, omissions which the judge was not requested to supply have been deemed, therefore, not to be error (Sec. 279). A number of cases are referred to by him as sustaining the text; of the number, is the case of the State vs. Scott et al., 72 An. 386.

The court in the case at bar gave a full statement of the statutes under which the defendant was prosecuted.

The other grounds of defence as set forth in the bill of exception and in the motion in arrest of judgment, though not argued, were examined by us. They do not give cause for the granting of a new trial.

Judgment affirmed.


text:
    No. 11,118.
    The State of Louisiana vs. John McNally.
    When a mechanic is employed to do a particular piece of work — for instance, to do the carpenter’s work on a house, or to plaster, or to paint the same, and he works at his trade and employs others to assist him in the work, he is exempt from the license tax in pursuance of Art. 206 of the Constitution. City ys. Bay ley 35 An. 545; City vs. Lagman, 43 ^.n. 1180.

      But when lie undertakes to build houses generally and only superintends the work and perforins only such mechanical labor on them as his^pleasure may dictate, or to show or direct those employed by him, he does not follow exclusively on the buildings, employing others to assist him, but he is a contractor or master builder, employing others to do the work, exclusive of his labor. City vs. O’Neil et al., 48 An. 1182; City vs. Pothman, 45 An. —.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Edwin H. MeOaleb for Plaintiff and Appellee.

      H. H. Bryant for Defendant and Appellant.
   The opinion of the court was delivered by

McEnery, J.

The defendant appealed from a judgment compelling him to pay a license tax as contractor or builder for the years 1888 to 1892, inclusive.

The statement of facts is as follows:

“John McNally, defendant, is a carpenter by trade and takes contracts for the construction of buildings and did so during the years named in the rule. His gross receipts from his business during these years named exceeded the sum of $20,000 per annum.
“ During these years, and the years previous thereto he has performed personal manual labor upon all buildings constructed under said contracts, working with the tools and implements of his trade and helping with his own hands to build the constructions. That he is his own superintendent and supervisor and directs all constructions and has done so during the years named.
“ The value of his work as a carpenter was insignificant compared with the gross receipts, and if deducted therefrom would not affect the amount due by him for license, if he be held not to be exempt under the law. He works, and works only on his own jobs or contracts, and does not work daily because he does not have work on hand at all periods. The time given to his own personal labor as compared with the time given to supervising is about one-tenth. The wages óf a carpenter was and is about $2.50 per day.”

In the case of Lagman & Son, 43 An. 1180, under which defendant claims that he is exempt from the payment of a license tax, the defendants were carpenters, employing others to assist them, but they worked continuously on the particular structure which they had under contract.

The defendant in this case did not work continuously — that is, exclusively on the one job which he had engaged to do. He had several at one time, and his labor on them was insignificant when compared to the time he gave to superintending the several undertakings.

As stated in the case of Pohlman, just decided, the simple fact of partial or inconsiderable work on a building could not alter the fact that the one performing the manual labor was in fact a master builder.

In the cases of Bayley, 35 An. 545, and Lagman, 43 An. 1180, the defendants were plasterers and carpenters, exclusively employed in their occupations, worked continuously at their! trades and only employed assistants on the particular piece of work on which they were engaged, being more than they could consistently personally execute.

The facts in the instant case ai’6 quite different from those in the above cases, and bring it in line with the cases of Oonner, O’Neil & Pohlman, referred to.

To illustrate, we will add, that when a mechanic is employed to do a particular piece of work — for instance, to do the carpenter work on a house, or to plaster orto paint the same, and he works at his trade on said house and employs others to assist in the work, he is exempt, because he follows and works at his trade exclusively.

But when he undertakes to build houses generally, and only superintends the work and performs only such mechanical labor as his pleasure may dictate, or to show or direct those employed by him, he does not follow his trade exclusively on the building and employing others to assist him, but he is a contractor, employing others to do the work exclusive of his individual labor.

Judgment affirmed.


author: Nicholls, O. J.

text:
    No. 11,143.
    The State of Louisiana vs. Judge Brackett.
    1. Where an accused has submitted no special charges to the trial judge — asked of him no written charge and taken no bill of exceptions in relation thereto prior to verdict, he can not, in a motion for a new trial, embody therein what he understands to have been the instructions of the judge to the jury, and require of tile latter to state wherein they are not correct and to correct the same.
    2. The trial judge can not be required to charge the jury in respect to a matter as to which ho says there was no evidence whatever.
    APPEAL from the Criminal Court for the Parish of Orleans. Moise, J.

