author: Watkins, J. McEnbry, J. Watkins, J.

text:
    No. 11,703.
    State of Louisiana vs. H. H. Stewart.
    It suffices that the defendant was in the custody of the sheriff on the date his appeal is made returnable to this court; the fact of his having previously broken jail being fully answered, thereby.
    It is not a good objection to an information that it was filed during the pendency of an indictment, under which the defendant was being prosecuted at the time for the same offence.
    That there is pending an information or indictment against the defendant for the same offence is no bar to another prosecution under a different indictment or information. There may be several indictments or informations pending in the same court, for the same offence, and against the same defendant. But one conviction or acquittal can be had. Nothing else operates as á bar to further prosecution.
    The provision of the Constitution which declares that prosecutions shall be by indictment or information is nothingmore than permission to the State to prosecute by either mode at her option, unless she is restrained by statute. And the Constitution permitting either modejof prosecution, the case must stand just in the same attitude in which it would have stood before the lower court, had there been two indictments or two informations against the defendant.

      Proof of the character of the deceased, and of threats communicated to the accused, is inadmissible until a satisfactory basis has been laid by proof of an overt act committed by the deceased; and, in order to constitute an act overt it must consist of a hostile demonstration of such a character as to impress upon the accused the immineney of the danger of loss of life or of great bodily harm.
    On Application pok Reheaking.
    Under Sec. 992, R. S., the service of a copy of the indictment must be made on the accused by delivering the same to him.
    Domiciliary service is insufficient.
    Watkins, J., Dissenting. — Personal service upon the accused of copy of indictment not necessary.
    A PPEAL from the Tenth Judicial District Court, Parish of Natchi-toches. Coco, J.

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

      Pierson & Porter and W. H. Jack for Defendant and Appellant.
   On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Watkins, J.

The motion is grounded on the fact that the accused broke jail and became a refugee from justice during the pendency of his appeal, and that this is the equivalent to his abandonment of the «ame.

This statement is supported by an affidavit of the sheriff bearing ■date 29th of December, 1894, which is appended to the transcript in connection with the appellee’s motion.

But it also appears, from another affidavit of the sheriff subsequently made, that the accused voluntarily surrendered himself into the custody of that officer, and was by him incarcerated within the four walls of the jail on the 31st of December, 1894, the date on •which his appeal is made returnable into this court.

That is all the law and the decisions of this court on the subject seem to require, and they appear to afford a complete answer to the motion; and it is therefore denied.

On the Merits.

The accused appeals from a verdict of a jury finding him guilty of the crime of manslaughter, under which he was sentenced to five years’ imprisonment in the peniténtiary.

This is the supplement to the case of State vs. Stewart, reported in 45 An. 1164.

In that case the State was appellant from a judgment of the court below sustaining defendant’s motion in arrest; and on the trial here that judgment was affirmed and the cause remanded for a new trial— the defendant having been indicted on a charge of murder and convicted of manslaughter.

This purports to be the continuation of the same prosecution; at least, it is a prosecution of the same defendant for the same crime— the essential difference between the two prosecutions being that the former was by indictment and the latter is by information.

This alteration in the proceeding from indictment to information,, or rather that the prosecution was by both indictment and information at one and the same time, is made a question of serious difficulty on this appeal.

As this question is at the threshold of the discussion we will examine it first — for if the defendant’s theory should be entertained we could proceed no further with the case.

As counsel for defendant has stated very clearly the propositions on which they so confidently rely, we will make extracts from their brief in place of making a statement of our own.

They are as follows, viz.:

“ 1. The information on which he was tried and convicted for the-crime of manslaughter was improperly and illegally filed, and, furthermore, under the facts and conditions of the case, the offence therein charged was barred by the statute of limitation before the trial and conviction took place.

“The facts pertinent to this particular inquiry are as follows:

“ On the 14th December, 1892, the accused was indicted for the crime of having killed and murdered one Bailey on the 17th day of August of that year. In the month of June following (1898) he was brought to trial on that charge; and on the 27th of that month the jury returned a verdict of manslaughter against him. This verdict was set asde by the trial judge on a motion in arrest of judgment,, pleading want of legal arraignment.

“ Immediately thereupon the District Attorney asked for and obtained an order of appeal. Thereafter, on the 8th day of July, and during the same term of court, the District Attorney filed the present bill of information, charging the accused with manslaughter in the matter of the identical offence for which he had just been tried and convicted. The Supreme Court subsequently affirmed the judgment of the lower court, sustaining the motion in arrest of judgment and remanded the case for further proceedings on the original bill.

“Pursuant to that mandate, in June, 1894, the accused was again brought to trial, on the original bill, for the crime of manslaughter, and the jury failing to agree a mistrial was ordered and entered. Thereafter, as ever theretofore, all proceedings were taken and conducted, under the original bill, until after the commencement of the December term of the court, 1894, when and whereupon the District Attorney, of his own motion, caused the original prosecution to be dismissed, and then, for the first time, was the accused arrested under that bill and straightway ordered to be arraigned and to plead thereto.

“It will be observed, in view of the facts here state!, that the bill of information, so filed on the 8th day of July, 1893, remained dormant and in abeyance for a period of seventeen months, and was called intp requisition for the first time only after the voluntary dismissal of the original prosecution.

“The filing of this bill, under the circumstances and conditions of the case, was certainly anomalous; and this departure from precedents and practice is made even the more striking by the fact that all proceedings were continued under the original bill, as if the information had never been filed.

“That informations may be filed at proper times and in proper •cases, either as original charges or to supersede and substitute defective indictments, there can be no question, but when they are filed they are filed as criminal charges, having for their object the arrest and trial of the accused. They are per se prosecutions in the eyes of the law and in the very words of the Constitution.

“This bill, as we have seen, was filed after a conviction of the accused by the verdict of a jury for the self-same offence, and after an appeal had been taken by the District Attorney from the judgment •of the lower court on a motion in arrest setting aside that verdict. All appeals in criminal cases are suspensive, and therefore the ver-diet in this case held good until the decision of the lower court was affirmed on appeal.

“It follows from this that this bill of information, when filed, did not substitute the charge contained in the bill of indictment, nor was it intended to supersede that charge. The case was no longer properly before the District Court, and long after its filing the Supreme Court, acting upon the matters brought before them on appeal under the bill of indictment, remanded the case under that bill for further proceedings according to law. Moreover, as we have seen, the accused was again brought to trial nearly a year afterward on the original bill, and all proceedings were continued and carried on against him under that bill until it was finally dismissed at the December term, 1894.

“ It is clear to our minds that this bill was filed as a future and contingent substitute for the same charge included in the bill of indictment; and as a precautionary method of circumventing prescription, should the original bill for any cause become invalidated. The history of the case is a demonstration of that fact.”

From the foregoing we gather the following propositions, viz.:

1. That the information under which the accused was tried and convicted, was illegal and void, because it was filed duriDg the pendency of an indictment for the same offence, and upon which he was thereafter tried and discharged, by reason of a mistrial, and hence he was prosecuted by both indictment and information at the same time, whereas the Constitution prohibits a resort to both of these methods of prosecution at the same time.

2. That the information, filed as it was, long prior to discontinuance of the indictment, and no proceeding, having been taken thereunder until after its discontinuance, same remained dormant, and in abeyance, and not called into operation, or given any legal effect, until seventeen months had elapsed after the dace of its filing, and the offence had become extinguished and barred by the statute of limitation.

3. That this information “ was filed as a future and contingent substitute for the same charge that is included in the bill of indictment ; and as a precautionary method of circumventing prescription should the original bill for any cause become invalidated.”

