text:
    No. 12,598.
    State of Louisiana ex rel. Charles M. Dunn vs. Hon. W. R. Richardson and Charles Wirth.
    In cases appealable to another court writs of certiorari and prohibition from the Supreme Court are not the proper remedies for relief obtainable on appeal. This applies to cases appealable from the city courts of New Orleans to the District Court. Ex rel Kepllnger et al. vs. Justice of the Peace, 48 An. 1348, and Ex rel. Purdy vs. Justice, 49 An. 1165. Affirmed.
    QN APPLICATION for Writs of Prohibition and Certiorari.

      Solomon Wolff for Relator.

      A. D. Blaehmar and Theo. G. Spitzfaden for Respondent.
    Submitted on briefs November 2, 1897.
    Opinion handed down November 15, 1897.
    Rehearing refused December 13, 1897.
    Statement of the Case.
    On the 7th of September, 1897, Charles Wirth instituted a suit in the Fourth City Court of New Orleans, of which Robert H. Downing is judge, against Julius Simno and Charles M. Dunn (the relator) asking judgment against them for forty-four dollars.
    The ease was fixed for trial by the judge of the court for the 16th of September, but it was, on that day, continued to the 23d of the month, nob by Judge Downing, bat by W. R. Richardson, judge of the First Oity Oourt.
    On the 23d it was called up for trial by Judge Richardson as presiding judge, when relator excepted to the authority of the judge of the First Oity Court to hear and dispose of causes at issue in the Fourth. The exception was overruled, but the trial was postponed to await the result of an application for writs of certiorari and prohibition which relator then and there announced he intended applying for to the Supreme Oourt, and which he soon after made, praying that court after an examination of the records to prohibit "W. R. Richardson, judge of the First Oity Oourt, from further proceeding with the trial of said cause, and to issue in the meantime a restraining order in the premises.”
    In the application, relator declared that it nowhere appeared that the judge of the Fourth Oity Oourt was absent on either the 16th or 23d of September, when the respondent judge undertook to issue orders in the case, except that in the notice of trial which issued under the fixing made on the 16th of September was the endorsement : “ By order of W. R. Richardson, judge of the First Oity Oourt, acting for R. H. Downing, absent on leave.” That the records of the Fourth Oity Oourt did not show any order made by the judge thereof calling upon W. R. Richardson, judge of the First Oity Oourt, to sit and hold court for the judge of the Fourth Oity Oourt, and to hear the cases there pending. He annexed to his application a certificate of the clerk of the Fourth Oity Oourt to the effect that there was not in the records or the minutes of the court any order or memorandum showing that Judge Downing was absent from the city on leave, or calling on any other judge.of the city courts to preside at the session of the Fourth Oity Oourt. He averred that in the absence of any such order or memoranda, or any grant of leave of absence, it had nob and could not be known to relator and other parties litigant in the Fourth Oity Court which one of the judges of the respective city courts would sib and hold court for Judge Downing, and that relator was thus unable to avail himself of the remedies the law provided for the securing of the evidence, etc. That he desired to avail himself of the testimony of one Bishop, whose permanent leaving of Louisiana had been first brought to his knowledge by the constable’s return of the 15th of September, of attempted service on said witness. That by reason of the absence of the judge of the Fourth City Court and relator’s ignorance of what judge would hold court for him, relator was prevented from issuing a commission to take the testimony of Bishop, which was material to the issues involved. That the attempt of the defendant judge to hear and determine the said cause against the wish and without the consent of defendants was a flagrant usurpation of authority and a violation of law.
    That the First and Fourth City Courts were separate and distinct courts, having jurisdiction respectively of certain cases arising within the city of New Orleans on the left bank of the Mississippi river, and brought in their respective courts. That the said judges had not jurisdiction of cases other than those brought in their respective courts, and were not competent to sit in judgment in cases other than those brought in their respective courts and otherwise within their jurisdiction.
    W. R. Richardson, judge of the First City Court, having been cited, filed his answer, annexing thereto the record and proceedings in the case of Wirth vs. Dunn et al.

