text:
    No. 10,283.
    In Re James H. Douglas, Praying for a Writ of Possession.
    t. Act 82 of 1884 is a romedial and healing statute intended to curo irrogulaiátios in prior tax proceedings by making the tax deeds conclusive evidence of compliance in certain matters.
    2. Certain requirements aro absolutely essential to a valid exorcise of the taxing power, without which no valid tax sale could be made. These are stated.

      3. A statute dispensing witli sucli essentials, or attempting to heal the defect of compliance therewith, could not stand,
    4. But, outside of these essentials, there are many matters as to which the legislative discretion is supreme, such as those affecting the time, manner and form in which the proceedings shall ho conducted.
    5. The legislature may make the tax deed conclusive evidence of compliance with every re- • quirement, which it might, originally, in the exercise of its discretion, have dispensed with, and may validate retrospectively any proceeding which would have been legal if authorized in advance.
    O. Orioff Lake’s case affirmed and applied and shown not to be in conflict with other decisions of this court.
    7. In the application of statutes like Act 82, even if, in some respects, they exceed legislative power, they are to bo enforced in so far as they do not violate the constitutional right of the property holder, and restraint in so far as they do.
    8. Taxes prime all the incumbrances, and a valid tax sale passes title, free from mortgages.
    APPEAL from the Civil District Court for tlio Parish of Orleans. Voorhies, J.

      James G. Moise for Plaintiff and Appellant.

      William A rmstrong, Curator ad hoe for D. C. Clarke.
   The opinion of the court was delivered by

Fenner, J.

Douglas, having become the purchaser of certain property at a tax sale made under the provisions of Act 82 of 1884, and having received a tax deed in conformity to said act, instituted these proceedings contradictorily with the former owner to bo put in possession of the property. Having recovered judgment and been put in possession, ho discovered that there were of record certain judicial mortgages on the property resulting from inscription of judgments against the former owner.

Section 5 of Act 82 provides that the recordation of the deed of sale or a duly certified copy of the same in the mortgage office shall operate as a cancellation of all conventional, legal and judicial mortgages.”

Douglas, therefore, having duly recorded his deed, took a rule upon the Kecorder of Mortgages and the several mortgagees, to show cause why said inscriptions should not be erased and cancelled.

Tlxe answer of the mortgagees sets out various defenses entirely similar in character to those which were made and overruled by us in a recent case. In the matter of Orloff Lake, 40 Ann. 142.

The Act 82 of 1884, is a re,medial and healing statute, similar to others which have been passed in many States of the Union, the effect of which is to cure defects in prior tax proceedings by making the tax deeds conclusive evidence that the requirements of the law in certain matters had been complied with.

Such statutes have been frequently, subjected to judicial consideration and review.

The principle is universally acknowledged that were the property is taken in the valid exercise of the taxing power, the owner is not deprived of it “without due process of law,” within the meaning of the prohibitions on that subject contained in the State and Federal Constitutions. McMillen vs. Anderson, 95 U. S. 40; Davidson vs. New Orleans, 96 U. S. 97.

There are, however, certain requirements absolutely essential to constitute a valid exercise of the taxing powers, without which no tax sale could be validly made. Tire chief of these indispensable prerequisites are:'

1. That a tax has been levied.

2. That tlie property sold is subject to taxation.

3. That the property has been assessed.

4. That the taxes had not been paid.

5. A statutory warrant for the sale.

6. A sale made under such warrant.

Any statute authorizing the sale of a man’s property for taxes which had not been levied, or'where the property was exempt from taxation, or where the property had not been assessed,- or whore the taxes had been duly paid, would unquestionably be a taking in .excess and outside of the taxing power, and such taking-would hot bo with “due process of law.”

So any statute which should attempt to cure 'such substantial defects, or should attempt to debar tha owner from proving, in defense or assertion of his right, that a pretended tax sale was, wanting in any of those essential prerequisites, would violate the constitutional prohibition and could not be enforced.

But outside of these fundamental and quasi-jnrisdictional requirements, and with reference to the time and manner in which the tax proceedings shall be conducted, the legislative discretion is supreme and cannot be judicially controlled.

As the .Legislature may, in advance, prescribe and direct the time and manner in which those shall be done, it may likewise provide that failure to comply with such directions shall not defeat the sale and may constitutionally provide that the tax deed shall be conclusive evidence that such directions wore complied with, as to time, manner and every other matter originally within tlio legislative discretion.

Broadly stated, the doctrine is that the Legislature may make the tax deed conclusive evidence of compliance with every requirement which the Legislature might, originally, in the exercise of its discretion, have dispensed with.

As stated by Judge Cooley: “The general rule has often been declared that the Legislature may validate, retrospectively, the proceedings which they might have authorized in advance.” Cooley on Taxation, p. 229.

lie states certain exceptions, however, to the general rule which have no application in the instant case.

This doctrine is supported by a vast mass of authority: Allen vs. Armstrong, 18 Iowa, 510 to 515; Rema vs. Cowan, 31 Iowa, 125 to 128; Bulkly vs. Callahan, 32 Iowa, 461 to 466; Clark vs. Thompson, 37 Iowa, 539; Easton vs. Perry, 37 Iowa, 682 to 683; Phelps vs. Meade, 41 Iowa, 470 to 474; Jackson vs. Morse, 18 Johnson, 441-3; Assurance Co. vs. Board, 24 Barbour, 166 to 169; Stewart vs. Schoenfelt, 13 Sergt & Rawle, 360 to 381; Hubley vs. Keeper, 2 Penn. (Penrose & Watts) 501 to 502; Peters vs. Heasley, 10 Watts, 209; 18 How., U. S. 275, 283 to 285; Thomas vs. Lawson, 21 How., 341 to 342; Callahan vs. Hurley, 93 U. S., 387 et seq.; De Treville vs. Smalls, 98 U. S., 517 to 528; Keeley vs. Sanders, 99 U. S., 441; Sherry vs. McKinley, 99 U. S., 497; 102 U. S., 586 to 602, Springer vs. U. S.; 17 Wisconsin, 563 to 565, Smith vs. Cleveland; 23 Wisconsin, 617-8, Huey vs. Van. Wie.

The Supremo Court of the United States, in commenting on an Iowa statute, identical with Act 82, said: “ The whole-act exhibits an intention of tlio Legislature to enforce the payment of taxes, by securing purchasers at tax sales in their purchases and thus making- it dangerous for owners of property to neglect payment of taxes duo the State. It removes difficulties Which had before existed in the way of establishing-tax titles and at the same time it works no injustice to owners of land subject to taxation.” Callahan vs. Hurley, 93 U. S. 387.

In a like case, the same court said: The statute “ left to the owner of the lands every substantial right. It was his duty to pay the tax when it was due. His laud was charged with it; and the proceeding ending in the sale was simply a mode of compelling the discharge of his duty. All his substantial rights wore assured to him by the permission to show that ho owed no tax; that his land was not taxable; that ho has paid what was due, or that ho had redeemed his land after the sale. Ho was thus permitted to assert everything of substance; everything except mere irregularities. * * There is no possible excuse for not enforcing such statutes according to their letter and spirit.” De Treville vs. Smalls, 98 U. S., 517.

In a Pennsylvania case, Ch. J. Tilghman said, in supporting a similar statute : “ One cannot, without pain, see a man divested of his property in a tract of 400 acres for a tax of less than four dollars. But if land holders will pay no attention to taxes, what is to be done? It must be presumed that every man knows the land he owns, and knows. that taxes are imposed on it annually, and sales made of the lands the taxes on which are unpaid. It is within his own knowledge, too, that he has not paid them, and has thus been guilty of a breach of duty.” Stewart vs. Schanfeldt, 13 Serg. & R. 360.

Nothing is urged against the sale in this case which was not urged in Lake’s case.