The statement of counsel conforms to the record, though all three-of their propositions may be argued as one, because if the information was stricken with nullity, for any of the reasons assigned, and did not constitute the basis of a valid prosecution after the discontinuance of the indictment, that is the end of the case.

We do not regard the provision of the Oonstitution that “ prosecutions shall be by indictment, or information,” etc., (Art. 5) as being other than a permission to the State to prosecute by either mode,, at her option. It had no reference to the time either should be filed;, nor was it intended, in our opinion, by the framers of the organic-law, to in any manner interfere with or control criminal proceedings. The Oonstitution permitting either method of prosecution, the ease must stand just in the' same attitude in which it would have stood before the lower court, had there been either two indictments or two-informations against the defendant. State vs. Anderson, 30 An. 557..

It is unquestionably correct to say that the filing of an information after a prosecution under an indictment has terminated does not-revive the statute, for Wharton says:

“ The failure of a defective indictment and the prosecution of a new and correct indictment, after the statute has begun to run, does not revive the statute. The statute, as to the particular offence, was-put aside by the commencement of legal proceedings against the defendant and remains silent until those legal proceedings terminate.” Wharton Criminal Pleadings and Proceedings, Sec. 325, citing: Commonwealth vs. Sheriff, 3 Brewster, 394; State vs. Johnson, 5 Jones (N. C.), 221; State vs. Hailey, 6 Jones (N. C.), 42; Foster vs. State, 38 Ala. 425.

The same author says further:

“When a party was indicted for murder, but found guilty of manslaughter and the indictment was afterward quashed, the statute of limitations afterward becoming a bar to the indictment for manslaughter, the defendant was discharged.” Id., Sec. 446, citing Hart vs. State, 25 Miss. 378.

That is the category to which the argument and pleas of defendant’s counsel would assign this case, and the only help the State has in this situation is to be found in the course pursued by the prosecuting attorney — if that is availing.

And again the same author affords relief, for he says:

“ It has been ruled that though the defendant has pleaded to a former indictment for the same oifence, the fact that the former indictment being still pending is no bar to a trial on the second.”' Id., Sec. 452, citing United States vs. Herbert, 5 Cranch, 87; Commonwealth vs. Drew, 3 Cranch, 279; Commonwealth vs. Burg, 5 Gray, 93; Commonwealth vs. Fisher, 126 Mass. 265; People vs. Fisher, 14 Wendell, 9; Stewart vs. Commonwealth, 25 Grat. 950; State vs. Nixon, 78 N. C. 538; Dutton vs. State, 2 Ind. 532; Mizza vs. State, 36 Miss. 614.

That author then proceeds thus:

“The better practice, however, is to withdraw the first indictment.” Citing People vs. Vanhorne, 8 Barber, 160; Clinton vs. State, 6 Baxter, 507.

“ It is in the discretion of the court to quash the former indictment, which act of quashing constitutes no bar to further proceedings on the subsequent bill.” Citing Commonwealth vs. Gould, 12 Gray, 171.

An examination of the cases cited fortifies the statement of that author.

In Commonwealth vs. Gould, 12 Gray, 171, the Massachusetts court said:

“ But we do not withhold our opinion that after the second indictment was found and returned it was useless to quash the first; for the defendant thereby gained no legal advantage. If the first had been left pending, it could not have been interposed to defeat the second, or to delay the trial of it.”

In People vs. Vanhorne, 8 Barbour, 158, the New York court said:

“ Whenever two indictments for the same offence, or for the same matter, although charged as distinct offences, are pending, the indictment first found will be deemed superseded by the second indictment, and will be quashed. * * * There are cases where a second indictment would be proper, and there are cases, also, where it would be necessary; as * * * when the first indictment is defective and a new indictment becomes necessary, before the accused can, with a proper regard for the claims of public justice, be "put upon his trial.”

In Mizza vs. The State, 36 Miss. 613, the court said:

“Nor can the defendant be prejudiced by any number of indictments against him for similar, or the same offences. One conviction for each distinct offence can only be had, and may be plead in bar of any subsequent prosecution therefor.”

To similar effect is Commonwealth vs. Burg, 5 Gray, 92.

In Commonwealth vs. Fisher, 126 Mass. 265, it was held:

“At the time of the trial of this complaint, no judgment had been-, rendered upon the verdict of guilty on the former indictment, and the question whether that verdict should stand was still open, and . pending on a bill of exceptions filed by the defendant himself. Under these circumstances, even assuming both prosecutions to be for the same offence, the former verdict will not support the plea of ' autrefois conviet.”

In Clinton vs. The State, 6 Baxter, 507, the Tennessee court said:

“When, from any cause, a second indictment is sent against the-• same parties for the same offence, the second should show that the same disposition had been made of the first by nolle prosequi or - otherwise; and it should clearly appear, in every such case, upon which indictment the conviction was had. If the indictment is defective, it might be quashed on the application of the prisoner, and a new one substituted.”

In State vs. Johnson, 5 Jones, 221, the North Carolina court held the finding of a new indictment for the same offence, varying the terms in which the offence is charged, has the effect “ simply to add another count to the bill of indictment; the whole constituted but. one proceeding, to be treated as if the bill had at first contained three counts instead of two * * * and the fact that the counts are all in one bill, or in two bills, both being framed by the same • grand jury, makes no kind of difference.”

The foregoing authorities seem to be conclusive as to the legality of the information on which the prosecution was based; and in the ■ absence of any pertinent decision of this court to the contrary they would seem to be authoritative, in view of the fact that under our • statute “the forms of indictment,” “the method of trial,” and “ all other proceedings whatever in the prosecution of crimes,” “ shall be according to the common law, unless otherwise provided.” Revised Statutes, Sec. 976.

We do ndt find any contrary principle announced in either of the-three cases which are chiefly relied upon by the defendant’s counsel.

In State vs. Anderson, 30 An. 557, the court distinctly announces • the same rule for the interpretation of the constitutional prohibition that is so much relied upon by the defendant’s counsel as we have done in the words following:

“ Every Constitution of this State has contained the provision that, prosecutions shall he by indictment or information. Our statute restricts the latter to offences not capital, and requires the consent of the court to be first obtained; but that being done — and there is no mode prescribed for obtaining it — the prosecution by information has never been doubted to be of equal validity under our law with that of indictment for any offence not capital.”

In State vs. Ross, 14 An. 365, the sole ground of the defendant’s motion to quash the information was that the grand jury had, at the same term of court, returned ignored a bill of indictment charging the same offence against the defendant.

The District Judge sustained the motion and quashed the information, but this court reversed the judgment, reinstated the information and remanded the case for a trial thereof.

In the sense of all the authorities, that ruling was correct.

We do not find anything in that case but a mere obiter dictum that is at all favorable to the defendant’s contention here.

The opinion says:

“ The material question is, whether the District Attorney, at the same term of the court, and on the same day that the grand jury had ignored the indictment, could file an information after this action of the grand jury?”

It is quite true that with the foregoing quotation is coupled the following, viz.:

“Article 103 of the Constitution of 1852 provides that ‘ prosecutions shall be by indictment or information.’ The State can select either mode, but can not prosecute by both at the same time.”

It is quite evident that there were not two prosecutions of any kind pending against the defendant, Ross, for the statement is that ■the grand jury had ignored the indictment, and there was no prosecution upon it. When, subsequently, the information was filed the ■defendant moved to quash it; not on the ground that a previous prosecution by indictment was pending, bub on the ground that same had been ignored by the grand jury and operated as a bar to further prosecution.

