author: Preston, J. Eustis, C. J. Peeston, J. Rost, J.

text:
    The State v. Alexander Brette.
    In criminal cases, where the accused applies for a continuance upon the ground of the absence-of material witnesses, accompanied by an affidavit of the facts he expects to prove by the absent witnesses, ho cannot be forced to trial upon the prosecuting attorney offering to admit, that if the witnesses were present, they would swear to tho facts as stated, reserving the right of disproving their testimony. The admission mast be of the truth of the facts stated in the affidavit, or the accused will he entitled to a continuance. The rules of practice laid down in the Code of Practice, govern in civil cases, but do not apply to criminal cases.

      Where a juror, in a criminal case, when examined on his voir dire, states that “ from the rumors lie,lias heard of the case, his mind is biased and prejudiced; but that the bias and prejudice may be removed after he has heard the evidence in the case, and that his mind is open to conviction, and thinks he can do justice between the parties; ” his answer does not constitute a good ground for challenge. It is only when the juror called has formed so decided an opinion of the case, that he believes himself, or the court believes, it would influence his verdict, that he should be rejected.
    The verdict of a jury is the record of their deliberate judgment. Jurors cannot he examined to impeach their own verdict or the record by parol proof.
    Where, on an indictment for murder, the accused was entitled to a continuance upon an affidavit showing the absence of material witnesses, and containing a statement of the facts ■which the absent witnesses would prove, which evidence would have alleviated the crime to manslaughter-, but was forced to trial upon the prosecuting attorney admitting that absent witnesses would swear as stated in the affidavit, and the jury have convicted the accused of manslaughter only, a new trial will not be awarded to him; full effect having been given to the testimony of his absent witnesses.
    The court will not, upon an appeal, re-examine the decision of a district judge upon a question of fact, such as, whether due diligence had been used to procure the attendance of a witness. In giving a prisoner the benefit of all questions of law erroneously decided against him in the courts of the first instance, care is necessary, in order not to incroach upon the discretionary powers which the judges of the district courts hold, and must exercise, in the delicate and responsible cases of applications for continuance and .new trials, over which the Supreme Court has no supervision, except in determining the questions of law, alone submitted by bill of exceptions, or on an assignment of error.

      from the District Court of St;- Mary. Voorhies, J.

      P. D. Hardy, District Attorney, for the State.

      T. H. Levis and P. SouU for defendant.
   The judgment of the court was pronounced by

Preston, J.

The prisoner is indicted for the murder of Jules Ra'bourdin, in the parish of St. Mary, on the 5th day of March, 1850. An indictment was found against him on the 4th of June, he was arraigned and plead not guilty on the 5th, and was put upon his trial on the 10th of that month, without having applied for a continuance. On the 14th of the month the jury were discharged, having declared that they could not possibly agree upon a verdict.

At the term of the court for the parish, in January, 1851, the accused was again put upon his trial. He made an application to the court to continue the cause, based upon the following affidavit: “ Personally appeared before me, the undersigned authority, Alexander Brette, of the parish of St. Mary, defendant in the above entitled cause, who, being duly sworn, deposeth and saith, that he cannot safely go to the trial of this suit at the present term of this honorable court, because of the absence of the following witnesses, to wit, Henry L. Bornet, Francis Budd and Pierre Viaud, each and every of which witnesses is material and important for the defence of this deponent in this prosecution He further saith, that said Bornet was duly recognized by the committing magistrate in the month of March last, to appear and testify on the trial of this suit, and that he is now absent without the procurement or knowledge of deponent; and deponent verily believes he will be enabled to procure the attendance of said Bornet at the next term of this court. He further saith, that the said Francis Budd was duly summoned in the month of June last, to appear and testify on the trial of this suit, and that he is now absent without the consent or procurement of deponent; and deponent verily believes he will be enabled to procure the attendance of said Budd at the next term of this court. Deponent further saith, that on the 1st day of the present term of this court, he caused a summons to be duly issued to the aforesaid Pierre Viaud, commanding him to appear instanter, and give his testimony on the trial of this cause; and that said summons was then mailed to the sheriff of the parish of St. Martin, where said witness resides, with directions to said sheriff to serve the same on said witness without delay, and to make due return thereof. And he further saith, that said summons has not yet been returned. And deponent further saith, that he expects to prove, by said Bornet, all the facts as testified to by him on the examination of this case before the committing magistrate; and further, the following facts, to^wit, that the deceased, Jules Ralourdin, on the 5th of March last, came to the coffee house of Paul Prevosttwith the express purpose of cowhiding deponent; that the deceased had been, for four weeks previous to said 5th of March, hunting deponent for the purpose of cowhiding him; that on the 27th of February last, said Bornet, having heard of the violent threats of said deceased against deponent, went to the residence of the late Adrien de Vivilie, where a public sale was being held, and where said Bornet knew deponent would be present, and where he supposed the said deceased would also be present, and that said Bornet so went there, under the apprehension that said deceased would attack deponent with deadly weapons, and for the purpose of preventing said deceased from carrying his threats against deponent into effect. And deponent also expects to prove, by said witness, other facts material to his defence, which he is not now able to disclose. Deponent will prove, by said Francis Budd, that five weeks previous to said 5th of March, the said deceased used the most insulting and opprobious language concerning deponent, because deponent was engaged in the defence of a suit brought by the wife of the deceased, and avowed his intention to cowhide deponent the first time he should meet him; and deponent expects also to prove, by him, all other facts as proved by him on the former trial of this cause. By the testimony of said Viaud, deponent expects to prove that several weeks prior to said 5th of March, deceased publicly used the most abusive and insulting language concerning deponent, because of deponent’s connection with the aforesaid suit brought by the wife of deceased, and threatened to cowhide deponent at first sight, and that, if deponent should resist, he would kill him. That deponent has used his utmost endeavors to procure the attendance of the three above named witnesses at the present term of this court, but has been unable to do so. And deponent further says, that Jean Dryris is also a material and important witness for deponent, to enable him to make out his defence to this prosecution. That said Dryris was duly recognized in the month of March last by the committing magistrate, to appear and give evidence on the trial of this case ; that he is now absent without the consent or procurement of deponent, and that deponent has used his best endeavors to procure his attendance at this term of the court without effect. That deponent, on the 16th day of the present month, caused a writ of attachment to issue from this honorable court against the said Dryris, on'which attachment the sheriff has returned that said witness cannot be found, and deponent cannot safely go to the trial of this suit without the testimony of said Dryris; and that deponent verily believes he will be able to procure the attendance of said Dryris at the next term of this court. And deponent expects to prove by the testimony of said witness, the following facts, to wit, that on the 5th day of March last, the deceased, Jules Ralourdin, came to the coffee-house of Paul Prevost for the express purpose of cowhiding deponent; that on said day, he entered said coffee-house with his whip in hand, walked hastily on deponent without stopping at anyplace, and when within three or four feet from deponent, raised his whip to strike deponent, and that he was in the act of striking deponent when he was shot. And deponent further says, that Achilles Briard is also a material witness for deponent in the defence of this prosecution, without whose testimony deponent cannot safely go to trial; that said witness was duly summoned to appear and testify on the trial of this case at the last term of this honorable court, but that he is now absent without the consent or procurement of deponent; and deponent verily believes he will be enabled to procure his attendance at the next term of this court. Deponent has used his best efforts to procure the attendance of said witness at the present term of this court, but in vain. And deponent will prove by the testimony of said Briard, that on the day previous to said 5th of March last, the deceased, Jules Rabourdin, being present at a public sale at Mistress Prevost’s, made inquiries for deponent for the purpose of attacking deponent, and threatening personal violence against deponent could he meet him, and, at the same time, struck his hand upon his pocket, where there appeared to be some weapon, saying, in an excited manner, that he was réady for deponent. And deponent saith, that this affidavit for continuance is not made for delay, but for the sole purpose of enabling him to have the evidence pf the above named witnesses at his trial, and to secure him impartial justice."

The application for a continuance was rejected by the court, and the defendant took the following bill of exceptions : “ Be it known, that on the 23d day of January, 1851, in the present term of this honorable court, Alexander Brette, the defendant in the above entitled suit, moved this court for a continuance of this suit, on the strength of his affidavit hereto annexed, marked A, and made a part of this bill of exceptions, which motion was overruled by the presiding judge, upon the grounds of the prosecuting attorney’s admitting that the witnesses, Henry L. Bornet, Francis Budd and Achilles Briard, in said affidavit named, would, if present, testify to the facts as disclosed in said affidavit, reserving to the said prosecuting attorney the right to contradict said witnesses and to controvert the facts thus admitted; and also, upon the grounds that defendant was obliged to disclose in his affidavit for a continuance, all the facts he expected to prove by his absent witnesses, notwithstanding this is the first application for a continuance, this being the second trial of the case, there having been a mistrial at a previous term; and also, upon the ground that said affidavit did not show due diligence to procure the attendance of Pierre Viaud, one of the witnesses in said affidavit named, and that the prosecuting attorney was not bound to admit the facts expected to be proved by said Viaud, as set forth in said affidavit, nor that, if present, he would testify to them. To which ruling of the said court the defendant, by his counsel, excepted on the following grounds, to wit, 1st. That the defendant has a right to have said suit continued to enable him to secure the personal attendance of his witnesses. 2d. That if forced to the trial without the personal attendance of his witnesses, it should be upon the prosecuting attorneys’ admitting the absolute truth of the facts set forth in said affidavit as expected to be proved by said absent witnesses, and not merely that said witnesses would, if present, testify to said facts. 3d. That defendant has a right to have this suit continued upon his affidavit, without disclosing the facts he expects to prove by his absent witnesses, as this is his first application for a continuance. 4th. That this suit should be continued to obtain the testimony of Pierre Viaud, a witness named in said affidavit, due diligence being shown in said affidavit to procure his attendance at this term of the court, or else that the district attorney should be required to admit that said witness, if present, would testify to the facts as disclosed in said affidavit.”

