author: Breaux, J.

text:
    No. 13,018.
    Tax Payers of Webster Parish vs. Police Jury et al.
    Syllabus.
    1. An action contesting an election held to determine whether a subscription shall be made to a railway is not prescribed in three months from the date of the' promulgation of the election, and the prescription does not apply independently of the election so as to cure any illegality in the petition to the Police Jury for an election, although the action, as relates to the election itself, is not prescribed.
    2. The right of contest, under Act 106 of 1892, gives the right to examine into the acts of the Police Jury in ordering the ' election. The contest sanctioned .by the statute, is not limited to inquiring into the mere contesting of the votes at the election.
    8. Plaintiffs are not all estopped from calling in question the action of the Police Jury in ordering the election. A number of the plaintiffs did not participate or acquiesce in the election proceedings. •
    4. Voting at the election would not give grounds to sustain the plea of estoppel.
    5. Despite the benefits to the community a railroad makes sure, a taxpayer is given the right to contest the election.
    6. Article 242 of the Constitution of 1879, relating to railways and public improvements, was not self-acting.
    7. Act 135 of 1886 gave it effect, and carried out the intention of the framers of the Constitution.
    8. This statute is conditional, and its taking effect is made to depend upon a petition of one-third of the taxpayers of the parish.. Without a petition signed by one-third of the taxpayers requesting, the Police Jury to call an election, the Police Jury has no power to call an election, and submit the question of taxation to a vote.
    It is jurisdictional.

      APPEAL from the Second Judicial District, Parish of Webster. Waticins, J.

      Dormon '& Reynolds and J. W. HoTbert for Plaintiffs, Appellees.

      L. K. Watkins and Stewart & Stewart for Defendants, Appellants.
   The opinion of the court was delivered by

Breaux, J.

Plaintiffs sued to set aside an election at which the question of levying a five mills tax for ten years in aid of a railroad was submitted to a vote of electors having the right to vote.

The first ground is that the railroad had not been legally incorporated at the time the petition calling for the election was signed, and at the time the election was called.

The facts, as related to this point, are that the charter of the railroad was recorded on October 28th, 1897. Afterward, the Police Jury passed the ordinance calling the election.

The ordinance and the charter were published at the same time, and simultaneously became operative, as relates to publication. On the day of the election, the charter had been published the required number of days.

The second ground of plaintiffs’ attack is, that the petition for the election was not signed by one-third of the property taxpayers of the parish. Plaintiffs, in support of the attack made on the ground just stated, aver that not over five hundred and fifty names were signed to the petition, the jramber of resident taxpayers being two thousand two hundred and twelve and non-residents two hundred and seventeen; that, according to those figures, eight hundred and nine was the least number required for ordering the election.

The defendants, as relates to facts, claim that the result of the election was declared in favor of levying the tax by a majority of one hundred and twenty-four in numbers, and one hundred and seventy-seven thousand two hundred and thirty-eight dollars in amounts.

Experts, appointed by the court to examine the petition and report the names of the voters, returned, as part of their examination, that one hundred and twenty-eight names of persons who were not tax-payers appeared on the petition; that the names of forty-two taxpayers appeared on the petition twice; that there are twelve estates, twenty-four partnerships, six corporations and two' tutorships, whose names are on the petition.

The following is a tabulated statement, which plaintiffs claim-is correct:

Number of resident taxpayers.:.2297

Non-resident . 227

Total .....!.-.2524

One-third .‘.. 841

,. 656 Number on the petition...

134 Deduct number found by experts as baying no property

• 42 Dual signatures ..

Partnerships on petition . bO ^

Tutorships . tO

Corporations.;. 05

Signed by unauthorized agents.

Property owners who did not sign the petition whose names ■ appear on the petition.'. OS 00

Names on the petition above the 134 who did not sign, or who ‘ signed but had no authority. rH i — l

Total .'. 335

Considerably less than required. Taking into account to be deducted only the dual signatures, and the1’ number found by the experts as having no property, the number remaining is less than one-third of the number of taxpayers of the parish.

PRESCRIPTION.

Defendant filed a plea of prescription, alleging that plaintiffs’ petition, attacking the election, was filed after three months following the election, and tb^ee months after the returns of election were promulgated.

Defendants plea-jl the prescription of three months, both to the original and the amended petition, on the ground that the petition was not filed in time.

The election was ordered on the 28th day of October, 1897. The proceedings were published thirty days, and on the 30th of November, 1891, the election was held.

The Police Jury, in obedience to a writ of- mandamus, promulgated the result of the election on January 5th, 1898. Plaintiffs’ petition was filed on February 14th, 1898, clearly within'the three months.

The contention of the defendants was, at bar, that the ordinance, ordering the election, was not contested in time, and for that reason, whatever deficiency or irregularity there may have been in matter of ordinance, was cured by the prescription of ninety days; in other words, that the curative effects of the prescription applied to the ordinance, if it did not apply to the election.

It would be difficult to conclude that the'prescription of ninety days applies as a bar to any attack on the ordinance under which the election was to be held. If that view should be taken, it would follow that to each act, each step of any importance, of different dates leading to the election, a different prescription would apply. First, as to the petition, afterward to the ordinance, and to every other important step taken, leading to the election.

There is nothing, as we read the Statute No. 105 of 1892, to provide for contesting elections which sustains this. Prescriptions begin from the day of promulgation. The ordinance ordering the election is merged into and becomes a part of the election. The promulgation, as to prescription, includes the ordinance as part of the election, which may be contested in ninety days.' This was the legislative intent, as we take it, as no reference is made to the ordinance under which an election is called.

The position of the defendants, in the next place, is that no right of action is given to cause to be decreed null, and to set aside, the action of the Police Jury in adopting an ordinance calling a special election under Article 242 of the Constitution, and the cases of State ex rel. Woodruff vs. Police Jury, 41st Ann., 846; State ex rel. Davis vs. Police Jury, 43rd Ann., 1009, are cited in support of the position. Defendants insist that the Statute of 1892, just cited, was intended to give the right to contest the election, but not the rigfht to contest the ordinance of the Police Jury ordering an election, and that when this court decided as it did in Taxpayers vs. Tax Collector, 49th Ann., 3 039, that, prior to the Statute of 1892, it was without jurisdiction to entertain a ease of a contested election, and that the contesting of votes is-a judicial function only in só far as it is authorized by the Statute; it construed the act to.apply only to a contest over the casting and the returning of the votes after an election was held, and did not authorize an attack on the right to .hold an election; and that the purpose in enacting the statute last cited was to confer jurisdiction on the courts to entertain a case of contested election proper, counting the votes and promulgating the result, and did not refer to proceedings leading to the election.

There can he no question but that, prior to the Act 106 of 1892, this court was without jurisdiction to entertain a case of contest of an election, and that it was repeatedly held, “the contesting of votes is a judicial function only so far as it is authorized by the statute”. We think that the Statute 106. of 1892, now includes authority to contest not only the election, but the ordinance of the Police Jury under which the election was called. The ordinance forms part of the election.

We do not think it was the legislative intent to limit the contest to the mere counting of votes .on the day of election, and to the “irregularity, illegality and fraud” vel non on that day. - It necessarily referred back to the ordinance calling the election, and the laws under which it was passed. The.“illegality” which the contestant may urge under the terms of the act authorizing a contest, evidently includes not only “illegality” at the election, but illegality growing out of illegal acts or-ordinances.

“Any election held under Articles 209, 242 and 250 of the Constitution of 1879, etc.”, .this language of the statute includes evidently the ordinance under which the election was held.

The Plea op Estoppel.

We are informed by the able and energetic counsel representing the defendants that there was a mass meeting held in the parish, in which all who felt an interest in the subject participated; that a committee was appointed to prepare a petition to the Polide Jury, asking that body to call an election in matter of the tax; that it was numerously signed; that even a number of plaintiffs in this suit signed, also all the; members of the Police Jury, except one; that after having obtained the assessor’s certificate that it contained more than one-third of the property taxpayers of the parish, they passed an ordinance formally declaring that it contained the requisite number of signatures, and ordered an election to be held on November 30th, 1897; that no suggestion was made prior to the election that the petition was not signed by one-third of the taxpayers; that the election held was in favor of the tax, and that then a strong opposition arose in remote corners of the parish; that the Police Jury met to tabulate the vote, and disclose the result; that the opposition so influenced three members of the body that they refused, after tabulating the vote, to pass an act declaring the result and levying the tax; that the court was then resorted to, and mandamus sued out against the Police Jury, which resulted in a judgment against them, ordering them to pass the ordinance and levy the tax in accordance with the returns of the election; that no appeal was taken from this judgment, and the Police Jury accordingly promulgated the result.