It is not pretended that the proceedings were lacking in any of the essential requirements above referred to.

The only complaint is of certain irregularities in the assessment in non-compliance with the special requirements of the law under which it was made. The fact remains that an assessment was actually made by a description sufficient to identify the property and not to mislead the owner, which is all that is essential. Cooley on Taxation, p. 282.

If the proceedings had complied strictly and in all respects with the letter of the law, obviously there woiild be no need of invoking this healing remedial statute. The irregularities are of the very character which the statute was intended and was competent to heal.

We might have rested óur decision upon Lake’s case, but we have deemed it advisable to express our views more at length, because our attention has been called to a curious misapprehension of the doctrine announced by us, which seems to exist in the minds of our learned brothers of the Court of Appeals and of certain district judges. They seem to consider that the doctrine in Lake’s case is in conflict with the l>rior jurisprudence of this Court and with two of our very recent decisions on the subject of the sufficiency of the description required to constitute a valid assessment. The cases referred to are Bell vs. Taylor, 35 Ann. —, and Kearns vs. Collins, 40 Ann. —.

A reference to those cases will show that the sales therein concerned were not made under Act 82 of 1884, and were not, in any manner, governed by'that statute. The validity of the tax proceedings, therefore, depended on their compliance with the provisions of the particular revenue laws under which they were taken. . There had been no healing statute curing deficiencies or making the tax deeds conclusive. Therefore the doctrine of Lake’s case had no application, and the decisions present no sort of inconsistency.

The suggestion that the decision in Lake’s case conflicts with prior jurisprudence is utterly untenable, because there exists no prior jurisprudence in this State on the same subject matter. Act 82 of 1884 was the first healing statute of that character passed in this State, and Lake’s case was the first decision interpreting and applying such a statute.

Therefore, the conflict suggested is entirely imaginary. In construing and enforcing the statute we have found no precedents in this State, and have been compelled to seek them in the jurisprudence of other States and of the Supreme Court of the United States, which amply and firmly support the doctrine announced by us.

We note one contention advanced in behalf of the mortgagees, simply to show that it has not escaped our attention, viz: That even though the sale and tax deed may be conclusive as against the owner, they cannot so operate as against the mortgagees. This has not the slightest merit.

Taxes prime all other incumbrances, and a valid sale for taxes passes a title free from mortgages, which must then look for satisfaction exclusively to the proceeds of sale.

This is too elementary to require further comment.

In conclusion, we would say that we have not held that every feature of Act 82 of 1884 is constitutional.

In the application of sue!) statutes it is well settled that they are to be enforced in so far that they do not violate the constitutional rights of the citizen as property owner, and restrained in so far as they do violate them. Allen vs. Armstrong, 16 Iowa 510; McCready vs. Sexton, 29 Iowa 356; Rinea vs. Cowan, 31 Iowa, 125, and other cases heretofore cited.

We have applied the statute to the allegations and facts in the cases before us. Whenever it shall be advanced as a shield to protect invasion of the constitutional rights of the citizen, it will be set aside and disregarded.

It is, therefore, ordered and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered that the rule herein be made absolute, and,' accordingly, that mortgages mentioned therein be cancelled and erased so far as they affect the property concerned.


source: Caselaw Access Project

author: Poché, J.

license: Public Domain

text:
    No. 239.
    The State of Louisiana vs. Fannie Brown.
    The title of Act 83 of 1880, which is “An Act to amend and re-enact Section 910 of the Revised Statutes of 1870,” contains an expression of the object of the act within constitutional requirements. The act itself does not contain more than one object.

      Tho title of an amendatory act expressing the object by a reference to and designation of the act to be amended is a substantial compliance with the requirement of the Constitution touching the description of the object, in the title, of a legislative act.
    An indictment for retailing spirituous liquors without a license is not defective for its failure to aver the name of tho person to whom the liquors were sold.
    Act 83 of 188G has full effect in parishes where no license can be obtained.
    APPEAL from the Fourth District Court, Parish of Jackson. Bridger, J.

      J. Hemp Shepherd, District Attorney,, for the State, Appellee :
    1. The title of a law repealing certain sections of the Revised Statutes adequately expresses the objects of tbe law when it designates the numbers of the sections repealed. State vs. Garrett, 29 Ann. 637; State ex rol. Hills vs. Barrow? 30 Ann. 659. By parity of reasoning the title of law amending and re-enacting a section of the Revised Statute adequately expresses the object of the law when it designates the numbers of the sections amended and re-enacted.
    2. The object of the Constitution providing that an act shall embrace but one subject, which shall be expressed in the title, is to give notice to tho legislator of tho subject of legislation. A reference by number to a section of the body of the laws of the State is sufficient. Articles 29 and 30 of tho Constitution of 1879 are tho same as Articles 118 and 119 of the Constitution of 1815. Act 83 of 1886 is interpreted by the light of the foregoing articles.
    8. The Constitution does not prohibit any designation of an amendatory act by reference to the title of the act amended. If it did, it would deprive tho legislators of the most direct and accurate means of designating amendatory legislation. 11 Ann. 56.
    4. Where one is unable to legally obtain a license to sell spirituous liquors, and sells, notwithstanding, he is guilty of the offense charged in Sec. 910 of tho Revised Statutes. State vs. Kuhn, 24 Ann. 474.
    5. An indictment for retailing spirituous liquors without a license is sufficient without specifying the person to whom the liquor was sold. Bishop on Statutory Crimes, 1037 ; State vs. Kuhn, 24 Ann. 474.
    O. A refusal of a license by the licensing power, however wrongful, will not entitle the applicant to sell without license. It is no defense that the obtaining of it was otherwise impossible. Bishop’s Statutory Crimes. 1005; 10 Ann. 885 ; 24 Ann. 474.
    7. Whoever claims an immunity from the operation of a general law must prove it with certainty. In such cases doubt is fatal. 39 Ann. 558.
    8. The ordinance of a police jury or city council caunot repeal the general laws of the State within tho territorial limits of the local subdivision for which they legislate.
    9. Tho laws shall be executed throughout every part oí' this State, from tho moment they shall be promulgated in the manner prescribed. Art. 5, Civil Code.

      JE. JÜ. JLidd for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

Defendant, being charged with retailing spirituous liquors without previously obtaining a license therefor, moved to quash the indictment on the grounds:

1. That ¿let 83 of 1886, under which she had been indicted, was unconstitutional.

2. That the act was without effect in Jackson parish, where the deed had been committed, for the reason that no license to retail spirituous liquors could be there obtained.

3. That the indictment was vague and indefinite for its failure to specify the names of the person or persons to whom she was alleged to have sold spirituous liquors.

She was convicted and sentenced to a fine of $310, and on appeal, her counsel presses his motion to quash the indictment.

I.

The alleged unconstitutionality of Act 83 of 1886, is predicated on the argument that “ said act does not express its object, and because said act embraces more than one object.”

Tlie statute is entitled An act to amend and re-enact Section 910 of the Revised Statutes of 1870,” and it reads as follows:

That Section 910 of the Revised Statutes of 1870 be amended and re-enacted so as to read as follows: Whoever shall keep a grog or tippling shop, or retail spirituous or intoxicating liquors, without previously obtaining a license from the police jury, town or city authorities, on conviction shall be fined not less than $100 nor more than $500; and in .default of payment shall be imprisoned not less than thirty days nor mor than four months. Where it is contended, in prosecutions for the violation of this section, that said spirituous or intoxicating liquors were prescribed and sold, as a medicine, it shall be for the jury to decide whether such prescription and sale were made in good faith and in case of sickness or as amere subterfuge and with intent'to evade the provisions of this section.”