The accused being indicted and on trial for murder, the testimony of his absent witnesses was indispensable to alleviate the charge into the crime of manslaughter, and was therefore most material on the trial. No question is raised by the bill of exceptions as to the diligence of the accused to procure the attendance of the witnesses, Briard, Bornet and Budd, nor as to the truth of his affidavit that he expected to procure their attendance at the next term of the court. Could he then be forced to trial by the admission of the district attorney,that the witnesses would swear to the facts stated, and not absolutely that those facts were true, but, on the contrary, reserving the right to contradict the witnesses and to controvert the facts thus admitted 1

It is conceded that, under these circumstances, a continuance in a civil case would not have been granted; because the 466th article of the Code of Practice, as amended by the 9th section of the act of 1839, expressly forbids it. But those laws are limited to the regulation of practice in civil cases, and do not purport to change the principles which governed criminal proceedings. Now, by' the act of 1805, it is expressly provided, “ that the method of trial, the rules of evidence, and all other proceedings whatsoever, in the prosecution of crimes, shall be, except as otherwise provided, according to the common law.”

The practice as to the subjects under consideration was, at common law, sub-substantially the same in civil and criminal cases. Now, in the case of Larrat v. Carlier, “the defendant prayed a continuance on an affidavit, stating a certain fact which he expected to prove by the absent witness.” The counsel of the plaintiff said, “ I will admit at the trial the fact to have been sworn to by the witness.” The counsel of the defendant replied, “ if the plaintiff will admit the existence of the fact, we have no objection to proceed to trial; but if the fact is only admitted as sworn to, and witnesses are to be introduced to contradict it, by the detail of circumstances, from which it is expected to draw an inference that the fact cannot have existed, and cannot have been sworn to without perjury, we will want the absent witness in order that, by giving his testimony with the same particularity, he may show that he is entitled to belief.” The distinguished judge to whom the application for the continuance was made, sustained these views. He said, “ the defendant has taken every legal means in his power to procure the attendance of his witnesses. He may therefore demand a continuance ex debito justilias. I am unable to recollect any case in which the court has ever gone so far, in Great Britain or the United States, except in Massachusetts, in which, by a rule of the Supreme Court, the party praying a continuance cannot have it, if his opponent offer what is now proposed to the defendant,” and granted the continuance.

In the case of the People v. Vermillia, 7 Cowen, 369, it was held in New York, that it is not sufficient that the opposite party should admit that the absent witness would testify to the specific facts ; there must be an admission that those facts are absolutely true. And it is laid down as a general rule in Cowen and Hill’s notes upon Phillips, vol. 2, p. 49, that where the defendant states particulars, it is not enough to deprive him of a continuance that the plaintiff admits the facts, if such admission be not full and unqualified; but that a full admission of the facts would be a good cause against the continuance. There are conflicting opinions, but in the conflict we feel safe in adhering to that of our late very able chief justice, and conclude, therefore, that the district court, on this trial for murder, should have granted the continuance prayed for on the affidavit filed.

The answer of Jesse Matthews, a juror on his voir dire, when called to be sworn, was not a sufficient ground for his challenge. He answered, “ that from the rumors he has heard of the case, his mind is biased and prejudiced, but that that bias and prejudice can be removed after he has heard the evidence in the case, and that his mind is open to conviction, and thinks he can do justice between the parties.”

It was held, in the case of the State v. Williams, 3 Stewart’s R. 454, that “in a capital case, it is not a ground for a peremptory challenge to a juror that he has formed upon common report, and expressed an opinion of the guilt of the prisoner, if the juror believed that such opinion would have no influence upon him in the formation of his verdict, should the evidence on the trial be different from the report of the facts.” In the case of the State v. Queensberry, 3 Stewart and Porter’s Rep., 308, the decision was to the same effect. The same principle has often been decided in Virginia. Commonwealth v. Armstead; Same v. Brown ; Same v. Ossander; Leigh’s Rep.

It is only when the juror called has formed so decided an opinion on the case, that he believes himself, or the court believes, it would influence his verdict, that he should be rejected. The prejudice and bias in the present case was produced, not by ill-will nor by evidence, but by rumors. The juror, himself, and the court did not doubt but that it would be dispelled by his oath, his duty, and the evidence to be heard. "When a homicide is committed, and the perpetrator is known, rumor will almost necessarily circulate reports to his prejudice, and bias men against him. It must affect all men very much alike, until the defence is ascertained by evidence. But all can remove that prejudice and bias when truth and evidence is opposed to rumor, and they "are sworn and empanelled in the jury-box, to do justice to a fellow man according to that evidence.

A majority of the court are of opinion, that they have no power to inquire whether the discretion of the court, in refusing a new trial on the ground of misconduct of the jury, wasproperly exercised. State v. Hunt, 4th Ann. 438; also, 4th Ann. 504; 3 Wheeler’s Crim. Law, 309. A careful examination of the testimoney has brought me to the same conclusion with the district judge, that there was no material misconduct on their part; that there is no sufficient evidence that they separated from each other, farther than necessity required, after the case was committed to them; and that there is no evidence of the exercise of improper influences upon their minds against the prisoner. Even if the threats of Barlow were real, there is not the least reason to believe that Wimer was influenced by them. So Bauvilin, being a lawful juror, had every means to know and understand the case which the law affords, and a new trial could not be granted, on account of . his failure to do so, if that was the fact.

It is settled as law, that jurors should not be examined to impeach their verdict. And a high regard for that tribunal in criminal cases, requires the rigid enforcement of the rule. We adhere to the decision of this court, in the case of the State v. Caldwell, 3 Ann., 435. The verdict is the record of their deliberate judgment. They cannot be permitted to impeach the record by parol. 8 R. R., 433.

The separation of the jury, in Hornsby's case, was admitted; also, in Hismond’s case ; and the reluctance with which we adhered, in the latter case, to the decision in Hornsby's case is a sufficient reason for requiring indisputable evidence of a separation which would produce effect, before affording relief on this ground.

Still, the case before us presents a new and most difficult question. The prisoner was indicted and tried for the crime of murder. The jury found him guilty only of manslaughter. The homicide was therefore, beyond a doubt, perpetrated by the defendant. The testimony which he sought for, from his absent witnesses, by no means tended to cause a doubt upon the fact that he committed a homicide, but should, if believed, have alleviated it from murder into manslaughter. Now, the jury have found the prisoner only guilty of manslaughter. They, therefore, believe the statements as to the testimony which could have been obtained from the absent witnesses. They have given it its full effect, and the accused has enjoyed the full benefit of it. The judge, on a full and unqualified admission of the facts stated, could not have instructed the jury that they had any other legal effect than that which the jury has given to them. It is possible, if they had been fully admitted, the jury, being the judges of the law as well as of the facts, might have acquitted the prisoner entirely; but then, they would have given to the facts an effect to which they were not entitled in law. And when the facts bring a case even within a technical manslaughter, tho jury should not hesitate to convict, for when human life is destroyed, the letter of the law should be vindicated. Our legislature were so sensible of this, that they have left the greatest discretion, as to that offence, with the courts. For, according to the circumstances of alleviation or aggravation, the judge may inflict a day or twenty years imprisonment, and a fine of one dollar or two thousand dollars.

Where a party, on a trial for murder, has been convicted of manslaughter only, in the event . of a new trial being granted, he cannot be again tried for murder; but will be tried, as if the prosecution had been originally for manslaughter.

The accused, on his trial for murder, was convicted of manslaughter. He asked for a new trial, upon the ground, that he was forced to trial in the absence of witnesses, who would have proved certain facts. Held,: That as the facts stated, if proved, would not have formed a good dofence to the charge of manslaughter, he was not entitlod to a new trial.

If the jury had found the prisoner guilty of murder, we would undoubtedly have set aside the verdict and reversed the judgment, because of the error in ruling the accused to trial without the presence of material witnesses. But can we set aside a verdict and reverse a judgment, which was the necessary and legal effectof theevidence admitted, even if unimpeached, the factof the homicide being established ? We think not. The case has often occurred, of great errors committed in the hurry, the toil, the trouble, and real difficulties of a jury trial. But if they do not affect the great result, if substantial justice has been done, and tho whole object of the law has triumphed, the Supreme Court would abuse, and not aid the inferior courts, and justice itself, by seizing upon those errors, not to correct them, but without any reasonable motive or legal advantage to the public or individuals, to annul the proceedings of the inferior tribunals.

If the testimony which the accused expected to obtain from the absent witness, Viaud, stood upon the same footing with that of the other two witnesses, the case would be still more difficult; for the statement is, that “ the deceased threatened to cowhide the accused at first sight, and that if he resisted, he would kill him.” The district court, however, was of opinion that the affidavit did not show due diligence to procure the attendance of the witness, Viaud, and it has become the settled jurisprudence of this court, that, on appeals, we cannot revise decisions involving questions of fact. See the case of the State v. Hunt, 4th Ann., 439, and the cases there cited.

