text:
    No. 13,390.
    Mrs. Diana Spanier vs. Mrs. Rosa DeVoe et al.
    Syllabus.
    1. The execution of an act of donation made under private signature, and the subsequent certificate of a commissioner for Louisiana, made in another State, and executed in accordance with the common law form, is not an act of donation such- as is prescribed for a valid donation.
    The act with the certificate appended was only an act under private signature.
    2. A donation not made in authentic form is invalid and null. It should be made before a notary and two witnesses.

      3. Tlie amount of five dollars mentioned in tlie deed, as a consideration is not sufficiently large for it to be considered, as a serious price.
    4. When tlie tax payer deposits with tlie sheriff, after proper tender, the amount ■ of the taxes, penalty, and costs, for which his property was sold, within the: time allowed within w.liich to redeem, he is entitled to. a cancellation of the tax deed.
    APPEAL from the First Judicial District, Parish of Caddo.. Land,. J.

      Henry M. Furman for Plaintiff, Appellee-.

      Wise & Herndon for Defendants,, Appellants.
   The opinion of the court was delivered by

BREAUX, J.

This action was brought by plaintiff for the' purpose of annulling an act of conveyance of immovable property in Shreveport, and also for the purpose of setting aside a tax sale recently made and subject to redemption.

Plaintiff avers that defendant claimed to have acquired tlie property by deed-dated May 20th, 1880; and plaintiff further avers, as grounds to set aside this deed, that it is entirely without consideration and that it was not passed before a notary and two witnesses. The deed assailed was signed by the parties in the presence of three witnesses, but not before a notary public, as made evident by a copy which we here insert (leaving out the description of the property). “This deed made this 20th day of May, 1880, by Mrs. Diana 'Spanier, of the city of Baltimore, witnesseth: That the said Diana Spanier in consideration of love and affection, and of five dollars, the receipt of which is hereby acknowledged, doth sell, grant, convey, and assign to Mrs. Rosa E. DeVoe, wife of William R. DeVoe, of Shreveport, Louisiana, all that lot (here follows the description).

“To have and to hold said property, and to the use of the said Rosa E. DeVoe absolutely free and clear of any and all claim, right, debt, or liability of her present or any future husband, with full power to her to deal with said property as her sole and separate property in any way she may see fit.

“In witness whereof I hereunto subscribe rqy name and attach my seal on the day .and year aforesaid.

(Signed) '"Diana Spanier, "Rosa E. DeYoe. ■“William R. DeYoe.

'“Signed, sealed, and delivered in th®"presence of

(Signed) “Richard M. Yenable, “W. J. B. I-Iill, “Ph. IL Hoffman."

The day that the deed under private signature was signed, a commissioner from Louisiana certified that Diana Spanier appeared before him and acknowledged the instrument as her act and deed. 'The following is a copy of the acknowledgment:

“On this 20th day of May, A. D. 1880, before me, Ph. II. Iioifman, commissioner for Louisiana and Maryland, personally appeared Diana Spanier and acknowledged the following instrument to be her act and deed. Witness my hand and official seal the day and year aforesaid.

(Signed) “Ph. IL Hoffman,

“Commissioner for Louisiana .and Maryland, located in Baltimore.”

During the progress of the trial, at defendant’s instance, the testimony of Richard M. Yenables and Ph. II. Hoffman, taken under commission, was admitted in evidence. The testimony of these witnesses, given at some length, proved the facts attending the'confection of the deed. Their evidence was objected to in due time and a bill of exceptions was reserved to their admissibility.

With reference to the tax- deed whereby the title to the property passed from Mrs. DeYoe, the nominal owner, to Mrs. Sehulsinger, adjudicatee at tax-sale, the evidence shows that the time in which to redeem had not elapsed and that the price was tendered by plaintiff to the sheriff and the amount deposited with him.

The judge of the District Court held that the acknowledgment before the commissioner was not an authentic act, as it was not acknowledged in the presence of witnesses and a notary or commissioner. • ;

Relative to the plea of prescription, the court held that it would not consider it, as it was not adverted to by defendant in argument. Relative to the tax sale, the court held that the deposit with the sheriff operated a redemption of the property, citing Act 110 of 1898. The court decreed that the donation in question is null and void, and adjudged, plaintiff owner of the property sued for, and directed that a writ of possession issue, and condemned the defendant to pay rent at tlie' rate of twenty dollars per month from judicial demand. Defendant appealed.

Plaintiff's Bill of Exception.

Although the evidence ivas admitted by the District Gourt, the conclusion arrived at by it shows that it was not given any effect. The decision was entirely limited to the invalidity of the document pleaded by the defendant as an act of donation. The object of the testimony was to show that the deed was not a private act, but an authentic one. The authenticity of the deed should have been made to appear on the face of the instrument and no evidence was admissible to cure the deficiency in this respect. It should not have been admitted, as a proposition of law. In this case, as it was not given any effect, it was as if it had not been admitted.

On the Merits.

It has been repeatedly held that an authentic act is the only form whereby a donation can be made. In order to bring the act within the effect of the rule, the contention of the defendant is that the instrument shows that it was signed by the parties and two witnesses in the presence of the commissioner. "Unfortunately for the defendant, the commissioner’s signature to the instrument is not his official signature, but his private one, which can have no more effect, signed as it is, than that of any other private signature. The instrument is a complete document as an act sous seing prive. The private signature of the public officer does not in the least change its character. The donor made the donation in. this private instrument. The certificate of the commissioner adds no weight to it as a donation. It only proves that, prior to issuing it, the donor declared to him as a commissioner that the private deed was her own act of donation. This declaration contained in a private deed and the certificate that it had been made, do not have the effect of investing the deed with authenticity. In point of dignity, the certificate is not to be considered higher than the private act it certifies The bed of the stream does not rise higher than its source. TJnde nil magis generator ipse.

In Leibe vs. Hebersmith, 39th Ann., 1050, the court said that commissioners are, by express provision of the law, vested with all the powers of justices of the peace and notaries, and that, as in case of an acknowledgment before a notary, and acknowledgment before them as commissioners had no authenticity in this State (unless executed in the presence of two competent witnesses), citing C. C., 2234; and the Revised Statutes 596 et seq. A similar view was taken of an acknowledgment before an officer in the case of Seymour vs. Cooley, 3 N. S., 396. In Delogny vs. Smith, 3rd La., 418, the court said that a private act acquires no authenticity from the fact of its being acknowledged before a parish judge.

We pass to the question of the consideration for the execution of the deed. The amount, claimed by the defendant as the price, being only five dollars, we do not think was intended as serious, and for that reason we must hold that no value has been given. The love and affection of the mother for the daughter, as stated in the deed, was doubtless the moving cause, actuating the mother to donate the property. The five dollars was a mere incident amounting to nothing as compared with the value of the property. Article 2464 of the Civil Code sets out “that the price should not be out of all proportion with “ the value of the thing; that the sale of a plantation for a dollar could “not be considered as a fair sale, but as a donation disguised.” “ Pothier says that a price which is out of all proportion with the value “ of the thing sold invalidates the sale, and that such a contract is a “donation improperly called a sale.” Pothier, Contrat de Vente, XIX, approvingly cited in D’Orgenoy vs. Drox, 13 La., 382. Under these authorities, the instrument in question must be considered as a donation and hot a sale. Having arrived at the conclusion that the act was a donation, it only remains for us to consult the decisions interpreting the article of the Code, cited supra, regarding the necessity of passing an act of donation before a notary or commissioner and two witnesses. In all the decisions of this court (there are a number of them) it is held that, in order that an act of donation absolutely gratuitous, may be considered valid as such, the foims of law prescribed must be complied with. Form is of the essence, and the instrument containing an intended donation is always considered null unless it was made in due form. Brittain vs. Richardson, 3 Rob., 78; Farrer vs. Michoud, 22nd Ann., 358; Kirkpatrick vs. Finney & Byrnes, 30th Ann., 223; Maduel vs. Tuyes, 31st Ann., 483. The articles of the Louisiana Code being similar to those of the French Code on this subject, we think the decisions of the French courts and the views of their com-vmentators may be consulted, to some advantage. A donation, it is held by the French courts, is a solemn act to accomplish which a notarial form is essential. In principle, all donations wanting in form are null. They can not be confirmed save in instances of no importance here. Code Civil Annoté, by Ed. Fuxier-IIerman, Vol. 11, p. 649, Sec. 1. In Laurent, Vol. XII, Sec. 220, we find: “The form prescribed is essential to the validity of the donation and the writing which does not malee proof of itself is null.” (Italics ours). This is precisely the case here. The instrument in question does not of itself make proof of donation. The learned commentator adds: “The law may be excessively rigid, but WO' must take it as it is, and interpret it in the same sense that it was anciently interpreted, to which the modern legislator has at times superadded.