We are further informed that some of the plaintiffs who are suing to annul the election, signed the petition, and asked that it be held, and all of them, with scarcely an exception, took part in the election and voted, some of them taking a very active part. This, defendants contend, was an acquiescence in. the election, such as to prevent them from attacking the ordinance calling the election, the form of the ballots used, and sufficiency of the petition presented to the Police Jury, asking that the election be called; citing, in support of their position, Andrus vs. Board of Police, 41st Ann., 697, and other decisions. Counsel candidly admit that there were petitioners in the case before us for decision who did not take part in the election, and did not vote. The admission is sustained by the facts. Though the number who did not participate may be limited, yet as to those, a right of action remains, as they are not estopped. They were not brought even by implication within the effect of the rule of estoppel. As relates to those who did not vote, the act of voting, of the taxpayers who voted, is as to. them res inler alios acia, and not binding.

We are not .persuaded by the argument on this head, that the taxpayers who did not participate in the election are estopped by -the, facts that the Police Jury, on refusing to levy ilye tax, were man-damused by the railroad company, and a judgment rendered in the proceedings sustained by the writ, and ordering the Police Jury to proceed to declare the result and levy the tax.

In the cases to which defendants refer to sustain the position, there had been delays; questions had been settled in those cited cases contradictorily with the parties who had the right to stand in judgment. This court held, particularly in one of the cited cases, that after the great delay, and owing chiefly to the fact that the question involved had been passed upon in prior suits, they, the illegalities and irregularities charged, would not be reconsidered with the view of reversing prior decisions. The parties in the cases to which defendants refer had failed to avail themselves of the opportunity offered to contest the tax, or at any rate, had slept upon whatever rights, if any they ever had, while the local authorities, in their behalf, were contesting, in court, the right to the tax. Some of the decisions rendered became final before the law was enacted, authorizing parties to contest local elections. The Supreme Court, it is true, decided in those cases that the contesting taxpayers were concluded by the litigation carried on for their relief; that there must be an end to litigation, and that the local authorities could not, through different persons, be heard again and again in regard to the same questions..

In the case now before us for decision there is a decided difference; the parties did not have the opportunity to contest the tax, and there were no extraordinary delays. The Police- Jury had refused to promulgate the result, and when they were ordered by the court to promulgate it, the protest or objection of the petitioners in the case now before us would no longer have been in time.

Within the ninety days granted by law, they filed their petition. There was no acquiescence in this case.

Different from the cases cited by defendants, the election here was contested on the ground of “irregularity, illegality and fraud.”

These allegations were met by three of the members of the Police Jury (a majority) alleging in their answer that they were true.

We do not think it possible under the law to hold that these issues can not be raised on the ground that mandamus issued to compel the Police Jury to promulgate the returns, which were promulgated, but in which it does not appear that those issues were presented to and passed upon by the court.

Judgment was rendered in favor of plaintiffs on the ground that the petition to th^ police jury was not signed by one-third of the property taxpayers.’

Defendants appeal.

Ok the Merits.

We take up, in the first place, the question of the organization of the railroad company, and the claim that at the time the ordinance calling the election was passed by the Police Jury, the Arkansas, Louisiana and Southern Railway was not legally incorporated under the laws of the State. The articles of incorporation were signed on October 23rd, and recorded on the 26th, following, and both ■ the charter and the ordinance were advertised for the first time, October 29th. There is no contest, as we take it, regarding the facts just ■recited. The plaintiffs, however, assert that the charter was recorded on the 26th of October, before the Police Jury passed the ordinance calling the election, and we have every reason to believe that it is entirely true.

At the date of the election, on November 30th, 1897, the charter '1 had been duly published fully thirty days-

The first objection on this point is that the charter was published, but the original list was not published.

The statute cited does not require the publication of the subscription list, only the charter; “but it shall not be necessary.to publish the names of the subscribers.” (R. S., 686). This settles this part of plaintiffs’ position and objection.

The next ground in support of the claim is that the railroad was not completely organized; that the adoption of the charter and the other proceedings had, as before stated, was not a sufficient compliance with the statute. We think it sufficient to say in answer the charter and the ordinance calling the election were published simultaneously, and the organization of the company had been entirely completed before the election was held. The officers of the railroad company had been chosen on the day the local tax election was held, and all the requirements complied with.

The prematurity complained of was not of a grave character, and was entirely remedied in due time. We, therefore, hold that there was no downright violation of law as charged, and that an election at the time it was called to determine whether or not a railroad tax should be levied in favor of a “railway enterprise,” is not jnull, on the ground of the incompleteness of the organization under the circumstances here.

This brings us to the claim pressed by plaintiffs, grounded upon the insufficiency of signatures to the petition to the Police Jury to order the election.

Plaintiffs insist that the petition was not signed by one-third of the property taxpayers.

After a careful examination of the facts relating to this petition, we arrived at the conclusion that plaintiffs’ allegation is sustained in this respect.

The defendants sock to meet plaintiffs’ contention by urging, in the first place, that the Police Jury could have ordered the election without a petition of the taxpayers, as the language of the statute, defendants contend, makes it the Police Jury’s duty, upon the petition of (1-3) one-third of the taxpayers, to order an election, but does not, defendants insist, have the effect of divesting them of the discretion to order an election of their own accord if they choose.

In our judgment, Article 242 of,the Constitution, authorized the General Assembly to enact laws empowering the parochial authorities, under certain circumstances, by a vote of the majority of the property taxpayers in number and in value, to-levy special taxes to aid railroad enterprises.

This article, on its face, was not self-operative. The statute of 1886, assailed by defendants, was the enabling statute required in order that it might have the intended effects. We have not succeeded in finding that the Police Jury is vested with discretion to order the election without any petition at all.

The parishes possess such corporate powers as are given undér the general laws of the State. The only power given here was to call an election whenever one-third of the property taxpayers chose to present a petition for calling the election.

It is a grant of power to hold an election upon the petition of a special number of taxpayers; without it there would be delegated power by the State to the Police Juries to hold an election. The petition of one-third of the property taxpayers is required by the statute in such terms that it is a part of the power, and can not be considered as not written without striking the whole with nullity. In other words, the whole power of the Police Jury to call an election depended on the evfent of a petition signed by the required number of taxpayers. \

In matter of these elections regarding local assessment, it is intended that the majority shall govern, but in the prescribed form which we understand is intended to restrain hasty and improvident assessments.

The State has the power to prescribe modes in order that the will of the taxpayers may be expressed. We have-nowhere found that authority denied in principle.

The article of the Constitution seems to cover just such condition as the act assailed here contains.

To the General Assembly was granted the right, “under certain circumstances,” to legislate as it legislated. Article 242 of the Constitution.

Dillon Municipal Corporations, 'Section 169 et seg_.

“But as neither Article 209, nor 242, makes any provision for the method of holding elections thereunder, or for ascertaining the results thereof, nor for the contesting of same, the Legislature is empowered by. the latter article to deal with these' questions as it deems best.” Citizens and Taxpayers vs. Williams, 49th Ann., 436.

In the alternative, defendants argue if the court should think the petition necessary, then the petition acted upon by the Police Jury was legal and sufficient, and had the required number of taxpayers.

Defendants, in support of this .contention, claimed to have shown that the petition contained the full one-third of all the taxpayers of the parish, after deducting the “correction list,” or deduction list.

There is a method provided for correcting the assessment roll. The “deduction list” must be duly made and approved by the assessor and collector and submitted to the Auditor, who authorizes the cancellation in cases of error in the assessment.

That method was not followed in this case. It, therefore, devolved upon the defendants to sustain the “deduction list” as introduced as being correct. The testimony is conflicting, and we have not found that the facts justified us in concluding that it should be deducted as proposed.