The judgment of the district court is therefore affirmed, with costs.

Same Case — On a Re-Hearing.

judgment of the court, on a re-hearing, was pronounced by

Eustis, C. J.

From the manner in which this case has been prepared in the court below and presented, in argument, to the consideration of this court, I am apprehensive that some misconception exists, as to the extent of its powers, in the revision of criminal causes, and of the mode in which those powers are exercised. These subjects have been very fully discussed by the most eminent counsel at New Orleans. In the case of the State v. Flint, 2d Ann. 838, it was held, that the Constitution confers appellate jurisdiction on this court, in questions of law alone; and in that of the State v. Bogan, Ib, 839, that the accused is not entitled, on the appeal, to a statement of facts, as a means to enable the court to review questions of law, which he desires to present; and the court refused a mandamus to that effect. In the case of the State v. Peterson, Ib. 923, it was held, that the court could not examine the evidehee, for the purpose of determining whether the court below properly exercised its discretion in refusing the accused a new trial; the question being one of fact, in relation to which we are not permitted to inquire or to determine. In the case of the State v. Nelson, 3d Ann. 500, the want of power in the court to examine questions of fact, was again asserted. In the case of the State v. Hunt, the subject of the powers was elaborately argued, and thoroughly reconsidered. Hunt, the appellant, was convicted of larceny, and sentenced to the penitentiary. He applied for a new trial on his affidavit, that he had, since the trial, discovered two witnesses, by whose testimony he could establish an alibi. The district judge refused the application, and the accused appoalod. The court delivered the following opinion:

“ The State v. Hunt. — Oliver Hunt was convicted of larceny in the First District Court of New Orleans, and was sentenced, for his offence, to two years imprisonment at hard labor in the penitentiary/ He applied for a new trial, on his affidavit that he had, since the trial, discovered two witnesses, by whose testimony he could establish an alibi. - The district judge overruled the application for a new trial, and Hunt has appealed from the judgment awarding the sentence.

“We do not propose to examine the sufficiency of the affidavit; but to consider the question, whether this court, under the constitution, can review the decision of the district judge, in refusing the application for a new trial. The jurisdiction of this court in criminal cases extends to questions of law alone, whenever the punishment of death or hard labor may be inflicted, or when a fine exceeding three hundred dollars is actually imposed. By the 33d section of the act of May 4th, 1805, for the punishment of crimes and misdemeanors, the rules of evidence and all other proceedings in criminal cases, except as otherwise provided, were to be according to the common law, changing what ought to be changed; and since that period, all our criminal statutes have been enacted and construed with reference to that system. It is therefore a safe guide, in construing the article of the constitution vesting the court with its limited criminal jurisdiction. Under the common law, judgments can be reversed by writ of error, which lie from all inferior criminal jurisdictions to the court of Queen’s Bench, and from the Queen’s Bench to the House of Lords. A writ of error does not lie to the House of Lords for an error of fact; but, for an error of this description, a writ of error coram nobis, as it is there called, lies in the same court. This is the case in some of the States of the Union, where the courts, from their organization, can issue a venire for the trial of the error of fact. See case of Arnold et al v. Duncan, 14 Johnson’s Rep. 417.

“ It seems to us to be clear,that the'constitution, in limiting the jurisdiction of this court, in criminal cases, to questions of law alone, by its terms excluded all cognizance of questions of fact. The Supreme Court of the United States, in construing its common law jurisdiction, under the constitution, and the judiciary act of 1789 — a jurisdiction by no means restricted as much as ours — has determined, by a series of decisions, what points are open for examination under a writ of error; and those decisions have all been made in conformity with what were understood to be the rules and principles of the common law. By the 22d section of the judiciary act, it is provided that on a writ of error to the Supreme Court, there shall be no reversal for error in fact. That court has always held, that error does not lie on the refusal of the court below to grant a new trial. Although that court takes no cognizance of criminal cases, except in a division of opinion of the judges of the court below, the decisions in civil cases appear to us conclusive of the principle. Henderson v. Moore, 5 Cranch, 11. Barr v. Gratz, 4 Wheaton, 213, Blunt's lessee v. Smith et al. 7 Wheaton, 248. Brown v. Clark, 4 Howard, 4.

“In the case of Barr v. Grantz, Judge Story remarked that the proposition was too plain for argument.

“Nor does error lie, on the refusal of the court below to continue a cause after it is at issue. Marine Insurance Co. v. Hodgson, 6 Cranch, 218. In that case, Mr. Justice Livingston says, it may be very hard not to grant a new trial, or not to continue a cause; but in neither case can a party be relieved by a writ of error. Wood v. Young, 4 Cranch, 237. 5 Cranch, 280. 7 Cranch, 152. 7 Cranch, 565, etc.

“If this court cannot examine a question of fact in criminal caséis, it cannot review the acts of a judge of the first instance resting in his discretion. In the present case, the judge did not believe the affidavit of the prisoner, that he could prove an alibi. He sat on the trial of the cause, he heard the, witnesses, and had an opportunity of forming an opinion of the whole affair, with its attendant circumstances; and, we think, the constitution has provided wisely in leaving these matters in the discretion of the magistrate, who has the best means of thoroughly understanding them. If the facts attempted to be proved by the affidavit of the prisoner, were to be confessed in court by the attorney general, a different case would be presented; and cases have occurred, in which courts have acted upon the confession of the attorney general, on writs of error of errors in fact. Rex v. Wilkes, 4 Burrows, 2550.

“ In this case nothing is conceded ; and a question of fact, which we are not permitted to determine, is an insuperable obstacle to the exercise of our jurisdiction, which is confined to questions of law alone.

There is nothing in the statute of 1846, which provides for the mode of bringing criminal cases before this court, which affects the question under consideration. It depends upon the constitution alone.

“ Previous to the adoption of the present constitution, the late Court of Errors and Appeals, in the case of the State v. Charlotte, 8 Robinson, 529, held, that, under the statute creating this court, it was empowered to grant relief against decisions of inferior tribunals, in criminal cases, on questions confided to their legal discretion. The ground on which that decision was based, was, that the various decisions of the Supreme Court of the United States on that subject, were inapplicable to that court, because, under the statute creating it, the court was not a court of errors only. The insertion of the word “alone,” in the constitution, confines the jurisdiction of this court exclusively to questions of law; and on the reasoning of the Court of Appeals, the decisions of the Supreme Court of the United States would be applicable to the question of jurisdiction of this court.” 4th Ann. 438, 439.

Up to this period, the place on the bench now held by Mr. Justice Preston, was filled by the late Judge King, an excellent criminal lawyer, and of great experience. The court was unanimous in its conclusions on this subject, from its organization in 1845. On the accession of Mr. Justice Preston to the bench, as the successor of Judge King, the subject was again reargued and fully reconsidered. After a long deliberation, the doctrine in the case of the State v. Hunt, was affirmed ; Mr. Justice Preston dissenting. Vide the State v. --, 6th Ann. I think, after what has passed, that decision, on the powers of this court, ought to be considered as settling the questions therein decided.

My opinion is, that on the trial for murder, the district judge was wrong in ruling the prisoner to trial, on the ground stated in the bill of exceptions, and, in so doing, committed an error of law. And my impression, when the opinion of the court was prepared, was, that if the jpry had found the accused guilty of murder, it would have been our duty to have set aside the verdict, on account of this error of law. This impression I still retain, although there are difficulties in giving the accused the benefit of this question, which embarrasses its application in the administration of criminal justice, under the powers of this court and the courts of the first instance. In giving a prisoner the benefit of all questions of law erroneously decided against him in the courts of the first instance, the case is, necessary in order, not to encroach upon the discretionary powers which the judges of the district court hold, and must exercise, in the delicate and responsible cases of applications for continuances and new trials, over which this court has no supervision, except in determining the questions of law alone, submitted to them by bill of exception, or on an assignment of error.

The extreme legal effect of the evidence, of which the accused was deprived by the ruling of the judge, would have been to reduce the case from the crime of murder to that of manslaughter. The verdict for manslaughter is an acquittal of the crime of murder. The accused never can again be put on his trial for murder: if a new trial be awarded, he can only be tried for manslaughter. The legal aspect of the case, at present, is the same, as if the prosecution had been originally for manslaughter. The judge of the first instance, in considering the subject of the right of the accused to have the benefit of this evidence, on an application for a new trial, would have been bound to refuse it, according to the rules of law. If this evidence had been offered, on another trial for manslaughter, the court would have been bound to direct the jury to consider it as affording no justification or defence whatever to the offence, for which the accused was then on his trial. The change in the state of the case, by the result of the trial, presents an unusual condition with reference to the evidence, which would have been so material on the original trial; but I can come to no other conclusion, than that of the opinion delivered by the court, that we are not authorized, on the principles of law, to disturb the verdict.' 1 conceive, that according to the principles established, in the cases cited, in Hunt's case, of courts of the highest authority; and, in that case, the duties of-this court are plain and beyond all reasonable doubt.

There are some cases, which I have found, which seem to recognize the principle upon which our conclusion on the subject is founded; they are not similar to the present case, but are, in affirmance of a principle, strongly analogous to that upon which it is decided.