“If we sought to moderate a rigidness which has no raison d’etre by disregarding the spirit of the law, our conclusion would be different from that indicated by the legislative will. It devolves upon the legislator to correct his legislation. The interpreter has no such right.” Vol. XII, Sec. 223.

As relates to the prescription pleaded, but not argued, we do not understand that it is insisted upon and for that reason we pass it without comment. The question of rent has been properly passed upon in the decision apjiealed from. The question of the tax sale plays very little part in this suit. The time within which to redeem has not expired, and the amount sufficient to redeem the property adjudicated was properly tendered and deposited with the sheriff.' That put an end to all claim under the tax deed and the xoroperty was, from that moment, subject to the right of the plaintiff.

For reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed.


source: Caselaw Access Project

author: Blaxciiard, J.

license: Public Domain

text:
    No. 13,329.
    Edvise Chenevert, Wife, Etc., vs. Avit Lemoine et als.
    Syllabus.
    1. A contract'which conveys a lot of ground to another “for and in consideration of the price and sum of six hundred dollars cash in hand paid to the vendor, the receipt whereof is hereby acknowledged and acquittance in full thereof granted,” followed by a paragraph which recites “the purchaser obligating himself his heirs and assigns, to keep and support the vendor and her husband during their lifetime,” is a contract of sale and not a contract of rent as defined by C. C. 2779.
    2. A clause in the contract which reserves to the vendor the privilege of remaining upon the property, along with the vendee, evidences nothing more than a right of use and habitation.
    3. A third clause which asserts that the property shall not be sold by the vendee without the consent of the vendor, if it have any force at all, is construed as meant only to' protect the vendor in her right of use and habitation.
    APPEAL from the Tenth Judicial District, Parish of Avoyelles — - Lojargue, J.

      L. J. DucoLe for Plaintiff, Appellee.

      Ooxivillon & Son for Defendants, Appellants.
   The opinion of the court was delivered by

Blaxciiard, J.

On March 22, 1879, plaintiff, a married woman, separate in property from her husband, yet by him authorized, appeared before a notary public and executed an instrument in writing, styled at the time an act of sale.

It recites that “for the consideration hereinafter mentioned, she does by these presents grant, bargain, sell, convey, trausfer, assign, set over and deliver * * * unto Avit Lemoine * * * here present accepting and purchasing for himself, his heirs and assigns, and acknowledging- delivery and possession thereof, the following described property, to-wit:- — •”

Then follows a description of the property, being one acre of land in the town of Oottonport, in the parish of Avoyelles.

The act continues: — “This sale is made for and in consideration of the price and sum of six hundred dollars cash in hand paid to the vendor, the receipt of which is hereby acknowledged and acquittance in full thereof granted.”

Then, beginning a paragraph, is this clause :•—

“The purchaser obligating himself, his heirs and assigns, to keep and support Aurclian Jeansonne and wife during their lifetime; also the privilege to stay with him and partake the said premises as well as himself; further giving the said vendor and her husband the privilege for objecting to a sale of a part of said property, or of the whole, in favor of any party whatsoever, without the consent of said Edvise Chenevert, or her husband.”

Then follows: — “To have and to hold the said described property unto said purchaser, his heirs and assigns forever”, after which is a clause warranting- the title.

Then appears this paragraph:—

“The purchaser in order to guarantee the said Edvise Chenevert and her husband during their life against all eventualities that could arise on account of the reservations aforementioned,- does by these presents hypothecate the above described property in favor of the said Edvise Chenevert and her husband until all privileges therein reserved should be fulfilled.”

The “Aurealian Jeansonne” referred to was then and is now the husband of the plaintiff, Edvise Chenevert.

The vendee, Avit Lemoine, was the son-in-law of the vendor, and the parties, with the husband of the vendor, lived together upon the premises described in the act.

The husband of the vendor conducted there a small mercantile business and Lemoine clerked for him. This continued for about three years, when Lemoine engaged in mercantile business on the premises for himself, and continued so to do until 1888 or 1889, when he failed, and made a cession of his property under the insolvent laws.

In this cession was included the property acquired in 1879 from plaintiff, as hereinbefore set forth.

Prior to the cession he had mortgaged the property to Gumbel Bros. & Mayer, a commercial firm of New Orleans, and at the Syndic’s sale of the insolvent’s property, which took place May 18, 1889, Ferdinand and Cornelius Gumbel, members of the firm, purchased the lot in question. At the time of this sale a paper was read for and on behalf of the present plaintiff, warning purchasers against bidding on the property, and reciting the stipulations hereinbefore quoted, contained in the act by which Lemoine acquired the property, with which the same was burthened.

The paper, further, gave notice that Mrs. Chenevert and her husband would exact from the purchaser of the lot the fulfillment of the clauses in her favor, including that of support.

Ferdinand and Cornelius Gumbel held title to the lot for about two years, when Ferdinand Gumbel, who meanwhile had become liquidator of the firm of Gumbel Bros. & Mayer, sold and conveyed the samo, in Ms capacity as liquidator, to Avit Lemoine, in whom the title has since remained. A part of this purchase price was paid in cash, and for the remainder a mortgage was retained.

During all these years and notwithstanding these various transactions in which the lot figured, the plaintiff and her husband have never been disturbed in their possession and occupancy of the premises. They have remained upon the same from the time of the conveyance to Lemoine in 1879 down to the present time, and are still in possession.

For years it was jointly occupied by plaintiff and her husband and Lemoine, but for the past thirteen years Lemoine has not lived upon the property, but upon an adjoining lot.

After the sale to him in 1879 certain additional improvements were put upon the premises by the joint action of himself, the plaintiff and her husband.

When some of the buildings were destroyed by fire, it was Lemoine who collected and appropriated to his purposes, the proceeds of the insurance policies covering the same. It was he who had taken out the insurance.

A portion of the property was leased for a while to another merchant and Lemoine collected the rent.

The property was, after his purchase, always assessed in his name, and he paid the taxes thereon.

It appears that Lemoine did not support the old couple — his father-in-law and mother-in-law — -as he had engaged to do, though it does appeal' that he offered to them the privilege of taking their meals at his table.

They did not avail themselves of this offer, nor did they seek to enforce their rights of support until this suit was brought nearly nineteen years after the date of the conveyance made by them to Le-moiue, eight and a half years after the date of the insolvent sale of the property to Ferdinand and Cornelius Gumbel, and six and a half years after the re-acquisition of the property by Lemoine from Ferdinand Gumbel, Liquidator.

The objects of this suit are various. It is asked, first, that the mortgage executed by Lemoine in 1888 to Gumbel Bros. & Mayer on the property be declared to have been an absolute nullity; second, that the adjudication of the property to F. and C. Gumbel at the sale of the insolvent estate of Lemoine in 1889 be decreed null and void; third, that the sale of the property made by Ferdinand Gumbel, Liquidator, in 1891, to Lemoine be declared an absolute nullity; fourth, that the contract entered into by the plaintiff with Lemoine in 1819 be rescinded and annulled, and that she (plaintiff) be decreed the owner of the property in question, free of incumbrances placed thereon by Lemoine or other parties; fifth, for judgment in solido against the defendants for $8640 rent charges on the property from 1879 down to the institution of the suit, and for the further sum of $40 per month rent charges since then; and, sixth, that plaintiff be recognized as having a mortgage on the property to secure the said sums.