Hence, it is our opinion that so much of that decision as relates to the dual prosecution was an obiter dictum — being altogether unnecessary to the determination of the only question before the court.

In State vs. Vincent, 36 An. 770, the same identical question again arose, and the court, after referring to the ignoramus of the indictment by the grand jury, said:

“ After such finding, it is claimed the District Attorney was without authority to file an information for manslaughter, based on the same facts.”

Quoting from State vs. Ross the paragraph we have cited, the court concludes thus:

“ We know of nothing in our later jurisprudence shaking this doctrine; and, indeed, it rests on reason and very ancient authority. * * * The contrary contention would give to such finding of a grand jury the effect of a valid plea of autrefois acquit, of which it does not possess the essential elements.

“ The right of the District Attorney to prosecute for manslaughter by information is not questioned; and as that form of proceeding reaches the court without the intervention of a grand jury, the objection to proceeding at the same term, which would exist to a second proceeding by indictment for the same offence before the same grand jury, does not arise." (Our italics.)

If anything were necessary to confirm our conviction of the Ross case, this opinion would do it.

In any event that dictum states an incorrect proposition of law, for either an information — in a proper case — or indictment is the correct means of initiating a prosecution, and through which it may be conducted to a final judgment.

But the pendency of both at the same time, for the same offence, is no bar to proceedings under either — as has been seen. It is of no possible consequence to the accused whether he is prosecuted for manslaughter by means of an indictment or information. It is the acquittal or conviction of the offence that bars further prosecution. Nothing else will.

But counsel’s further contention is that notwithstanding the information was filed with leave -of the court, within the twelve months ■succeeding the commission of the offence charged, yet, inasmuch as no arrest was made and no proceedings had thereunder, the prosecution remained dormant and without any legal effect, and could not, therefore, be given the force of a legal interruption of the statute of limitation.

That proposition is completely answered by the statement of Mr. Wharton that “it is within the discretion of the court to quash the former indictment, which act of quashing constitutes no bar to further proceedings on the subsequent bill.”

This is not the cáse of an illegal indictment having been quashed after the statute had barred the prosecution, and before the information had been filed. The information was not, in our opinion, a dormant prosecution in any sense. All the sanctity attaching to any proceeding by information attaches to it, same having been filed with, the permission of the court and placed among the public archives-thereof.

The minute entry appertaining to its filing is as follows, viz.:

“It is ordered by the court that the information be filed and recorded, and that a bench warrant issue for the arrest of the accused.” That the accused was not arrested thereunder, and, consequently, not required to make any plea thereto, is not a matter that exercises any influence over its legality or effect.

True it is that this court has held that the withdrawal of a defective indictment on the part of the State was a voluntary abandonment of the prosecution which precluded a renewal of it, after the bar of the statute was perfected, by the inauguration of another-prosecution. State vs. Baker, 30 An. 1134.

But, in State vs. Curtis, 30 An. 1166, the court said: “An illegal and void prosecution is equivalent to no prosecution; and under it the-accused on the one hand is considered as never having been in jeopardy, while on the other, it is without any legal effect in favor of the State to interrupt prescription.” State vs. Morrison, 31 An. 211.

But it is not pretended that the indictment on which the District. Attorney entered a nolle prosequi was defective or illegal. That could not be seriously claimed, in view of the fact that it stood the test of two trials in the lower court and of one in this court.

The District Attorney, in our opinion, assigns a good reason for the nolle prosequi, to the effect that the record had grown to so large-a size, and the motions and pleas of the defendant had accumulated to so vast a number, that he deemed it expedient to withdraw the-prosecution under the indictment, perfectly valid in form, and review it under the pending information, for the purpose of simplifying the issues and disembarrassing the cause of its difficulties.

It seems to us that in so doing he pursued a wise course and exercised a proper discretion.

In the case of State vs. Thomas, 30 An. 301, very nearly contemporaneous with that of State vs. Morrison, this court held that the bar of the statute was ineffectual in case the accused is, under a decree of this court, held in custody to await the finding of a new indictment.

The same rule obtained in Foster vs. The State, 38 Ala. 425.

By a parity of reasoning a like effect attaches to an information previously filed, and under which the accused is immediately prosecuted as soon as the indictment is withdrawn.

That the District Attorney thus sought to mend the hold of the ■State upon the accused, and thus defeat, eventually, the bar of the ■statute, can not serve as the foundation of any just ground of complaint on the part of the accused. For, at the time the information was filed, the cause was on appeal to this court by the State, seeking to maintain a verdict of conviction against the defendant of manslaughter, and being placed in the impossibility of knowing what would be its fate the District Attorney filed the information as a •safeguard against an unfavorable judgment.

And, all the authorities considered, we are of opinion that he was at liberty to take the course he did, and that the information under which he proceeded was legal and valid, and that the effect of its legality reaches back to the date of its filing, and interrupted the bar of the statute of limitation at date of filing.

Our conclusion is that the ruling of the trial judge was correct on both propositions.

The next proposition which is discussed in the defendant’s brief, and earnestly pressed in argument at the bar, is, that the copies of the information and the jury list were not served upon the defendant personally, two days before the trial, as directed by the Revised Statutes, Sec. 992.

The bill of exceptions relates “that upon the call of this case for trial * * * the prisoner’s counsel suggested to the Court that the prisoner had not had handed to him a copy of the information herein, and list of the jurors who are called upon to pass upon his case, two days preceding the call of his case, and read to the court the return of the officer showing domicile service, which is referred to as part hereof.”

The judge held that “service of the venire and indictment is sufficient when made at domicile. That the intention of the law is that defendant should be informed of the charge pending against him, and of the jurors who are to pass upon his case. When that information is conveyed to him the ends of justice are met. In this particular instance no suggestion of injury is made. As a matter of fact counsel for defendant had a list of jurors, pending the trial, from which they made their selection of the jurors.”

The language of the statute is that “every person who shall be indicted * * * shall have a copy of the indictment, and the list of the jury which are to pass on his trial, delivered to him at least ten days before the trial” (R. S. Sec. 992); and the counsel for defendant insists that the meaning of the statute is that there shall be made on the defendant a personal service of said copies. And that on account of there being made only a domieiliary service thereof, the defendant could not be legally compelled to go to trial.

We have not been referred to any case in which this question has been decided, and we know of none.

The District Judge, in our view, entertained a correct apprehension of the object that is to be attained by that statute; and we can not perceive any necessity for a formal personal service on the accused. It matters not in what manner the requisite copies are delivered to the accused. The statute is silent as to the mode of service. It is of no consequence what particular means are employed, so that the copies are really and actually delivered to the defendant in due time.

Oúr impression, derived from the statements we have quoted from the defendant’s bill of exceptions, and that is all the guide we have, is, that the abstract legal proposition which is submitted to us for decision is, whether or not domicile service is in any case legal, and also whether the defendant could be legally forced into trial, notwithstanding he had obtained, and was in possession of the necessary copies at the trial, no formal, personal service having been made thereof.

This objection is not well grounded.

The next bill of exceptions taken by the counsel for the defendant relates to the exclusion by the trial judge of evidence of the character of the deceased and of communicated threats.

They insist that the evidence taken at the trial, reduced to writing, and brought up with the transcript, fully proves an overt act of the deceased accompanied by hostile demonstrations, and violence menaced, quite sufficient in character to justify the admission of the excluded evidence.

The statement of the defendant’s bill of exceptions on this subject is “that upon the trial of the case and upon cross-examination of William Oolson, a witness in behalf of the State, the prisoner sought to prove the character of the deceased, Osborne Bailey, as to violent temper and dangerous disposition, and also offered to prove same facts by (his own) witnesses.” Also to prove “ that on the evening preceding the killing the deceased had threatened to take the life of the prisoner,” and “ which threats had been communicated to the prisoner on the morning of the killing,” etc. And that “evidence of communicated threats and character of deceased the court excluded on the ground that the proper foundation for the introduction of such evidence was not established.”