The assessment'roll for 1897, at the time the Police Jury ordered the election, had on it two thousand two hundred and ninety-seven resident taxpayers, and two hundred and twenty-seven non-resident taxpayers, making a total of two thousand five hundred and twenty-four. One-third of the total roll is eight hundred and forty-seven. Less than that number signed the petition for the election. There are a number of signers to the petition who did not have property. A number of names were of persons who bad not signed itj and bad not authorized any one to sign for tbem.

After deducting these names, fewer than -one-third of the property taxpayers of the parish remain.

Even if we were to deduct the corrected list, the petition to the Police Jury would not have the required number of names.

Number of names on the corrected list — one hundred and thirty-five. This leaves two thousand three hundred and eighty-nine.

The petition to the Police Jury, after having made needful correction, does not have one-third of that number.

We are asked to take off from the assessment rolls for 1897, corporations, nine in number; partnerships, fifty-four in number, and ninety-four estates, leaving- a total of two thousand and five, and reducing the total, as above, from two -thousand three hundred and eighty-nine to two thousand and five.

To this proposition we do not think we should accede.

Corporations are taxpayers, and when their hoards so authorize, their agents may sign the petition for the tax election.

Partnerships are taxpayers, and may sign when properly authorized.

Estates, if duly assessed as such, are taxpayers, and with expressed consent of parties in interest, may also petition the Police Jury to call a local (tax) election.

In matter of the election, it has been decided that the property taxpayers of the parish having the right to vote, were the legal voters, and that the majority of those voting was enough to carry the election for the tax.

As relates to the petition for the election, however, the statute provides that it shall be signed by one-third of the taxpayers of the parish.

We have found no law upon which to rest the conclusion that this requirement as to the petition referred only to the taxpayers residing in the parish. In our judgment, a property taxpayer may sign the petition, thou|j^ he does not reside in the parish, and had not the right to vote, for the law is plain enough, one-third of the taxpayers of the parish. On¿ may be a taxpayer of a parish without having his residence within ilk limits.

The question is jurisdictional. The full number required must sign.

“It must appear affirmatively that the petition was signed by the number of persons authorized to sign. These are jurisdictional requirements, and the burden is on the petitioners to show that the required number have signed.” People vs. Old Town, 88th Illinois; 21st Am. Railway Reports, 297.

There is a long line of authority upon the subject, all holding that the law’s requirements, in this respect, are mandatory.

The following summarizes our views: The railroad company which was to be the recipient of the tax, had the election been legal, was sufficiently organized to be considered a “railroad enterprise,” and entitled to the tax, if carried, and to that extent, plaintiffs had no ground of complaint.

As relates to defendants’ plea of prescription, we found no good grounds to apply the plea.

With reference to estoppel, the taxpayer was not concluded.

As relates to the petition upon which the Police Jury based its ordinance calling the election, it was not signed by one-third of the property taxpayers; a condition precedent to calling an election.

We agree with our learned brother of the District Court, that the election was not legal and binding on the taxpayers, and it follows that the judgment must be affirmed.

It is affirmed.

Rehearing refused.


source: Caselaw Access Project

author: jMoNROE, J.

license: Public Domain

text:
    No. 13,287.
    State of Louisiana vs. Alex Porteau et al.
    Syllabus.
    The ruling of a trial judge, upon the admissibility of evidence to prove a confession by the accused, based upon his conclusion that confession was not obtained by threats or promises, will not be disturbed in this court, unless clearly erroneous. ^
    APPEAL from the Eleventh Judicial District, Parish of St. Landry. Dupre, J.

      Milton J. Ounningham, Attorney General, and B. E. Garland, District.Attorney, for Plaintiff, Appellee.

      E. P. Veazie and James J. Bailey for Defendants, Appellants.
   The opinion of the court was delivered by

jMoNROE, J.

The defendant, Alexander Portean, and one Willie Rell were charged with burglary and larceny; Bell obtained a severance, and Porteau, being tried, was convicted and sentenced, and has appealed.

The only question which we find presented in the record is that reserved in a bill of exceptions to the ruling of the court admitting in evidence the testimony of Thomas Mouton, a deputy sheriff, and of Sheriffs Frazee and Broussard, to alleged voluntary confessions by the defendant. This testimony was objected to, on the ground “that said declaration was not free and voluntary, and was not so made by the defendant, at the time.” The testimony, as given by the witnesses, is brought up as part of the bill of exceptions, and is clear and piositive to the effect that the defendant confessed the crime with which he was charged, on several occasions, and that the confessions wore not induced by threats or promises of any kind' whatever. As against this, there appears the statement of the defendant, in which he attempts to deny having made any confession, and, at the same time, 'to assert that he was induced to make statements by promises made to him by Mr. Mouton, the deputy sheriff, who swears most positively, that he made no promises and held out -no inducements whatever. The judge a quo in signing the bill of exceptions, says: “I believe the declaration of the accused was free and voluntary. I did not believe his counter statement,” etc. .

In State vs. Bartley, 34th Ann., 147, it was said: “Whether the confession was voluntary or not, and admissible, or inadmissible, under the evidence submitted, is a mixed question of law and fact, which we are authorized to review, the evidence on the point being set forth in the '1^11 of exceptions. Though this is the casé, the ruling of the judge, 1c the first instance on a question of this character, should not be disturbed, unless clearly erroneous. The presence of the witnesses before him, their manner of testifying, character, etc., afforded an opportunity of reaching a correct conclusion on the point at issue, superior to any we possess. Our examination of the record, although the evidence is conflicting, satisfies us that his ruling in this instance is correct.”

In the case now under consideration, the evidence upon the point at issue can hardly be said to be conflicting, and satisfies us, as it satisfied the judge of the trial court, that the evidence offered was admissible.

Judgment affirmed.'


author: Watkins, J.

text:
    No. 13,289.
    State of Louisiana vs. Joseph Young.
    Syllabus.
    The rule of law demands that the confession of on accused shall have been vuade voluntarily and without the appliance of hope, or fear by any other person; and that the law can not measure the force of the influence, or decide upon its effect upon the mind of the accused; and therefore excludes the declaration if any degree of influence has been exerted.
    The proof must show that the mafcing of the statement was voluntary.
    APPEAL from Eleventh Judicial District, Parish of St .Landry. Dupre, J.

      Milton J. Cunningham, Attorney General, and R. Lee Garland, for Plaintiff, Appellee.

      B. P. Veassie and J. R. Pavy for Defendant, Appellant.
   The opinion of the court was delivered by

Watkins, J.

The defendant was prosecuted for an attempt to commit rape upon one Alice Garriere, and on trial was, by the jury, found guilty as charged and sentenced to imprisonment in the penitentiary for a term of five years; and from said velvet and sentence he prosecutes this appeal.

During the progress of the trial, there was but one bill of exceptions retained, and upon same the defendant relies for relief at our hands.

That bill of exceptions relates to the testimony of several witnesses for the State, the tendency of which was to establish a voluntary declaration made by the accused, and the objection to which was “that such declaration was not, in fact, free and voluntary.”

Upon this objection, testimony was taken and reduced to writing, and same was annexed to and forms a part of said bill of exceptions— the trial judge entertaining the opinion that the testimony was admissible, and that said declaration was free and voluntary.

We have made from the record the following extracts .from the testimony of witnesses:

“Wiltz O’Quin sworn, says:

■“Q. When you got home, where did you see the accused party 2 '“A. After I got home they brought him to my gate.

‘“Q. Who brought him to your gate ?

■“A. Dan Gibbs, the uncle of the girl named in the information. '“Q. Who else were with him ?

“A. I don’t know, I did not pay any attention, there were two or three of them following..

“Q. Were they making- any demonstration as if to harm him 2 '“A No, sir.

-“Q. EIow did they have him tied 2

■“A. They had a plow line around his neck.

“Q. Did any one say in your presence that they intended to do him bodily harm 2

“A. No, sir..

“Q. Were his hands tied?

41 A. No, sir.

“Q. How many 3nen had -a hold of the rope 2

“A. Only one.

“Q. Was he excited?

44A. No, sir.