    He averred that he was acting in the premises in the place and stead of R. H. Downing, judge of the Fourth City Court, absent on leave, by reason of a request of said judge, and of a special selection, delegation and call to act in such capacity conferred on him by the Governor of the State, as was fully shown by the leave of absence granted said judge by the Governor, which he made part of his return.
    That no minutes or records of the proceedings of the City Courts of New Orleans were kept in said courts other than a docket of the number and the titles of suits filed therein, and that the clerk of the Fourth City Court had in his possession the leave of absence granted to Judge Downing for thirty days from September 12, in which leave respondent was designated to act as judge of the Fourth City Court during the absence of its judge; that these facts were communicated to the attorney of relator, as would be shown by the certificate of the clerk of the court.
    That ou the 16th of September, 1897, respondent continued the case of Wirth vs. Dunn to be refixed, and that when relator’s attorney appeared in the Fourth City Court on that day (the 16th of September) he was then and there informed by the clerk of the court of said action and that respondent was sitting and acting in the place of the judge of the Fourth City Court, absent on leave. That respondent having refixed the cause of Wirth vs. Dunn for trial, a notice of said fact was served upon relator which bore thereon the endorsement: “By order of W. R. Richardson, Judge of the First City Court, acting for Hon. R. H. Downing, absent on leave.” That upon the day last fixed for the trial, relator through his counsel filed written exceptions to the right of respondent or any other judge of a City Court to sit as judge of the Fourth City Court in the place and stead of its own judge, and further excepted to the right of respondent to fix the case for trial and excepted to the validity of respondent’s order fixing the same for trial for that day. That respondent overruled relator’s exceptions, giving his reasons therefor in writing on the back of said written exceptions, and then and there officially announced his intention to hold said cause under advisement to enable relator to apply to the Supreme Court for writs of certiorari and prohibition in compliance with the request of relator’s counsel, and agreed in the event the writs were denied, or on due hearing dissolved, to permit relator to apply for a commission to take the testimony of Bishop, an absent witness, subject to an oral exception and objection to relator’s right to such commission made by the plaintiff in the suit. He averred that he was authorized and empowered by law to act in the place of the judge of the Fourth City Court, absent on leave, on his call and request so to act. That Act No. 79 of 1891 authorized the Governor to grant leaves of absence not to exceed ninety days at any one time to State and parish officers and repealed all laws and parts of laws inconsistent with said act. That Sec. 2092 of the Revised Statutes was authority for the granting of leaves of absence to justices of the peace, provided they procured another justice of the peace to act in their place. That the Supreme Court had held that all laws in civil matters which were in force relative to justices of the peace in the parish of Orleans were ■still in force and applied to the city courts created by Art. 135 of the Constitution.
    That the suit of Wirth vs. Dunn was appealable to the Civil District Court for the parish of Orleans, and relator should have applied to the judge of said District Court, from whom he could have obtained relief and might yet obtain adequate remedy if he be entitled thereto.
    That relator could on appeal urge all the objections set up in the application he had made for the writs and would have ample opportunity to obtain full justice on appeal, and was therefore not entitled to the relief he sought. He referred the court on this last position to Art. 857 of the Oode of Practice. State ex rel. Keplinger vs. Justice, 48 An. 1348, and State ea; rel. Weber vs. Skinner, 32 An. 1092.
    • He also cited Oode of Practice, Sec. 1070; R. S. 2087, 2092; Acts 1 Nos. 46 and 67 of 1880; State ea; rel. Frederick Skinner, 33 An. 148; State ea; rel. Oity vs. Judge, 40 An. 844.
   The opinion of the court was delivered by

Nicholls, C. J.

The suit of Wirth vs. Jules Simno et al. is an ordinary suit upon a moneyed demand against the present relator for forty-four dollars. It is accompanied by no attachment or seizure and presents no feature of hardship calling for exceptional action at the present time in order to afford immediate needed relief with remedies which no court other than the Sup'reme Court could supply. The-suit is appealable to the District Court, and in due time the questions which relator seeks to have presently passed on through a writ, of prohibition from us can be reached and passed on by the District Court on appeal. There will be ample time and opportunity to have-recourse to this court against illegal action or usurpation (should such there will have been in the case) after the District Court shall have passed upon the issues sought to be now raised before us.