The manifest and sole object of the act being to amend and re-enact Section 910 of the Revised Statutes, it is difficult to conceive of a more efficient mode of expressing that intention than the language used in the title of the statute now under consideration. To require a more extended expression of the object intended would certainly not add clearness to the title, but would, on the contrary, encumber it, and destroy the unity of the expression which is contemplated by the requirement of the Constitution on this subject.

Such a result would inevitably follow from the suggestion of defendant’s attorney, to express in the title, the object of the law as stated in the amendment. This would be the rule if the act was for the purpose of enacting a new or original statute, but in case of a proposed amendment to a pre-existing statute, tlie object is sufficiently expressed by the statement that the intention of the law-maker is to amend an existing statute. To require a reproduction in the title' of the intended amendment would involve a very strained construction of the constitutional provision contained in Article 29, and would fill .the statute books with endless, obscure and cumbersome titles.

The judicial mind must recoil from such an undertaking.

Hence, in our jurisprudence, a title to an amendatory act expressing the object by a reference to the act intended to be amended, has been held to substantially comply with constitutional provisions which require that the object of every act must be expressed in the title. Arnoult vs. City of New Orleans, 11 Ann. 56; State ex rel. Farrar vs. Garrett, 29 Ann. 637.

On the other branch of this objection, we are not informed in what manner the statute is violative of the Constitution by embracing more than one object.

The sole object of the act, as shown in the body, and as expressed in the title, is to amend Section 910 of the Revised Statutes.

True, the section is amended in two particulars, but surely that circumstance does not alter or enlarge the object of the act. The means or mode of amending a statute must not be confounded with the amendment of the same, as the expressed and intended object of the legislation.

II.

The argument on the second ground of the motion is that the law inflicting a penalty for retailing spirituous liquors without a license from the police jury can have no application or effect in a parish where no license can be obtained. This is an attempt to draw a distinction where there is no difference.

If, as conceded, the penalty applies to a party who fails to obtain a license in a parish where sueh a license may be obtained, it follows clearly that the law is still more grievously violated by a party selling such liquors in a parish which refuses to license that sort of dealing. The prohibition of that trade by the parish, read into the general statute of the State, operates an absolute prohibition against retailing spirituous liquors in that parish, an infraction of which must necessarily incur the penalty denounced by the general statute.

The only legal mode of selling such liquors is a license from the parish, and the failure to obtain such a license, from any cause, must be construed as a violation of the law. State vs. Kuhn, 24 Ann. 474.

III.

The point made on the third ground of the motion is that, in default of an averment giving the name of the buyer of the spirituous liquors? the accused is unable to make her defense, and would be deprived of the means of meeting a second charge for the same offense.

As the gravamen of the misdemeanor is the selling of liquors without a license, the person of the party purchasing is not an essential ingredient of [the charge, the statute making no discrimination of grade or degree of the offense, based on the age, sex or personality in any way of the persons to whom the liquors are sold. Hence the name of the buyer is a matter of no essential importance in the confection of the indictment.

It contains a special averment of the date of the offense charged, and that is sufficient to guard the accused against a second prosecution for the same offense.

Our review of the ease discloses no reasonable ground of complaint on the part of the accused.

Judgment affirmed.


author: Fenner, J.

text:
    No. 240.
    The State of Louisiana vs. Alphonse Hertzog.
    1. Where tlio first count of an indictment lias specifically laid tlie time and venue of the oft'enso, and the second count charges the same act to have been committed “on the day and date aforesaid and in the district, State and parish aforesaid,” the laying of time and venue thus made is certain and unambiguous and is sufficient.
    2. Section 794 It. S. defines two distinct offenses, viz: (1.) inflicting a wound less than mayhem with a dangerous weapon; (2.) inflicting* a like wound with intent to kill; and under a count charging* the first offense, proof of intent to kill is not essential.
    3. Under the first clause of the statute it is not essential that the instrument used should be a technical dangerous weapon fashioned and used for purposes of offense. It was long since held that an ordinary pocket-knife, when so employed, was a dangerous weapon within the moaning* ol‘ the statute; and so, by parity of reasoning, would be an axe, as used in the present case. State vs. Jacob, 10 Ann. 141.
    APPEAL from tlie Tenth District Court, Parish of Red River. ■ Hall, J.

      J. G. Pugh and J. Henry Shepherd, District Attorneys, for the State, Appellee:
    1. Tho general rule is that two or more distinct substantive offenses may he charged in seperate courts of the same indictment if they are of the same general nature, description and character. State vs. Crosby, 4 Ann. 434; State vs. Depass, 31 Ann. 487 ; State vs. Gilkie, 35 Ann. 53 • State vs. Green, 37 Ann. 382.
    2. An indictment charging in separate courts cutting with intent to murder and wounding less than mayhem is not bad for duplicity. State vs. Green, 37 Ann. 382; State vs-Pierce, 38 Ann. 91; State vs McDonald, 39 Ann. 959.
    3. To constitute the offense of wounding less than mayhem, it is not necessary that the indictment should allege, nor the evidence show that the wound was inflicted on any limb or member of the body used in lighting. R. S. Sec. 794.
    4. A wound is any breach of the skin, or of the skin and flesh, produced by external violence; auy lesion of the body as contradistinguished from a permanent injury, such as maiming. Bishop on Crimes, Sec. 314.
    5. If the indictment charges that the wound was inflicted with a dangerous weapon, it is not necessary to further qualify the act, with intent to kill. State vs. Seott, 39 Ann. 943.
    6. When the offense admits of being perpetrated in any one of several varying ways, the pleadermay charge all, or one, as he may choose. Bishop C. P. Yol. I, Secs. 434, 453.

      J. G. JSgan for Defendant and Appellant.
   Tlie opinion of tlie Court was delivered by

Fenner, J.

The prisoner was indicted under Section 794, Revised Statutes, as amended in 1888, and which reads as follows:

“ Whoever shall wilfully and maliciously with a dangerous weapon, or with intent to kill, inflict a wound less than mayhem upon another person, shall on conviction be imprisoned not exceeding two years, with or without hard labor, and fined not exceeding $1000.”

It is now perfectly settled that this statute defines two distinct offenses, viz : (1.) Inflicting a wound less than mayhem with a dangerous weapon; (2.) inflicting a like wound with intent to kill. State vs. Mix, 8 Rob. 549; State vs. Lovenstein, 9 Ann. 313; State vs. Simien, 36 Ann. 923.

The first mentioned offense is sufficiently charged without any allegation of an intent to kill.

Accordingly this indictment charges each of tlie above offenses in separate counts, and the defendant was found guilty tinder the second count,'which charged the offense of inflicting the wound “with a certain dangerous weapon called an axe.”

The appellant raises two points for our determination :

1. A motion was made to quash the second count, on the ground that it is not complete in itself but has to refer to the first count in order to complete the charge as to time and venue. The deficiency suggested consists in the fact that having, in the first count, specifically set forth tlie time and place of the assault, the indictment, in the second count, charges the offense to have been committed on the day and date aforesaid and in the district, State and parish aforesaid.” This laid the time and venue with perfect certainty and without the slightest ambiguity, and is clearly sufficient. State vs. Crittenden, 38 Ann. 448; State vs. Kennedy, 8 Rob. 590.

2. The defendant asked the judge to charge the jury, in substance, that, inasmuch as the wound was inflicted with an axe, which is not per se a dangerous weapon within the meaning of the statute, defendant could not be convicted without allegation and proof that the wound was inflicted “with intent to kill.” Exception was taken to the refusal of the judge so to charge.

The contention of defendant is that the first clause of the statute applies to weapons technically dangerous, constructed and. employed for use as weapons; and that, where the offense is committed with instruments intended and employed for innocent and useful purposes and only becoming dangerous weapons when diverted from their proper use and purpose, the case falls within the second clause and requires allegation and proof of the intent to kill; and that otherwise such intent would be, in no case, essential, and that clause of the statute would be inoperative.