“Q. When yon spoke to him had you told ‘him anything to frighten him or induce him to make a statement 2

“A. No, sir.

“Q. What it you said to him, and what was it he told you 2

'“A. Dan Gibbs, the fellow who had him around the neck, was telling me what he had done, his having tried to ravish this little girl. I asked him, Joe, what in the world did you mean; and he said he did not know 2

“1 asked him if he tried to do it to this little girl, and he said he did, that he tried to do it to her without hurting her, and when he found out he was hurting her, he left her alone. I said no more to him, then we carried him down to the bridge to see what would be done with him.”

-Jf- "Jí* iX‘ vi- *X*

“Q. What was the object in bringing the defendant to the bridge?

“A. To Meet Mr. Prosser, and to decide what to do with him.

“Q. What was the discussion about what you should- do with him?

“A. Whether to carry him to the law, or give him a brushing and send him back to work, or to run him out of the country.

“Q. What do you mean by a brushing?

“A. Give him a whipping.

“Q. Was it not on the advice of Mr. Lesseps that you did not hang him or whip him?

“A. No, sir, we would not have hung him, but we would have whipped him. We would have let the mob of negroes hang him, and would not have protected the prisoner, but would have protected those who hung him, as we thought he deserved it.

“Q. Did Mr. Lesseps at length come up and say to the crowd, it is better to let the law take its course?

“A. Tes, we went for Mr. Lesseps and he came up and said it was better for the law to take its course, but the prisoner wanted us to whip him and turn him loose.

“Q. Was the rope still around his neck?

“A. No, sir; not on the bridge, he was turned loose. The negro who had the rope was just leading him around; that is all the rope was tied on him for, he had no pistol or nothing.

“Q. Was the rope taken off his neck after it was decided not to hang him and let the law take its course ?

“A. No, sir; as well as I can recollect, the rope was taken off before Mr. Lesseps came; in other words it was taken off as soon as Mr. Prosser came and met me on the bridge.

* * # * * k *

“Q. A considerable crowd of negroes had accummated before Mr. Lesseps got there, had there not ?

“A. A good many; yes, sir.

“Q. Did not this crowd of negroes who had assembled there want to hang Joe?

“A. No, sir.

* *■ * * * *

“Q. How long did it take the crowd you were in to decide the question whether the negro was to be hanged, whipped or sent to the court house?

“A. I don’t know sir, only a short time.

“Q. It never was decided, was it, until Mr. Lesseps reached the scene ?

“A. No, sir.

. “Q. When Mr. Lesseps said to the crowd that he thought it was better to let the law take its course, then it was finally agreed to turn him over to the law, was it not ?

“A. Yes, sir. '

“Q. Was there any talk of whipping or lynching or sending him to the court house before the accused, party told you how this thing happened ?

“A. No, sir; it all took place after. -

“Q. Did you make him any threats or inducement before, or at the time he told you how it happened?

. “A. No, sir.

“Q. Was there any crowd gathered around him or near him at the time he told you ?

“A, No, sir.

“By the court:

“Q. As I understand it, where this conversation took place the negro had a plow line around his neck, but no evidence of violence had been offered him. Now, had you said anything, or anybody else done anything calculated to frighten him ?

“A. No, sir.

“Q. The plow line had been put around his neck to keep him from running off?

“A. Yes, sir; that is the only way they had to stop him.

“Q. And the statement by him made to you was voluntarily made and not superinduced by fear, nor threats on your part?

“A. Yes, si?”

The • following is an extract from the interrogation of another witness:

“Q. Do you know how the rope and why the rope was put around the prisoner’s neck?

“A. As to bow it was put around, I don’t know, but the reason why —I had turned him over to a man I had working in the yard on some wagon bodies, and merely tied the rope to make him secured; he tied the rope around his neck and I tied him to the wagon where he was working. That was early in the forenoon and he remained there until late in the afternoon. Mr. O’Quin returned home then and I merely sent him over to Mr. O’Quin.

“Q. Did you turn him over to a mob or crowd ?

“A. No, sir; only to one man, who gave him to another man to bring him to Mr. O’Quin. No mob went from my place to Mr. O’Quin’s place with him, there was no mob there; there might have been two or three colored men who went with him. No white men went, not even myself.

“Q. Did you take part in the discussion of the question as to what disposition should be made of the prisoner — that is to say whether he was to be hanged, whipped or turned over to the law %

“A. Yes, before Mr. Lesseps came up, Mr. O’Quin and I had a conversation on the subject, and we decided to give him a whipping and turn him loose, the defendant declaring that he would rather be whipped than sent to law.”

The following is an extract from the interrogation of another witness:

“Q. Have you given your statement orally to the judge in this matter ?

“A. Yes, sir. About five in the evening a darkey came to me and said that Mr. O’Quin and Mr. Prosser asked me to come up to the bridge. I went, and when I arrived, I saw a crowd of negroes standing around, and Mr. O’Quin and Mr. Prosser and a few other white gentlemen sitting on the railing of the bridge, near by us was the accused. Mr. O’Quin related the facts in the matter to me and asked me what I thought would better be done with him. I asked the darkey if it was a fact that he had attempted to rape the little girl, and he said it was. * * *

“After hearing the negro’s reply, I advised that he should be turned over to the law. He was then taken to a house about one hundred yards from the bridge, and was chained to a post in the house and put in charge of two darkies to await the arrival of the Constable. This was about eight o’clock in the evening.

“Q. Do you think, Mr. Lesseps, while these discussions were going on, whether it was better to hang' him, to whip him, or to turn him over to the law, that the situation of the prisoner was very perplexing and embarrassing to him,, and would not have been to you had you been in his fix ?

“A. No, sir; because when I arrived on the spot there was no discussion of what should be done.

“Q. When you heard the question put in the crowd, what shall we do with the man, did not that put him in a very embarrassing1 and perplexing condition ?

“A. Yes, sir; if he was guilty; if he was innocent, no.

“.Q. Were the people assembled there, friends of the prisoner.or not?

“A. He is a stranger in the parish, and the only, friend among the white people he might have had, was Mr. Prosser, "his employer, and he may have had some colored friends.”

The foregoing- is a reproduction of all the salient portions of the testimony, and a careful consideration thereof has brought us to the conclusion that the confession of the accused was not voluntary, but made under circumstances well calculated to inspire fear; and, consequently, same should not have been received; and that the trial judge committed reversible error in permitting it to go to the jury.

The general rule of law, as stated by Greenleaf is, “that the con- “ f cssion shall have been made voluntarily, without the appliance of “ hope or fear, or by any other person.” 1st Greenleaf on Evidence, See. 219.

It is stated by another author that the confession “must not be obtained by the exertion of any improper influence.” 3rd Russel on Crimes, p. 478.

The same theory is entertained by other authors.

Wharton’s Criminal Evidence, Sec. 673; 2nd Taylor’s Evidence, Sec. 8722.

“The law can not measure the force of the influence used, or decide upon its effort upon the mind of the prisoner; and, therefore, excludes the declarator if any degree of influence has been exerted.” 3rd Russell on Crimes, p. 478.

In "State vs. B/rry, 50th Ann., 1309, this court held that before what purports to bo the confession of an accused.person can be introduced in evidence against him, it should be shown to have been freely and voluntarily made, and not brought about by any fear on his part, or inducements held out to him. >

That confessions made by prisoners to parties arresting them, or holding them in custody, should be closely scrutinized, in order to ascertain that instrumentalities intended merely for the vindication of the law, should not be converted into engines of oppression' and wrong.

In State vs. Auguste, 50th Ann., 488, we held, that the rule of law requires that the confession of an accused shall have been made voluntarily and without the appliance of hope, menace or fear by any other person; and that whether it was so made or not is to be determined upon due consideration of the circumstances under which it was made.

That in order that such confession be admissible, it must apppear that “ihe making of the statement was voluntary.”

In State vs. Albert, 50th Ann., 481, it was held, that a confession obtained under duress is altogether inadmissible as evidence against an accused person; and that testimony thus obtained should not be admitted in evidence against an accused.

The facts of the instant case, as we have recited them, make it almost an exact parellel with that of State vs. Albert. State vs. Revills, 34 Ann., 381.