Relator, having excepted to the capacity of the acting judge and been overruled, can proceed with safety and without waiver under the benefit of that exception to take out all necessary commissions and go to trial.

The application falls under the rule announced in State ex rel. Keplinger vs. Justice, 48 An. 1348, and State ex rel. Rudy vs. Justice, 49 An. 1165.

For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the order which has heretofore been granted in this case be and the same is set aside, and it is now ordered, adjudged and decreed that the application of the relator for a writ of prohibition be and the same is hereby refused.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 12,593.
    The State of Louisiana vs. M. J. Riley.

      Municipal Ordinance. — The fir3t section of a municipal ordinance declaring it unlawful for any person to keep a lottery office being plain and legal, the defendant condemned under this section is without right to sustain an objection of illegality of the whole ordinance on the ground that the second section is unconstitutional.

      Separable, Sections of an Ordinance. — An ordinance may he unconstitutional in part and legal in part.

      Construction of Ordinance. — The second section of the ordinance interpreted with the first section is not unconstitutional.
    A PPEAL from the First Recorder’s Court of the Oity of New Orleans. Finnegan, J.

      James J. MeLoughlin, Assistant Oity Attorney, and Sami. L. Gilmore, .Oity Attorney, for Oity of New Orleans, Plaintiff, Appellee.

      Henry 0. Hollander and William J. Hennessey for Defendant, Appellant.
    Argued and submitted December 2, 1897.
    Opinion handed down December 13, 1897.
   The opinion of the court was delivered by

Breaux, J.

The defendant was charged with having violated an ordinance of the city of New Orleans relative to lotteries.

He was convicted and sentenced to pay a fine of twenty-five dollars and to be imprisoned ten days, and in default of payment of the-fine to ten days’ additional imprisonment.

The ordinance under which he was fined makes it unlawful for any one to keep a lottery office.

The second section sets forth that it shall not be necessary to' prove the actual sale of lottery tickets in any office or premises, but that any device used to indicate that tickets are kept for sale, or to' give information or the result of any drawing or pretended drawing should be taken and accepted as a sufficient proof of the keeping of a lottery office or shop.

Upon the trial in the recorder’s court the defendant interposed a demurrer fco the ordinance on the grounds that it is in violation of Arts. 2 and 6 of the Constitution of the State of Louisiana and of the Constitution of the United States.

Further, substantially, that it is arbitrary and destroys the presumption of innocence which belongs to the accused of right and compels him to establish his innocence affirmatively.

This demurrer was overruled and defendant pleaded not guilty.

It appears that the defendant was engaged in the unlawful sale of lottery tickets. He occupied a place in which there were the needful implements to carry on a lottery; he made tickets and sold them.

The first section of the ordinance under which he was prosecuted is in itself complete. It can stand by itself. It was intended by the council of the city to be enforceable without reference to the second section of the ordinance. The second section of the ordinance may be disregarded without the necessity of deciding that the first section is null. It follows that that which was meant by the Oity Council remains as expressed in the first section.

This section reads:

“That it shall be unlawful for any person or persons to keep a lottery office in any place or manner in the city of New Orleans for himself or others, as an individual partner, shareholder, officer, manager or agent.”

From the evidence before us it appears that there was a violation of this section.

The second section alone, different from the first, can have no force or effect without the first. There was no objection raised to the admissibility of testimony on the ground that it came under the asserted illegal section. There was no evidence admitted that was not admissible under the first section. The defendant’s rights are not affected. Mr. Cooley in “Constitutional Limitations,” page 199, with great force and clearness says:

“Nor will a court listen to an objection made to the constitutionality of an. act by a party whose rights it does not affect, and who has therefore no interest in defeating it.” Section 199.