We were much impressed with the force of this argument, though its strength was weakened by a consideration of the difficulty of holding that a wound inflicted with so deadly an instrument as an axe used as a weapon, is not inflicted with a dangerous weapon under the terms of the statute.

The question, however, is not res nova, and our doubts are resolved by the clear authority of the case of State vs. Jacob, 10 Ann. 141, in which the indictment was under the same statute and the instrument used was a pocket-knife. The lower judge had been asked to charge that “ if the knife used by defendant was shown by the evidence to be an ordinary pocket-knife, such as is commonly used by planters for proper purposes, and was not by the accused specially provided for this occasion, then it was not a dangerous weapon within the meaning of the law”’ and this court said: “Wo are of opinion the judge did not err in refusing to give such instructions.”

The case is directly hi point, rendered over thirty years ago, and has never been overruled. We feel bound to follow it.

Judgment affirmed.


author: Watkins, J.

text:
    No. 242.
    The State of Louisiana vs. John Washington.
    An indictment under Section 905 of tlie Revised Statutes, which declares that auy servant, clerk, broker, agent, etc., who shall wrongfully use, dispose of, conceal, or otherwise embezzle any money which he shall have received for another, or for his employer, or principal, etc,, by virtue of his trust or employment, or which shall have been entrusted to his care and keeping, orpossession, upon conviction, etc., is sufficient, if it sets forth in words of similar import to those contained in the statute, the capacity in which the defendant received and posssesscd the money entrusted to Mm for delivery to another.
    APPEAL from the Tenth District Court, Parish of Keel River. Hall, J.

      J. O. Hugh and J. Henry Shepherd, District Attorneys, for the State, Appellant:
    1. Indictments for statutory offenses need only describe the offense in the language of the statute, or words of similar import. State vs. Williams, 37 Ann. 776; 33 Ann. 312; 36 Ann. 923 ;[39 Ann. 986.
    2. If the statement of the real facts constitute a substantial violation of the statute, the indictment is sufficient. State vs. Hood, 6 Ann. 179.
    3. It is a rule of criminal pleadings, well settled, that presumption of law need not be stated nor conclusions of law resulting from the facts of a case. It suffices to state the facts, and leave the court and jury to draw the inferences. 1 Chitty, 231; Maulé, 105; 2 Wilson 147; 5 Leach 591. See also dissenting opinion of Judge Preston in State vs. Stiles, 5 Ann. 329.
    4. The principal object of pleadings in criminal cases is to inform the defendant of the nature, cause and character of the charges x>reierred against him to the end that he may shape his proof accordingly.
    5. The policy of criminal jurisprudence is to give a liberal construction to indictments and statutes. State vs. Stiles, 5 Aim. 329; State vs. Humphries, 35 Aun. 969; 38 Ann. 564; lb. 567.
    6. In criminal matters, technicalities are not to be disregarded, but they must be subjected to reasonable restraints, and cannot be allowed to reduce the law to a more rhapsody of words.”

      J. O. JSgan, J. F. Fierson and S. A. Hull for Defendant and Appellee.
   The opinion of tlie Court was delivered by

Watkins, J.

The State is appellant from a judgment quashing, .as insufficient in material averment, an indictment for embezzlement, couched in these words, viz :

“John Washington * * did feloniously and wrongfully use, and convert to his own use, and conceal and embezzle $5, lawful money, of the value of $5, of the property of Sam Hollingsworth, then and there being found, which said money had then and there been entrusted to the said Jolm Washington to deliver to one Dan Harvey, contrary to form of the statute, etc.”

The district judge was of opinion that the indictment was vicious, becairse it did not charge that the accused was a servant, clerk, broker, agent, consignee, trustee, attorney, mandatary, depositary, common carrier or bailee, and as such, entrusted with the money alleged to have been embezzled by Min, on the hypothesis that such was matter of essential description, and sacramental; and that it “is not a crime for any other person to commit the act, than those mentioned in the statute;” and that “ the indictment must contain a word ( or term ) found in the statute, else it will ordinarily be defective, as violating a Well known rule of criminal pleading.”

This is, substantially, the position assumed, and assigned by defendant’s counsel in their motion to quash; or, in other words, that the indictment does not show the capacity in which the defendant received the money, or the fiduciary relation existing between the defendant and the person who had entrusted the money to him.

The statute under which this indictment was found is in these words, viz:

“ Any servant, clerk, broker, agent, consignee, trustee, attorney, mandatary, depositary, common carrier, bailee, etc., * * who shall wrongfully use, dispose of, conceal, or otherwise embezzle any money * * which he shall have received for another, or for his employer, principal, or bailor, or by virtue of his office, trust or employment, or which shall have been entrusted 'to his care, keeping or possession by another, or by his employer, principal, or bailor * * upon conviction, etc.”

Evidently the statute does indicate, and plainly enumerates the various capacities in which persons must be employed, in order to constitute the wrongful use, or misappropriation of funds by them a violation of its provisions, and such an act embezzlement within its contemplation ; but wo know of no rule of law, or of criminal pleading, which makes the use of any particular term of the statute sacramental, in designating such capacity.

In State vs. Eames, 39 Ann. 986, we said of an indictment for embezzlement, on a careful review and analysis of authority, tjiat, “it is not essential that the offense should be described in the language of the statute. It is sufficient if all the elements of the offense are set forth in words .of similar import to those employed in the statute; that is, in such words as clearly convey the real meaning of the language used in the statute.”

In State vs. Samuels, 38 Ann. 458, 'a similar question was raised to the one presented here, and, in discussing same, we said, it is true that the information does not contain the word assault, but it is equally true that the language used in the information contains the necessary ingredients of an assault; and no rule of law requires that criminal pleadings should contain the identical words of the statute, provided the true meaning thereof be unequivocally found in the bill or information.”

What, then, is the offense denounced in the statute ? It is the wrongful use and embezzlement of a sum of money, which has been entrusted to his care, by one acting in the capacity of an agent, or servant of another. Now, as the question with which we are presently concerned, is the capacity in which the defendant received the money, the indictment would seem to be sufficient if it sets forth, in words of similar import to those contained in the statute, the capacity in which defendant held the money embezzled. It sets forth that the defendant did wrongfully use, conceal and embezzle $5 of lawful money. That this money was the property of Sam Hollingsworth. That said money had then and there been entrusted to defendant for delivery to Dan Harvey. These averments are equivalent to a statement that Sam Hollingsworth had entrusted to the defendant, as his servant or agent, the sum of $5 for delivery to Dan Harvey. The simple fact that the defendant was entrusted with $5 for delivery to Dan Harvey, iinqilies that he was acting in the capacity of an agent or servant. Such averments clearly convey the real meaning .of the term servant, or agent, employed in the statute. The true and legitimate meaning of the indictment is that the defendant, as the servant, or agent of Sam Hollingsworth, was entrusted with $5 for delivery to Dan Ha,rvey.

We are of the opinion that the indictment is good, and quashing it was error. It is, therefore, ordered and decreed that the judgment quashing the indictment be annulled, and that the indictment be reinstated, the cause remanded for further proceedings according to law, and the defendant and ax>pellee be taxed with costs of appeal.


author: McEnery, J.

text:
    No. 247.
    The State of Louisiana vs. Tom Spooner.
    1. A refusal to grant a new trial will not be reviewed wlien the bill sets out no facts upon which the ruling was made.
    2. It is proper to charge the jury tnat “ evidence as to good character can have little practical effect against direct and satisfactory evidence as to guilt, and it cannot turn the scale against conclusive evidence.”