      M. J. Cunningham,, Attorney General, and M. J. Cunningham, Jr., for the State, Appellee.

      W. W. Sadlin for Defendant and Appellant.
   The opinion of the court was delivered by

Nicholls, O. J.

The defendant was tried and convicted under an information based upon Article 792 of the Revised Statutes and sentenced “ to suffer imprisonment in the State penitentiary at hard labor for the term of one year and to pay costs of prosecution subject to his rights of commutation as provided in Act 112 of 1890.” He has appealed. No exceptions were taken prior to the verdict. Subsequently to the rendition of the verdict bills of exception were taken to the rulings of the judge upon a motion for a new trial which he filed. One of the grounds set up was that the judge charged the jury that if two men consent to fight and one shoots he is guilty.”

Another was to the effect that the court ought to have granted the charge asked on behalf of the accused, viz.: “that it was for the jury to determine whether or not the consent of the prisoner was free and voluntary if the least amount of intimidation or force was brought to bear upon him, which the court refused.”

The motion for a new trial was overruled.

The first bill of exception declares that before commencing his argument on the motion for a new trial counsel for prisoner requested his Honor to examine the* two last grounds of said motion relative to his charges to the jury, and state on said motion whether or not said grounds were correctly set forth, and if not, to state any correction or modification which might be necessary according to his recollection, but the court refused to grant said request. The trial judge says he did. not refuse, but, on the contrary, stated them distinctly in open court when requested by counsel.

The judge’s statement must be taken as true, but assuming he had refused counsel’s request he would have been completely justified in doing so. Counsel of the accused could easily have asked the court for a written charge, but he did not do so. He should have presented special charges if he wished them and taken a bill had the judge refused to submit them. If he had any objections to the court’s oral general charge he should have stated and urged them at the time, and then taken a bill of exception. It can not be for an instant permitted that counsel should wait until after a verdict is rendered, and for the first time in a motion for a new trial set out what he understood to be the judge’s charge and call upon him to correct it.

The second bill of exceptions calls in question the correctness of the judge’s reasons for overruling the motion for a new trial “in so far as they related to the question of consent or contract or agreement to fight on the part of the prisoner, the counsel objecting that it was a question for the jury exclusively of fact whether there was consent or consent produced by threats or undue pressure, and the moment the sixth ground or anything germane, to it was given, involving the question of contract to fight, then it was necessary to grant the charge requested for the prisoner set up in the 7th ground, so that the jury could judge whether the contract was valid or not.”

The judge in the bill states that he refused to charge on the 7bh ground, because the facts did not justify any such charge — that there was neither evidence nor proof as to intimidation or force being used to compel the prisoner’s consent to have a “fair fist fight.” Independently of other reasons, those assigned by the court authorize his action. A judge can not be asked to charge upon a subject as to which there was no evidence whatever. The accused has filed in this court an assignment of error, in which he says that it is apparent on the face of the record that it condemned him to one year’s imprisonment contrary to Sec. 792 of the Revised Statutes. The punishment prescribed in that section for the crime therein mentioned, on conviction, is imprisonment at hard labor not exceeding two years.

There is nothing which accused has urged upon which the verdict and sentence can be reversed. For the reasons herein assigned it is ordered that the judgment of the Criminal District Court for the parish of Orleans be and the same is hereby affirmed.


text:
    No. 11,154.
    The State of Louisiana vs. J. Benjamin Chandler.
    1. When an indictment is returned into court charging a particular person with • wilful and corrupt perjury under an oath administered to him by the clerk of the Supreme Court, declared as “having competent authority to administer said oath,” and said indictment is beyond criticism as an instrument from the standpoint of the regularity of the proceedings connected with its finding— the legality of the body returning it and the sufficiency of the averments it makes — it can not be stopped on its way to the petit jury by the accused and subjected, on a motion to quash, and testimony taken thereunder, to an attack made by him and submitted for independent determination by the district judge as to the sufficiency of the evidence before the grand jux*y to reach the conclusions it did, or the correctness of the legal conclusions reached by that body fx*oin the evidence before it.
    2. The conclusions of the grand jury ou the evidence before it ax*e not subject to review by the district judge; they must pass on to-and be determined by the petit jury as compound questions of law and fact under instructions from the court.
    APPEAL from the Criminal District Court for the Parish of Orleans. Moise, J.