If the court refuse to give an opinion, when required, upon a point relative to the issue, and the jury should, notwithstanding, find a verdict in accordance with the opinion requested, there is no error of which the party can complain. Douglass et al v. McAlister. 3 Cranch, 298.

If the judge states the law, and states it erroneously, his opinion ought to be revised, and if it can have any influence on the jury, the verdict ought to be sot asido. Etting v. The Bank of the U. States. 11 Wheaton, 59. Vide 11 Wheaton, 199.

Our decision, in relation to the competency of Matthews, the power was .made on a thorough consideration of the subject, and we can discover no sufficient reasons for changing our conclusions.

The point made concerning the alleged misconduct and separation of the jury, we consider as within the cases decided by this court, and affording no authority to this court to set aside the verdict. The State v. Hunt, and other cases cited. The petition for a re-hearing is therefore refused.

Peeston, J.

The time limited for our sessions in the country, and the great-amount of important litigation, renders it impossible to give to the cases that long and considerate examination which we could wish, and they deserve; wo acknowledge, with much satisfaction, the great aid we receive from counsel by their well prepared briefs, their able arguments and the liberal use of their libraries. Yet, new questions arise sometimes, which we cannot investigate and decide with that confidence in tho correctness of our decisions, which we enjoy when surrounded with more extensive libraries, a greater number of practitioners, and the necessary leisure.

This important case affords a striking example. It presented several questions of frequent occurrence, which were argued at the bar with uncommon ability. But after examining these, another, and to us at least, entirely new question arose, which had not been argued at all, and which we yet thought was fatal to the appeal. Under these circumstances, we thought it best to present our views on the whole case, after less than a day’s examination, in order to afford ample timo for a reéxamination of the caso, on an application for a re-hearing, with the aid of counsel, on this new point.

The counsel of the accused having applied for a re-hearing, and expressed his dissent from the whole opinion in the strongest terms, I have re-examined that part of it, which, I think, presents a new question, and have come to my former couclusion. But I will frankly confess, with that diffidence which results from the examination of a now and difficult question, in a limited time, without authorities in relation to it, nor ample means of coming to a correct conclusion.

We have fully expressed our opinion, that a continuance should have been granted to the prisoner, on his trial for murder, and given the reasons. On that trial, an error of law had boon committed; it was our duty to point out that orror, that it might not occur again in the necessary hurry of a jury trial. Having done so, the question necessarily arose, as to the effect of that error on the cause in its present situation. In civil cases, it is well settled, that orror of law in tho progress of a trial, shall not affect the judgment, unless we can clearly sco that it has produced substantial injustice. There is no reason why the samo rule should not be followed in criminal cases.

Shall the verdict for manslaughter, on a trial for murder, be annulled, and the judgment of the court be reversed ? That cannot bo done without legal grounds, adequate motives and the imperative commands of justice. The accused was, by the verdict, substantially acquitted of murder, and his life cannot be put in jeopardy again for the same offence. The trial has removed even the suspicion that he committed a deliberate and malicious homicide.

If we remand the cause, it is that the accused may be put on trial for manslaughter. Events subsequent to the application for a continuance, having rendered the testimony which he sought to obtain unnecessary, as to the crime of murder of which he is not now in reality charged, it must be viewed as testimony sought to defend him against the existing charge of manslaughter. And if the cause is remanded, it must be for the sole purpose that he may have the benefit of that testimony, on his tl'ial for manslaughter.

The testimony implies, that he committed a homicide, and is desired for the sole purpose of showing, that it was an excusable homicide in self-defence. It is therefore necessary, to know precisely what was the testimony sought, in order to judge whether the cause should be remanded to obtain it.

And before adverting to the testimony expected from the absent witnesses, it is necessary to observe, that the district court, in the exercise of its discretion, had a right to require the disclosure of all'the facts to be proved by tho absent witnesses, in order to judge whether they were material to the defence, or not, and whether there was a legal necessity to continue tho cause, in order to obtain them. Wharton, C.L., 597.

A trial for murder could rarely be had where there was great danger of conviction, if to be continued on the general affidavit of the prisoner, that the absent testimony was material; for, in his opinion in his own causo, every thing would be material on such an awful occasion. We cannot doubt, therefore, the prudent exercise of his discretion, by the judge, in imposing terms, that the testimony should be disclosed, on this trial, which was taking place nearly eleven months after tho homicide.

It is further to be observed, that it does not clearly appear whether the statement of the facts to be proved was required by the judge, in order to decide upon the application, or was tendered by the prisoner. The affidavit was drawn and sworn to several days before the trial, and it does not appear that he tendered a general affidavit, or that the court required a particular statement. Whether tendered or required, it should have been a statement of all the facts upon which the accused relied for a continuance; and we cannot examine any others than those before us.

The prisoner stated in his affidavit, that he could prove by Bornei, “all the facts as testified to by him on the examination of this case, before the commiting magistrates.” Now, he has not brought that deposition before us, nor made it a part of his bill of exceptions. It is impossible, therefore, for us to say, that it entirely excused the accused. On the contrary, notwithstanding that affidavit, the committing magistrates committed him to prison, and he was not even bailed until after the first trial, more than three months subsequent to tho examination. For the same reason, we cannot consider the “other facts (as expressed in the affidavit,) material to his defence, which he expected to prove by him, but which he is not now able to disclose.” Nor can we consider the testimony expected to be obtained from the absent witness, Viaud, for the reasons given in the opinion already delivered.

Now, read the detail of facts to be obtained from the testimony of Bornet attentively. They are: 1. That the deceased came, on the 5th of March, to the coffee-house where his death occurred, for the purpose of cowhiding the defendant. 2. That for four weeks before, he had hunted him for that purpose. 3. That the witness, on the 27th of February, having heard of the violent threats of the deceased against the accused,, sought for him, in order to restrain him, under the apprehension that he would attack the accused with deadly weapons, and to prevent him from carrying his threats against the accused into effect.

The testimony to be obtained from Budd, is far from being as strong.

The testimony to be obtained from Briard is, that the day before the homicide, the deceased inquired for the accused, for the purpose of attacking him ; that he threatened personal violence, and struck his hand upon his pocket where there appeared to be some weapon, saying in an excited manner, he was ready for the accused. This is the whole substance of the testimony of the absent witnesses.

Now, if the deceased came to the coffee-house to cowhide the accused, he came to commit an assault and battery. This does not excuse homicide. Even if he attempted it with a whip, not a deadly weapon, the homicide which prevented it, would have been manslaughter. Though, like the homicide of him found in the act of seducing a wife or daughter, it would have been manslaughter of the lowest grade; and as, in such a case, in England the hand would have been touched lightly with the brand, and would not have been after-wards unworthy of the grasp of honest men, so, in a case of homicide committed in a sudden conflict, to prevent the degradation of being whipped with a cowskin, a temporary and not very disgraceful punishment in the penitentiary would be inflicted. A homicide committed in a sudden affray, under such circumstances, falls within the very definition of manslaughter. Why then every thing necessary to alleviate homicide, from murder, into manslaughter! For, it is laid down as one of the rules of manslaughter, “that any assault made with violence, or circumstances of indignity upon a man’s person, if it be resented immediately by the death of the aggressor', and it appear that the party acted, in the heat of blood, upon that provocation, will reduce the crime to manslaughter.” Wharton Criminal Law, 236.

Even Chief Justice Parker, in his charge on Selfridge’s trial, which has been the subject of much consideration, stated to the jury “his doubt, whether self-defence could in any case, be set up, where the killing happened in consequence of an assault only, unless the assault be made with a weapon, which, if used at all, would probably produce death,”

So, threats the day before, of a kind not disclosed to us, or for four weeks before, or even the possibility that a hostile individual carried a concealed weapon, does not entirely excuse homicide. Opinions to that effect, cannot be found in any elementary book or judicial decision of high authority. In the case of Selfridge, always quoted on these occasions, the court undoubtedly laid down correctly the principles of law abstractly considered. But the verdict of the jury, upon facts somewhat similar to those disclosed by the affidavit we are considering, was erroneous, and is a lasting memento of the weakness of juries, sometimes in favor of persons upon trial, and has caused a deplorable recklessness of human life. Let this prosecution, now for manslaughter, be tested by a special defence, on account of the facts stated in this affidavit. Indicted for manslaughter, would it be sufficient for the accused to plead that the deceased threatened me four weeks, or four hours before the catastrophe; or that he hunted to cowhide me; or came to a coffee-house to doit; or was suspected of carrying a concealed weapon, to be ready for me ? All this would alleviate the homicide into manslaughter; but could not entirely excuse it.

It is said, these facts connected with others, might induce the jury to excuse the accused. Still, as judges, we are bound to pronounce, that the excuse must result from the other facts, and not from these which can have no such legal effect. And we cannot remand the cause, that when proved, they may have an illegal effect.

What, then, is necessary entirely to excuse homicide on the ground of self-defence ? The answer is, what the terms purport, that the homicide is absolutely necessary to the defence. If our person can be protected by any other means than the awful resort to homicide, it will not be excused. In general, a known felony must be attempted upon our person. 1. East Pleas, C. 871. The danger must be actual and imminent. Wharton, C. C. 497. The accused must show, that he killed his adversary through mere necessity, to avoid immediate death, or at least insupportable outrage. 1 Russel, 779. In cases of personal conflict, in order to maintain the defence, it must appear, that the party killing had retreated, at least as far as the fierceness "of the assault would permit him. 1 Hale, 481, 483. In a word, it must be proved, that the assault was eminently perilous, and could not be avoided or resisted, except by slaying the assailant. In all these cases, and all others of self-defence, the excuse of the party killing, must result from facts which occur at the very time of the conflict.