The accused made the alleged confession to a party of private individuals — not officers of the law, or persons authorized to make arrests —who had him in close custody, with a rope around his neck, and under circumstances of intimidation and probable violence. Just prior to the confession the party had under discussion.the question of whether he should be hung, or whipped or surrendered to the officers of the law; and this discussion occurred in the presence of the accused. And when the decision was reached that the accused should be surrendered to the officers of the law, lie was taken to a house about one hundred yards from the bridge where the-discussion took place, and was chained to a post in the house and put in the charge of two darkies' to await the arrival of the constable. ^

In our opinion, argument is unnecessary to demongwl^e that the confession was made under the appliance of fear alud that it should have been excluded from consideration by the jury. ,'

In State vs. Albert, we said:

“The whole course of proceeding as it is developed in the testimony, “ was altogether irregular, to phrase it as mildly as the circumstances “will allow, and contrary to the usual course of justice;” and much the same may be said of the testimony in this case.

We are clearly of the opinion that the testimony was extorted through fear and intimidation, and should not have been admitted as evidence against the accused.

The ruling of the trial judge was reversible error, and the verdict and sentence must be reversed and set aside.

It is, therefore, ordered, and decreed that the verdict of the jury and the sentence thereon based, be annulled and reversed; and it is further ordered and decreed that the cause be remanded to the court below for trial according to law.


author: BlaNCIiard, J.

text:
    No. 13,293.
    State of Louisiana vs. Armand Angel and Numa Angel.
    „ Syllabus.
    1. Defendants were jointly tried as perpetrators ol a homicide. They might have asked a severance and keen separately tried. Had this been done, the one might have called the other as a witness on his behalf.
    2. But the rule is different where, indicted as principals in the same bill, the accused went to trial at the same time. In such case the one co-defendant can not make of the other a witness for himself.
    S. Act 29 of 1886 interpreted as not establishing anything to the contrary of this.
    APPEAL from the Nineteenth Judicial District, Parish of St. Martin — Voorhies, J.

      Milton J. Cunningham, Attorney General, James Simon, District Attorney, (G. H. Mouton of Counsel), for Plaintiff, Appellee.

      James B. Mouton and Martin & Voorhies for Defendants, Appel* lants.
   The opinion of, the court was delivered by

BlaNCIiard, J.

'The accused were jointly indicted as principals for the murder of Frederick Romagosa. They were tried together, with the result that Armand Angel was found guilty without capital punishment, and Numa Angel was convicted of manslaughter.

From a sentence of life imprisonment at hard labor, in the one case, and of five years’ imprisonment at hard labor, in the other, this appeal is taken.

Four bills of exception are found in the record, but in the brief filed by their counsel, as well as in their oral argument submitted, no insistance is made as to the first and fourth bills. They are, hence, considered waived.

On the trial Numa Angel, co-defendant, was offered as a witness, both on his own behalf and that of Annand Angel.

The State objected to his being heard as a witness for the latter, on the ground that accomplices under joint indictment as principals and jointly tried cannot testify the one for the other.

As we understand the court’s ruling on this objection, it was that Numa Angel might, under Act 29 of 1886, be called as a witness, or take the stand as a witness, on his own behalf in the trial then being-proceeded with, but that he could not be called to the stand by his co-defendant as a witness for the latter.

This seems to be the construction placed upon the ruling’ by counsel for the defendants, though not that of counsel for the State.

We will consider it from defendants’ point of view.

These parties were being tided together. They might have asked a severance and been separately tried. Had this been done, the one might have called the other as a witness on his behalf. Rice on Evidence (Criminal) §327; State vs. Mason, 38th La. Ann. 476; State vs. Hamilton, 36th La. Ann. 1043; State vs. Russell, 33 La. Ann. 135; State vs. Prudhomme, 25th La. Ann. 523.

But the rule is different where, indicted as- principals in the same bill, the accused went to trial at the same time.

In such case the one co-defendant cannot make of the other a witness for himself. (Same authorities.)

We do not interpret Act 29 of 1886 as directing otherwise, or as intended to reverse a rule of criminal evidence so long sanctioned, except in the particular of permitting an accused to testify voluntarily in his own behalf.

While in this case the co-defendant was willing to gcy/jon the stand as a witness for the other, it is easy to forsee that wei^ a different ruling sustained than as above, it would sanction a practice that would likely result, oftentimes, in one on trial with another being called as a witness against his will and greatly to his prejudice. And though be might exercise his constitutional right and refuse to give answers that might criminate himself, that, itself, would be forcing him into a situation fraught with embarrassment, if not of jeopardy, to his case.

Under the ruling that he could go upon the stand as a witness for himself, Numa Angel testified in the ease, and no bill of exceptions is in the record which tells us that hé was not permitted to answer this, that, or the other question with reference to any fact of the homicide sought to be elicited.

In what, then, after all, is Armand Angel prejudiced, if, as a matter of fact, the other was allowed to tell his story of the killing?

The Judge’s ruling informs us Numa was restricted as a witness “to what he saw himself and what transpired when he was present at the occurrence of the homicide, and facts within his knowledge, leaving to the jury the duty of applying the evidence thus given to the determination of the whole case.”

The next bill of exception insisted on shows that Numa Angel then called his co-defendant Armand Angel to the stand, and that he was offered solely and exclusively as his, Numa’s, witness, and for no other purpose.

The District Attorney interposed the same objection. The Judge ruled that Armand might become a witness for himself under the same restrictions as were applied to Numa Angel when he was called as a witness in the ease; but that solely as a witness for Numa he was excluded.

He was not, thereupon, sworn as a witness.

The same considerations inducing the court to hold the grounds of the first bill untenable, apply here.

The Judge did not err in his application of the law to this ease, and, accordingly, the judgment appealed from stands affirmed.

The Chief Justice and ML. Justice BREaux dissent.

Rehearing refused.


text:
    No. 13,276.
    State of Louisiana vs. Pierre Antoine.
    Syllabus.
    It is permissible for the trial Judge, on the trial of an accused for larceny, to permit the Jury to separate, under proper instructions, and in the exercise of sound Judicial discretion.
    APPEAL from the Tenth Judicial District, Parish of Avoyelles. La,fargue, J.

      Milton J, Cunningham, Attorney General, and Charles Y. Porter, District Attorney, for Plaintiff, Appellee.

      Adolph Yallery Coco for Defendant, Appellant.
   On Motion to Dismiss.

The opinion of the court was delivered by

Watkins, J.

On December 1, 1899, a motion was made to dismiss the appeal, because the transcript shows no order of appeal; and does show that the transcript was not filed in this court within the time required by law. Later, a supplemental motion to dismiss was filed on December 9, 1899, on the ground that sentence was passed upon the defendant on- September 26th and an order of appeal was not taken until October 3rd, and, therefore, not within the time prescribed by Act 108 of 1898.

On December 26th, 1899, an agreed statement of facts was signed by the District Attorney and the attorney for the defendant, which covers the points of objection raised in the motion^#-’ which was acquiesced in by the Attorney General, conditional3^^ .nd the objection was thereby waived; and upon application fmade- to this court within the time prescribed by law, the return day'was extended.

The motion is, therefore, denied.

ON the Merits.

The defendant appeals from a conviction of grand larceny and a sentence to three years imprisonment at hard labor in the penitentiary; and-rests his claim for relief on two bills of exception.

In one of them, the statement is made, that when the defendant was called for sentence, he moved the court to suspend sentence upon him, and give him time to confer with his attorney, with whom he had just perfected arrangements for employment.

That up to the very moment of sentence, his said attorney had nothing to do with the case. That other attorneys who had been employed by the defendant, and had represented him on the trial, consented that the present counsel be employed. That these facts were stated to the court, and a delay was requested, to enable him to look into the case and prepare for an appeal; but that, notwithstanding this statement, the trial judge refused to grant this delay, and forthwith, proceeded to sentence the accused.

It is of this refusal to grant time to counsel just employed, that the defendant makes' complaint. The reasons assigned by the trial judge are as follows:

“That several days before sentence was passed upon the accused, the court had the accused and other prisoners, brought up for sentence; and upon the request of A. V. Coco, Esquire, counsel for the accused, who stated that he had just been employed and wanted a few days delay, the court postponed passing sentence, and a day was designated for that purpose several days in the future.