Part of another section reads:

“Nor can a court declare a statute unconstitutional and void solely on the ground of unjust and oppressive provision, or because it is supposed to avoid the natural, social or political rights of the citizens, unless it be shown that the injustice is prohibited or such rights guaranteed or protected by the Constitution.” Ib. 200.

In the ease before us the misdemeanor charged was brought entirely within the first section, to which there does not appear to have been any ground for objection.

One found guilty under the legal section is without a ground of defence because of an illegal section of the ordinance.

Having arrived at this conclusion, we might have rested our decree upon the reasons before stated.

But a further examination of the grounds of defence bearing upon the second section of the ordinance has not resulted in convincing us that it is unconstitutional and illegal, as alleged by the defendant. We have seen, the first section is not to be taken together with the second section; it is different with the latter, which can be of no effect unless it is tested with the former.

For instance, “ space ” inserted in the second section relates to the place of an unlawful lottery; the same is true of the word “tickets” in the section; “ sign sheets,” “bulletins” and other devices, all bearing upon the subject of lottery set forth in the first section, which first section expresses of itself the legislative will of the council.

When the quoted words are taken together with the first section, the act forbidden is made, if anything, more manifest.

One of the defendant’s grounds is that the ordinance makes the possession of lottery devices, “not prima facie evidence of guilt, but absolute conclusive proof of the keeping of a lottery oifice.”

The ordinance, in our view, is not as imperative as here contended, when the second section is taken with the first section.

The guilty intent, the keeping of an unlawful lottery, are then, by the terms of the first section read into the second section, and from that point of view no one is subject to arrest and conviction save those who violate the ordinance intended to prohibit unlawful lotteries.

The ordinance, in term (the first and second sections taken together) , sets forth what shall constitute its violation.

There is no presumption, primarily, against a defendant, and he is not required to prove his innocence, as urged here.

The burden is upon the defendant to make out his defence; as any other defendant he has the same protection the law allows in all cases of misdemeanor.

If we were to grant that the second section stands alone, even then there is highly respectable authority in support of the constitutionality of the asserted illegal section, in so far as it is contended against its constitutionality, that the mere exhibit of the ticket found on the person charged is enough to adjudge him guilty.

Mr. Sedgwick, in his Statutory Construction,” approvingly quotes from Thomas vs. State, 15 Indiana, 449, holding where a statute prohibited all sales of liquor, not even “ excepting sales for medicinal or sacramental purposes, such exception was made by implication.”

In the case before us for decision it follows, in the light of the foregoing quotation, that the second section, if taken alone, would not include within its terms those not engaged in keeping a lottery who had lottery devices in their possession.

The “exception may be made by necessary implication” is the language in the case, reported in 41 N. H. 553.

But in our judgment the ordinance in its entirety is legal without the necessity of supplyiug anything by implication.

The words used in the second section have a meaning with reference to unlawful lotteries, and are of some effect when taken with the first section.

We have considered the two decisions to which our attention was directed by counsel for the defendant, viz.: 108 California R. 680, 684; 98 N. C. 778.

They do not apply to the first section of the ordinance before us. They applied when pronounced, as they would apply here, if only section two of the ordinance were before us. The question in the cited cases was decided under an objection to an enactment or ordinance wholly independent of any other, throwing upon the defendant the bux’den of proving his innocence.

In our case there is nothing of the kind when the two sections are taken together.

It is ordered and adjudged that the sentence and judgment appealed from be confirmed.


text:
    No. 12,514.
    The State of Louisiana vs. H. S. Karstendiek and Willie O’Brien.

      Bill of Particulars. — Tlie affidavit ivas explicit enough, and the defendants without right to a bill of particulars.

      On Object. — The body of the statute contains one object and the title covers its provisions.

      Party to the Suit. — The State was plaintiff and not the society organized under the statute. The alleged wrongs of the latter were not before the court' for determination.

      Not Ultra Vires. — The municipality had power to pass the ordinance assailed.

      Made a Wrong. — The ordinance does not interfere or obstrnct the right of ownership.