Great previous provocation will not even justify an assault and battery. Antecedent threats would be a good ground for binding over the party to keep the peace. Approaching an antagonist with a cowhide, is to be redressed by the laws, unless such an assault be made, as does not appear in this affidavit. They do not show the great ingredient in the plea of self-defence, an inexorable necessity to kill. Now, it must be forever borne in mind, that the question is not whether the evidence should have been obtained on a trial for murder or, even whether it should be admitted, on a trial for manslaughter; but, whether a verdict and judgment having been rendered for manslaughter, substantial justice requires that both should be reversed, in order to remand the cause to receive this testimony, to reduce the homicide to that which is excusable in self-defence. The' moro I reflect upon the testimony, the more I feel that it cannot have that legal effect, and cannot, therefore, consent to annul and reverse a solemn verdict and judgment, to remand the cause, in order to give this evidenco an effect to which it is not entitled in law.

Rost, J.

I adopt the conclusion of my brethren, for the reasons given by the chief justice.


source: Caselaw Access Project

author: Preston, J.

license: Public Domain

text:
    Pauline A. Rawls, Tutrix, v. Daniel Rawls.
    Parol evidence is inadmissible to prove a settlement and a release, by a minor, of the morp gage in his favor against his tutor. C. C. 3335.
    The four years’ prescription, hy actions against tutors, by minors after their majority, does not run Where a minor has died after his majority, hut within the four years, leaving an infant child.
    An estate cannot be considered vacant, unless the heirs are unknown, and no one claims; or' unless the heirs havo renounced it. The mere absence of a formal acceptance by the tutrix of a minor heir, does not cause the estate to be regarded as vacant. C. C. 1088.

      from the District Court of St. Mary, Voorhies, J.

      Jules O. Olivier, for plaintiff.

      C. Roselius, for defendant.
   The judgment of the court was pronounced by

Preston, J.

On the 2d of July, 1831, Daniel Rawls was appointed by the probate court of the parish of St. Mary, tutor of his nephew, Philip Alston Rawls, a minor. His property consisted of an undivided interest in thirty-one negroes, owned jointly with another minor brother, of whom the defendant was also appointed tutor. The negroes were appraised at nine thousand five hundred and seventy dollars; and the defendant gave a special mortgage on property in the sum of fifteen thousand dollars, to secure his faithful administration, as tutor of those minors. By a decree of the court of probates, dated--made upon the petition of the defendant, and the advice of a family meeting of the minors, he was directed to keep the slaves in kind, and hire them out at public auction in families, or together, on such terms as he might deem advisable; the hire to be secured by notes, with surety, bearing ten per cent interest from maturity until paid.

In 1839, the brother, Job B. Rawls, having arrived at the age of majorifj*, claimed a partition of the slaves, which was made on the 11th of April, 1839, when they had increased to forty in number, and were appraised at twenty-two thousand dollars, being double their appraised value when the defendant was appointed tutor.

The same day, the major brother gave to the defendant a notarial discharge, as his tutor, declaring, that more than ten days before, his tutor had rendered to him a satisfactory account of his tutorship, and had handed over to him all the property and effects which came into his hands, as tutor. He appears to have remained satisfied with the administration and settlement of his tutor.

Phillip Alston Rawls, became of ago on the 6th of November, 1844. Two months afterwards, on the 10th of January, 1845, the defendant rendered him a statement of the negroes, twenty-two in number, belonging to him, concluding with this remark: “ The said tutor makes no charges of the expenses incurred for the said Phillip A. Rawls, during his minority, considering himself fully compensated for the same, by the services rendered to him by the said slaves ;” and, thereupon, Phillip A. Rawls gave him the following acknowledgment: “ I hereby acknowledge to have received the foregoing account, rendered to me by Mr. Daniel Rawls, my tutor, on the present day, together with the proper vouchers to substantiate the same. St. Mary, January 10, 1845. P. A: Rawls.”

Phillip A. Rawls does not appear, at any subsequent period, to have executed a formal discharge of his tutor, or to have raised the special mortgage given for his faithful administration; all of which was done by his elder brother, and the necessity of which was, therefore, known to the tutor. The receipt we have copied, was evidently a receipt for the account of the tutorship, such as it was, and for the vouchers, as required by the 355 article of the code. ¿The discharge is one of those agreements, and, indeed, the principal one, which is prohibited by the code, until ten days have elapsed after the rendition of the account and delivery of the vouchers.

On this part of the case, a bill of exceptions presents a new and difficult question. The defendant offered witnesses, on the trial, to prove, by verbal testimony, the settlement and payment of his ward’s claims, and his discharge as tutor. We think, with the district court, that the parol evidence was inadmissable. By the article 350 of the Civil Code, the tutor is bound to give an account of his administration, at the expiration of his tutorship. A monied account must be a statement of debits and credits, in writing. So the legal mortgage against the tutor, can only be raised by the consent of the ward ; which consent, the code declares, must be evidenced by a release or a receipt. Article 3335. Tutors and administrators of estates are appointed by courts, and act under their supervision ; it has been the universal practice in the State, to furnish written accounts of their administration to the courts which appointed them, and to the persons for whom they administer, and to obtain written evidence of their discharge. The chapter in the Code of Practice, 'upon the settlement of successions, also seems to require written settlements and discharges.. It is a matter of good policy to prevent litigation, and to afford muniments of title; and we cannot sanction, by admitting oral testimony, the departure from a practice so salutary. We think the parol evidence, that the defendant had settled his account, as tutor, and discharged the balance, was properly rejected.

Phillip A. Pawls was married about the time he became of age, to Pauline A. Palant; who died in--, leaving one child, of whom, the surviving mother has been duly appointed tutrix. On the 2_6th of March, 1849, she commenced this suit, on behalf of her minor heir, to recover the hire of the slaves, from the year 1831 until they were delivered to her late husband in 1845, with ten per cent interest on all sums, which had accumulated, annually, beyond five hundred dollars, after deducting all necessary and reasonable expenses.

The defendant has plead, that the action is prescribed by the prescription of four years, “against the action of the minor against his tutor, respecting the acts of the tutorship, to begin from the day of his majority.” Code, art. 356.

The four years had not elapsed, between the 6th of November, 1844, when Phillip A. Rawls became of age, and the day of his death. His only heir was an infant minor. Now, it is laid down in the code, article 3488, that minors cannot be prescribed against, except in the cases provided by law.

The four years prescription, in favor of tutors against actions respecting their tutorship, is subject to the rule, because not excepted by any provision of law. Duranton, and other commentators in France, have certainly given a different interpretation to similar legislation in that country; but we do not feel at liberty, on that account, to disregard an express provision of our code. It is our duty to give effect to all its articles on the subject, if possible.

It is next urged that prescription runs against a vacant estate, and that the time (during which the deceased neglected to bring the suit, added to the time,) during which prescription run against his vacant estate, exceeds the four years prescription, which has been plead.

It is urged, most strenuously, that the estate of Phillip A. Rawls was a vacant estate, because not accepted by the tutrix of his minor child. Code, art. 345, 998. And that prescription runs against a vacant estate. Art. 3492. But our present code declares, that “a succession is called vacant, when no one claims it; or when all the heirs are unknown, or when all the known heirs to it have renounced it.” Art. 1088- Phillip A Rawls died, leaving an only child, known as his only heir. His mother qualified as his tutrix, and was fn possession of his property, as widow in community of his deceased ancestor. She had not renounced that estate, for herself or child, and was bound to administer it for him. Codo, art. 327.

This case is different from that of Poultney's lieirs against Cecil, in which the surviving widow formally renounced the succession of her deceased husband for herself and notonJy did not claim it for his heirs, but abandoned it, under an order of court, to the syndics of the creditors of her husband. It is more analogous in principle, to tho case of Badon v. Badon, in which this court held, that it was incumbent on those who plead prescription against a vacant estate, to show that tho heirs had never taken possession of the same.

The amount allowed by the district court, for the sorvices of plaintiff’s slaves, is high, and more than we have allowed, under similar circumstances, but seems justified by the evidence.

The judgment of the district court is affirmed, with costs; without prejudice, however, to the claims, said to have been paid in Arkansas; on account of dower, which were not plead in the answer.


author: Rost, J.

text:
    John Hollander v. His Creditors.
    The privilege allowed by the act of 1843, on the crop, for supplies furnished to a plantation, extends only to such as are necessary for the plantation. It does not embrace supplies furnished for the use of the planter or his family, beyond plantation fare; and, consequently, does not embrace cogniac, annisette, cigars or ice.
    The privilege allowed to overseers on the crop, is superior to that of the furnisher of supplies.
    Syndics of insolvents are allowed five per cent on all estates, not exceeding $50,000, unless tho creditors have fixed the amount of his commissions at the beginning of the proceedings.
    APPEAL from the District Court of St. Mary, Voorhies, J.

      E. Simon, for appellant.
   The judgment of the court was pronounced by

Rost, J.