In the course of stating his reasons for rejecting the proffered evidence the trial judge said:

“Before proof of dangerous character or communicated threats can be offered, it is necessary that defendant show an overt act or a hostile demonstration sufficient in character to give rise to apprehension of imminent danger of sustaining great bodily injury or loss of life on the part of the deceased.

“No such proof being here established to the satisfaction of the court, the testimony is excluded.”

The court permitted certain written evidence taken at the trial to be annexed to the bill of exceptions, and as thus annexed same constitutes a part of the bill of exceptions, and consequently constitutes proper subject matter for our consideration.

The contention of defendant’s counsel is as follows:

“ The true rule is stated in State vs. Williams, 46 An. 709, where it is said the extent of the overt act which would induce the accused to act in self-defence is measured by the character of the deceased for a violent, quarrelsome, dangerous and turbulent disposition, notorious in the community, or known to the accused.’

“ The general rule as announced in many eases is that before evidence of communicated threats or dangerous character of the deceased can be offered by the accused, it must appear that at the time of the killing the deceased committed some overt act, made a hostile demonstration, assaulted or menaced the accused. State vs. Jackson, 33 An. 1087; State vs. Vines, 34 An. 1078; State vs. Watson, 36 An. 148; State vs. Birdwell, 36 An. 859; State vs. Janvier, 37 An. 644; State vs. Vance, 32 An. 1177.

“ In these cases there was no well grounded claim that the slayer was attacked or menaced at the time of the killing. In the cases of the State vs. Garic, 35 An. 970, and State vs. Robertson, 30 An. 340, the correct principle is stated, and in State vs. H. Williams, 40 An. 168, uncommunicative threats were held admissible in proper cases ‘ as throwing light upon the acts of the deceased, and as establishing the reality of the danger under the apprehension of which the defendant may have acted,’ and this, although the proof did not support the prisoner’s defence. See also State vs. Cooper, 32 An. 1084; State vs. Ricks, 32 An. 1098.”

The quotation counsel make from our opinion in State vs. Williams, 46 An. 708, is not full and complete; so we will supplement it. It is as follows:

“ In order to constitute the overt act that would justify the taking of human life, there must be some demonstration made by the deceased of such a character as to impress upon him that he was in imminent danger of his life, or some great bodily harm” (p. 711).

That is, in substance, if not in precise words, the statement of the trial judge in the bill of exceptions.

Then the court adds the following, viz.:

“ In some instances the extent of the overt act which would induce the accused to act in self-defence is measured by the character of the deceased for a violent, quarrelsome, dangerous and turbulent disposition, notorious in the community, or known to the accused.”

But it will be observed that this last paragraph is simply an explanatory statement of an exceptional character, not infringing the rule previously formulated. And so very guarded was the court in stating this exception that the sentence is prefaced with the phrase in some instances,” which counsel failed to observe in making their quotation.

On the main issue — the commission of an overt act by the deceased — we have examined the written testimony in vain for any •proof to that effect. We gather from the evidence that the question in dispute between the defendant and the deceased was in reference to the ownership of some timber the former had cut pre - paratory to making boards, and the latter insisted that the land off of which the defendant proposed to take the timber was his, and that the defendant should not remove the same.

On the day of the homicide the defendant, and one or two persons to assist him in the removal of the timber, repaired to the disputed premises, carrying a wagon for its transportation — having a .gun, which he carried across one of his arms.

The deceased, discovering the approach of the defendant and his friends, also repaired to the premises — arriving there first. As soon as the parties were on the ground the dispute was opened by the deceased, who had a large stick in his hand, one end of which was trailing on the ground. In the course of the discussion the defendant and the accused walked twice around the pile of wood— the one having his gun and the other his stick, without any demonstration being made by either.

The defendant picked up a piece of the timber with one hand, holding his gun with the other, and threw it in his wagon. The deceased got into the wagon and threw the timber out, whereupon the defendant ordered him out. This was repeated two or three times, when the defendant fired on the deceased and he jumped out of the wagon and ran a short distance away, and, falling, died soon afterward.

There is no proof of any hostile act or demonstration on the part •of the deceased toward the accused which, in our opinion, justified the homicidal act of the defendant, and we are of opinion that the evidence justified the ruling of the judge and his rejection of the proffered evidence.

Having made a thorough examination of all the propositions that were presented in the able and exhaustive briefs of the defendant’s counsel, we are fully convinced that no error has been committed which entitles him to relief.

Judgment affirmed.

On Application for Rehearing.

McEnbry, J.

We have given a patient and earnest attention to the application for a rehearing in this case. In reviewing our opinion we are confirmed in our views on all points in this case, except the service of a copy of the information on the defendant. There was error in the opinion, in stating that the question presented was only an abstract question, without practical results. This error grew ■out of the form of the bill of exception, as it was not formally and explicitly stated that the defendant had asked for delay for service of the information, which being denied, he had excepted to the ruling of the court. A close scrutiny of the bill, however, shows that after suggesting to the court that no legal service of a copy of the information had been made on defendant, as required by Sec. 992 of the Revised Statutes, the court ruled that the domicile service was sufficient and ordered the accused-to trial over his objection.

The sheriff’s return shows that the service was made on the defendant at his domicile, by delivering the copy of information to his wife, apparently over the age of fourteen years, in accordance with the practice in the service of copy of citation and petition in civil cases.

We do not think that this practice can be applied in the service of the indictment in a criminal proceeding. The mode and manner of service is statutory. In civil matters even, no service could be tolerated that was not provided for by positive enactment. In the Code of Practice, Chap. 2, Sec. 3, Art. 187, two modes of service of citation and petition are provided for — by being delivered to the defendant, or, by being left at his domicile. If the Code had only provided for personal service, this court could not have originated domicile service. And our cases all show that in the interpretation of the statutory ways of service, we have in each required a strict observance of the requirements of the Code. “The service is made in person when the citation and petition are delivered to himself.” Art. 188, Code of Practice.

Section 992, Revised Statutes, says: “Every person who shall be indicted for any capital crime, or any crime punishable with imprisonment at hard labor for seven years or upward, shall have a copy of the indictment, and the list of the jury which are to pass on his trial, delivered to him at least two entire days before his trial.”

This section can admit of no other interpretation than that the copy of the indictment shall be served on the defendant in person. It expressly says that it shall be delivered to him. It does not say that it may be left with some one at his domicile for him. We can not substitute service at the domicile for personal service on the de - fendant when the law requires the latter. This would, indeed, be judicial legislation. It does not appear that a copy of the indictment or information was delivered to the defendant. Nor does it appear that service of the copy of the information was made on the defendant under the indictment, which was dismissed at the same term of court as was done in case of State vs. Washington, 40 An. 669.

The defendant under the See. 992, Revised Statutes, was entitled, as a matter of right, to the service on him in person of the copy of the information two clear days before his trial. He did not waive this right, which was personal. The defendant should have been granted that delay until the requisite service of a copy of the information could have been delivered to him. In this connection a quotation from Blackstone is not inappropriate. “Delays and little inconveniences in the form of justice are the price that all free nations must pay for their liberties in more substantial matters.” 4 Blackstone Com. 350.

It is therefore ordered, adjudged and decreed that our former decree be set aside, and it is now ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is further ordered that this case be remanded to be proceeded with according to law.

Dissenting Opinion.