      3. Instructions to the jury need not bo repeated in a special charge, where they have been fully covered in the general charge.
    4. The continuance of a criminal case is within the sound discretion of the judge. This discretion will not be interfered with .unless it involves some palpable injustice. .
    5. Duo diligence is a matter of fact upon which the judge’s opinion is presumably correct.
    6. Whore a subpcena was served on “Richard English” and he appeared at the trial and answered to his name when called, and the defense alleged that it was Richard English, Jr., who was desired as a witness, and moved for a continuance on this ground, there was shown a want of diligence in not furnishing the correct name of the witness to the officer who issued the subpcena.
    APPEAL from tlie Twenty-third District Court, Parish of West Baton Bouge. Talbot, J.

      J. Henry Shepherd, District Attorney, for tlie State, Appellee:
    The ruling of a trial court in refusing a new trial will not be revised by the Supreme Court unless the bill sets out the evidence to show the facts involved in the ruling. State vs. Nelson, 32 Ann. 842; State vs. Bolden, 35 Ann. 823 ¡ State vs. Chatman, 34 Ann. 881.
    Evidence of good character is admissible in the trial of one charged with murder, and such evidence offered for him “ should be considered by the court in connection with the rest as a part of the whole from which they are to determine their verdict, and should have such weight and effect as their judgments dictate. It is proper for the court to charge the jury that good character can have little practical effect against direct and otherwise satisfactory proofs, cannot' turn the scale against conclusive evidence of guilt. It may, under certain phases of a case, create a doubt whieh otherwise might not have existed in favor of the accused, or to remove a doubt existing against him. Bishop, Cr. Procedure, Sec. 1116, p. 676; 35 Aim. 770.
    An instruction to the jury need not be given in terms asked, and when the judge deems them calculated to mislead the jury it should not be. When instructions asked is partly correct, and partly erroneous, the whole may be rejected. Bishop on Cr. Procedure, See. 980, p. 598.
    Tlie matter of continuance is within the sound discretion of the district judge, and the Supreme Court will not interfere in such matters unless the account of the lower court involves palpable injustice. 31 Ann. 179; 32 Ann. 1003; 36 Ann. 153-852.
    Due diligence must be shown to have been used. Diligence is a matter of fact upon which the judge’s opinion is, if not conclusive, surely presumptively correct. The Appellate Court will not go counter to it unless the record shows that tlie judge was wrong. 37 Ann. 129.
    An affidavit for continuance on the ground of the absence of a material witness which fails to disclose of the whereabouts of an absent witness, or that any such person exists, and merely gives the belief of the affiant that he can secure his presence at the next term of the court is fatally defective. It is further defective where the accused failed to inform the sheriff of the whereabouts of the witness. 39 Ann. 421.
    It is a want of diligence where there are two persons of the same name in the pariah aud the accused knew the fact, to inform the sheriff which one he wanted.

      Chas. A. lioxboroxujh, for Defendant and Appellant.
   The opinion of the Court was delivered by

McEnery, J.

The defendant, Tom Spooner, was indicted, tried and convicted of murder aud sentenced to be executed.

From the verdict and sentence he has appealed.

There are four bills of exceptions to rulings of the court, which he alleges were prejudicial to him.

The first is to the overruling of his motion for a new trial.

There, was no evidence offered upon the trial of the motion, which is simply in the stereotyped form, that the verdict was contrary to the law and the evidence. It was properly overruled. 35 Anil. 823; 34 Ann. 881. »

The second bill is to “ two- points in the charge of court in particular, and the whole charge in general.”

The charge excepted to is as follows:

“ Evidence of character is always admissible in behalf of an accused, and on many occusions maybe of vast advantage to him. The accepted doctrine about it is that it tends, under certain phases of a case, to create a doubt which otherwise would not have existed in favor of the accused, or to remove a doubt already existing against him. The jury should look upon it as a part of the whole evidence adduced upon the trial, but such evidence, however precise it may be, can not destroy the practical effect of direct and satisfactory statements of uncontradicted witnesses, nor should it be allowed to outweigh, still less destroy any conclusive evidence of guilt.”
“You, I may add, are also the judges of the credibility and veracity óf the witnesses, but you should not capriciously and arbitrarily disregard the testimony of the witness, unless impeached or contradicted. It-is the duty of the jury to consider the testimony of each and every witness.”

In lieu of the part of the charge quoted and excepted to, the defendant asked the judge to charge as to good character, which, in effect, would have beed to make this the controlling fact of the case, and which ■would have subordinated every other fact to it. And to the second part of the charge he requested a charge in language which was calculated to mislead the jury, but which, in substance, was the same as that given to the jury by the trial judge.

They were properly rejected.

The third exception is to the refusal of the judge to grant a continuance on account of the absence of an alleged material and important witness. The application contains the necessary averments and affidavit.

Tlie facts are, however, that the defendant had a subpoena issued for one Richard English. It was served upon him and he was in attendance at the trial. • When called, it was stated by counsel for the defendant that he was not the witness wanted, but a son of the witness — Richard English, Jr.

An application was then made for a continuance.

The defendant has not shown that he used due diligence in his efforts to procure the attendance of the absent witness. The name of the witness was within his knowledge. He did not give the correct name to the sheriff.

Diligence is a matter of fact upon which the trial judge’s opinion, if not conclusive, is at least presumptively correct. It is a matter within the sound discretion of the trial judge to grant a continuance, and this discretion will not be interfered with without good cause.

The reasons assigned by the judge a quo in the instant case for his refusal to grant the continuance, are conclusive in our opinion. He says when the case was taken up for trial and the witesses called by the sheriff, the witness Richard English answered to his name.

The subpcena and sheriff’s return showed that proper service was made on Richard English and he answered when called. Counsel for defendant stated that he desired the presence of Richard English, Jr., the son of Richard English. The error, if any, was clue to the conduct or want of due caution and diligence on the part of defendant and counsel in not giving proper information to the officer. He was always satisfied that all of the witnssses who were present at the scene of the homicide -were present at the trial, and related the facts detailed in the motion. He rvas also satisfied that Richard English, Jr., from the statement of the sheriff, was not in the parish.

The motion for a continuance was properly overruled. 36 Ann. 153-852; 37 Ann. 129; 39 Ann. 421.

The fourth bill of exception was reserved to the refusal of the judge to give a special charge contained in some six paragraphs on the law of self-dense, for the reason that he had in his charge already covered the grounds contained in this special charge.

The ruling of the judge was correct. He cannot be required to give in a special charge that vdiich he has already given in Ms general charge to the jury.

There are no reasons showing why this verdict and sentence should be disturbed.

Judgment affirmed.


text:
    No. 251.
    The State of Louisiana vs. William Harrison Jones.
    An information for larceny charging that the accused “ did feloniously and -wilfully steal, take and carry away of the property and from the possession of A. Z.,” etc., is not defective lor failing to state that the property was taken without the consent of the owner, and with the intent on the part of the accused to convert the same to his own use.
    These are necessary ingredients in the proof of larceny, and as such should he charged to the jury, hut in pleading the same meaning may he conveyed hy different words.
    APPEAL from the First District Court, Parish of Caddo. HioTcs, J.

      J. Henry Shepherd, District Attorney, for the State, Appellee.

      Patterson <& Dormer for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

Defendant appeals from a conviction of larceny.

I-Iis complaint, by way of a motion in arrest of judgment, is that the information presented against him was materially defective through the omission to charge that the talcing was without the consent of the owner, and with the intent to appropriate the goods taken to the taker’s own usé.

The gravamen of the offense charged in the information is that the accused “ did wilfully and feloniously steal, take and carry away of the property and from the possession of A. Z.,” etc.

The contention of counsel for the accused seems to be that this averment would not be sufficiently explicit to admit proof that the taking was without the consent of the owner, and with the intent on the part of the accused to appropriate the things taken to his own use.