P. J. Pavy Sf Co., who are creditors of the insolvent, and opposed the tableau of distribution filed by the syndic, have appealed from the judgment of the court on said tableau, and alleged the following grounds of error:

1st. That the judge “a quo” should have allowed them the whole amount claimed in their opposition, as a privilege debt on the net proceeds of the crop ; said debt having been contracted, in contemplation of said crop, as advances made thereon, and for necessary supplies and provisions furnished the insolvent for his plantation and family, in the course of the year 1849.

2d. The privilege allowed William Pobertson, for $150, on the proceeds of the crop, should have been rejected; but, if properly allowed, it should be classed only as an inferior privilege to that of the opponents; so it should be with regard to all the other privileges claimed on the crop for supplies, hire of hands, &c., which should be considered as inferior to the opponents; or, at least, as subject to be paid concurrently with the opponents on the proceeds of the crop.

3d. The syndic’s commission, as definitive syndic, is enormous, extravagant and excessive, and has been allowed contrary to the evidence adduced; it should be reduced to its proper and reasonable quantum.

1st. The act of 1843, amending art. 3184 of the code, provides that debts due for necessary supplies furnished to any farm or plantation, shall be entitled to a privilege on the crop, for the making of which those supplies were furnished. It was incumbent upon the opponents to have brought their case within this rule, and, we are unable to say, that we have done so to a larger amount than the sum allowed by the district court as a privilege. Their account is made out in such a manner, as to render it impossible to ascertain their rights with precision. Things, which are clearly plantation supplies, such as corn and pork, are mixed up with other articles, which they are well aware are not supplies, such as cogniac, annisette, cigars, and large quantities of ice, the latter article greatly preponderating ; and the total amount of each invoice is charged, without showing the cost of the different articles it includes. The uncertainty, thus created by the opponents, may have been prejudicial to them in the district court, but it is not in our power to relieve them from the legal consequences of their negligence. We are of opinion, that the privilege must be limited to necessary supplies furnished to the plantation, and that it does not extend to supplies furnished to the family of the planter, beyond plantation fare.

The opponents have no privilege on the crop for the reimbursement of the sum of $1000, which they advanced to the insolvent, at various times, during the course of the year in which he failed. This advance is not one of those contemplated by article 3214 of the code, and it is not shown that it was extended in the payment of necessary supplies for the plantation ; it appears, on the contrary, that a large portion of it was applied by the insolvent to the payment of old debts.

2d. We see no objection to the privilege allowed to Robertson. All the privileges created by article 3184 of the code, as amended by the act of 1843, are equal in rank, With the exception of the privilege for the wages of the overseer, which, by the second section of that act, is declared to be superior in rank to that of the furnisher of supplies; this exception evidently confirms the rule.

3d. The commission of the syndic was not fixed by the creditors, it must therefore be allowed under the act of 1846, which provides, that when the commissions of the syndic have not been fixed by the creditors, commissions shall be allowed at the following rates, to wit, five per cent on all sums not exceeding $50,000, &c. The amount of the assets,'in this case, being under $50,000, the syndic is clearly entitled to the commission of five per cent, which the district court has allowed him. The creditors might have reduced it at the beginning, but as they omitted to do so, the law leaves us no discretion.

The judgment is affirmed, with costs.


author: Eustis, C. J.

text:
    Marsh and Compton v. Robert Perry.
    New forms of judgment should not be used; nor should it be left doubtful by the judgment, whether the case has been closed forever, or is still left open for another suit.
    Novation is not to be presumed. The receipt of a note or bill for the amount of debt, is not necessarily a novation or extinguishment of the debt for which it is given.
    The plaintiffs sued for a debt alleged to be due by a commercial firm, of which the defendant was a member. The defence was, that the debt had been novated by a draft which was not produced, and which was barred by prescription. It did not appear from the evidence, that the name of the defendant, or the firm, was on the draft. Held: That the debt was not novated, and that, the draft being barred by prescription, the plaintiffs were not hound to indemnify the defendant against its re-appearance.
    from the District Court of Vermillion, Voorhies, J.
    X W. Walker, for plaintiffs.
    C. H. and JS. Mouton, for defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

In 1839, the defendant was doing business, as a merchant, under the firm of Kibbe and Perryt in the parish of Avoyelles. The firm bought of Marsh and Compton^ the plaintiffs, of the city of New York, goods and merchandise which, with the charges, amounted to $1940 90, on a credit of six montjjS_ >pjle evidence shows, that this account was settled by a draft of the plaintiffs on Kibbe and Perry, which was verbally accepted by Kibbe as a debt due by the firm. In 1843, the partnership of Kibbe and Perry haviDg been dissolved, judgment was confessed by Kibbe, before the district court in Avoy-elles, for the amount of the draft and charges, with a stay of execution, for several months; the judgment bearing ten per cent interest, from the 28th of October, 1839, the supposed date of the draft. The suit in which the judgment was confessed, was brought on the draft, which, it was alleged, had been mislaid, and the draft does not appear to have been produced, nor was it so required by the defendant.

The present suit was'instituted against Perry, in the parish of Vermillion, in 1849, on the account of the articles sold, without any notice of the draft received by the plaintiffs or- the judgment obtained against the other partner, Kibbe. The defendant pleaded the general issue, and the prescription of five and ten years. The judgment of the court below is, that the demand of the plaintiffs be rejected at their costs. The plaintiffs have appealed. The form of this judgment is new to us; and as every new formula requires a new interpretation, we prefer that the old forms of judgment should be observed, as they either close the case forever, or leave it open to another trial, without any room for doubt.

Kibbe and Perry having been commercial partners, it is obvious that, as their obligation to the plaintiffs was in solido, the judgment against one partner, is no obstacle to a judgment against the other. It is. not proved that there was any extinguishment of the original account, between the plaintiffs and Kibbe and Perry, by novation. Novation is not to be presumed. The receipt of a note or bill, for the amount of a dobt, is not necessarily a novation, or extinguishment •of the debt for which it is given. The only remaining question is, whether the outstanding draft is an impediment to the plaintiffs’ recovery.

It is not proved, that the name of the firm was upon the draft; the proof is, that it was accepted by Kibbe, verbally, as a debt due by the firm ; and besides the obligation of the defendant on the draft, if any existed, has been extinguished by the prescription of five years, which the defendant himself has pleaded.

This state of facts offers no impediment to the plaintiffs’ recovery on the original debt, nor does it require any bond of indemnity, for the benefit of the defendant against the re-appearance of the draft.

It is therefore decreed, that the judgment of the district court bo reversed, and that the plaintiffs recover from the defendant, the sum of $1940 90, nineteen hundred and forty dollars and ninety cents, with interest from the 28th October, 1839, and costs in both courts.


text:
    Louisa Fusilier v. Police Jury of St. Mary.
    The law requires the commissioners appointed to lay out a road over a plantation, to do so with as little injury or inconvenience to the owner as is'compatihle with the public interest; and where this has not been done, the courts will compel the police jury to observe the rule.
    The ordinances and decisions of a police jury in reference to the laying out of a public road on the lands of a planter, are not final and conclusive. They are subject to the control of the courts,

      APPEAL from the District Court of St. Mary. Voorhies, J. In this case, the defendants plead the prescription of one year, and excepted that the ordinances and decisions of the police jury were final and conclusive as to the proper location of the road.

      Jules G. Olivier, for plaintiff, contended :'
    The plaintiff is appellant from a judgment of the district court, rendered on the verdict of the jury.
    The facts of the case are these : In 1850, the police jury of the parish of St. Mary directed the opening of a road from the main public road in front of plaintiff’s plantation, at or near said plantation, through the Cvpremort prairie. A jury of freeholders, under this ordinance, proceeded to lay out a road through the plantation of plaintiff, commencing at the upper line of plaintiff’s land, running with said line for a short distance, and then in various directions over the enclosed grounds of the plaintiff, until it strikes a point on the Bayou Choupic, where it is proposed to build abridge. The blue line on the map annexed to the record, and marked No. 1, represents, from B to G, the road as laid out by the police jury. The line from B to E, shaded in yellow from D, indicates the route designated by plaintiff. Twelve hundred and eighty-seven dollars and fifty cents (§1287 50) were the damages assessed by the police jury. The jury, to whom this case was submitted, found for the plaintiff three thousand dollars ($3000) damages, but maintained the road as laid out by the police jury, and judgment was rendered accordingly.
    After an ineffectual effort to obtain a new trial, the plaintiff appears before this court, and, by her counsel, contends: That having clearly shown that the road designated by her would afford the same facilities to the public, and is as practicable as tho route marked off by the police jury; and alleging and showing that the road, as designated by her, would be less injurious to her, (and of this she is the best judge,) while at the same time affording the same convenience to the public, the verdict of the jury and the judgment of the court, besides allowing the damages claimed, should have been in her favor, changing the course'of the road laid out by the police jury, and substituting therefor that designated by her.
    Conceding the right of the police jury to direct a passage to be opened on the plaintiff’s lands, for the use of the public, they were bound to do it with as little injury as possible to the property of the plaintiff. The very act of the legislature which confers the power, contains the injunction. It is doubtless true, that cases arise when individual rights must be made to yield to public exigencies— this is one of the first laws of society; but it is equally true, that when tho wants of a community require an act to be done which derogates from private vested rights, the utmost circumspection must be observed; for it is, in fact, a blow at the sacred right of property. For purposes of public utility, the plaintiff is made to surrender property to which she had an absolute right. When she is thus to be forcibly divested of her right, is she not to be listened to when she says to the police jury: “I concede that, for the purposes intended, you have the power to deprive me of a portion of my property; but I have the right to ask, and I do ask, that you do it with as little prejudice as possible to the rest of my property?”
    The counsel for the defendants have contended, before the lower court, and they may again do it here, that the action of the police jury, in laying out the road, is final and conclusive. That such is not the case, needs no ai’gument.
    Sec. 2 of act of 12th March, 1818, B. and C.,p. 737; 7 R. R., 121 and 509.' They say that the act of 1818, so far as regards the parish of St. Mary, was repealed by sec. 2 of the act of the 2d of April, 1835. That the legislature could have been so deméntate as to confer on the parochial authorities the arbitraxy power of depriving one of his property for the public use, and deny the owner the right of appeal to a court and jury having a power of revision over the damages assessed, as well as the course of the road, is a proposition so repugnant to every principle of right and justice, that it is hardly necessary to advert to it. Tho act of 1835 is nothing more, in this respect, than a repetition of the powers con ferred by the act of 1818, on police juries generally, and does not, in any manner-, affect or abridge the right, given to the owner on whose estate the passage is granted, to appeal to the district court, in case he should be dissatisfied with the damages assessed or the course the road is to take.