It is easily apparent that these demands, or some of them, are inconsistent with, and preclusive of, the others.

The prayer for the avoidance of the mortgage to Gumbel Bros. & Mayer, given in 1888, is predicated upon the allegation that it was executed without plaintiff’s consent, and is violative of the clause of the act of sale which gave plaintiff the right to object to the alienation of the property.

The prayer for the avoidance of the adjudication of the property to F. and C. Gumbel at the insolvent’s sale in 1889, and that for the avoidance of the sale made of it by Ferdinand Gumbel, Liquidator, in 1891 to Lemoine, are urged upon the same ground, and the latter upon, the additional ground that Ferdinand Gumbel was liquidator of the firm of Gumbel Bros. & Mayer, and as such could not sell property the title of which stood upon the records in the name of F. and 0. Gumbel; that it was the sale of property belonging to another, etc.

The prayer for rescinding and annulling the contract made between plaintiff and defendant in 1819, by which the latter acquired title to the property, is based upon allegations of non-fulfillment of the terms of the contract in certain particulars, and active violation of its terms in other particulars.

The prayer for personal judgment in solido against the defendants is based upon allegations of non-support from the date of the contract in 1879, and the. liability of Lemoine’s assignees therefor from the date of their pretended acquisition of the title.

And the prayer for the recognition of mortgage rights on the property to secure the sums claimed, is predicated on the allegation of its hypothecation in the original contract to secure the rights reserved therein to the vendor. It is contended by.plaintiff that this mortgage continues to exist notwithstanding it has not been re-inscribed in the mortgage hook since 1879.

Defendants urge various matters in defense, including prescription.

There was judgment below in favor of plaintiffs against defendants in solido for $900, with interest, and the further sum of $25 monthly, the value fixed by the court as the equivalent of the monthly support of plaintiff and her husband, with recognition of mortgage upen the lot of ground to secure payment thereof.

With regard to the various other prayers of plaintiff’s petition, the judgment is silent.

Only one of defendants has appealed — Ferdinand Gumbel. It was stated in oral argument by counsel for defendants that the reason an appeal' was not taken on behalf of the heirs and representatives of Cornelius Gumbel, deceased, is that they are not condemned in the judgment; that the judgment is against Avit Lemoine, Ferdinand Gumbel and Cornelius Gumbel; that the latter is a dead man,-and no appeal, it was considered, could be taken by a dead man.

Plaintiff has not appealed from this judgment, which sustains only a part of her many demands, and in this court has asked no amendment of the judgment beyond an increase in the monied allowances made to her, on the ground that the monthly support of herself and her husband should be fixed at $37.50 instead of $25.

The only issues, therefore, to be considered on this appeal are (1) whether or not, under the facts and the law of the case, Ferdinand Gumbel is rightly condemned to pay plaintiff the sums of money decreed against him; and (2) whether or not plaintiff is entitled to recognition of the mortgage claimed by her and accorded in the judgment below as against the said Ferdinand Gumbel, who, with Cornelius Gumbel, acquired the property by purchase at the insolvent sale of Lemoine in 1889, and who, subsequently, in his capacity as liquidator, sold it to Lemoine ancj retained a mortgage to secure the greater part of the purchase price. Has the plaintiff a mortgage on this property, as against Lemoine, which primes that retained by Gumbel?

The conclusion reached is that in both respects the judgment appealed from is erroneous.

When Ferdinand Gumbel purchased the property, along with Cornelius Gumbel, at the insolvent sale, the adjudication thereof to them vested in them such interest in the property as Lemoine himself had, but entailed upon them no personal liability for the obligations which Lemoine had undertaken towards the plaintiff. It would be singular, indeed, if, buying the title to the property at the Syndic’s sale, never disturbing plaintiff in her occupancy of the premises, holding the nominal title two years and then -retransferring same to Lemoine, would create on their part an obligation to support plaintiff and her husband. The reading of the paper or protest at the time of the sale by plaintiff’s attorney could not and did not impose on the purchasers an obligation where none otherwise existed.

The contract made between plaintiff and defendant in 1879 was not a contract of rent (O. C. 2779), but one of sale.

All the essentials of a sale were there — -a thing, a price fixed, the consent of the parties.

The title of the thing was passed and the price paid. Nor was this a sale with a rent, reserved, such as that spoken of in 0. C. 2786. That which was named as the consideration of the sale was $600 and it was paid. The obligation of keeping and supporting plaintiff and her husband, while expressed in the act and assumed by the vendee, is not referred to as entering- into the cause or consideration of the contract. It was, therefore, not of the essence of the contract. It was not a charge imposed upon the property itself, which is inherent in it, to which it is perpetually subject, and which followed it into whatever hands it passed. Succession of Oanonge, 1 La. Ann. 211.

A mortgage could well be reserved upon the property to secure the performance of the obligation undertaken by Lemoine to support the old coúxDle, and was so reserved; but it was nothing- more than a mortgage, subject, like all mortgages, to the limitations prescribed by the law, among others that of lapsing- if not reinscribed, at the end of ten years, in the mortgage book. There had been no reinscription of this mortgage, and long before this action was instituted it had prescribed as to third persons. It was so prescribed when Ferdinand and Cornelius Gumbel purchased at the insolvent sale in May, 1889. See Heirs of Bourgeois vs. Thibodeaux, 23 La. Ann. 20.

That part of the contract between plaintiff and defendant which stipulates for the former the privilege of remaining- upon the property evidences nothing- more than a right of use and habitation (C. O. 626, 627), and it is considered that the other clause, which asserts that the property, either in whole or in part, should not be sold by the ven-dee without the consent of the vendor, if it have any force at all, was intended only to protect plaintiff and her husband in their right of use and habitation.

In other words, the property, whose ownership became vested in Lemoine, was not to be alienated by him in sueh a way that the old couple should lose the right of remaining upon it. It was a crude way, suggested no doubt by the notary and adopted by them, oi protecting their reserved rights' in this regard. They have been upon the property all the time, are there now, and have the right to remain there during their natural livés, and none of the alienations which have taken place since Lemoine first acquired the property can have the effect of disturbing this right.

• But beyond this plaintiff has no pretensions with regard to the property that can be sustained, so far as the present appellant is concerned.

For these reasons, it is ordered, adjudged and decreed that the judgment appealed from, in so far as it decrees the recovery of the sums mentioned therein against Ferdinand Gumbel, and in so far as it awards plaintiff a mortgage on the property in question, be annulled, avoided and reversed, and that plaintiff’s demand against the said Gumbel and against the said property be rejected at her costs.

Rehearing refused.


author: BjE/ANUiiaruj J.

text:
    No. 13,405.
    State of Louisiana ex rel. J. T. Young vs. E. L. Woodside, Assessor.
    Syllabus.
    1. The object of the law in directing a complete registration of voters in the year 1899 to be made was in preparation for the general State election to be holden in-April, 1900.
    2. Registration made in 1899 qualified electors to participate in the general election of 1900.
    3. The provision of Section 34 of Act 199 of 1898, declaring for a new and complete registration “in every year in which a general State election is held,” applies to future general elections — elections in other years than that of 1900. ■
    APPEAL from the Fifteenth Judicial District, Parish of East Baton Rouge — Brurioi, J.

      Thomas J. Kernan and L. D. Beale for Relator, Appellee.

      Millón J. Cunningham, Attorney General,, and. C. 0. Bird,, for: Respondeut, Appellant.
   Tlie-opinion of the court was delivered by.

BjE/ANUiiaruj J.

This is an appeal from a, judgment making- peremptory a writ of mandamus requiring tlie defendant, in. his capacity as Registrar of Voters-for the Pariah, of East Baton Rouge, to register-the relator in the- present year,. 1900, as a voter in said parish, for the-ward and- precinct in which he resides.