“That upon that day, A. Y. Coco, Esquire, counsel for the accused, again made a request to delay pronouncing sentence on the accused, and the court being about to end its criminal term, and having given all the delay necessary, refused to allow further time, and sentenced the accused.”

We are well satisfied that the trial judge committed no error.

The second bill of exception relates, that upon trial of the above entitled cause and during its progress, at the hour of noon, when the time for recess arrived, the court permitted the jury to separate, and each juror to ‘go his way unaccompanied by the sheriff or 'his deputy, to which counsel objected, etc.”

The judge’s statement in regard to the complaint of the jury having been allowed to separate, is as follows:

“When the recess hour had arrived, the court asked the counsel for the accused and the District Attorney, if they had any objection to the jury separating. The District Attorney answered that he had not ; but the counsel for the accused stated they could not give their consent; that while they might not have any objection, still they could not give their consent, and left the matter to the court.

“Whereupon, the court, in view of the fact that the charge against the accused was only larceny, and the .matter was discretionary with the court, and that only a portion of the evidence was in, permitted the jury to separate and go to their dinner.

“The court, however, specially instructed the jury not to talk about the case to ony one; not even to talk among themselves, and to let no one talk to them about it.”

We can see no objection to this.

Counsel for the accused, in his brief, relates a state of facts and circumstances in connection with the case, of which the record furnishes no evidence; and, consequently, they can not receive any attention at our hands.

This is a case of larceny, and we are aware of no law' — and have been cited to none — which prohibits the separation of the jury. Such is the law in capital cases.

We make the following extract from counsel’s brief, to-wit:

“The rule of practice in cases not capital differs only in that the separation will be permitted when no prejudice will result to the accused; but the verdict will be vitiated if it be of such a character that prejudice to the party complaining may be expected to have resulted therefrom. See Knobloch’s Grim. Dig., p. 296.

“In other words, in capital cases prejudice to the accused is presumed to have resulted, and the verdict will be set aside even where the accused consented to the separation. In cases not capital, the separation, if not consented to, will vitiate the verdict, if from the facts and circumstances, prejudice to the accused results from it.”

It seems perfectly clear on his statement of the law, that the defendant has no ground of complaint, inasmuch as there are neither facts, nor circumstances of any kind reported in the transcript, and no testimony is appended to and made a part^of the bill of exceptions.

In our opinion, neither ground of exception is well taken.

Judgment affirmed.


author: Monroe, J.

text:
    No. 13,286.
    State of Louisiana vs. Agenor Giron, Jr.
    Syllabus.
    Where a juror, upon his voir dire, denies having formed or expressed any opinion as to the guilt of the accused, and is accepted as a juror, and the accused is convicted ; and it is thereafter made to appear, upon the trial of a motion for new trial, that such juror had expressed a decided opinion, adverse to the accused, and had persisted in it; and it is further shown that neither the accused nor his counsel knew of such expression of opinion, prior to the conviction, a new trial should be granted.
    APPEAL from the Eleventh Judicial District, Parish of St. Landry. Dupre, J.

      Milton J. Cunningham, Attorney General, and R. Lee Garland, District Attorney, (Charles M. Cunningham, of Counsel,) for Plaintiff, Appellee.

      O. F. Garland and E. B. DuBuisson for Defendant, Appellant.
   The opinion of the court was delivered by

Monroe, J.

Defendant having been convicted of manslaughter, and duly sentenced, has appealed, and his counsel rely, in this court, upon a bill of exceptions taken to the ruling of the judge a quo in refusing a new trial.

It appears, from the record, that the defendant, having been tried and convicted, a motion for new trial was filed, based upon the ground that the verdict was contrary to law and, the evidence, and that said motion was overruled. Subsequently, and before sentence, another application, in the form of a petition for new trial, was made, which was verified by the affidavits of the petitioner and his counsel, and reads as foil 5-wit:

“That Jacob raster, one of the jurors of the panel that returned “ a verdict of guiijfcy of manslaughter against him (defendant), “shortly after the iommission of the alleged crime, at the store of “ C. P. Richard in the suburbs of Opelousas, publicly expressed him“self to the effect'that, if he were taken on the jury that would try “ petitioner, he would vote to find him guilty; that among those who “ heard him so express himself were the said O. P. Richard, A. M. “I-Iollier, and Louis Yanhille, all residents of Opelouses or its “vicinity; that the said Yatter, when examined on his voir dire, “ stated that he had neither formed nór expressed an opinion as to the “petitioner’s guilt or innocence; that, neither at that time, nor when “ the application for new trial was filed and submitted, did either “petitioner or his counsel know that the said Yatter had so expressed “ himself as aforesaid, and that is why the matter was not called to “ the court’s attention until this time.”

Upon the trial of this application, it was admitted that the juror, Jacob Yatter,'“when examined on his voir dire, before being' sworn in “ chief, was asked the question, ‘whether he had formed or expressed “ an opinion as to the guilt or innocence of the defendant, and replied “ that he had not.’ It was further admitted that “neither defendant, “ nor his counsel has heard or knew of the alleged expression of “ opinion by said juror, as set forth in the alias application for a new “ trial, until after the verdict and the filing of the original motion “ for now trial.”

And the following testimony was elicited, to-wit:

Louis Yanhille testifies: “When I got to Mr. Richard’s store, Mr. “Jacob Yatter, Mr. Á. M. I-Iollier, and Mr. Richard, the proprietor, “were there, on the morning after Mary Ilardy met her death; they “ were in conversation then about the case. One of the parties, I “ don’t remember which one, asked how was Giron, if he was dead or “ dangerously shot. I had not seen him. Mr. C. P. Richard said it “was the best thing for him, because it would be a rope case, sure. “Mr. Yatter was sitting near the counter, smoking a cigar; he got up “from his seat, and said: ‘Its more than likely to be a hanging “ scrape;’ he said ‘it’s a case I would not like to serve on because I “ would be bound to convict him.’ By that time Mr. Richard went “ round the counter to give me his order. After I got his order, I left “ and heard no more of the ease.”

A. M. Hollier testifies: “I was at Mr. 0. P. Rk^mrd’s store shortly “ after the killing of Mary Hardy. Mr. Jacob Yatter, and Louis Yan- “ hille, besides Mr. Richard, the proprietor, were there. I remember “ when Mr. Yatter expressed himself, that, from what he had heard of “ the case, that it would be a hanging scrape, and if he was to get on “ that jury, he would be bound to hang him. Then I asked him how “ could he form an opinion from hearsay, and we kept on discussing “ the subject, and I remarked to him that I never expressed my opm- “ ion before 1 heard the evidence on both sides. I was on the jury “ when the prisoner was first placed on trial. I was one of those who “ stood out for acquittal. I think there were nine of us for acquittal.”

O. P. Richard testifies: “Shortly after the killing of Mary Hardy, “ I remember that we talked about it when Mr. Vatter, A. M. ITollier, “ and Louis Vanhille were in the store, but I do not recall the conver- “ sation well enough to give the substance of it.”

Maurice J. Dufilho testifies: “I am a brother-in-law of A. M. “ Hollier; he married my sister. * * * After the first trial of “ Agenor Giron, Mr. Vatter and I were talking- about the mistrial in “ the Giron ease, and Mr. Vatter told me that he could not understand “ how a man like Mr. A. M. ITollier could acquit a man that had com- “ mitted such a crime. I told him that I had followed the case, and “heard every witness speak, and I thought he was right to hold out “ for acquittal; he told me he knew all about it too.”

Jacob Vatter testifies: “I lived in the parish of St. Landry about “ forty-three years. I came here when I was six years old. I am a “ property holder in the parish.

“Q. Before you served as a juror in the case of the State against Giron had you any fixed opinion as to his guilt or innocence ?

“A. I had not.

“Q. ITad you heard anything- more than the general rumors that one generally hears, when a crime is alleged to have been committed ?

“A. I had not.

“Q. State whether you remember any of the conversations alleged to have taken place at the store of 0. P. Richard, and referred to in the testimony of Louis Vanhille?