      M. J. Cunningham, Attorney General, and Lionel Adams, for the State, Plaintiff and Appellant.

      Morris Marks for Defendant aud Appellee.
   The opinion of the court was delivered by

Nicholls, O. J.

The State appeals from the decree of the Criminal District Court for the parish of Orleans sustaining a motion made by the defendant to quash an indictment found against him in which he was charged with having committed wilful and corrupt perjury.

Eor the purposes of explanation it is only necessary to transcribe a portion of that indictment, which is to the effect “That heretofore an action was brought by petition before, and within the jurisdiction of, the Supreme Court of Louisiana, by one J. BenjamiD Chandler, in which the State of Louisiana, on the relation of the said J. Benjamin Chandler, was plaintiff, and E. B. Kruttschnitt, judge ad hoe, was defendant, and that on the eleventh day of March, in the year of our Lord one thousand eight hundred and ninety-two, the said J. Benjamin Ohandler, with force and arms, in the parish of Orleans aforesaid, and within the jurisdiction of the Criminal District Oourt for the parish of Orleans, did appear as petitioner in the said action (which is numbered 11,030 on the docket of the Supreme Oourt of Louisiana aforesaid), and in such capacity as petitioner was duly-sworn by T. McC. Hyman, clerk of the Supreme Oourt of Louisiana, having competent authority to administer said oath, to the truth of the facts and allegations of the before mentioned petition, whereupon the said J. Benjamin Ohandler did then and there, on his oath, so as aforesaid taken, falsely, wilfully, corruptly, knowingly and maliciously feloniously depose and swear, etc. * * * And the said false statements, so upon oath wilfully, knowingly and corruptly made by the said J. Benjamin Ohandler, were material to the questions and matters then and thei’e in issue before the said Supx-eme Oourt of Louisiana.”

The motion to quash was based upon the following grounds:

First. “ The oath alleged to have been taken in said indictment was not such an oath as the law contemplates in a crime of perjury.”

Second. “The person alleged to have administered the same had no authority to administer said oath.”

Third. “ The said T. McO. Hyman, the clerk of the Supreme Oourt of Louisiana, had no judicial power, under the Constitution and laws of Louisiana, to administer said oath.”

Fourth. “The said pretended oath administex-ed by T. McO. Hyman was administered by him as clerk of the Supreme Oourt in the clerk’s office, out of the presence of the court or of the judges.”

On the argument of this motion the assistant district attorney insisted that “ the issue must be tried upon the face of the record and that no evidence was admissible on the trial of the motion to quash the indictment; that the fact whether T. McO. Hyman had competent authority to administer the oath in the said cause to the said J. Benjamin Ohandler was one of the issues to be tried and determined in due course by the jury, and was not one of those matters as to which the txial court can hear matters de hors the record in aid of a motion to quash.”

The court ruled that this was a matter resting in its discretion, and ordered that the motion be reset for trial for the purpose of hearing evidence as to whether the oath administered by T. McHyman, clerk of the Supreme Oourt, was or was not administered in presence of the court or the judges.

To this ruling the assistant district attorney excepted and filed a bill of exceptions.

The motion having gone to trial, T. McO. Hyman, clerk of the Supreme Court, was placed upon the stand, and over the objection of the assistant district attorney was permitted to testify that the oath by him administered to J. Benjamin Chandler, as in the indictment specified, was administered in the clerk’s office of the Supreme Court and out of the presence of the court or any of the judges thereof,” whereupon the court quashed the indictment found against the accused.

To the action of the court in allowing the evidence to be introduced and in quashing the indictment the assistant district attorney excepted with a bill of exceptions and, as has been stated, the State has appealed.

The action of the judge was based on the evidence referred to, from which he drew the legal conclusion that the clerk of the Supreme Court was without authority to administer the oath, and that therefore there was no foundation for the indictment to rest upon.

Section 858 of the Revised Statutes of Louisiana is in these words: “ In every presentment or indictment against any person for wilful and corrupt perjury it shall be sufficient to set forth the substance of the offence charged and by what court or before whom the oath or affirmation was taken (averring such court or person to have competent authority to administer the same), together with a proper averment to falsify the matter wherein the perjury is assigned, without setting forth the bill, answer, information, indictment, declaration or any part of any record or proceeding other than as aforesaid, and without setting forth the commission or authority of the person before whom the perjury was committed.”

It is not contended on the part of the accused that from the standpoint of pleading, the requirements of Sec. 858 have not been complied with.