The contention of the respondent Registrar, in effect, is that no necessity exists for registering- the relator in 3900 in order to qualify him to vote at the general State election to be held in April, 3,9.00, and that this is- so because relator is already a duly qualified voter for -and. at the said April election by reason of the fact that he was duly registered as a voter in the said Parish of East Baton Rouge, and for hia proper ward and precinct, on the 38th- day o-f November, 3899.

The issue is thus plainly and directly made whether or not the-relator, having been registered as a voter in the year 189-9, must again register in the present year 1900 in order that he may exercise-liis' right of suffrage, at the State election in April next.

Relator’» position is that he must be registered in 1900 in order to' vote at said- election.

Respondent’s position is, that this is not so, and that relator is a¡ duly qualified elector at all elections in 1900 by virtue of Ms registration in 1S99,

The solution of the issue thus presented is involved in the interpretation to he- idaced upon Act No. 199 of the Acts of 1898, entitled “An. Act relative to the registration of voters throughout the State,” etc., approved July 14th, 1898, and declared to he effective from and after January 3st, 1899.

The second section of this act provides-for a complete, registration of voters beginning with January 1st, 1899.'

Accordingly, pursuant to this requirement, in the year just ended, á registration of voters throughout the State was made. This registration has hut recently been completed.

The question arises what was the object of this general registration in 1899? There is but one sufficient reply and that is that it was made in preparation for the general State election which, under the Constitution and laws, must he held in April, 1900.

There was no general election in 1899 to .prepare for, and, therefore, the registration in 1899 was useless unless intended for the election of 1900. It subserved no purpose unless it could be utilized for the 'election in 1900.

It will no.t do to say it was intended to qualify voters to participate in the primary elections and party conventions called in 1899 to nominate candidates for office, under the provisions of that article of the Constitution which states that only those persons shall participate in the nomination of candidates for office who are duly registered voters. The law itself did not prescribe the holding of 'primaries and conventions in 1899 to nominate candidates.

TIow then may it be said that any were 'to be held that year ? The ordering of primaries and conventions to nominate candidates is wholly a party matter and might or might not be held in 1899 according as the several political parties in the State might or might not, ‘through their appropriate committees, constituting' the party machin•ery, order the same.

Besides, it surely could not have been intended that those who were <on the registration rolls of 1899 might participate in the nomination ’.of candidates in that year to be voted for in 1900, and yet, unless re-registered iri 1900, could not support in the latter year at the general election the very candidates they had nominated in the previous year. It would virtually be the forming of one constituency to nominate, and another to elect.

It is a cardinal rule of the interpretation of laws that the intention of the law maker is to be ascertained and given effect to.

The Legislature of 1898 must not be put in the position of having in 1899 ordered a registration of voters which could accomplish no purpose whatever.

Nor must it be put in a position of intending to direct that one list of registered voters made in 1899 should nominate candidates for office in 1899, and another list of registered voters made in 1900 was to elect those candidates to office in 1900.

Effect, for some useful purpose, must he given to the registration made in 1899, and the only effect that can be given it is that it .qualified electors to participate in the general election called by law for 1900.

Now, if this be so, it is at variance with that interpretation of Section 34 of Act 199 of 1898, which holds it to be mandatory that, under the provisions of that section, a new and complete registration of voters is to be made throughout the State in that part of the year 1900 between January 1st and April 17th — the date of the general State election — and that none but those electors who register in 1900, prior to the April election, may participate in that election as voters.

The one interpretation of the Statute of 1898 would give effect and purpose to the registration ordered and made in 1899; the*.other would render vain and useless that registration.

The court must adopt the more reasonable of the two, and that is that the registration made in 1899 applies to the election to be held in 1900, and the provisions referred to in Section 34 of the Act, declaring for a new and complete registration “in every year in which general State elections is held,” applies to future general elections— elections in other years than that of 1900.

The Registrar of Voters, under another sentence to be found in Section 34 of the act, is required to open his office on January 1st, 1900, and keep it open for sixty days for the registration of voters; but this is construed to mean nothing more than a revision of the preceding registration made in 1899, and an addition to it, registering those who have since become entitled to vote, or those who neglected to register in 1899.

A circumstance which strengthens the view hereinabove set forth is the apparent impossibility of providing for a full registration in 1900 in time for the April election of that year.

The time is not sufficient for the purpose and the result would he that when the registration books close thirty days before the election, as they must under the law, thousands of electors entitled to vote under the Constitution and laws would find themselves deprived of the privilege because not given a sufficient opportunity to register.

That interpretation of the act must be avoided which would bring about this result.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment' appealed from be avoided and reversed, and it is now adjudged and decreed that relator’s application for the writ of mandamus be rejected and dismissed and the rule nisi be discharged.

The Chief Jüstioe and Mr. Justice Monroe find themselves unable to concur in the conclusions reached by the majority of the court.


author: Breaux, J. By lit. Justice Blanobakd,

text:
    No. 13,259.
    State of Louisiana vs. Louisiana Debenture Company, Limited.
    Syllabus.
    Motion to Dismiss.
    The devolutive appeal in this case was from a judgment rendered on a rule rescinding and annulling an order oí appeal, while the suspensive appeal in case No. 13,341 was taken from a judgment appointing a receiver in matter of the liquidation of the defendant company. In the former case, as in the latter, the court holds that the transcript was not seasonably filed.
    1. The State, when appellant, must, like all other appellants, file the transcript of appeal within the legal delay.
    2. The illness of the Attorney General no sufficient reason for failure to seasonably file an appeal.
    3. Kspeeially is this so when it appears that other counsel were associated with the Attorney General.
    APPEAL from the Civil District Court, Parish of Orleans — King, J., Acting for Thearcl, J., Absent on Leave.

      Milton J. Cunningham, Attorney General, (Frank F. Bainold and 8 tiff t & Madison of Counsel), for Plaintiff, Appellant.

      F. Hoiuard McCuleb for George W. Nott, Receiver of Defendant Company, Appellee.
   The opinion of the court was delivered by

Breaux, J.

The receiver, appellee here, moves to dismiss the appeal from a judgment dismissing a previous appeal.

In this ease the court rendered an order granting a suspensive appeal to the Supreme Court and to August M. Benedict, from the order appointing George W. Nott, Receiver of the Louisiana debenture Company, Limited.

A motion was filed in due time to rescind the order of appeal on the grounds it sets out. The motion was made absolute and the order granting a suspensive appeal was revoked. Whereupon, plaintiff applied for a devolutive appeal returnable to this court. The order was issued and the appeal was made returnable on the first Monday of November, 1899.

In case No. 13*341 in which we banded, down an opinion this day-dismissing the appeal, the appeal was taken from the order or judgment appointing. George W. Nott, Receiver of the Louisiana Debenture Company, Limited- In the case now before us for decision, No-13,259, the appeal is taken from another judgment rendered subsequently therein on a rule taken by George W- Nott* Receiver and. others to have rescinded and annulled the order granted by the dis triet judge allowing plaintiff, the State of Louisiana^ a suspensive-appeal from the order and judgment appointing George W- Nott Receiver.

This motion was granted and the appeal was rescinded and annulled. It is from that judgment that this appeal is taken.

The transcript in this case, as. in No. 13,341, was filed on the thirteenth day of November, 1899, more than five judicial days after the time it should have been filed. An extention in the time in which to file the transcript was obtained but the time granted had expired before the term of court.

Those who appeal must file their transcripts within the legal delays. Under repeated decisions upon that subject, the court is without authority to entertain an- appeal unless the transcript is seasonably filed. In Ducournau vs. Levistones, 4th Ann. 30, the court decided that the appellant’s failure to file his transcript timely was fatal to the appeal, and thereby followed the rule laid, down in Peytevin vs. Winter, 4th La. 46.

For the reasons herein assigned and also for those given in case No. 13,341, it is ordered, adjudged and decreed that the appeal be dismissed.

Ok APPLICATION FOR REHEARING.