But it appears clear to us that the words used in the information, as hereinabove transcribed, and construed under their usual acceptation, convey precisely that meaning and nothing else. And no provision of our law or ruling of criminal jurisprudence requires that the pleader must charge the offense in the identical words used at common law in the definition of larceny.

The authority quoted by counsel goes to the extent only of requiring the judge to charge the jury that the ingredients of larceny are the taking without the consent of the owner, and the intent on the part of the accused to appropriate to his own use. State vs. Davis, 22 Ann. 77.

The question of the sufficiency of the indictment was not presented in that case, in which the verdict was set aside and the case remanded, on the solo ground of an error in the judge’s charge to the jury.

But the question did come up in the case of the State vs. de Serrant, in 33 Ann. 979; and the ruling therein made is fatal to the contention of counsel for the accused.

In that case the complaint was that “ said information does not charge any crime, as it fails to state that the articles charged to have been taken and carried away were so taken with the felonious intent to convert to his (the taker’s) own use, and make them his property without the consent of the owner.”

The complaint was disposed of in the following language : The information, after describing' the property and setting forth the ownership thereof, proceeds to charge that the same then and there being found, the defendant feloniously did take, steal and carry away, contrary to the form of the statute,’ etc.

This was sufficient, and the other averments mentioned in the assignment were wholly unnecessary.”

It is clear that this case precisely covers, and hence it must govern, the point under discussion in the present case.

We, therefore, conclude and we hold that an indictment or information for larceny is not required in law to be in the very words employed at common law, in the definition of that crime, provided that the words used in the instrument as construed under their usual acceptation, are sufficient to convey the same idea.

Judgment affirmed.


text:
    No. 259.
    The State of Louisiana vs. George Morris.
    Jurymen are not permitted to impeacli tlxoir own verdict "by direct testimony that they acted upon improper and Illegal motives — much less can their declarations that they so acted be proved by others, and particularly by a fellow-juror. 37 Ann. 217.
    APPEAL from the Sixteenth District Court, Parish of East Feliciana. Brame, J.

      J. Henry Shepherd, District Attorney, for the State Appellee :
    A juror cannot be examined as a witness to impeach the verdict of the jury of which he was a member. 38 Ann. 198 ¡ State vs. Chretien, 35 Ann. 1031.

      Upon grounds of public policy the courts have almost universally agreed, upon the rule that no affidavit, deposition or other sworn, statement of a juror will be received to impeach the verdict, to explain it, to show on what grounds it was rendered. Thompson & Merriam on Juries, Sec. 440, p. 540.
    Or to show that he consented to the return of the verdict without concurring in it in order to secure his discharge or because his health absolutely required him to be released from confinement. Thompson and Merriam, Sec. 441, P. 544.

      Chas. JE. Lea, J. G. IBlbourne and D. J. Wedge for Defendant and Appellant:
    Jurors canuot be received to qualify by parol testimony matters of record; nor can they be permitted to state matters concerning their deliberations wlfich may be proved aliundo. Prom necessity, however, when gross injustice has been wrought from misconduct or misapprehension in their deliberations, they are to be permitted to prove such misconduct nr misapprehension.
    A. distinction has been taken to the effect that though a juror cannot be admitted to stultify his own action, yet he may be permitted to prove gross misconduct in his fellows. Wharton’s Criminal Law, 7th Ed., Yol. 3 — Practice, sec. 3328.
    It woould, perhaps, hardly he safe to lay down any general rule on this subject. Unquestionably such evidence ought always to he received with great caution. But’cases might arise in which it would he impossible to refuse them without violating the plainest principles of justice. U. S. vs. lleid, 12 Howard 361.
    The Supreme Court of Louisiana agrees with the Supreme Court of the United States that “ cases might arise in which it would he impossible to refuse the affidavit? of jurors without violating the plainest principles of justice. State vs. Walham, 31 Ann. 149.
    In exceptional cases such affidavits have been received. Taylor vs. Greeley, 3 Greanl. 204; Erie’s Case, 1 Wh. St. Tr. 605; Moffitt vs. Burman, 6 Grat, 219.
    The affidavits of jurors, or evidence of their admissions, are not competent testimony to prove ' their own misconduct; but it may be proved by the oath of a fellow-juror, who is not inculpated in such misconduct. Deacon vs. Shreve, 2 Zab. U. J. 176.
    Where the declarations of a juror, made after verdict, disclosed the fact that extraneous matters were considered by the jury in arriving at their verdict, and the further fact that said juror was prejudiced, the Supreme Court of Georgia received the affidavit and granted a new trial. Martin vs. State, 25 Georgia 494.
   The opinion of the Court was delivered by

Fenner, J.

The record presents but one bill of exceptions, which was taken to the ruling of the court excluding the testimony of a juror, J. H. Darmond, which was offered, on a motion for a new trial, to prove that at tlietime of agreement on the verdict, the jxiror, Etna Albritton, declared that he only consented to the verdict in order that the sick juror, Darmond, might he released from confinement, as he was too sick to remain in the jury room, and that otherwise he would not consent to the verdict.”

The testimony was objected to and ruled out on the ground that a juror oauuot be heard as a witness to impeach the verdict of a jury of which he was a member.

The ruling was manifestly correct under repeated decisions of this court. State vs. Bird, 38 Ann. 499; State vs. Chrétien, 35 Ann. 1032; State vs. Price, 37 Ann. 218; State vs. Mellican, 15 Ann. 557; State vs. Bertle, 6 Ann. 653; State vs. Caldwell, 3 Ann, 435.

It would hardly be claimed that the juror, Albritton, could have been hoard himself to impeach his verdict by assigning such improper and illegal motive for his action; but it is contended that the like objection does not apply to the proof of his statements to that effect by another juror.

This very distinction was considered and repudiated in Price’s case, 37 Ann. 218, where, after the court had sustained a refusal to permit the jurymen themselves to impeach their own verdict, the decision proceeds as follows: “An offer was then made to prove by others that these jurymen had made these assertions to them and this was also refused, for that would have been receiving at second-hand the impeachment of the verdict by the jurymen who had rendered it, and if they cannot be heard to impeach it by their own testimony, much less can their declarations be received when filtered through the repetition of third persons.” See also State vs. Beatty, 30 Ann. 1266.

The other ground of the motion for new trial, viz: The incapacitation of the juror, Darmond, by reason of his illness, involves a question of fact, and as no bill of exception was taken to the ruling of the judge thereon, the question is not brought before us in such shape that we can review the ruling.

Judgment affirmed.


text:
    No. 262.
    The State of Louisiana vs. Jud Burt et al.
    1. Newly discovered testimony, for tho purposo of impeaching a witness who has testified on the trial, is insufficient to justify the allowance of a new trial.
    2. Much more importance is due to tho testimony of a witness given on the trial in open court, than to any statements which he may have made, on some other occasion, either before or after the trial.
    3. The same principles of law are applicable to the contradictory statements of persons m extremis, as are to those of a witness under examination undev oath.
    APPEAL from the Third District Court, Parish of Claiborne. JBcwlcsclaZe, J.

      H. H. McClendon and J. Henry Shepherd, District Attorneys, for tlie State, Apxiellee:
    In a criminal case a new trial will not be granted on newly discovered evidence when it appears that the object and effect of the new evidence is to impeach the credit of a witness who testified for the State. 38 Ann. 361; 35 Ann. 9; 34 Ann. 346; Knobbloch, pp. 335-336.
    In matters of new trial, the ruling of the trial judge will not be disturbed, unless glaringly erroneous. 38 Ann. 361; 30 Ann. 365.
    Before a witness can be discredited on the ground of having made a contradictory statement, he must first be put on his guard. G-reenleaf, Yol. 1, Sec. 402.
    And if he be dead this cannot be done. 35 Ann. 871.