Watkins, J.

On reconsidering the question of service, I have deliberately arrived at the conclusion that our original opinion is thoroughly correct.

The question raised is counsel’s suggestion, and it is solely predicated upon the sheriff’s return exhibiting domicile service, and nothing more; therefore the question is one of its technical sufficiency as such.

In my view, had the defendant made a formal request for a postponement of the trial, on the ground that the requisite copies had not been delivered to him, proof could have been contradictorily administered on that issue, and a judgment on the facts found could have been pronounced.

I regard the statement of the present opinion as proof of this.

Consequently I dissent.

Rehearing refused.


source: Caselaw Access Project

author: Nicholls, 0. J.

license: Public Domain

text:
    No. 11,670.
    Mrs. W. J. Callahan et al. vs. Calhoun Fluker.
    .1. Plaintiff in. bringing a petitory action is not necessarily forced to cumulate therewith an action of nullity to set aside judicial proceedings in which his title has been "apparently divested. He has, at his risk, the right to allege such proceedings to be absolute nullities, and go to trial on that issue.

      Where plaintiff in his petition in a petitory action alludes, but only Incidentally, to certain judicial proceedings, and then only as being absolutely null, this simple reference does not control the character of the action or determine the jurisdiction.
    PPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Kernan & Wall for Plaintiffs and Appellants.
    Defendant in propria persona.

   The opinion of the court was delivered by

Nicholls, 0. J.

Plaintiffs, as heirs of one Louis Young, who, it is alleged, died in the parish of East Feliciana, place of his residence, in 1888, sue the defendant, praying “for judgment against him ordering him to deliver to them all title deeds and land patents of lands belonging to the succession of Louis Young, and to convey and transfer to them any or all of certain lands described in their petition, in his name, and that he be perpetually enjoined from disturbing them in their ownership of said lands by claiming the ownership thereof himself.”

This prayer is based upon allegations that on the 7th July, 1883, the defendant and Thomas B. Lyons, attorneys at law, engaged in their profession in the parish of East Feliciana, presented a petition to the District Court of that parish in behalf of one Dutart for letters of administration on the said succession, alleging that he was a creditor thereof — that Dutart never gave the bond required by law; that no letters of administration issued to him, and that at no time was he the legal representative of the succession. That the deceased left no debts, that his personal property was of more than sufficient value to defray the expenses of his last illness and fuñera charges. That no inventory was ever taken of the property in East Feliciana, and the inventory pretended to have been taken in the parishes of St. Helena and Livingston were never homologated by the court; that the' pretended administrator allowed more than a year to elapse from the date of the alleged appointment prior to the 8th of October, 1894», without filing an account of his administration, which ipso facto would have divested him of the administration of the succession even, if he had been legally appointed, and that more than a year elapsed after opening the succession before an attorney was appointed to repre - sent the absent heirs. That on the 8th of October, 1894, defendant, acting as attorney for the said pretended administration, presented a petition to the court and obtained an order for the sale of all the property, real and personal, belonging to the succession to pay the debts thereof.

That no schedule or statement of debts due by the succession has ever been filed, nor is there any evidence of the existence of any; that there was no authority in law for the sale of the real property or immovable property belonging to the succession before the personal property was exhausted, nor was it shown that the proceeds thereof would be insufficient to pay the debts, and that the said order of sale was improvidently given because the court had nothing before it to show the amount, character or value of the property it was ordering to be sold or the amounts of debts due. That in the meantime the said Dutart had removed from the parish, at least one hundred miles, and defendant was, in fact, administering the succession in his capacity as attorney for the same. That on the 3d of December, 1884, the sheriff of the parish of East Feliciana, pursuant to the aforesaid order of sale obtained by defendant, adjudicated to the latter for the sum of seventy-five dollars the property described in the petition, situated in the parishes of Livingston and St. Helena; that the price of said adjudication has never been'paid, and that the amount in dispute herein, the value of the said lands, is.the full sum of two thousand dollars. That defendant was without capacity to become the purchaser at the said pretended sale, which was provoked by himself by reason of the fiduciary relationship existing between himself and the succession, even if all the proceedings leading up to the adjudication had been valid and regular, which.fact they specially deny, and they aver that the title to the succession was not ..divested thereby.

They aver that they have made demand of the defendant;, who is domiciliated in the parish of Orleans, for all the titles) deeds and patents, including title to the said lands in said succession, and that he refuses to deliver the same to petitioners, and claims the ownership thereof. The prayer of the petition,upon the allegations is that which we have given in the beginning of this statement of, the pleadings.

Defendant excépted to the demand upon the grounds—

That he had not been legally cited.

• That the demand was barred by the prescription of one, three, five and ten years.

That plaintiffs are absolutely without legal right to maintain the suit or stand in judgment for the cause set forth in their petition.

That the court was without jurisdiction ratione material to hear and determine the same.

That the probate proceedings and judgment of the District Court for East Feliciana in the succession of Louis H. Young, and the sale in pursuance thereof under which the defendant became the purchaser of the land described by plaintiffs, having been authorized and rendered by a court having jurisdiction, as shown affirmatively on the face of the record sent up by plaintiffs, can not be attacked in a collateral proceeding, but can only be annulled in a direct action in the court which authorized such proceedings, rendered such judgment and ordered such sale.

These exceptions seem to have been all fixed for trial in block and so tried, and upon this trial evidence was introduced by the defendant without objection from the plaintiffs. Defendant himself went upon the stand and testified, and from his testimony it would appear that the matter involved in this litigation is over two thousand dollars. Plaintiffs, by appealing to this court, recognize that as a -fact such is the case.

The evidence referred to as offered by the defendant consisted of the record of the Sixteenth Judical District Court for the parish of East Feliciana of the succession proceedings in the matter of the succession of Louis H. Young. It was offered “for the purpose of supporting the plea of prescription set up by defendant, and for the purpose of supporting the exception of no cause of action, and the further purpose of supporting the allegation in the petition that this is a collateral attack upon a judicial proceeding, and for all other purposes the court may see fit to use on the trial of this cause.”

On the trial of the exceptions plaintiffs introduced in evidence the proees verbal of the sheriff, being part of the record offered by the defendant, also the inventory for the purpose of showing that the land acquired by the defendant at the succession sale is identical in description with that sued upon in this case.

The District Judge adjudged and decreed that the peremptory ex■ception filed by the defendant to the jurisdiction of the court be sustained and plaintiffs’ suit be dismissed with costs.

From that judgment plaintiffs have appealed.

We are of the opinion that the court erred in sustaining the plea to the jurisdiction and dismissing plaintiffs’ suit. Though no reasons are assigned for the court’s action, we think it was based upon the theory that plaintiffs’ suit was a collateral attack upon judicial proceedings, and that it fell under the provisions of Art. 608 of the Oode of Practice, which requires an action of nullity of judgment to be instituted before the court which rendered the same; that therefore it should have been brought before the District Court for East Feliciana. The court was in error as to plaintiffs’ demand. It is not an action of nullity, but a direct petitory action, or one of that nature, and as such could be brought in the parish of Orleans, the residence of the defendant. It is true that certain judicial proceedings are referred to in plaintiffs’ petition, but they are only incidentally alluded to, and as nullities, and this simple reference does not determine the character of the action or the jurisdiction. Reynolds vs. Stille, 15 An. 544; Dauterive vs. Opera House Association, 46 An. 1322. The case falls under the principles announced in Belard & Johnson vs. Gebelin & Duggan, 46 An. 330; Heirs of Ford, Id., 331; Mays vs. Witkowski, Id., 1475.