By lit. Justice Blanobakd,

The appeal in this case was, on motion for counsel for appellee, dismissed because of the failure to file the transcript within the legal delay.

The State presents an application for rehearing on the ground that the failure to file the transeript in time was due to the illness of the Attorney General.

There is no law or rule of practice to which we have been referred that makes the illness of the Attorney General a sufficient excuse for not filing an appeal within the time prescribed by law.

Besides, the State appears to hare been represented in this litigation by counsel associated with the Attorney General. The names of "three other lawyers are found appended, along with that of the Attorney General, -to tbs brief filed on behalf of the State.

One extension of time in which to file the appeal had befen granted, and if that had not sufficed, the court would, upon proper showing made, have granted another extension had the same been applied for.

The court is constrained to deny the application for rehearing and, ¡accordingly, the -same is refused.


author: BlaNChaed, J.

text:
    No. 13,349.
    Auguste Levert vs. Andrew Jackson Sharpe et als.
    Svulabus.
    1. Appeal dismissed ese propñro ¡motil -on demand against surety on injunction bond where the amount claAmeU against him is only $400.

      '2. It requires a strong ease to the contrary made out to justify the court in flisturbing u verdict of a jury of the Vicinage on a question of damage, baseS on their estimate of conflicting evidence, and approved by the ruling of the trial judge denying the application for a new trial.
    3. A claim for punitive damages for trespass committed is hatred by the prescription of one year.
    4. A claim for attorney’s fees for dissolving an injunction is a cause of actiou arising e® contractu on the injunction -bond, and not subject to the prescription of one year. ,
    5. where attorney’s fees are allowed as damages for the wrongful issuance of a conservatory writ, such fees will be restricted to the services rendered in procuring the dissolution of the writ and not extended to the other services relating to the defense of the litigation on its merits.
    APPEAL from the Fourteenth Judicial District, Parish of West Baton Rouge — Talbot, J.

      Hebert & Hebert for Plaintiff, Appellant.

      L. D. Beale for Defendants, Appellees.
   The opinion of the court was delivered by

BlaNChaed, J.

This suit is the sequel of that of Andrew Jackson Sharpe et als. vs. Auguste Levert, decided in May, 1399, and reported in 51 La. Ann. 1250.

In that cause the injunction sued out by Sharpe to prevent the threatened closure by Levert of a “coulee” which was alleged to be the natural drainage of his (Sharpe’s) plantation was dissolved, but the “coulee” in question was recognized as the natural drain of Sharpe’s property and his rights were reserved to institute such proceeding's as might become necessary to prevent Levert from stopping the drain, or to enforce such rights as Sharpe might have to the “coulee” as a drainage servitude of his plantation. .

No appeal was prosecuted from this judgment dissolving the writ.

On the merits of the case the same judgment was rendered as to the “coulee” in question being the natural drainage of Sharpe’s property, with the same reservation of his rights, as had been rendered on the motion to dissolve the writ of injunction.

From this j udgment on the merits Levert prosecuted an apipeal here, with the result that the judgment was amended so as to sustain in part his recouventional demand. The substance of this amendment was that Sharpe was directed to close and fill the ditch he had caused to be dug a distance of six acres in the bottom of the “coulee” on the promises of Levert.

In other words, 'Sharpe was decreed by the judgment of this court to have been guilty of trespass in entering upon the plantation of Levert without his permission and digging a ditch in the “coulee” there, and he was ordered to fill the ditch and restore the staius as it had existed before his entry. 51 La. Ann. 1254.

Following .this, in July, 1899, the present action was brought by Levert to recover damages from Sharpe and other parties named (co-owners with him of the plantation adjoining that of Levert), alleged to have been occasioned by reason of the trespass aforesaid of Sharpe.

These damages are grouped under headings as follows:

Damages for injury to property.$1500.00

Damages punitive, as trespasser. 500.00

Damages, attorney’s fees in injunction suit, etc. 500.00

Damages for vexation, trouble, etc. 100.00

Damages for loss of time and expenses. 50.00

Total $2650.00

Tlie case was tried before a jury in the court, below with the result that a verdict favorable to defendants was returned.

From the judgment based thereon this appeal is prosecuted.

One of the parties named defendant herein is Charles S. Burns, who was surety for Sharpe on the injunction bond given in the suit of Sharpe vs. Levert. This bond was for $400, and judgment in the instant case is demanded against Bums to that extent, in solido with the other defendants, who are also sued for the larger amounts. The judgment rejecting this demand against Burns is not reviewable here, for want of jurisdiction ratione materiae, and the appeal as to him is, therefore, ex proprio motu, dismissed.

I.

As to the first item of damages claimed, $1500, “injury to property,” only a question of fact is involved. Many witnesses testified and, as usual in such cases, there is much conflict of testimony. The jury found against plaintiff on the issue joined and wo do not feel justified in disturbing this finding. A preponderance of evidence sustains it.

It requires a strong case to the contrary made out to justify this court in disturbing a verdict of a jury of the vicinage on a question of damage, based on their estimate of conflicting evidence, and approved by the ruling of the judge refusing a new trial. Fox vs. Jones, 39 La. Ann. 929; Buford vs. Tidwell, 33 La. Ann. 1053; Railroad Co. vs. Gay, 31 La. Ann. 430; 41 La. Ann. 810.

II.

As to the second item of damages, $500, “punitive, as trespassers,” this claim is predicated on the act of A. J. Sharpe, ¿lie of the defendants, in invading plaintiff’s plantation in August, 1891, and causing the ditch to be dug in the “coulee.” This was a trespass, a tort, an offense, certainly a quasi offense. The cause of action arising therefrom is ex delicto and the suit based thereon should have been brought within a year of the act complained of. Certainly within a year of the time when the trespass came to the knowledge of plaintiff. Other^ wise, it is barred by the prescription which is herein pleaded against it. O. C. 3536.

Besides, the facts do not, we think, make this a case justifying punitive damages. So thought the jury, who disallowed the claim.

III.

As to the third item of damages, $500 “attorney’s fees in injunction suit,” the cause of action as to it is ex contractu, based upon thé injunction bond given in the previous suit. Hence, the prescription of one year does not apply. Poydras vs. Patin, 5 La. 324.

In cases where attorney’s fees are allowed as damages for the wrongful issuance of conservatory writs, it is well established that such fees will be restricted to the services rendered in procuring the dissolution of the writs, and not extended to other services relating to the defense of the litigation on its merits. Cretin vs. Levy, 37 La. Ann. 182; Adam Bros. vs. Gomila, Ib. 479.

The injunction was dissolved on motion, after trial. It was not appealed from. The services of the attorney employed to effect the dissolution were worth one hundred dollars. Such is the evidence, and it accords with our estimate. We think plaintiff should have been awarded this sum by the jury, and the judgment must be amended accordingly. Barrimore vs. McFeely, 32 La. Ann. 1179; Riggs & Co. vs. Bell, 42 La. Ann. 666.

But the award must be against A. J. Sharpe alone, for he alone signed the injunction bond as principal. Nor is a ease otherwise made out against the other parties who are joined with him as defendants.

IV and V.

As to the fourth and fifth items of damage claimed, “for vexation, trouble, etc.,” and “for loss of time and expenses” in attending the court, we will not disturb the verdict of the jury which disallowed same.

As a matter of fact the greater part of the time spent in the preparation of his case, and in attendance upon court, and the greater part of the vexation, worry and trouble complained of by plaintiff, was incident to his defense of the litigation upon its merits and to the prosecution of his reconventional demand. The protracted litigation was over those features of the ease rather than over the motion to dissolve the injunction.