      Wilson and McClarty, for defendants, contended:
    The facts of this case have been stated at length in the brief of the appellant’s counsel, filed with the transcript.

      The points in the case -which the counsel for -the appellees ask permission to present to the consideration of this court, are as follows, viz: 1st Was the exception to j urisdiction of the court of this first instance properly overruled ? 2d. If the court be of opinion that the exception was properly overruled, then should the judgment of the court below,.'with regard to the location of the road, be disturbed ? 3d. Are not the damages allowed by the verdict of the jury and the
    judgment of the inferior court, excessive, and should not the judgment bo amended in this respect?
    The first question presented by the counsel for the appellees, is one upon which the law is not so clear and explicit as to relieve it from doubt. By tho statute of March 12, 1818, B. and C., 738, the appellant in this case, feeling herself aggrieved by the decision of the jury of freeholders in laying out the road, would certainly have had the right to appeal to the district court, provided there had been no other act passed upon this subject; but by the 8th and 9th sections of an act, approved March 16, 1830, B, and C., 763, revived and put in force, as to the parish of St. Mary, by act of March 10, 1834, B. and C., 742, and also by virtue of an act, approved April 2, 1835, B, andC., 743, full power is vested in the police jury of the parish of St. Mary, to pass and make such regulations and ordinances as they may deem advisable, for the purpose of making, laying out and opening of roads, &c.; and the roads in said parish, the statute provides, shall be laid out and opened in pursuance of such regulations and ordinances passed by the police jury. These statutes were passed for a specific purpose, and are limited in their operation to the parish of St. Mary. They delegate to the police jury of that parish, peculiar and specific powers; and by virtue of the powers thus conferred, the regulations and ordinances of said police jury, at least so far as regards the location of roads, have the force and efficacy of a law, and of course cannot be appealed from. The counsel for the appellant, in his brief, contends that the act of April 2,1835, is nothing more than a repetition of the powers conferred upon police juries by the general law of 1818. Why would the legislatui-e be so “deméntate” as to delegate powers to the police jury of the parish of St. Mary, by the act of April 2, 1835, which they had already possessed by virtue of the general statute of 181-8. If the act of 1818 confers all the powers which are delegated by the statute of 1844, then the latter act is a law, without any necessity to demand it, or any reason to justify it, and affords a much more striking evidence of an utter want of mind in the Legislature than if it had confided exclusive and conclusive powers to the police jury of the parish of St, Mary over the subject of roads within the parish. If the statute of 1835 has any meaning, we contend that it is to give to the police jury of the parish of St. Mary exclusive and final jurisdiction with regard to location of roads, a power not conferred by any general law, and we therefore think that the exception to the jurisdiction of the lower court was improperly overruled.
   The judgment of the court was pronounced by

Rost, J.

The law made it the duty of the commissioners appointed to lay out the road over the plantation of the plaintiff, to do so with as little injury or inconvenience to her as was compatible with the public interest. It seems to us that this has not been done. No necessity has been shown for running the road through the plantation buildings, and within twenty-five or thirty feet from the negro cabins and the stable; this is an inconvenience to which the plaintiff should not be subjected without necessity.

It is therefore ordered, that the judgment in this case be reversed, the proceedings of the commissioners set aside, and the case remanded, with directions to the district judge to refer again the laying out to the commissioners, so that it may be done according to law.

It is further ordered, that the defendants pay the costs of this appeal.


text:
    Aspasia Thibodeaux v. Victor Herpin.
    Where testimony.has been rejected upon objections made to its reception in the district court, and, on appeal, the Supreme Court remands the cause,with instructions that the testimony be received; on the second trial of the case in the district court, the party objecting will be considered as having waived all objections which he did not urge at the former trial.
    Parol proof maybe introduced to show that a notarial act' of sale was, in fact, a disguised donation from the wife to her husband, the vendee in the act of sale being a person interposed, and that the whole proceeding was a fraud upon the wife.
    By the C. 0., art. 1747, excessive donations between husband and wife are reducible; but disguised donations, or those made to persons interposed, are null and void.
    from the District Court of Lafayette. Overton, J.

      Albert Voorhies, for the plaintiff, contended :
    The sale, the nullity of which is demanded by this action, should be set aside and avoided, because, in reality, it is a disguised donation to plaintiff’s husband, Franpois Herpin, by means of an interposed person, the defendant, Victor Herpin; because she has never given her consent to an absolute conveyance to the latter, from whom, she never received any consideration whatever-, and she was fraudulently induced, by him and her husband, to believe that to effect a valid donation in usufruct for life of property to her husband, the best plan was to convey the property to the defendant by an act of sale, which she did do.
    The C. C., art. 1747, prohibits husband and wife from giving to each other, indirectly, beyond what is permitted by the foregoing dispositions, and declares the nullity of all donations, whether disguised or made by persons interposed. By the first part of this article, indirect donations áre. declared onlyp-educible, whilst disguised donations, and such as are made by interposed persons, are null absolutely. An indirect donation is one which is based upon a real contract, and is a favor conferred to the other contracting party, under color of a real contract for the whole. In such cases, so far as the transaction is real and unfeigned, the same is binding, and whatever is simulated is null. But in disguised donations, the whole transaction is simulated; there is no real contract; the whole is therefore null. The French commentators favor this view of art. 1747, C.C., as well as our jurisprudence. 5th Ann., 578.
    The question, then, presents itself: Does the case under consideration fall under the provisions of this article ?

      Joseph Béraud, the principal witness on behalf of plaintiff, gives a clear and concise history of this case. At different intervals, he had conversations with Victor and Franpois. The latter informed this witness that the sale was a simulation; that there was an understanding between all the parties that Victor should re-transfer the property, by private sale, to Franpois. Subsequently, Béraud had a conversation with Victor, who told him the same thing: that he had become the purchaser in order to convey the property to his brother. Victor further stated, that the consideration of the sale was not paid with his own funds, and that the amount counted before the notary, belonged to the succession of V. Thibodeaux, then administered by Franpois; that the amount was temporarily taken from the Branch Bank of the Louisiana State Bank, in 'Vermillionville, where it was on deposit, counted before the notary, and deposited again in bank.
    It is further in evidence, that plaintiff did not part with the property for nearly twelve months after the sale, and that Victor took forcible possession of it on the day the inventory was taken of the effects belonging to the succession of Francois Herpin, of which he was administrator.
    The conclusion is inevitable: the sale to Victor is a simulation; the real nature of the transaction is a disguised donotion by the plaintiff to her husband, with the aid of an interposed person. '
    II. We now come to the question of fraud. Froin the evidence already reviewed, we establish the fact of the simulation of this sale. Itiremains now to point out what deceptions were used, the-modus oper

      Direct evidence of fraud is seldom in the power of the injured party; for he who commits a fraud, is very careful to leave behind as little evidence as possible. Recourse mustthen be had to circumstantial evidence and presumptions. C. C., art. —. The case at issue offers evidence of both kinds, and, as the judge a quo remarked in his able opinion, presents a case of the most unmitigated fraud. The plaintiff, who is the creditor of her husband in a large amount, as appears from authentic evidence on file, is kept under the delusion that, on the contrary, she is indebted to her husband in the sum of one thousand dollars, for money spent by him to ameliorate her property, and also for his services in managing it. In order to his reimbursement, she consults her friend, Béraud, for the purpose of getting his advice upon the proper way to do so. Afterwards, her husband called upon Béraud to come and witness the act of sale she was to pass to VictorÍ but, finding that the amount of the sale was a great deal larger than he had expected from conversations with these parties,Béraud refuses to act as a witness, and will have nothing to do with the matter. The sale, however, takes place; but on the same day, two other acts are passed, to-wit, an inventory of the property belonging to Franpis, made in presence of Victor, and a sale from Franpis to his wife. Both these documents are in evidence.