      Bluest ion. — whether the defendants were culpable -ael non is not a question of itself reviewable on appeal.
    A PPEAL from the First Recorder’s Court of the City of New Orleans. Finnegan, J.

      Howe, Spencer & Goalee and H. G. Prevost for Plaintiff, Appellee.

      George J. Dhtereiner for Defendants, Appellants.
    Argued and submitted November 30, 1897.
    Opinion handed down December 13, 1897.
   The opinion of the court was delivered by

Breaux, J.

One of the defendants appeals from a judgment condemning him to pay a fine of twenty-five dollars and the other appeals from a judgment condemning him to pay a fine of two dollars and a half.

The charge upon which the judgment was rendered was that of cruelty to animals, in violation of an ordinance of the City Council.

The case comes before us on questions of law and such facts as may be needful to their decision.

. The first point urged by the appellant was that the recorder erred in not granting defendant’s motion for a bill of particulars.

It appears that the affidavit was made in good faith and that it was reasonable and that the law had been substantially complied with. It could have been amended at any time during the hearing in ease of insufficiency or defect. It was not amended, and on the trial it did not become apparent that an amendment or a bill of particulars was needful.

Substantially the defendants must have known the offence for which they were tried.

After this motion had been overruled and the defendants had taken their bills of exception, they made the defence that Act 19 of 1888 and the ordinance under which they were prosecuted violate Art. 29 of the Constitution.

With reference to the act it is argued that it contains three objects; two of these objects, it is asserted, are not necessary or incident to the main object.

The act assailed by the defendants as being unconstitutional is entitled an act relative to societies for the prevention of cruelty to animals;” their organization, their officers, members and agents, and the fines collected in prosecutions instituted by them and the duties of municipal corporations with respect thereto.”

The plaintiff seeks to support the act on the ground that the object is to prevent cruelty to animals in streets and other places of the municpal corporations; that under the title of the act it was germane to that part of the statute relating to the organization of societies for the prevention of cruelty to animals to add a section making it the duty of municipal corporations to provide by ordinance for the punishment of cruelty to animals.

It was contended that there was necessary “oneness” or unity of object in the act.

This position of plaintiff was controverted by the defendants, who urged that the title of the act is clear and that it could convey no other purpose than to provide for the organization of societies for the prevention of cruelty to animals, but that the other part of the act, as we take it, which provides for the organization of these societies, directs mayors of cities to commission their agents as special officers, are foreign to the purpose of the act.

From these propositions the conclusion is arrived at by the defendants, that the provision of this act contains three different non-germane objects.

They are briefly stated :

1. To authorize societies to prevent cruelty to animals.
2. To direct the municipal corporations to issue commissions to designated agents as special officers of the society.
3. To punish offenders.

In our view the different provisions of the act include a number of details which were deemed necessary in order to accomplish the purpose in view.

There is not here the least inconsistency; they all harmonize to one end.

There is difference in details, but none as to objects. The municipality has been given no power save that needful to accomplish the one statutory object. Two agencies, it has been repeatedly held,may be combined under one authority, with the view of carrying out' an end proposed.

Power may be given to two corporations and the statute is not illegal as containing two objects, from the fact that it also authorizes the forming of a society solely in matter of .the one object in view.

The title also is broad enough to cover all the provisions of the act and the body of the act contains one object to prevent cruelty to animals and is responsive to the title covering the one object. State vs. Taylor, 34 An. 981; Luckly vs. Police Jury, 46 An. 686.

We take up the next ground of defence: the act violates Art. 235 of the Constitution and permits infringement upon the rights of persons.

This objection is founded upon the asserted favoritism of the society.

If there is any foundation in fact in the position it would be evidence of the violation of the statute by the society, and not an indication of permission to commit trespass or to inflict an injustice.

The matter of notice to one and not to the other, that he is exposed to arrest because of his direct or indirect violation of the ordinance, does not give rise to any question of unconstitutionality of the statute.

The complaint is not before us contradictorily with the asserted offending society. Moreover, if it be as asserted, the favoritism could not be justified by any of the terms of the statute.