Nor do we think, anyhow, that there was any such palpable abuse of the equitable remedy of injunction as will justify an award for damages under these heads. 6 La.Ann. 178; 14 La. Ann. 809; 16 La. Ann. 81; 30 La. Ann. 1163.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended by condemning A. J. Sharpe to pay plaintiff the sum of one hundred dollars, amount allowed as attorney’s fees for dissolving the injunction, and by taxing the costs of both courts against him, and that in all other respects the same is affirmed.


author: Blanchard, J.

text:
    No. 13,278.
    State of Louisiana vs. W. H. Moore, Jr.
    Syllabus.
    3. An order, extending the time for the return day of an appeal, based up^n the application of appellant and his averment that the return day of his appeal would expire on a certain day, is held to mean that the additional time begins to run from the date named in the application as the original return day, and not from the day the court reassembled after vacation.
    2. A transcript filed after the expiration of the delay named in the extension order comes too late and the appeal will be dismissed.
    3. Failure to .file a transcript in time is not a mere informality, and a motion to dismiss on this ground not one of those which must be presented within three judicial days of the filing of the appeal.
    APPEAL from the Tenth Judicial District, Parish of Avoyelles— Laf argue, J.

      Milton J. Cunningham, Attorney General, and Charles 7. Porter. District Attorney, for Plaintiff, Appellee.

      Adolph Yallery Coco for Defendant, Appellant.
   ON Motion to Dismiss Appeal.

The opinion of the court was delivered by

Blanchard, J.

The accused was put upon trial for larceny and a verdict of “guilty as charged” returned against him.

From a sentence of two years’ imprisonment at hard labor, he appeals.

On October 13, 1899, he filed, a motion in this court, averring that the return day of his appeal would expire on October 14th, that the clerk of the District Court had been unable to complete the transcript of the case because of the fact that the trial judge had not yet signed the several bills of exception reserved during the trial, and that further time was necessary. Whereupon it was prayed that an extension be allowed.

This prayer was granted and an order was entered extending the time for the filing of the appeal twenty days.

This order, based ux^on the application of the accused and his averment that the return day of his appeal would expire October 14, clearly meant an additional twenty days would be given him from the latter date in which to file the transcript — not twenty days from November 6th, 1899, the day the court reassembled for the Fall term. Chretien vs. Poincy, 33 La. Ann. 132; Bienvenu vs. Ins. Co., 28 La. Ann. 901, 902; 28 La. Ann. 790; Ins. Co. vs. Bynum, 32 La. Ann. 28.

The transcript was not filed until November 13th — thirty days after the date of the order granting the extension, and seven days after the commencement of this present term.

The bills of exception, for the signing of which the extension was asked and granted, were all signed of date October 20th, six days after the order of extension was made. But it was not until twenty-three or four days after the bills were signed that the transcript was filed.

The motion to dismiss the appeal is predicated on this delay.

It is well taken and must prevail. If appellant did not stand upon the twenty days’ extension from October 14th, which he himself invoked, then ho should have filed his appeal within three days from the date of the reassembling of the court for the Fall term. This he did not do. >

The motion to dismiss is timely.

Dwight vs. McMillen, 4 La. Ann. 350; McDonogh vs. DeGruys, 10 La. Ann. 15.

The failure to file the transcript in time is not a mere informality, and the motion to dismiss on this ground not one of those which must be presented within three judicial days of the filing of the transcript.

Bienvenue vs. Ins. Co., 33 La. Ann. 210.

The motion is sustained and the appeal dismissed.


author: Breaux, J.

text:
    No. 13,277.
    State of Louisiana vs. W. H. Moore, Jr.

      „ Syllabus.
    1. Considering tlie provision of Act 108 of 1808, requiring appeals in criminal cases to be taken within three days after sentence has been pronounced, it is, in the view of the court, beyond the power of the State, prior to sentence, to enter into a consent extending the time. The statute appears to be mandatory in terms, as its purpose is to regulate the time within which appeals shall be taken in criminal cases.
    2. The court, under the exceptional circumstances of the case, none the less, reviewed the issues, and disposed of the case on the merits and finds that there was no error in the ruling of the trial judge in permitting a witness * to testify over the objection of the defendant that he was the owner of the property which he found in the possession of his merchant, and which he identified by his merchant’s account.
    3. Regarding topics within the ordinary experience of jurymen, they are sufficient judges of the issue without expert testimony.
    4. After a witness had said something in regard to the contents of a letter which the witness said he was unable to produce, the court ruled out the evidence and informed the jury that it should not be considered as such. The defendant was not prejudiced in his defense thereby.
    5. The statement of the court, made part of the bill, is that the court did not refuse to permit the testimony of any witness to be taken down in writing to be made part of the bill of exception. No such request was timely made.
    APPEAL from the 'Tenth .Judicial District, Parish of Avoyelles — • Lafargue, J.

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

      Adolph Vallery Coco for Defendant, Appellant.
   The opinion of the court was delivered by

Breaux, J.

The accused was indicted for stealing a bale of ginned cotton of the value of twenty-five dollars. He was tried, found guilty as charged, and sentenced to the penitentiary for the period of eighteen months. From the verdict of the jury and the sentence of the court he prosecutes this appeal.

Ox THE MOTION TO DISMISS THE APPEAL.

The petition to dismiss the appeal shows that sentence was passed upon the accused on September 26th, 1899, and that he did not obtain an order of appeal until October 3rd following; that under statute 108 of 1898, all appeals in criminal cases must be taken within three days after sentence is pronounced.

An agreement was entered into between the District Attorney, and the counsel for the accused, that sentence should be pronounced against the defendants on September 26th, but effect of sentence should be suspended until the adjournment of the court, at which time the defendants should obtain their orders of appeal as if sentence had been pronounced on that day; that the State should not take advantage of this delay to dismiss the appeals, but that the defendant should, on the contrary, be protected from such motion. This agreement was,filed in view of the motion to dismiss that the Attorney General filed on December 9th, on the ground that the appeals were not taken within three days’ delay after sentence, and that the Attorney General may be permitted to withdraw the said motion in order to carry out the good faith of the agreement. Said motion to dismiss had been filed by the Attorney General whilst he was in ignoraneb of the existence of such' an agreement-

In compliance with the direction of the court, the attention of the Attorney General having been called to this agreement, his reply was that, considering the provisions of Act 108 of 1898, appeals must be taken within three days after sentence is pronounced, he doubted the power of the District Attorney to make such an agreement and he doubted the power of the Attorney General to consent to the consideration of tlje appeal taken too late, but if he had the power, he would cheerfully consent to withdraw the motion to dismiss the appeal. We are inclined to agree with the Attorney General. We take it that the statute is mandatory and that the prosecution is not vested with the authority to agree upon a postponement before the sentence has been pronounced. The word “shall” in the statute has a peremptory meaning. “Shall” was not used in the statute to give discretion but to require peremptorily that all appeals shall be taken within three days after sentence. The statute adopted a positive and absolute rule in which iiublic interest is concerned, and which cannot be waived under any of the defined powers given to the prosecution. But the entirely proper motive of the parties and their good faith in matter of this agreement have induced us, none the less, to consider the rights of the accused and pass upon the issue presented. While we do not give effect to the agreement, under the circumstances, we .think it due to the accused to see that he is not made to suffer by an agreement entered into in his behalf.

ON the Merits.

The defendant seeks to have the verdict and sentence annulled on grounds set out in four bills of exceptions.

The first bill of exceptions shows that on the trial of the cause, a witness for the State was asked to state what letters were on the cotton, to which he answered “R W”. On cross-examination ho answered that he knew it from the fact that, while in New Orleans, F. Gumbel & Co. showed him the account sales of the cotton.

Counsel for the defendant objected to this testimony and moved the court to instruct the jury to give it no consideration for the reason that the account sales was not proof of the fact sought to be elicited. It was ex parte, and the accused had no opportunity to enter a denial and no. opportunity to cross-examine the witness. Defendant also complains, as made to appear by this bill, of the statement he asserts was made by the trial judge to the jury, to-wit: that the testimony was admissible when considered in connection with the previous testimony of the witness regarding the payment made to him for this cotton by F. Gumbel & Co.