      Franpis sells to his wife, property adjudicated to her by a family meeting in the succession of J2. Mire, deceased, her former husband. The same property is conveyed to the defendant by the plaintiff, as above said, and is inventoried in the name of Franpis, in the presence of Victor. During the lifetime of his brothel-, Victor does not claim the property, but on the day the inventory is taken of Franpis’ succession, he takes forcible possession; not, however, without having tried gentle means, and asked Béraud to interfere in this matter for him. But Béraud would not consent, reminding him how things stood, and that, considering the circumstances, he could well use lenity towards her.
    To recapitulate: The plaintiff has parted with all her property without receiving an equivalent for ¡it, nor even any consideration whatever. The defendant owns the whole of it by means of a sham transaction. From the mouth of the defendant and his brother, the transaction is proved to be simulated, and that the appearance of a sale is given to a disguised donation to the husband, by means of an interposed person. The wife is kept in the delusion that she is her husband’s debtor, whilst the reverséis the case. To confer a gift on him, she is advised to adopt the mode of a sale to the defendant. The latter, having accomplished his object, disregards the tacit understanding, and, after suffering the plaintiff to use the property as owner, for a length of time, takes forcible possession of it, and claims it as his own, notwithstanding his declaration that he was but a nominal purchaser, and that he had not paid the price with his own funds!
    This sale is, therefore, null and void, both as a transaction “in fraudan legis," and as a contract tainted with fraud.

      C. IT. Mouton appeared on the same side.

      Crow and Girard and Thomas C. Nichols, for defendant, contended:
    The plaintiff offered in evidence the testimony of Joseph Béraud, taken by commission, to which the defendant excepted, because the witness does not disclose any facts from his own knowledge, but only what has been told him by the plaintiff herself and her husband, out of the presence of defendant. The plaintiff' certainly cannot, by her conversations with a third person out of the presence of defendant, fabricate evidence for herself by calling that third person to testify as to what she told him; nor can the conversations of lier husband, under any circumstance, be received in evidence, either for or against her, C. C., art. 2260.
    _ As to that part of Béraud's testimony which discloses conversations between him and the defendant, if admitted, ought to be received with great caution; for it is the weakest of all evidence, it being hearsay. Hendrick’s Curator v. Man, 11 L. R.,139; Clark v. Slidell, 5 R. R., 330.
    In one part of his testimony, Béraud says that the defendant told him that the money paid before the notary had been procured by F. Herpin, who was administrator of the succession of — Thibodeaux, in St. Martin, and had the money belonging to it deposited in the Union Bank of Louisiana, at Vermillion-ville, from whence it W’as temporarily taken, the money paid, and afterwards returned and deposited in said bank. But John Greig, who was at that time cashier of said bank, says that neither of the Herpin's received any money from the bank duringjli^jftonth of June, 1848, the sale having been passed on the 15th of that montu; .So the witness, Béraud, must have misunderstood the defendant, or be mistaken, .

      But supposing the evidence to be admissible, it cannot bo admitted to show any thing but the fraud alleged in the petition; and fraud is not to be presumed, it must be established like any other allegation. C. C., art. 1842. There is nothing in the evidence to show any fraud or collusion between plaintiff’s husband and defendant, nor even to show the repeated solicitations on the part of the husband to induce the plaintiff to pass the act of sale to defendant. But, on the contrary, the plaintiff was anxious to sell her property, and did it of her own accord, and freely. It could then, at most, only be a simulated act; but simulation alone cannot be proven by parol evidence between the parties. Dabadie V. Poydras, 3d Ann. 153; Gautier v. Birault, 4th Ann. 487; and the authorities cited in those cases. 9 R. R. 379. Ranaldson v. Hamilton, 5th Ann., 203.
    The court below, in its opinion, lays it down as a settled principle, that the provisions of our laws very properly attach to all contracts between individuals, proven by authentic act, the very highest degree of authenticity and credit. It is full proof of the agreement contained in it against the contracting parties, their heirs and assigns, unless dectaed and proven to be a forgery. But, then adds the court below, it ought to be the truthful depository of the intentions of the parties and the stipulations of their contract.” If the authentic act be full proof of what it contains, and there be no evidence of its being a forgery, how can it be any thing but the truthful depository of the intentions of the parties 1 Even if, in fact, it were not such, the law renders it so by its provisions.
    The court below, then, to make out the fraud complained of by the plaintiff, goes on and explains the modus operandi, and makes a transfer with subrogation from a third person, A. Mire, to defendant, passed on the 22d day of May, 1848, (while the sale was passed 15th June, 1848,) the first and initiatory step towards the act sought to be annulled in this action.. The plaintiff owed the amount to A. Mire, who transferred her rights to defendant. The court will see that A. Mire had brought suit against the plaintiff in this case, her mother, for the amount due her, and plaintiff not being able to pay her, the defendant did so, and was subrogated to all her rights against the present plaintiff. But the court below adds, that the plaintiff in this case was in receipt of large' sums of money by inheritance, and that she did not need the assistance of defendant to pay that debt. But while she had inherited $4834 58, which her husband had received for her, JEdourd Mire had been paid $1235 which she owed him, and large amounts of property had been purchased, said property consisting of slaves and personal property, as may be seen by comparing the inventory of her property at her first liusband’s death, and amounting to $7189 57, with the inventory, amounting to $12,720 21, made 15th June 1848, when this sale was passed. Moreover, the husband, in his settlement with his wife, and the dation enpayment to her, charges himself with all he has ever received for her, and pays her.
    Finally: the court below observes, that an estimative inventory of the spouses’ property, ■ the dation enpayment, and the sale from plaintiff to defendant, were passed on the same day, and makes it conclusive evidence of fraud The husband, as head of the community, believing himself responsible to his wife for the restitution of all her effects, maltes a dation enpayment to her after having caused the property to be duly inventoried and appraised, (and she does not complain of the appraisment,) and afterwards sells to a third person, with her husband’s consent, a part, $4747 of the property, valued in all at $12,720 21. Can such facts be construed into conclusive evidence of fraud 1 -
    In conclusion, fraud cannot be presumed, and there is no evidence whatever of fraud, which is the only cause that could annul this act, and the defendant insists upon the reversal of the court below, and the validity of the sale.

      E. Simon and J. W. Waker appeared, also, for the defendant.
   The judgment of the court was pronounced by

Rost, J.

This case was-before us at the last term, and the facts of it are fully stated in the opinion then delivered. 5th Ann. 578. It was remanded on a bill of exceptions, with instructions to the district judge to admit in evidence the deposition of Joseph B'eraud, attached thereto, which the plaintiff had offered to prove the fraud alleged, the want of consideration of the contract of sale which she seeks to avoid, and the interposition of the defendant therein for the benefit of his brother.

On the second trial, this deposition was again offered, and the defendant’s counsel objected to its introduction, on the ground that the witness does not disclose any facts of his own knowledge, but only what has been told him by the plaintiff and her husband, out of the presence of the defendant; that the plaintiff ought not to be permit£ecH;o make evidence for herself; and that her husband’s statements to the witnesFcannot be received for or against her.

This evidence forms part of the “res gesta," and is well calculated to raise that class of presumptions which the law deems, in certain cases; sufficient to establish fraud; but independently of these considerations, the deposition of this witness, when offered on the first trial, was objected to by the defendant’s counsel on the ground, only, that it was inadmissible to contradict, vary, or add to the act of sale a counter-letter, being the only means by which the act could be impeached. These objections were overruled by us, and the district judge was instructed to admit that deposition in evidence. This decree is binding upon the defendant, who must be considered as having waived all objections to the introduction of the evidence, which he did not then make. That evidence, not being of the class which the law makes it the duty of judges to disregard, we think it was properly admitted.

The district judge deemed this and the other evidence of the plaintiff, sufficient to establish the fraud and interposition alleged, and we see no reason to differ from him; the right of the plaintiff to make that proof against the party to whom she sold, was considered and recognized when the case was before us last year. We are satisfied of the correctness of the opinion then formed.

Art. 1747 of the C. C., is as follows: ‘ ‘Husbands and wives cannot give to each other, indirectly, beyond what is permitted by the foregoing dispositions. All donations disguised, or made to persons interposed, shall be null and void.”

As well observed by the plaintiff’s counsel, that article contains two separate dispositions: one by which the spouses are incapacitated from giving to each other more than the law permits, in which case the excessive donation is reducible, and the other declaring null and void all donations disguised, or made to persons interposed. This distinction of reducible donations between husband and wife, and donations which are null and void on the ground of interposition or disguised, came to us from the Roman law. See Digest, book 24, title 1, law 5, paragraph 5. Pothier, Donations entre mari et femme, No. 78. It was recognized by the late Supreme Court, in the case of Casanova’s heirs v. Acosta et als. 1 L. R. 185. It is also recognized by the French commentators under a similar disposition of the Code of France. 5 Toullier, No. 76, 83, 901, 902.

The second paragraph of art. 1747, creates an absolute incapacity, between husband and wife, to make to each other disguised donations, or donations to a person interposed; and if they do so, the donation is null and void. This nullity being considered by jurisconsults as absolute, may in all cases be invoked by the contracting parties or their heirs. 7 Toullier, No, 558.

This class of cases are, from necessity, exceptions to the rule invoked by the appellant, that simulation cannot be proved between the parties to it, otherwise than by a counter-letter; when a fraud has been accomplished by simulation, the party injured by it may prove it by all kinds of legal evidence.

It is therefore ordered, that the judgment be affirmed, with costs.