The prosecution was instituted in the name of the State; it can not be (as defendants would have it) presumed that it was instituted by the society. The society not being a party can not here be held responsible for alleged partiality in matter of the enforcement of the statute relative to cruelty to animals.

Illegality of the ordinance, to prevent cruelty to animals, is also urged on the ground that it does not come within the scope of the police power of the city; that the police power does not extend to the protection of animals in the manner the ordinance would sanction; that there was no breach of order or disturbance of any kind, and the act of the defendant in question was of a personal character; it concerned only the appellants personally.

We take it that the Legislature had conferred needful power to the council to pass ordinances to prohibit nuisances.

This conferred upon the city government authority to impose penalties upon those who make an unlawful, unreasonable and offensive use of their property. Cruelty to animals on the public street, it has been held, works annoyance, and, as such, it is in violation of the rights of the public.

The objection of the appellants, that the ordinance interferes with private rights of property and the liberty of using it, and of enjoying the ownership, is equally as unfounded.

The rights of the owner of animals can not be injuriously affected or obstructed under the terms of an ordinance requiring that it be not cruelly treated in the public places of a city.

The statute relating to animals is based on “ the theory, unknown to the common law, that animals have rights, which, like those of human beings, are to be protected. A horse, under its master’s hands, stands in a relation to the master analogous to that of a child to a parent.” Bishop on Statutory Crimes, Sec. 1101 et seq.

Reasoning from that basis, we feel certain that the ordinance and statute do not interfere with the private right of property as claimed. In answer to the contention that we should review the facts, we deem it proper to say:

This being an appeal from a fine imposed under a municipal ordinance, this court is not vested with jurisdiction to determine on the facts of the case save to the extent needful to pass on the law points presented.

This court has naught to do with the guilt or innocence of those against whom these proceedings were instituted. This being exclusively a matter of fact does not come within the exercise of our appellate power.

■ It is ordered and adjudged that the judgment appealed from be affirmed.


author: Miller, J.

text:
    No. 12,586.
    State vs. Thomas Hagan.
    On the question whether the accused or another inflicted the wound resulting in the killing for which the accused is indicted, the charge that the jury must acquit, if satisfied the other, and not the accused, gave the fatal stab, accompanied with the refusal to instruct that to convict there must be proof beyond a reasonable doubt that the accused inflicted the wound is error, especially when the refusal is accompanied with the statement by the trial judge that the charge requested is not the law.
    APPEAL from the Fourteenth Judicial District Court for the Parish of Pointe Ooupée. Talbot, J.

      M. J. Ounningham, Attorney General, Alex. Hebert, District Attorney, M. T. Hetoes, Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      William O. Carruth and O. 0. Provosty for Defendant, Appellant.
    Argued and submitted December 4, 1897.
    Opinion handed down December 13, 1897.
   The opinion of the court was delivered by

Miller, J.

The accused sentenced for the murder of Miles Ham - mond takes this appeal.

It appears from the bills that the accused and Pressly Stevens were engaged in a difficulty and that Miles Hammond, endeavoring it is stated to separate the combatants, was stabbed and killed. Whether the fatal stab was by the accused indicted for the killing or by Pressly Stevens, was the subject of conflicting testimony. The court charged the jury if they were satisfied the fatal blow was inflicted by Stevens and not by the accused, they must acquit. The court further charged if after considering all the testimony the jury had any reasonable doubt as to the guilt of the prisoner, it was their duty to acquit. Counsel for the accused requested the additional charge that in order to convict, the jury must be satisfied beyond a reasonable doubt the fatal blow was inflicted by the accused, which the court refused to give, stating in the presence of the jury it was not good law, “ as the reasonable doubt had to result from the consideration of all the facts of the case. Exceptions were reserved to the charge as given and to that refused. The rule for new trial was based on the alleged misdirection in the main charge, the refusal to give that requested, and on the statement of the trial judge in refusing to give the instructions asked. The judge in signing the bill states that the verdict was sustained by the testimony; that but a small portion of the charge is contained in the bill and it is needless for him to say anything in regard to it, and he adds at the time of giving the charge deemed objectionable he thought it favorable to the accused.