      John 11. Phipps and C. W. Seals for Defendants and Appellants.
   The opinion of the court was delivered by

Watkins, J.

The defendants seek relief from a conviction of manslaughter, and a sentence to imprisonment at hard labor. Their appeal depends upon their complaint of the refusal of the trial judge to grant them a new trial, on the ground of newly discovered evidence, since the trial, the purport and effect of which was to impeach the dying declarations of the deceased, by contradicting them in an important particular; and upon which dying declarations their conviction solely depended. The names of the three witnesses relied upon are given, and their affidavits are appended to the motion.

They show that' the deceased made a statement to them, on the next day after he was shot, and of the wounds inflicted he died several days subsequently; and in the course of which he said “that he did not know who shot him; that he did not see the parties who shot, nor could he know them by their voices; and * * the reason he did not make an affidavit against any one for shooting him, was that he did not know who shot him.”

In the judge’s' reasons for refusing a new trial he does not state that there was other testimony than the dying declarations of the deceased, and hence the averment of the defendant’s motion must bo accepted as true.

The statement in the motion is of most material fact, and the trial judge does not certify that, if a-new trial were granted, its introduction in evidence would not exercise an important bearing on the verdict of the jury; but he bases his ruling on the following ground, viz : ’

1. That the law and evidence justified the verdict.

2. That defendants did not exercise due diligence in procuring the evidence which was newly discovered.

3. That the new evidence could only be introduced for the purpose of impeaching the dying declarations of the deceased, and, under the jurisprudence of this court, a new trial will not be granted for the purpose of admitting new evidence, the effect of which is “to impeach the conduct of a witness for the State, who .has testified on the trial; and impeaching dying declarations must come under the same rule.”

4. That, in his opinion, the newly discovered testimony could not be admitted, under any rule of law.

We need not consider the first ground assigned, because the question is not what was proved on the former trial, but what is the value? of the proffered newly discovered testimony. The second cannot avail, because the motion avers that due diligence was used, and his counsel swear, positively and circumstantially, that they exercised all possible diligence in searching out, and obtaining evidence, and that the accused were continuously incarcerated in jail, after their indictment, on the charge of murder. This is a sufficient showing, on that score. The third ground assigned, presents the serious difficulty for our consideration.

Under varying circumstances this court, and its predecessors, have uniformly held that newly discovered testimony for the purpose of impeaching a witness who has testified on the trial, was insufficient to justify the allowance of a new trial. State vs. Johnson, 30 Ann. 306; State vs. Young, 34 Ann. 346; State vs. Fahey, 35 Ann. 12; State vs. Dukin, 35 Ann. 48; State vs. Williams, 38 Ann. 362; State vs. Gauthreaux, 38 Ann. 610.

These decisions are in perfect accord with the common law authorities. Whar. Crim. Law, Sec. 3354; Waterman’s U. S. Crim. Dig. pp. 458, 459; Archibold Cr. Prac. pp. 649, 653.

But the contention of the defendants’ counsel is to the effect — conceding the correctness of the rule announced in the authorities we have cited — that newly discovered evidence tending to impeach the dying-declarations of a deceased person came under the operation of a different rule, and hence those authorities did not apply to the question raised here.

Their insistence is that while dying declarations are, under certain circumstances and restrictions, received as evidence, the deceased does not become eo nomine a witness, in the ordinary acceptation of that term.

The statement of a deceased person made in articulo mortis is not receivable in evidence as a witness; but, as we said in State vs. Keenan, 38 Ann. 662, “ dying declarations are those made under a consciousness of impending death. ' To this sense of impending death, the law attaches the solemnity of an oath, and impresses upon a statement made under it, the character of evidence.” '

In State vs. Trivas, 32 Ann. 1088, we again said that statements made “ under a sense of impending dissolution * * concerning the res gestee, * * are to be accredited under the law, as would his sworn testimony in ordinary eases.”

Thus it is, that the law gives sanction to the declarations of a deceased person, made while he is in extremis, as equivalent to evidence, but it does not make him a witness. He does not testify before the court and jury. The defendant lias no opportunity afforded Mm of cross-examination. Ordinarily these declarations are made out of the presence of the accused, or of any public officer, and are simply detailed, in the presence of the jury, by other persons who were present.

It would, perhaps, seem reasonable that the rule announced in the preceding opinions, should not apply to dying declarations of a deceased person; but it appears to have been settled otherwise, for Wharton says, nothing’ can be evidence in a declaration in articulo mortis that would not be so if the party were sworn.” Whar. Crim. Ev. (eighth edition) Sec. 294.

He says further that “the same principles of law are applicable to the contradictory statements of persons in extremis, as they are to those of a witness under examination on oath.” Ibid. Sec. 298.

The same learned author says in the same section that “ in Ohio, however, it has been ruled, though with doubtful propriety, that when dying declarations are proved in a case, a statement of the deceased made at another time, which is neither a dying declaration, nor a part of the res gestee, is not admissible to impeach such declarations.” Wroe vs. State, 20 Ohio St. 460.

In furtherance of the same idea of this author, lie says, “ it has been held that evidence is admissible, on the part of the defence, to impeach the character of the deceased for truth, he standing on the same footing as a witness called into court cmd then examined.” Ibid. Sec. 302.

Bishop simply announces the principle tersely, that “ the bad character of the defendant for veracity, may be shown to impeach his dying-declarations, the seome as of a witness. So, statements by the declarant, contradictory of his dying declarations, and contradictions in the latter, may be shown to detract from their weight with the jury.” 1 Bishop’s Crim. Prac. Sec. 1209.

Again he says: “ Like other evidence, they are open to observation; but the jury, alone, are to decide on their effect, giving- them such weight as may seem to them, under all the circumstances, to be just.” Ibid. Sec. 1216.

There appears to be no material difference between the views entertained by these distinguished writers on the subject, and we must conform our jurisprudence to the principles they have announced.

In this view of the question propounded by the defendant’s appeal, we think the' ruling of the judge below was correct, and that he properly declined to grant a new trial to the defendants.

Judgment affirmed.


text:
    No. 263.
    The State of Louisiana vs. Wesley Smith.
    An indictment under Sec. 792, R. S., which charges the accused “with wilfully, feloniously, and of his malice aforethought, with a dangerous weapon', to-wit: a gun, assault one Coleman Franklin with intent then and there to murder,” is sufficient, and covers the offense of an assault with intent to murder. The words with a dangerous weapon are surplusage. It was unnecessary to set out the manner in which the assault was made.
    The indictment is sufficiently distinct, as the meaning is clear that the assault was made on Coleman Franklin with intent to murder him.
    There is hut one offense charged in the indictment, and the use of the words with a “dangerous weapon ” does not create two offenses in the same count.
    APPEAL from the Third District Court, Parish of Claiborne. Barksdale, J. <.

      B. H. MeOlendon and J. Henry Shepherd, District Attorneys, for the State, Appellee:
    An indictment which alleges that a man wilfully, feloniously and of his malice aforethought, with a dangerous weapon,” to-wit: a gun, “ assault one B., with intent then and there to kill and murder,” charges an assault with intent to murder, under Sec. 792 of R. S., State vs. Evans, ¿0 Ann. 216.
    An indictment for an assault with intent to murder, and not set forth neither the mode of assault nor the weapon with which it was made. State vs. Jackson, 37 Ann. 467; State ys. "Williams. 38 Ann. 371. Section 792 of R. S. defines two distinct ‘offenses, one assaulting by wilfully shooting at; the other, assaulting with intent to commit murder. State vs. Simein, 36 Ann. 923.

      J. A. Richardson, J. W. Holbert and O. W. Seals for Defendant and Appellant.
   The opinion of the Court was delivered by

McEnery, J.