“A. No, sir; I heard not a word of any such conversation.

“Q. You had no interest, one way or the other, in the suit against Giron?

“A. No, sir.

“Q. Did you have | conversation with M. J. Dufilho as referred to by him? y

“A. No, sir; not regarding this case.

“Q. Do you remember seeing him at the camp meeting ?

“A. i do.

“Q. When was it that you ascertained that A. II. Hollier was a member of the jury on the first trial of Giron?

“A. Just now, this morning.

“Q. In rendering your verdict as a juror in this case, were you influenced entirely by the evidence,^ or were you influenced in any respect by the rumors previously heard by you ?

(Objected to; objection overruled, and bill reserved).

“A. I was influenced entirely by the evidence. I had no opinion as to his guilt or innocence.”

In the bill of exceptions taken to the overruling of the applicátion for new trial, it is recited that the statements which were said to have been made were proved by the testimony of “three disinterested, unim-peached and unimpeachable witnesses.”

The judge a quo gave the following reasons, incorporated in said bill, for overruling said application, to-wit:

“I do not believe Mr. Yatter had any fixed opinion, when he entered “ the jury box. He may (the day after the homicide) have said, from “ what he had heard, it might be a' hánging scrape, as testified to by “the witness A. M. Hollier, but beyond this, I feel satisfied he had “ neither formed nor expressed any opinion as to the guilt of the “ accused. The writer has known Mr. Yatter for the past thirty “ years, and no man in this vicinage has a better character for truth “ and veracity and as an all-around good citizen, than he. He can “ have no motive in stating anything but the truth. Not so with the “witness Yanhille, who is a first cousin to the accused.”

It has been held by this court that, “Rulings of the trial judge, on “ questions not submitted to the jury, but to the judge, alone, and in- “ volving blended issues of .law and fact, are reviewable in this court, “ on the facts as well as on the law, provided the testimony has been “ reduced to writing and embodied in, or attached to, the bill of ex- “ ceptions taken to the ruling.” State vs. Nash & Barnett, 45 Ann., 1137.

The question, here presented, falling within the rule thus stated, and the requisite conditions having been complied'with, it becomes our duty to review the ruling complained of.

It will be observed that the character of the witnesses, Yanhille, Hollier, and Dufilho, for truth and veracity, is}said, in the bill of exceptions, to be “unimpeached and unimpeachable,” and that the judge a quo does not challenge that statement. It will also be observed that, in giving bis reasons for overruling tbe motion for new trial, the learned judge whilst strongly indorsing the character of the juror, Jacob Vatter, concedes that he might have expressed his opinion as stated by the witness Hollier. But the juror himself, has twice, tinder oath, denied that he expressed any such opinion. Once, when sworn on his voir dire-, and a second time, specifically and categorically, when examined as a witness upon the application for new trial. And he also denied the statements attributed to him bj the witness Dufilho, who, like the other witnesses, is entirely unimpeached. Under the circumstances, we feel bound to accept it as a fact that the juror had expressed himself before the, trial, as is stated in the testimony which has been recited.

We have, therefore, the admission that the juror was questioned on his voir dire, and that he then stated that he had neither formed nor expressed an opinion as to the guilt or innocence of the accused; we have the fact established by .the evidence, that he had, prior to that time, and shortly after the homicide, stated that he considered it a hanging matter, and that he would be bound to hang the accused if he were on the jury; and that, at a late period, after there had been a mistrial, he stated that he could not understand how a man like Hollier, who had served on the jury, could acquit a man who had committed such a crime; and, replying to the remark made by Dufilho, with whom he was talking that he, Dufilho, had heard all the evidence, he said that he too knew all about the case; and, finally, we have the admission that neither the defendant nor his counsel knew of those expressions of opinion until after the trial, and in fact, until the first motion for new trial had been filed and overruled.

The only question which remains, then, is whether, these admitted and established facts considered, the defendant can be held to have been tried by an impartial juror. And this question, wé think, must be answered in the negative. For, not only had the juror who tried him expressed a decided opinion, adverse to the accused, but this had been repeated at another and later period, in the form of an expression of surprise^that a particular juror, who served on the first trial, should have been ill favor of an acquittal, coupled with a statement that he, the speaker, knew all about the case; and all this was denied when the juror was examined on his voir dire, so that the defendant’s counsel accepted him as a competent juror, who had neither formed nor expressed any opinion whatever.

It is true that if a juror who is examined upon his voir dire admits having expressed an opinion as to the guilt of the accused, he may nevertheless be held by the court to be a competent juror, if it appears upon his further examination that the opinion thus formed was based upon rumor; that it was not “fixed, absolute, positive, definite, settled, decided or unconditional.” State vs. Williams, 49 Ann., 1152. But, though he may be so held by the court, the prosecuting officer,- representing the State, or the counsel representing the accused, hearing his statements, may reach a different conclusion as to the character of his opinions, and may elect to challenge him peremptorily. In the instant case, however, the counsel for the accused had no such opportunity, and the juror was accepted in good faith, because, upon his examination on his voir dire, he stated, not that he had formed an opinion that would yield to the evidence which might be submitted to him as a juror, but that he had neither formed nor expressed any opinion whatever.

Under these circumstances, his testimony on the trial of the application for new trial, to the effect that his verdict was based on the evidence, etc., comes too late to qualify him as a juror, because the time at which the defendant, acting upon any testimony that he might give, could exclude him from the jury had passed.

For these reasons, we are of opinion that the court a qua erred in refusing the new trial prayed for, and it is therefore ordered, adjudged, and decreed, that the judgment appealed from be annulled, avoided and reversed, that the verdict herein found, be set aside, and that this cause be remanded to be proceeded with according to law.


text:
    No. 13,296.
    H. P. Nicholls vs. Clara Maddox.
    Syllabus.
    An exception oí no cause of action Raving been sustained and s at dismissed, a judgment should have been written and signed by me Juáge, as the decree is in the'nature of a final judgment.
    APPEAL from the Twelfth Judicial District, Parish of Calcasieu. Bead, J.

      Paul A. Sompayrac for Plaintiff, Appellant.

      R. P. Williams, Curator ad hoc, for the Defendant, Appellee,
   Oh MotioN to Dismiss Appeal.

The opinion of the court was delivered by

Watkins, J.

The motion to dismiss rests on the ground, that the judgment sought to be appealed from is a final judgment, and that same not having been signed by the judge a quo, the appeal is premature — an exception of no cause of action having been sustained and suit dismissed.

The contention of counsel is, that such a decree is a final judgment, and should have been signed by the District Judge. Code of Practice, Art. 546; Saloy vs. Collins, 30 Ann., 63; State ex rel. Dixon vs. Judge, 26th Ann., 119.

The averment of the plaintiff’s petition is, that he is a resident of the parish of Calcasieu, and that he married the defendant, Clara Maddox, in the State of Michigan, in February of 1888, and in accordance with the laws of that State; that he lived with her in peace and happiness; but found that, for reasons of health and business, it was necessary for him to leave said State.

That he has resided in Lake Charles, Calcasieu parish, Jjouisiana, for several years past, and been engaged in a legitimate occupation, and has established a domicile in said town and State.

That he saw his said wife for the last time, in another State, during the month of August, 1897, and he then urged her to come to the home he had established — and has repeatedly urged her since to come — but that notwithstanding his requests and offers to pay her expenses to that point, she lias persistently refused to come.

That his said wife has, in fact and law, abandoned him, and he wishes to obtain a judgment of separation from bed and board from her, and, in due course, a final divorce.

Petitioner represents, that his wife now resides in the State of Michigan, and that it is necessary to appoint an attorney to represent her. ' •>

Thereupon, his prayer is, that his said wife be duly cited and served to appear and answer his petition in the district court for the parish of Calcasieu, Louisiana, and that she be, thereby, admonished to come to his home in that parish, and there abide; that notice be served upon the defendant through an attorney appointed to represent her, for three successive months, and that after due proceedings and the necessary lápso of time, he have and recover a final judgment, granting him an absolute divorce, and dissolving the bonds of matrimony existing between them.

Thereupon, the court appointed an attorney to represent the absent defendant in the aforesaid proceedings, and ordered that the notices prayed for, issue and be served.