Plaintiffs’ theory in this case, as in Belard & Johnson vs. Gebelin & Duggan, is that all the judicial proceedings mentioned are absolute nullities needing no judicial action to bet them aside. We say here, as we did there: “'If plaintiffs think proper to go into the case on that basis, on the strength of the correctness of their legal eonclu-.sions on that subject, they have, at their own risk, the right to do so. .Should it turn out on inquiry that the proceedings alluded to were not void as claimed, but simply voidable, and the case should be before the court without proper pleadings and the proper prayer, •they may take nothing by their action. Defendant can not in limine, and on an exception, introduce evidence, and have the court pass upon the character of the proceedings, which plaintiffs assume and • characterize as absolute nullities. That will be one of the issues on the merits.” In addition to what we have just said, the court overlooked the fact that plaintiffs’ action does not necessarily fall, even if the judicial proceedings themselves were valid and legal, for the .sale following the proceedings is declared a nullity outside of the proceedings themselves, on the ground that the purchaser at the-sale stood in such a relation to the succession proceedings that he. could not legally be a purchaser thereat. Whether that position sustainable or not, it is an issue which would be dehors the prior-judicial proceedings themselves, and would leave the action as to its jurisdiction properly in the District Oourt.

In discussing the issue presently before us, we have to take the case as it was actually brought, and not deal with it from the standpoint as to its being properly or improperly brought. If improperly-brought that fact will in due time be developed, and the legal results, flowing from that fact will ultimately follow.

For the reasons herein assigned it is ordered, adjudged and decreed that the judgment appealed from sustaining defendant’s exception, to the jurisdiction of the Civil District Oourt for the parish of Orleans., and dismissing plaintiffs’ suit, be and the same is hereby annulled,, avoided and reversed, and that said exception to the jurisdiction be- and the same is hereby overruled, and the cause is reinstated on the* docket. It is further ordered that the case be and is hereby remanded to the District Oourt for further proceedings according to law.


author: Watkins, J.

text:
    No. 11,757.
    State of Louisiana vs. Ambrose Smith.
    Intent is an essential element of the crime oí embezzlement charged against am agent or attorney.
    If it be shown by the evidence that the defendant believed that his client hadl consented that he might use the money which had been entrusted to him as a loan on interest, notwithstanding his belief was erroneous, the subsequent appropriation by the defendant did not constitute a wrongful and felonious appropriation in the sense of our statute denouncing the crime of embezzlement against an attorney.
    APPEAL from the Criminal District Oourt for the Parish of Orleans. Ferguson, J.

      A. D. Fenriques of Counsel for State, Appellee.

      O. F. & C. C. iMzenberg, Qirault Farrar and J. Q. Fawkes for Defendant and Appellant.
   The opinion of the esurt was delivered by

Watkins, J.

The defendant was indicted and convicted of the ■crime of embezzlement as an attorney, and from a judgment and sentence to imprisonment in the State penitentiary for a term of three years he has appealed, relying on three bills of exception taken to the rulings of the trial judge.

The first bill relates to an exception defendant’s counsel tendered to the charge of the court.

The second relates to the judge’s declination to give to the jury a special charge as requested by the defendant’s counsel.

The third relates to the judge’s refusal to grant the defendant a new trial.

Before proceeding to the consideration of these bills of exception we conceive that a few preliminary observations are necessary to a clear and correct elucidation of them.

The indictment is drawn in conformity with the provisions of Act 31 of 1888, it being an act amendatory of Sec. 905 of the Revised Statutes “ relative to embezzlement and breach of trust.” A comparison made of the section of the Revised Statutes with the act amendatory thereof discloses that the only change that is made in the former by the latter is the.omission of the last phrase in the section, viz.: nor less than one year.”

In all other respects- the two statutes are identical; the phrase omitted exclusively appertaining to the penalty for embezzlement and not to the elements thereof.

There are two counts in the indictment, the first charging the defendant with having, while acting as the attorney of one C. W. Sterry, obtained from the Board of Commissioners of the Orleans Levee District, for and on account of his said principal, a warrant on the Auditor of Public Accounts of this State, for the sum of one thousand dollars, and with having embezzled the same; the second charging defendant with having, while still acting as the attorney to the said C. W. Sterry, obtained for him and on his account the sum of one thousand dollars in money, and with having embezzled the same.

The language of the indictment has its importance in aiding us in correctly determining the questions before us. Those bearing upon these questions are as follows, viz.:

That one Ambrose Smith, * * * on the lYth day of May, 1893, with force and arms, * * * being then the attorney of one O. W. Sterry, did, by virtue of his employment, then and there, whilst he was employed as aforesaid, receive and take into his possession, for and in the name and on the account of said 0. W. Sterry, his principal as aforesaid, a certain order for the payment of money, to-wit ” — omitting description of the instrument — “ which said order for the payment of the said sum of one thousand dollars he, the said Ambrose Smith, did then feloniously and wrongfully use, conceal, dispose of and otherwise embezzle, contrary to the form of the statute,” etc.

“ That on the day of the month aforesaid * * * the said Am-brose Smith, being then the attorney of one 0. W. Sterry, did, by virtue of his such employment, then and whilst he was so employed as aforesaid, receive and take into his possession, for and in the name and on the account of the said 0. W. Sterry, his principal and client as aforesaid, certain money, viz.: the sum of one thousand dollars in lawful money of the United States of America, and the said money so received as aforesaid he, the said Ambrose Smith, did then feloniously, wrongfully use, conceal, dispose of and otherwise embezzle, contrary to the form of the statute,” etc.

The record shows that the jury rendered a verdict of “not guilty as to the first count,” and “ guilty on the second count,” hence the appeal presents here nothing except the second count, which appertains to the charge against the defendant of the embezzlement of the money of 0. W. Sterry, which had been entrusted to him as his attorney.

The portions of the statute which are applicable are indicated by the following extracts from the act of 1888, viz.:

“Any servant, clerk, broker, agent, consignee, attorney, mandatory, * * * who shall wrongfully use, dispose of, conceal, or otherwise embezzle any money or any other property which he shall have received from another, or for his employer, principal or bailor, * * * or which shall have been entrusted to his care, keeping or possession by another, or by his employer, principal or bailor, * * * upon conviction thereof * * * shall suffer imprisonment at hard labor,” etc.

It is evident that the gravamen of the charge, as well as the essential element of the crime which is denounced in the statute, is that any attorney who shall wrongfully use, dispose of, conceal, or otherwise embezzle any money which he shall have received from his-client, or principal, or which said client or principal shall have entrusted to his care, keeping or possession, upon conviction shall suffer imprisonment.

The language of the indictment is, “ did then feloniously, wrongfully use, conceal and dispose of,” whilst the language of the statute; is, “who shall wrongfully use, dispose of, conceal, or otherwise-embezzle.”

While it is true that under our law embezzlement is a statutory-offence, yet the words of our statute “ shall wrongfully use” follow very closely the words of the statute of George IV, “ shall fraudulently embezzle.” State vs. Wolf, 34 An. 1153.

Following this analogy, we find in Bishop the following, viz.:

“If the word 1 embezzle’ is qualified in the statute by 1 fraudulently’ or-any other, the. qualifying word should, of course, be also used in the indictment.” 2 Bish. Crim. Proceedings, Sec. 323.

And that author further states:

‘ ‘ Since the offence is a felony, the more common opinion requires it to be charged as committed feloniously, whether this word is in the-statute or not. ” Ibid. (Our italics.)

Wharton lays down quite a similar rule and prefaces the statement by defining embezzlement to be “ an intentional and fraudulent appropriation of the goods of another, by a person entrusted with the property of the same.” (Our italics.) 1 Wharton’s Criminal Law, Sec. 1009; citing State vs. Wolf, 34 An. 1153.