The defendant was indicted under Section 792, R. S., tried, found guilty and sentenced to two years’ imprisonment at hard labor.

From the verdict and sentence he appeals.

For a reversal of the judgment he relies on his motion in arrest of judgment upon the following averments :

1. The indictment charges no offense.

2. It does not charge how the assault was made.

3. The indictment is bad for uncertainty, as it does not charge the intent to ldll and murder any particular person, particularly Coleman Franklin, the prosecutor.

4. The indictment is bad for duplicity, as it charges two offenses in the same count.

Section 792, R. S., provides for several distinct and separate offenses :

1. An assault by wilfully shooting at.

2. An assault to commit murder; an assault to commit rape; an assault to commit robbery, each punished by imprisonment at hard labor, not exceeding two years.

The indictment charges the defendant with the assault to commit murder, as follows:

That Wesley Smith did, wilfully, feloniously, and of his malice aforethought, with a dangerous weapon, to-wit: a gun, assault one Coleman Franklin with intent then and there to murder.”

The indictment covers the offense charged in the statute an assault with the intent to murder. The words, “ with a dangerous weajmn,” are mere surplusage, and this omission from the indictment leaves the one offense distinctly and specifically charged without duplicity, as alleged in the motion in arrest of judgment. The indictment contained all that was necessary, in fact more than was required, to inform the defendant of the offense with which he was charged, and upon which a verdict of guilty could be returned. It was unncessary in the indictment to set forth the manner in which the assault was made. State vs. Williams, 38 Ann. 372.

■ The language used in the indictment is unequivocal. It distinctly charges that Wesley Smith assaulted Coleman Franklin with the intent to kill and murder. The failure to repeat the name of Coleman Franklin after the words “kill and murder,” does not alter the evident meaning.

We, therefore, conclude that the indictment fully covered the offense an assault with intent to murder, as desrcibed in Section 792, R. S., that the indictment charged but one offense, the assault upon Coleman Franklin with the' intent to kill and murder him.

Judgment affirmed.


text:
    No. 249.
    H. M. Rutherford vs. Shreveport and Houston Railroad Company.
    It is negligence on the part of a railroad company, incurring liability for damages, to have an accident caused by the existence of rotten crossties on its roadbed, by reason of which a train is derailed and upset, causing personal injuries to passengers.
    The measure of such damages is the injuries received, the suffering experienced, and the consequent losses sustained, by the injured passenger.
    In Louisiana, the doctrine of exemplary or punitory damages, as applicable to common carriers, is not yet definitely sanctioned.
    APPEAL from the First District Court, Parish of Caddo. Taylor, J.

      J. H. Shepherd for Plaintiff and Appellee.

      Wise ds Herndon for Defendant and Appellant:
    1. When a passenger on a railroad train is only slightly injured, the damages allowed should be merely just and reasonable. 40 Ann. 64.
    2. A passengeer in a railway car, who has been injured by upsetting of the car, caused by negligence of the employes of the company, is not entitled in an action against the company to recover damages beyond the limit of compensation for the injury actually sustained.
    3. Punitory or exemplary damages should not be awarded for such injury, unless it is the result of the wilfull misconduct of the employes of the company, or of that reckless indifference to the rights of others, which is equivalent to a wilful violation of them. 11 Ann. 292; 91 L. S. 492; 21 How. 202; Pittsburgh, etc., K. Co. vs. Lyon, 19 Pittsburgh Leg. Jour. 286.
    4. The officers and agents of defendant company, in charge of the construction and repair of the roadbed, discharged tlioir duties faithfully, and the fact that rotten ties were found in the roadbed, and caused the accident from which the plaintiff sustained injuries, does not justify the conclusion that the negligence of such agents was wanton and conceived in a spirit of mischief. 2 Vol. Woods !Ry. Law, p. 1243. Hote.
   The opinion of the Court -was delivered by

Poché, J.

Plaintiff seeks to recover damages in the sum of $10,000, for injuries received by him in an accident while he was a passenger on one of the defendant company’s trains.

The case was tried without a jury, and the defendant appeals from a judgment which allows to plaintiff $200 as damages for personal injuries, and $500 as exemplary or punitory damages. By way of answer to the appeal, plaintiff prays for judgment in the full amount of his demand.

The evidence shows to our entire satisfaction that the accident, which was caused by the derailing of the locomotive of a passenger train, and an. upsetting of the passenger coaches, was the result of the defective condition of the road at the point where the accident occurred, owing to rotten crossties, which gave way under the weight of the locomotive, resulting in the injuries which plaintiff received on the occasion.

That was negligence on the part of the company, by reason of which it must be held liable in damages for the injuries received, the sufferings experienced, and the loses sustained in consequence thereof, by plaintiff.

It appears that his injuries were not grievous, his sufferings not intense, and the consequent loss of time and of business, slight and not of long duration. Hence we are in perfect accord with our learned brother of the district court, who held that the sum of $200 was an adequate and sufficient compensation on that score. Maher vs. R. R. Co., 40 Ann. 64.

But the district court held that the circumstances of this case, which exhibit, on the part of the company, gross negligence coupled with wilful misconduct to such an extent as to raise a presumption of conscious indifference to consequences, justify the infliction of exemplary or punitory damages, for which lie allowed $500.

The question of the applicability of the doctrine of exemplary damages, partaking of the nature of punishment, to our system of laws, has been the subject of many conflicting opinions in our own juris prudence.

And while the doctrine, as applied to acts of wilful and. malicious torts, on the part of natural persons is universally recognized in common law jurisprudence, it has not received unanimous sanction in courts of that system in its application to suits in damages against corporations, and particularly as to railroad companies and other common carriers.

The question is discussed at length and with ability by the district judge in this case, and it presents a subject of attractive study. Our own jurisprudence is not yet definitely settled on the question, and it is, perhaps, desirable that it should be, but under our appreciation of the present case, we conclude that the occasion has not yet arisen.

Conceding, argu'endo, that in Louisiana, a railroad company may be mulcted in exemplary or punitory damages, for acts of gross'negligence evincing wanton, wilful' or malicious misconduct, or that entire want of care which would raise the presumption of a conscious indifference to consequences, we fail to find such a state of facts in the record of this case. Black vs. R. R. Co., 10 Ann. 33; Varillet vs. R. R. Co., 10 Ann. 88; Hill vs. R. R. Co., 11 Ann. 292; Milwaukee R. R. Co. vs. Arms, 91 U. S. 484; Rover on Railroad Laws, vol. 2, pp. 869, 870, 871.

From tlie preponderance of tlie evidence in tlie case it appears that the defendant’s road was not in good condition at the time that the accident happened; that while the roadbed was in good repair, many of the crossties were decaying and rotten, and that the accident ivas attributaable solely to the latter fact. Hence flows, as above stated, the liability of the company for actual injuries and consequent losses sustained by the party injured. In fact, we understand this to be conceded by its counsel.

But beyond this, the record shows that the road had not been operated for more than four years, and .that average crossties usually last six years. It is in proof that the company was actively engaged in repairing its road, in replacing old and damaged ties by new ones ; that it had skillful laborers, known as “section bosses,” actually employed at such work, which was in progress as rapidly as circumstances Avonld allow or permit.

To haA^e not begun the Avork earlier, and to have not sufficiently accelerated its operation was negligence; but we find no element of Avilful or wanton disregard in such negligence, of the company’s obligations and duty towards its passengers, and much less can Ave discover any element of wanton or malicious and conscious indifference to consequences.

Hence on that point we are constrained to differ with the district court, and we hold that conceding the law to be as plaintiff contends, the facts of this case do not justify its application by way of vindictive damages.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from he amended by reducing .the amount of the allowance of damages from seven, to tAVO hundred dollars, and that as thus amended said judgment be affirmed at plaintiff’s costs on appeal.