On behalf of the accused it is urged that stating to the jury if they were satisfied the fatal blow was inflicted by Stevens and not by the prisoner, they must acquit, carried the implication if not thus satisfied they must convict the accused. The burden of proof was on the State to establish the guilt of the accused beyond a reasonable doubt, and even if the jury were not satisfied that Stevens gave the stab, they could not convict the accused unless satisfied beyond reasonable doubt of his guilt. It is urged this part of the charge was calculated to limit the consideration of the jury to the question whether the proof was satisfactory that Stevens stabbed the deceased, and we appreciate that if the testimony left it doubtful whether the stab was by Stevens or the accused, he was entitled to the benefit of the doubt. It is claimed that any implication unfavorable to the accused that could be deemed to arise from that portion of the charge the subject of complaint was corrected by the proposition given to the jury that to convict they must be satisfied beyond a reasonable doubt of the guilt of the accused. It is urged on behalf of the accused that an erroneous charge although modified or changed by other instructions is still objectionable. 3 Wharton Orim. Law, par. 3248. But any difficulty we might have on this branch of the case is subordinated to that we encounter on another phase of the exception.

The court had made the question whether Stevens gave the stab the subject of a special charge. If it was proper to instruct that the jury should acquit if satisfied Stevens gave the stab, it was natural that on behalf of the accused the instructions should have been asked that to convict they must be satisfied the stab was by the accused. The requested charge corrected any inference unfavorable to the accused the jury might otherwise draw from the proposition to which the exception was reserved. There could certainly be no conviction without proof beyond a reasonable doubt that the stab was by the accused and that was all the requested instruction affirmed. If the trial judge had simply declined the request the case would rest not on the issue whether he had not already given in substance the charge asked, but in refusing it he added, in the presence of the jury about to retire, that the proposition requested, that to convict there must be proof beyond a reasonable doubt that the accused gave the stab, was not the law. This was, we think, error. The State vs. Chandler, 5 An. 489. The addition that the reasonable doubt must result from all the circumstances was, in our view, no material qualification of the statement to the jury as to the indispensable requisite to conviction. The statement was well calculated to convey to the jury that, although not satisfied beyond a reasonable doubt the accused inflicted the fatal wound, they might still convict. If the charge taken as a whole with the refusal of that asked, and the addition of the trial judge in announcing his refusal tended to produce a wrong impression on the jury to the prejudice of the accused, the verdict can not stand. That the accused can not be convicted without proof beyond a reasonable doubt of his guilt should be left in no uncertainty by the charge, and if the instruction as to that requisite for conviction is calculated bo mislead the accused is entitled to relief and a new trial.

It is therefore ordered, adjudged and decreed that the sentence of the accused be set aside, and he be held for another trial.


author: Blanchard, J.

text:
    No. 12,503.
    Succession of Jean Baptiste, Known as Louis Rayssiguier, vs. Paul L. Fourchy and Mrs. Hortense Darcourt.
    Question raised one of fact; issue presented — ownership of certain securities.
    Case not free from doubt; decision turns on preponderance of evidence and probability.
    The failure to call a witness does not justify an arbitrary presumption of suppression of testimony, or of material facts.
    Failure to find the money at the death of the party for which the bonds were sold not incompatible with the theory of their actual sale nine months before.
    PPEAL from the Civil District Court for the Parish of Orleans, Ellis, J.

      J. Numa Augustin and Charles F. Claiborne for Plaintiff, Appellant.
    P. L. Fourohy for Defendant, Appellee.
    Argued and submitted June 16, 1897.
    Opinion handed down December 13, 1897.
   The opinion of the court was delivered by

Blanchard, J.

This is a contest over four bonds of the city of New Orleans, valued at four thousand dollars.

Plaintiff claims the ownership of the bonds, brings this action, sequesters the bonds and prays judgment decreeing his ownership and awarding him possession.

The defence is that Mrs. Darcourt, defendant herein, is the owner of the bonds.