Taking the averments of the indictment as they stand, and without objection to the same as such, the defendant claimed, and still maintains his right, to negative as a fact, the truth of the allegation that the clerk of the Supreme Oourt did have competent authority to administer the oath; by testimony as to the time, place and circumstances under which -that oath was administered, and claimed and still insists, that he had the right to have this question submitted and passed upon by the district judge on a motion to quash, on testimony adduced before him on the trial of the motion.

The law has designated the grand and petit jury as the chief instrumentalities in investigating and determining whether crimes have been committed, and if so, by whom committed. Each has its appropriate functions, and in between the two, stands the judge with well-defined duties. It is the province of each of these bodies to examine both law and fact in relation to alleged violations of the criminal law in cases legally brought to its attention. The first acts primarily under the advice of the district attorney, the latter finally under instructions from the court; each reaches its conclusions from evidence adduced before it.

When an indictment has been returned into court, it conveys the conclusion reached by the grand jury from testimony before it, that a particular crime had been committed by a particular person. When the indictment as an instrument, is beyond criticism from the standpoint of the regularity of the proceedings connected with its finding, the legality of the body presenting it, and the sufficiency of the averments it makes, it can not be stopped by the accused on its way to the petit jury and subjected to an attack made by him and submitted for independent determination by the district judge as to the sufficiency of the evidence before the grand jury to warrant the conclusions reached by it, or the correctness of the legal conclusions reached by that body from the evidence before it.

Its conclusions are not subject to the review of the district judge, but they must pass on bo, and be determined by the petit jury under the charge of the court, in the case at bar the grand jury has declared that the oath taken by the accused was administered to him by the clerk of this court, he being duly authorized to administer the same. We are bound to assume, for our present purpose, that the grand jury had before it evidence of some kind on the subject of this oath, which justified it, in its opinion, in asserting that the clerk was duly authorized to that effect. It is true that this declaration, when subjected at the proper time and in the proper quarter and manner to a legal test, may prove to have been absolutely false, but this re - suit can not be reached by anticipation, on a motion to quash, through the instrumentality of the judge.

The grand jury, under Section 858 of the Revised Statutes, was not called upon to state in the indictment, the facts connected with the administering of the oath, which went to convince it thatT. McO. Hyman was duly authorized and competent to act in the premises. Had the law required such a statement to have been made, and had it — being made — shown on the face of the papers a wrong legal conclusion, it might have been submitted as a matter of law, for a ruling, by the judge, upon its correctness; but the question before us is not presented to us under such conditions. Section 858 of the Revised Statutes is simply a reproduction in the United States of the Statute 23d George II, C. 11. That statute has not only been adopted by the General Assembly of Louisiana, but also by act of Congress (Act of Congress, April 30, 1790, Sec. 18, 1 Peters Sts. at Large, 116) and by many of the States of the Union.

It is frequently alluded to in the notes to Archbold’s Criminal Practice and Pleadings, under the special title of “Perjury.”

Its effect has been to render easy of construction that which before its passage was considered one of the most difficult duties imposed upon a prosecuting attorney — the framing of an indictment for perjury — and just in proportion as it has done away with the necessity for technical terms, details of statement and recitals of fact, it has withdrawn from the accused, opportunities for submitting questions of law based thereon to the trial judge for decision.

In State vs. Gallimon, 2 Iredel, 372, Mr. Justice Gaston said: “ The principal effect of this enactment was to substitute in the indictment the general averment of competent authority to administer the oath, in the place of a specific averment of the facts showing such authority, and to make the question whether the oath was or was not taken before a competent jurisdiction a compound question of law and fact to be decided by the petit jury under the advice of the court.”

The question as to the authority of T. McC. Hyman, as clerk of this court, to administer the oath to the accused, is one of the issues of law and fact to be submitted to the jury. This particular issue can not be detached from its proper place and made the subject of independent decision by the judge. If one issue could be thus detached so could others, and the ease taken up and disposed of by piecemeal and indirection by the court.

We have had occasion to express similar views in the case of the State vs. Spencer, recently decided by us, though the matter came before us in a different form.

We are of the opinion that the court erred in going behind the indictment, examining into facts affecting the guilt or innocence of the accused of the crime charged, and concerning which the grand jury within the sphere of its jurisdiction had taken action; and that it also erred in quashing the indictment found against the defendant.

For the reasons herein assigned it is hereby ordered, adjudged and decreed that the order and decree of the Criminal District Court for the parish of Orleans quashing the indictment found against the defendant be and the same is hereby annulled, avoided and set aside, and that this case be remanded to the Criminal District Court for further proceedings according to law.