The following are the written reasons of the judge in support of his ruling, made part of the bill of exceptions: that a bale of (the prosecuting witness’) cotton was taken from the railroad station where the accused was a porter, and that he afterwards received a letter signed by Robert Washington, identified as written by the accused, containing- the statement that his bale of cotton was shipped to New-Orleans to F. Gumbel & Co.; that Moore had previously been arrested and the letter contained a request of him to withdraw the charges against Moore — the witness was therefore permitted to testify that he saw the account sales of the cotton while he was in New Orleans and, besides, had received the price of its sale. It appears that this witness was the owner of the cotton. We are not of the opinion that it is error to permit a witness to testify over the objection of the defendant that he was the owner of the property which he traced to the possession of his merchant, as made evident by an account stated which was shown to him by the merchant. As we take it, the letter before referred to, informed the witness where his 'cotton was. The testimony of itself had no bearing on the proof of the crime charged. It related to a collateral issue. The witness had sworn that his cotton had been taken from the railroad depot. It had been shipped to the usual market. The registry made for its identification either by the carrier or the merchant to whom it was consigned by the accused was admissible to prove its re-cepit without the necessity of calling upon the employees of the carrier or the merchant or his clerk to testify in person. It only went to show what became of the cotton charged to have been stolen. It was the proof of a fact not necessarily germane to the crime charged.

There are exceptions to the rule of evidence invoked by the defendant. Thus, as relates to the exception, it has been held “that the inscription on a trunk tag can be proven without producing the tag,” and other rulings are to the same effect under the exception. Wharton on Evidence, par. 163. If this evidence has any bearing at all, it only goes to prove that the witness was the owner of the cotton and not that the defendant had stolen it. Ownership of property, charged to have been stolen, can be proven without the necessity of having all the witnesses sworn and examined who are in any way connected with the facts on which the title rests.

This brings us .to a consideration of the grounds set out in the second bill of exceptions growing out of the refusal of the court to permit a witness to answer the following question: “If those letters were not genuine, do you think they could have been written in twenty minutes?” the time it is stated another witness fixed within which they had been written. The court did not permit the answer to be given for the reason that the question sought to prove facts within the experience of every one and of which the jurors were competent judges without hearing expert testimony. We understand that the question left to the expert was whether or not the letters were forged. It did not relate, as we take it, to the reasons for the opinion of the expert, but to the veracity of one of the witnesses who testified regarding a particular fact. The objection loses its force when it is manifest that the jurors are the more competent judges of a matter within the common knowledge of every one. The question did not go to the whole merits of the case. .

“In matters within the range of ordinary human experience, the opinion of twelve men in the jury box was better, in the eyes of the law, than that of experts.” Thompson on Trial, Sec. 60S.

Regarding topics within the ordinary experience of jurymen, an expert can not give conclusions, for that reason “an expert can not be asked whether a railroad train stopped long- enough for the passengers to get oft.” Wharton on Evidence, See. 405, 9th Ed.

We pass to a consideration of the third bill of exceptions reserved to the court’s ruling' in permitting a witness to be interrogated regarding the contents of a letter which he declared was in his safe,' which was under seizure, in the hands of the sheriff. The court states, in support of the ruling, that the witness stated that he had read the letter which he was unable to produce. Thereupon the court ruled that .the witness would be heard, but, immediately after, at the suggestion of the District Attorney, the court says the ruling was changed and the witness did not testify as to its contents. And the court instructed the jury not to consider as testimony anything said by the witness as to this paper or letter. We infer that part of the testimony, in some way not explained, had been .heard, which the court desired should not be considered by the jury, and, in consequence, they were instructed as just stated. If an error had been committed, it was proper to correct it, as was done. The accused was not thereby prejudiced in his defense. The court, on appeal, will not assume that a corrected error, under the circumstances, should afford grounds to the accused to set aside the verdict of the jury. We are not led to infer that the witness made a mistake in making the statement that he could not produce the letter, or that the court erred in considering that the letter was not reasonably within the reach of its process. In that view, the testimony as to the contents of the letter, was admissible.

We take up, for discussion, the grounds contained in the fourth bill of exception. It appears by this bill that the District Attorney offered two letters which were admitted in evidence. Counsel for the defendant urges that they are not admissible, as offered, and that he objected and he offered to examine witnesses in rebuttal of the testimony of one of-the witnesses who had been heard, and asked the court to permit the evidence to be written, and he also asked that the testimony o'f another witness be taken as previously given, upon whose testimony the court admitted the letters, stating in support of the refusal to which defendant objects that the last witness referred to had testified, and another witness was on the stand, and that the request of counsel was no longer timely, and that as to the witness first referred to above, the testimony had' been taken and was in writing, and the court adds “that the court never refused accused to offer any evidence in rebuttal, nor refused to have the same reduced to writing;” from which we conclude that the accused was not prejudiced in his defense. Witnesses had testified and their testimony had been taken down in writing. The testimony of one of the witnesses, Coulon, is made part of one of the bills of exceptions. As to him, the request made to have the testimony written was complied with. As to the other, we agree in the conclusion that is was too late to have him recalled and re-examined in order to write down his testimony, particularly while another witness was being examined. Moreover, the court positively states that there was no refusal to write down the testimony. This, we think, must be held as disposing- of the issue of fact between counsel and the trial court. With the statements before us, we would not feel justified in holding that there was such refusal “to have testimony reduced to writing” as made it necessary on the part of the court to permit the witnesses to be recalled and examined again. The court stated, in substance, that there was no objection or request made at the time to take the testimony down. The injustice that would justify the remanding of the cause is not at all apparent.

We have examined all the issues presented and have found no grounds upon which to grant the relief for which the defendant prays.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and the same is her'eby affirmed.


author: BlaNchard, J.

text:
    No. 13,272.
    State of Louisiana vs. Kit Starr and Mamie Starr, Nee Couley.
    Syllabus.
    1. The fact that the minutes of court do not show the grand jury, which returned the indictment, was charged, is not reversible error.
    2. After trial and conviction, it is too late to object that one of the jury commissioners was not eligible, or had not qualified.
    3. under the Jury Act of 1898, the clerk of court is ex-officio a member of the jury commission. Being such, not necessary for him to take the oath prescribed for the jury commissioners appointed by the District Judge.

      4. The minutes of court showing 'the return of bills of indictment and their presentation to the court before the discharge of the grand jury, it is wholly immaterial that the clerk entered the fact that the judge had directed the discharge of the jury before he entered the title of the cases against those indicted.
    tí. The trial of a criminal cause begun, proceeded with and concluded in one day, is viewed as a continuous whole, and the presence of the accused being affirmatively shown at the begimming, is presumed to have continued throughout the day.
    Í!. if it were- otherwise, the fact should have been distinctly averred, in which event the case would hSive been remanded — the verdict and sentence meanwhile maintained — to test the question thus raised.
    7. And in a capital case like the present one, if on application for rehearing it be stated under oath of the accused, or his counsel, that the former were not present in court when the verdict was rendered, judgment will be suspended and trial of that issue of fact contradictorily with the State in the court a qua, on motion to correct the record to show the true facts, will be ordered.
    APPEAL from the Fourteenth Judicial District, Parish of West Baton Rouge- — Talbot, J.

      M. J. Cunningham, Attorney General, and Aleas Hebert, District Attorney, for Plaintiff, Appellee.

      Clarence 8. Hebert for Defendants, Appellants.
   The opinion of the court was delivered by

BlaNchard, J.

The defendants, husband and wife, were jointly in-dieted for the murder of LI. N. Ackerman. The husband was found guilty as charged and sentenced to death. The wife was found guilty of murder without capital punishment and sentenced to hard labor for life.

Both appeal.

In an assignment of errors, alleged to be patent on the face of the record, several grounds for reversal are set up.

It is averred that the minutes of court do not show the grand jury was charged.

This is not reversible error and so conceded in the brief of counsel for the accused.

It is averred that the court erred in overruling the motion to quash the indictment.

This motion, to gnash was filed some seven or eight days after trial and conviction. A bill of exceptions was reserved to the action of the. court thereon. The grounds of the motion were that there was no legal jury commission in the parish of West Baton Bouge, and that in consequence no legal indictment could be found against the accused. It appears that A. D. Barrow, one of the jury commissioners, had not qualified by taking the oath.