To this petition, the defendant appeared through the.curator ad hoc thus appointed, without in any wáy answering or pleading to the merits, and excepted that plaintiff’s petition sets forth and contains no legal cause of action against the defendant, and prayed that the suit be dismissed.

Said exception was argued and submitted, and maintained by the judge a quo, and the suit dismissed.

The ground on which the motion was predicated and sustained, is 'thus stated in .the brief of the curator ad hoc, to-wit:-—

“If a cause of divorce or separation occurred in the State of Mich- igan where the parties were married and where the wife still resides, no jurisdiction can be exercised in this State in such cases.”

The effect of the decree of the district court sustaining the exception .of no cause of .action is, necessarily, in the nature of a final judgment, and has the effect of terminating the litigation upon the issues stated. In other words, the same suit could not be renewed and another judgment provoked on the same cause of action.

Such being the case, a judgment should have been rendered and signed by the judge a quo; and this not having been done, the appeal is, necessarily, premature.

We deem it unnecessary to analyze the jurisprudence upon this question, but regard it sufficient to cite a few pertinent decisions.

Klotz vs. Macready, 35th Ann., 596; Ruthenberg vs. Helberg, 43 Ann., 410; State ex rel. Poche vs. Judge, 42nd Ann., 311; Cary vs. Richards, 35th Ann., 505; Ferguson vs. Chastant, 35th Ann., 485; Baker vs. Frellsen, 32nd Ann., 822; Granger vs. Singleton, 32nd Ann., 898; Fields vs. Gagne, 33 Ann., 339; Church Wardens vs. Perche, 30 Ann., 160.

For the foregoing reasons and authorities, our conclusion is that the appeal was premature.

Appeal dismissed.


author: Biif.aux, J.

text:
    No. 13,290.
    State of Louisiana vs. Adam Satterwhite.
    Syllabus.
    1. .Vome of Owner. There was no valid ground oí objection to the amendment of the indictment by inserting the name oí Jules Birotte for that of Claiborne Birotte as the owner of the property charged to have been burglarized. The crime charged was not affected by the question whether the property was owned by -another person. State vs. Dominique, 39th Ann., 323; State vs. Christian, 30th Ann., 367.
    2. Description of Property. A change in the description of property stolen may also be made.
    APPEAL from the Eleventh Judicial District, Parish of St. Landry. — -Dupre, J.

      Hilton J. Cunningham, Attorne3r General, and R. Lee Garland, District Attorney, for .Plaintiff, Appellee.

      (J. F. Garland for Defendant, Appellant.
   The opinion of the court was delivered by

Biif.aux, J.

The accused was indicted for burglary; he was tried and convicted of burglary and larceny and sentenced to eighteen months in the penitentiary.

T!is case is before us on grounds presented in three bills of exceptions all growing out of the one objection to the amendments which the court allowed the District Attorney to make to the indiement•dur-ing the trial.

The first bill of exception sets forth that on the trial of the case, the evidence having shown conclusively that Claiborne Birotte, the one stated in the indictment, was not the owner of the storehouse it was charged had been burglarized and from which goods had been stolen, but that they i»re ihe property of an entirely different person, viz., Jules Birotte; ?%t thereupon the District Attorney moved to amend the indictment returned against him by erasing the name of Claiborne Birotte and inserting in its place the name of Jules Birotte; that to this amendment he objected for the reason that it was an amendment of substance and not of form, and, also, for the réason that the amendment took the accused by surprise as he was not prepared to defend himself against the new accusation, as he would require other and different witnesses to meet the new issue raised by the amendment.

The objection was overruled. The Judge of the District Court rested his refusal on the following grounds, viz., that Section 1047 of the Revised Statutes of 1870, sanctions the amendment, and that the accused, while testifying in his own behalf, admitted the commission of the crime charged against him, but justified its commission upon the ground that the prosecutor owed him wages, stating at the time to him, accused, to get his money the best way he could. The trial judge adds that he did not rest his ruling upon the statement of the accused but upon the authorities; that he only adverted to that fact as refuting the averment that the defendant was prejudiced by the change of name as before stated.

The name of the person injured was treated by the trial judge as a matter of description, and as not going to the substance of the offence. The property, we understand, was otherwise fully identified and the accused was placed on his defense as to which property was meant by the description.

In State vs. Hancks, 39th Ann., 236, the Supreme Court held that “the amendment was proper whenever it became evident that the crime charged was not affected by the question whether the property was owned by another person than the one named in the indictment.” Similar views were expressed in State vs. Dominique, 39th Ann., 323; State vs. Christian, 30th Ann., 367.

In the second bill of exception reserved to the court’s ruling, the statement is inserted as part of the bill of exception that-the defendant moved for a postponement of the trial of his case for a few days, on the ground set forth in his motion for postponement, which was overruled by the court, because the postponement was unnecessary for reasons assigned, and making part of his bill of exception.

Necessarily, much regarding the postponement oi cases is left to the direction of the trial judge. Unless it is evideprthat the rights of the accused have been prejudiced in some way by the refusal to postpone the case, the verdict of the jury will not be disturbed. The objection does not seem to be insisted upon, doubtless for the reason that .the accused had, by his own testimony, made it manifest that nothing' was to be gained in liis behalf by the postponement of the trial.

It does not appear that defendant was prejudiced in his defense by a refusal to postpone the trial. He admitted, as we take it, that he had committed the deed with which he is charged. He is, it is true, entitled to the whole of his admission, but even then his attempt at justification was not a justification. If it be true, as he swore, that he committed the act because his employer refused to pay him for his labor, it was a mean injustice on the part of the employer who should never act thus when called upon for payment for honest labor, but the denial of a right did not in the least justify the commission of a crime. It, the confession of a witness, may he considered as good reason for refusing, as the District Judge did, to postpone the trial after the amendment had been made.

In the third bill of exception, the defendant sets forth tha1 after the indictment had been read to the defendant, the District Attorney moved the court to amend it by erasing therefrom the word “dwelling” and substituting therefor the word “store,” to which his counsel objected for the reason that the amendment is one of substance and not of form. The court overruled the objection, because Section 1047 of the Revised Statutes permits such an amendment.

The grand jury’s finding in one count was burglary by feloneously and burglariously breaking and entering with intent, the goods and chattels of Jules Birotte in his dwelling, etc., to steal, etc.

The State argues that it was one of those corrections in matter of description which may be made under the provisions of Section 1047, R. S. That section authorizes amendments of description in regard to all property set forth in the indictment when the crime charged is burglary or larceny.

We take it that it was not the intention to charge a new crime. The indictment may be amended as relating to an error of description, provided it remains the indictment of the Grand Jury. It does not appear whether the Grand Jury made the mistake of using the word “dwelling” ^for “store” or intended from the first that the dwelling had been burglarized and that subsequently it was made manifest to the prosecuting officer that it was not the dwelling but the store.

None the less, under the authorities, as relates to the description, amendments can be made. If the name, as relates to the description of the property, can be changed, it follows that, as a matter of description before trial, the word “store” can be substituted for “dwelling.” Under the extensive scope of Section 1041, we would hesitate in holding that almost any amendment of mere description is excluded' as not possible. We copy from the statute: “Any variance between the statement in the indictment and the evidence may be remedied by amendment.”

As relates to description of the property, the modification, following the foregoing qualification in the Section 104Y does not modify it much. After reciting at some length the amendment which may be made, the section sets out that amendments are legal “when there is variance in the name or description of any matter or. thing whatsoever therein named or described.” 1

On the face of the section, it includes the description in the indictment here as one which may be amended. The statute permits such amendments. ■ The question of repugnancy of this section of the statute to the provision, of the Constitution regarding proceedings against an accused by indictment, was not presented for our consideration either expressly by the pleadings or by argument at the bar. No issue on this score having been presented, following precedents, we do not choose to pass upon the question. It, the section in question, is to be treated as legal until the contrary appears on plea pleaded.

A statute having been regularly adopted must be considered as being within the constitutional limitations until it is challenged for sufficient cause.

We have not been favored with a brief by the attorney for the accused in this case; none the less, we have gone over the points urged in the District Court and have found no reason, or grounds presented, to set aside the verdict.

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