He further declares:

“ ‘Feloniously,’ when the offence is a felony, must be used, etc.. * * * But statutory characteristics of the offence must be given. The felonious intent must be proved.” Id., Sec. 1045.

In this connection it is worthy of note that our statutes recognize and establish two essentially different kinds of embezzlement.

The first is that of the simple appropriation of public money by a public officer. Revised Statutes, Sec. 903.

The second is of the wrongful use by an agent or attorney of any money which shall have been entrusted to him by his principal or client. Revised Statutes, Sec. 905.

There is also a third kind of embezzlement which differs in respect to the person; that is to say, it is that of any president, or other officer of the bank, who shall knowingly and wilfully embezzle, or convert to his own use, any money belonging to such bank or deposited therein. Revised Statutes, Sec. 907.

It is sufficient to allege and prove the first only, that the public ■officer converted to his own use any portion of the public money which was entrusted to his safe keeping. The law declares in terms that in such case “the neglect or refusal to pay over on demand any public money in his hands in the manner required by law shall be prima facie evidence of its conversion and embezzlement,” etc. Revised Statutes, 903, last paragraph.

But this is not the case in respect to either of the other kinds of embezzlement, for, in one case, it must be alleged and proved that the attorney did wrongfully use or dispose of the private, individual money of his client (Revised Statutes, 905) ; and, in the other case, that the president or other bank official did knowingly and wilfully ■embezzle or convert to his own use the money of the bank or that which had been deposited therein. Revised Statutes, Sec. 907.

State vs. Eames, 39 An. 987, presents the case of a school treasurer charged with embezzling public money. Likewise the case of State vs. Exnicious, 33 An. 253; State vs. Thompson, 32 An. 796; and State vs. Belden, 35 An. 823, present cases of attorneys charged with the embezzlement of the money of clients. State vs. Palmer, 32 An. 565, presents the case of a bank president charged with embezzling the funds of a bank. State vs. O’Kean, 35 An. 901.

Each of these cases present the distinctive features and characteristics of the respective statutes, and with these lights before us we may proceed with the investigation of the bills of exception presented in the record.

But, as the second strikes our minds as being of greatest importance, aud which, if the view of defendant’s counsel obtains, will necessarily result in granting a new trial, we will take it up and dispose of it first.

The following is a literal reproduction of the defendant’s second bill of exceptions, which we have copied from their brief — comparison of same with the record having verified its correctness:

“Bill of Exceptions No. 2. Filed February5, 1895.

The State of Louisiana vs. Ambrose Smith.

Qriminai District Court, I Section “ A,” No. 21,969. J ’ ’

“Indictmentpor Embezzlement.

“Be it remembered that, on the trial of the above entitled and numbered cause, on this 30th day of January, 1895, it having been testified to the jury and court by defendant herein, duly sworn as a witness in his own behalf, that shortly after collecting the money for the prosecuting witness (with the embezzlement of which he is charged in this indictment), he had written to the prosecuting witness, advising him of such collection, and asking his permission to retain the money as a loan on interest; that not having received any reply from the prosecuting witness to such letter, he construed his silence as a consent to such request; that he felt justified in so doing, from the fact of his having sustained with the prosecuting witness the most intimate professional relations for a period of some eleven years, he having been during said period, continuously, the attorney and counsellor for said prosecuting witness; that acting on such' belief he did use the said money as a loan; that subsequently, in an interview with the prosecuting witness, in this city, at his (defendant’s) office, he considered this consent again expressed, stating to the court and jury that ‘ if he (the prosecuting witness) had insisted on his money he would have given it to him.’ And it also having been testified to the court and jury herein, by said defendant, and also by T. M. Gill, Esq., an attorney and counsellor at law in this city, that, at an interview held in this city, at the office of B. R. Forman, Esq. (subsequent to the last above mentioned interview), between the prosecuting witness and the said B. R. Forman and the said T. M. Gill and this defendant, the prosecuting witness said to this defendant, in the presence and hearing of the said T. M. Gill, in answer to a direct question from this defendant, to-wit: ‘Did you not consent to my using this money as a loan, paying you the same interest therefor that I was paying on my other loan from you of eight hundred dollars? ’ ‘Yes, I did; but when I wanted my money you would not pay .it to me.’

“ After the evidence and argument on both sides had been .heard, and the judge had given his charge, to the jury herein, the court was requested by counsel for defence to charge the following special •charge or request, viz.: ‘ If the jury believe, from the evidence, that ■the accused believed, whether correctly or not, that the prosecuting witness authorized him, to keep and use the money collected as a loan, on ■interest, there is no embezzlement, and they must acquit the accused.’

“ But the court refused and declined to give such charge to the Jury. To which ruling of the court the accused, through his counsel, excepted before the jury retired, and tenders this his bill of exceptions, to be signed by the judge.”

“The court:

“ I refused to give this charge, for the reasons specifically stated, applicable thereto, in my written opinion on the motion for a new •trial in the case, which opinion is made part hereof.

(Signed) “ J. H. Ferguson, Judge.”

The only portion of the reasons of the trial judge for overruling the motion for a new trial which have any applicability to the requested special charge is that which is embodied in paragraph three (3), and as it is short we will quote it in its entirety, viz.:

“ 3. This ground refers particularly to intent. It is contended that there must be a criminal intent in order to constitute the crime of •embezzlement. That if defendant believed, whether correctly or not, that the prosecuting witness authorized him to use the money collected as a loan on interest, then there was no embezzlement.

“In the case entitled State vs. Fricker, 45 An. 646, the Supreme Court held: ‘This court has already defined the crime of embezzlement as constituted by our statute, and we have not held it to be a statutory larceny. On the contrary we said embezzlement means to •appropriate to one’s own use property or money entrusted to him by his employer,’ One of the essential elements, says the trial judge, in larceny is criminal intent; therefore, it necessarily follows that if, •according to said decision, embezzlement under our statute is not a statutory larceny, and that there are none of the elements of larceny embodied in it, intent is not an essential element of embezzlement us constituted by our statute.

“ If the position of defendant be correct, all that would be required of the party accused of crime, in order to secure an acquittal, would be for him to declare that he believed and had good reason to believe •that he had the right to do the act.

“ This would be fraught with incalculable danger. I consider the position untenable.”

A casual inspection of the foregoing statement makes it apparent that the learned judge did not fully apprehend the scope and purpose of the requested special charge.

It was that “if the jury believe from the evidence that the accused believed ” that he was authorized to use the money; while the judge’s statement is that “ all that would be required of a party accused of crime in order to secure an acquittal would be to declare that he believed ,” etc.

The two are totally different things. Of course the mere ipse dixit of the accused would not suffice. No one contends for that. But the question is if the jury believed from the evidence — all the evidence adduced — that the defendant believed he was authorized to use the money, could there have been a wrongful and felonious appropriation of the money by the defendant within the intendment of the statute?

This court having held, in State vs. Fricker, that embezzlement is not the equivalent of statutory larceny, the judge’s conclusion was that “ intent is not an essential element of embezzlement as constituted by statute.”

But we are of opinion that the judge has drawn an incorrect inference from the Fricker case. What we intended to emphasize in .our opinion was that “the crime of embezzlement, as constituted by our statute,” is “ not a statutory larceny,” because “embezzlement means to appropriate to one’s own use property or money entrusted to him by his employer; and larceny is just the opposite, in that it consists in an unlawful and felonious taking the goods or money of another against the will of the owner. In the case of embezzlement the essential element is a wrongful appropriation of a thing by one to whom it has been entrusted; whilst in the case of larceny the essential thing is the felonious taking a thing by one who has neither right to or possession thereof.