It is admitted that all the other members of the commission had qualified, including the clerk of court. Not counting Barrow, a quorum of the commissioners (four members and the clerk of court) participated in the drawing of the jury. Barrow held the position of secretary of the Atchafalaya Levee Board and this is cited as showing-his inability to serve also in the office of jury commissioner. It is stated in the bill of exceptions that the clerk of the court administered the oath as jury commissioner to himself. We do not, however, find anything to this effect in the evidence taken on the trial of the motion, which evidence apipears in the record.

Even .conceding arguendo that there is force in the challenge of the jury commission, the motion to quash the indictment on such grounds conies too late. Section 16' of Act No. 135 of the Acts of 1898 declares that all objections to the manner of selecting or drawing the jury, or to any defect or irregularity which may he pleadable against any array or venire, must he urged before entering on the trial of the ease. Otherwise all objections shall be considered waived.

It plainly appears from Section 3 of Act 135 of 1898 that the clerk of court is ex officio a member of the jury commission. He is not appointed as such by the judge, and it is only the five members appointed by the judge that are required by Section 3 aforesaid to take the oath referred to in that section. In other words, if the clerk of court is a member of the jury commission of his parish in virtue of the fact that he is clerk, and such is the declaration of the statute, then it is not necessary for him to take the oath required of those who are appointed on the commission by the judge.

It is averred that the minutes of the court do not show the indictment in the case was returned and filed by the grand jury impanelled by the court on the first day of the term.

We find the minutes of the trial to show that at a regular term of the court holden in and for the parish of West Baton Bouge, tfie judge appointed W. 0. Germany foreman of the grand jury, and that eleven other persons, whose names are given, were duly chosen and, with said Germany, constituted the grand jury; that they entered upon the work assigned to them; that the court then adjourned to a day fixed; that on that day the court reconvened and the grand jury appeared in court, answered to their names, and submitted their report which was signed “W. C. Germany, Foreman”; that the court then-ordered the indictments, as thus reported, to be filed and the grand jury discharged subject to the order of the court; that one of the indictments thus reported and filed, was entitled “State of Louisiana vs. Kit Starr and Mamie Starr, nee Couley — No. 1151 — Indictment for Murder — A True Bill — W. 0. Germany, Foreman”; and that thereupon Kit Starr and Mamie Starr, both being present in court, were arraigned and each pleaded “not guilty”, asked for trial by jury, were each ordered served with a copy of the indictment and the venire, and the case set for trial for September 15, 1899.

All this appears on the minutes of the court under date of September 5, 1899.

From this we can not conclude otherwise than the minutes of the court do show that the indictment against the accused was. returned into court and presented by the same grand jury organized on the first day of the term. This return of the bills of indictment and their presentation to the court occurred before the judge ordered the grand jury discharged. This fact appears from the minutes and it is wholly immaterial that the clerk entered upon his minutes the fact that the judge had directed the discharge of the grand jury before he entered the title of the cases against those indicted. Immediately following the entry of the order for discharge appears the entry of the indictment against the accused in proper caption and signed officially by the man appointed foreman of the jury which had been organized as a grand inquest on the first day of the term. This quite fulfills the legal requirement. State vs. Onnmacht, 10 La. Ann. 198.

It is averred that the minutes of the court do not show affirmatively or inferentially that the accused were present in court when the verdict was returned.

Under date of September 15th, 1899, we find this recital on the minutes: — “State of Louisiana vs. Kit Starr and Mamie Starr, nee Couley — No. 1151 — Indictment for Murder — This case was this day taken up, as per previous assignment, both of the accused being pres-Gilt in court, when the following persona were duly impanelled and sworn to act as jurors, to-wif”: — etc.

Then follows the names of the twelve jurors. Then is added:;— “When after introduction of evidence, argument of counsel and. charge of the court, the jury retired to their room to consider their verdict. On coining into court, they returned the following written, verdict: — Kit Starr ‘guilty’; Mamie Starr ‘guilty without capital punishment’- — sgd. A. J. Shari, Foreman.”

Then appears the further entry: — -“Court then adjourned to Saturday, September 16th, at 10 o’clock, A. M.”

The contention is this does not show the presence of the accused when the verdict was rendered. It is claimed that the entry should affirmatively mention that the accused were present at the moment the verdict was returned, and that even the presumption of their presence is negatived by the circumstance that when the court adjourned after receiving the verdict, it is not stated the prisoners were remanded to jail. It is said that this order to remand should have been made had they been in court.

In State vs. Collins and Kinney, 33 La. Ann. 153, the accused assigned as error that it did not appear from the record they were present in court during the trial of the cause, nor at the rendering of the verdict. The court said:- — “It (the record) further shows expressly that they' were present in court during the trial, which was proceeded with; that the jury ivas formed and empanelled to try the accused; that after hearing the evidence, argument of counsel, and charge from the court, the jury retired to consider the verdict, and, after a short lime, returned into court with a verdict of guilty, as charged ill the indictment — the whole on the same day. The record does not show that any interval elapsed during the time of the trial and the returning of the verdict. The presumption is that the prisoners were continually present from the beginning to the end.”

In State vs. Cox, 33 La. Ann. 1056, it was assigned as error that the accused was not present in court when the verdict was rendered against him. The court held, the record showing that the accused Was in court when his trial commenced, the burden of proof is on him to establish that he was not present at the rendering of the verdict, if such were the fact.

In State vs. White, 37 La. Ann. 172, it was said: — “The minutes show that the accused was brought to the bar to be tried, that a jury was empanelled, evidence and arguments heard, the charge given, that •the jury retired, returned into court and delivered, their verdict — all without interruption .and at a single sitting. The continued presence •of the accused is presumed.”

In State vs. Price. 37 La. Ann. 215, if was held that “when the trial •occupied but one day and was continuous and uninterrupted, one mention of the prisoner’s presence in court is enough.”

In the case at bar the trial was begun, proceeded with and concluded with a verdict of guilty — 'all in one day.

hi o where in the minutes -does it appear that the court took even a .recess, or that the jury was out long considering their verdict.

In defendants’ motion to quash, filed after conviction, it is recited '.that the trial consumed all the time from 10 o’clock in the morning until 10 o’clock at night, with the exception of a recess from 2 o’clock to half past three o’clock, which time was taken for dinner, and the time occupied by the jury at night, say two hours, in deliberating’ on their verdict.

His counsel contends that since to his bill of exceptions taken to the action of the court denying the motion to quash, the motion itself was annexed as part thereof, its recitals of fact are to be taken as part of the record, and thus it is shown that the trial was not continuous and uninterrupted, and this being so', it was essential to the validity of the verdict that the minutes of the court should show the presence of the accused in court at the time the verdict was rendered.

It is not stated as a fact that the accused were not present at the time.

If we were to consider it properly shown by the record that a recess for dinner was taken', and that the jury were out two hours after the case were given them, it would not suffice to reverse the verdict.

The recess of the court was .not an adjournment. The court was still in session, and so it was in session while the jury were out deliberating.

The fact of the recess and that of the time taken in reaching a verdict, do not take the case out of the rule laid down in the authorities hereinbefore cited and quoted.

The trial must be viewed as one continuous whole — ‘commenced and concluded in one day — and the presence of the accused being affirmatively shown at the beginning, is presumed to have continued throughout the day.

If it were otherwise the fact should have been distinctly averred, in which event we would remand the case — the verdict and sentence meanwhile maintained — to test the question thus raised. And should it appear then that the .accused had not been present in court when the verdict was returned,' reversal of the verdict and, sentence would follow.

Even now, since this is a capital case, while constrained to hold against the accused, if in an application for rehearing it be stated under oath of the accused, or their counsel, that they were not present when the verdict was rendered, we will suspend the judgment and direct the trial of that issue of fact contradictorily with the State in the court a qua, on a motion to correct the record to show the true facts.

Judgment affirmed.

Rehearing refused.