This is the full purport of that decision; and, in our view, it is in keeping with prior adjudications on the question. It is for this particular reason, as stated by authors and jurists, that for a long period of time great difficulty was experienced in England in so framing a statute as to meet every contingency in which a public and private trust should be criminally violated without touching upon precepts that were applicable to larceny only.

Hence we feel confident that it was not our intention to hold in the Fricker case, as the trial judge infers, that “intent is not an essential element of embezzlement, as constituted by our statute.”

Indeed, we can not perceive in what manner a wrongful and felo - .pious appropriation could be made out without proof, or strong and conclusive inference of intent on the part of the trustee, agent or attorney.

To thus hold would, in our opinion, be to negative the words of the statute, and relieve, the State from establishing by proof the gravamen of the charge of the indictment. It would be to alter the evident intention and purpose of the Legislature in making a distinction between the embezzlement of public money and the money of a private individual, by declaring proof of a simple appropriation, enough to justify a conviction.

Such, evidently, was the view of our learned brother of the District Court, as appears by his general charge, as by his reasons for refusing defendant’s special charge.

Nor is this matter left to speculation or doubt. It is settled, in our opinion, by the current and great weight of authority.

Wharton defines embezzlement of this kind to be “ an intentional and fraudulent appropriation of the goods of another by a person entrusted with the property of the same.” 1 Wharton Criminal Law, See. 1009.

The only authority that is cited by that author is State vs. Wolf, 34 An. 1153, which cites and follows the precepts of the English statute of Henry and George, “ shall fraudulently embezzle,” and our own statute, “ shall wrongfully use.”

But that author emphatically states:

“But the statutory characteristics of the offence must be given.”

“ The felonious intent must be proved.” Id., Sec. 1045.

He again says:

“ Since embezzlement necessarily involves secrecy and stealth, if in rendering his account, instead of denying the appropriation of property he admits the appropriation, alleging a right in himself, no matter how unfounded, his offence in taking and keeping is no embezzlement.” Id., Sec. 1030.

He then states the converse of that proposition thus:

“ The fraudulent appropriation is to be inferred from facts, among which is the denial of the reception, or the suppression of the fact of its reception. And it is usual to require, in addition to proof of reception, flight, or .other facts, inferring fraud, etc.” Id., Sec. 1030.

On the same subject, and much to the Same effect, Mr. Bishop says:

“ The criminal wrong must be proved in all of its elements.”

And per contra:

“Evidence is admissible, on behalf of the defendant, that the owner of the thing permitted him to convert it to his own use.” 2 Bishop Criminal Procedure, Sec. 327.

One bill of exceptions that was passed upon in the case of State vs. Thompson, 32 An. 796, very clearly illustrates the question of intent as a factor in this kind of embezzlement. It is the one in which complaint is made of the judge’s charge in respect to an attorney’s privilege on judgments obtained by him; the court adding, (Id., 798) “ that if the defendant keep more than his fee out of the amount of the reception of the money, and feloniously convert the balance to his own use by embezzling it, he is guilty as alleged.”

This court simply said: “It was a proper charge.”

There this court recognized the right of an attorney to withdraw from the sum collected the amount of his fee without incurring the dire consequences of embezzlement; but it attached its consequences, to the felonious appropriation of the remainder.

In State vs. Belden, 35 An. 823, the court, in treating of the words, of the statute, “wrongfully use, etc.,” adopted the language of the Massachusetts court, and said:

“There are facts and circumstances admissible in evidence, as bearing upon the question of fraudulent intent,” etc. Com. vs. Tuckerman, 10 Gray, 173.

In State vs. O’Kean, 35 An. 901, this court went over the whole question very carefully — a case of embezzlement by a clerk. In that case we said:

“ Embezzlement is defined to be the felonious appropriation of the property of another, by one to whom it has been entrusted.

* % i}C Jfc

“There should in such ease be shown a demand, as an essential-ingredient for conviction from which a wrongful disposition or felonious appropriation could be inferred.”

In Regina vs. Norman, 41 Eng. Com. Law Rep. 500, is reported a. conspicuous and important ruling on the question of felonious intent, being negatived by proof of the defendant “ alleging a right or excuse for retaining the sum detained, no matter how frivolous the allegation.”

“Cresswell, J. (in summing up). I think that this does not amount to embezzlement. Embezzlement necessarily involves secrecy; the concealment, for instance, by the defendant of his having appropriated the money. If, instead of denying his appropriation, a defendant immediately owns it, alleging a right or an excuse for retaining the sum detained, no matter how frivolous the allegation, and although the fact itself on which the allegation rests were a mere falsification; as if, in the present case, although it should turn out that there was no such difference as that asserted by the captain, between the tonnage as measured at Swansea and at Plymouth, or,that there was no such custom as is set up. I do not say to what species of offence this may amount, but, in my opinion, not to embezzlement.

“Verdict: Not guilty.”

That decision is in strict keeping with the rule announced by Wharton, that if the defendant, “instead of denying the appropriation, alleging a right in himself, no matter how unfounded, his offence in taking is no embezzlement.” 1 Wharton Criminal Law, Sec. 1030 (9 Ed.).

We deem it unnecessary to cite additional authority, as allauthorities tend one way, and we rest our conclusions on those already collated. Applying what we have said to the question before us, the situation is this:

Defendant’s counsel requested the court to charge the jury that if they were satisfied from the evidence that the defendant believed that his client had consented that he might use the money as a loan on interest — though in fact that belief was erroneous — there was no embezzlement.

Or, in equivalent phrase, the request was: that if the defendant believed that his client had given his consent for him to use the money, he was guilty of no embezzlement, though, in fact, the client toad not consented for him to use it.

The labor of this opinion has been to show, by a complete analysis of authority, that proof of a felonious and wrongful appropriation is essential to a conviction of embezzlement of this character, and we feel conscious that our labor has not been in vain.

Intent being an essential ingredient of the charge and proof of embezzlement by an attorney, the defendant could not have feloniously appropriated his client’s money while believing that he had given his consent that he might use it prior to its appropriation.

This is the hypothesis on which the special charge was requested, and such is the tenor of his bill of exceptions.

The necessary result of thus ruling is to decide that the judge’s declination to charge as requested was erroneous. For, if the jury entertained the same appreciation of embezzlement as the judge did —that intent was .not one of its essential elements — there was no alternative but to convict the defendant, notwithstanding his belief that he had a right to use the money.

Should we accept his ruling and maintain it as correct, our decree would, in effect, declare that there is no distinction between the embezzlement of public money and that of a private citizen. It would be to virtually declare that a wrongful and felonious use is unnecessary, and that a simple appropriation is sufficient in any case to authorize a conviction.

Surely this court can not by its decree abrogate distinctions the law had established.

Our conclusion is that the judge’s ruling was erroneous and should be reversed.

But in thus ruling we do not mean to say that the defendant was •entitled to the charge as requested, ipsissimis verbis. That he is so entitled, in substance and effect — leaving the judge to employ any phraseology he may deem suitable and appropriate, provided it carry out the idea therein contained.

Entertaining this view there is no occasion for us to express an •opinion upon other bills of exception.

It is therefore ordered, adjudged and decreed that the verdict of the jury, and the judgment and sentence thereon pronounced be annulled and set aside; and it is further ordered and decreed that the defendant be granted a new trial, and that this cause be remanded for further proceedings according to law and the views herein expressed.

Mr. Justice Breaux concurs in the decree.