The judgment below was in favor of defendants, and plaintiff appeals.

Jean Baptiste Rayssiguier, generally known as Louis Rayssiguier, a native of France, came to New Orleans years ago and settled there. He was poor, bat by patient industry, frugality and economy, built up a little fortune and became a property holder.

He married and one child was born to him, which, however, died in infancy.

He became estranged from his wife and was separated from her for a period of about two years before his death.

He died June 8, 1896, intestate and non compos mentis. He had been ill a long time. His disease was softening of the brain. Some three or four months before his death his mind became greatly affected, was unsettled and wandering. He became bereft of memory, was in a state of complete mental inertia and entirely unfit to attend to his business.

Dr. Souchon, a reputable physician who attended him, rightly con-sidered it is his duty to report his condition to the French consul and to the other Frenchmen who were friends of the sick man.

The person and property of the invalid.required the attention and oversight of some one legally authorized to perform such duty. •The physician advised his interdiction. Proceedings to this end were instituted, but before completed the sick man, whose illness had taken a sudden turn for the worse, died. His succession was opened, and this action is brought by the administrator thereof. Subsequently, the sister of the deceasd, Marie Rayssiguier, Widow Calaxte Victor Molliere, a resident of France, was recognized as his sole heir, and caused herself to be substituted as plaintiff herein.

During his last illness, and for a long time prior thereto, the constant attendant of the deceased was Jules Luminet, the brother of Mrs. Darcourt, defendant herein. Luminet was the close friend as well as the nurse of the sick man, who seems to have relied upon him for attention to his business affairs as well as attendance upon his person. He was at once his adviser, confidant and business manager.. Eleven months after the death of his master Luminet himself died. We are thus deprived of the light which his testimony could have shed upon the doubtful phases of this case. The suit had been filed months before his death, but had not come up for trial and his testimony had not been taken.

The bonds in question had been purchased by Rayssiguier through a broker in February, 1894. The price paid was four thousand dollars.

According to the contention of the plaintiff, Rayssiguier never parted with the ownership and possession of the bonds, but kept the same in a combination safe at his house, from which, during his illness and mental incapacity, they were, without his knowledge or consent, extracted, to subsequently, and after his death, turn up in the possession of defendants under claim of ownership by Mrs. Darcourt, one of them, and that Luminet, her brother, had a hand in the matter.

The contention of the defendants is that on September 2, 1894, seven months after his purchase of the bonds, Rayssiguier sold the same to Mrs. Darcourt, that she paid him four thousand dollars in cash for them, that they were then and there delivered to her, and have been lawfully in her possession ever since.

The appearance of Paul L. Fourehy as defendant herein is explained by the fact that he was the legal counsel of Mrs. Darcourt and as such the bonds had been placed in his hands for collection. Being found in his possession they were sequestered there, and he, together with the party for whom he held them, whose name he had been required to disclose, were made parties defendant.

There is no dispute that Rayssiguier was in the full possession of his mental faculties in September, 1894, when, as alleged by defendants, he sold the bonds to Mrs. Dareourt.

The evidence shows he was still in possession of his faculties in March, 1895, more than six months later, and able to take care of himself mentally and physically.

But that his mind was even then weakening under the insidious attacks of his disease is shown by the fact that he had forgotten the combination of his safe, and it became necessary to call in an expert to open it. Mr. A. Roy performed that service on March 12, 1895, and, called as a witness by plaintiff, testified that at that time Rays-siguier was very rational.” He states that after opening the safe he gave the combination to both Rayssiguier and Luminet, his attendant.

According to plaintiff the bonds were at that time in the safe, but there is no evidence of the same.

According to defendant the bonds were at that time not in the safe, but in the possession of Mrs. Dareourt, at her house, and such is her testimony.

Plaintiff’s case is plausible in the theory on which it rests, but must give way before the uncontradicted facts established by the unimpeached testimony of defendants’ witnesses. That the case is not free from doubt must be .admitted; but the preponderance of evidence and probability resolve this doubt in favor of defendants’ side of it.

Mrs. Dareourt’s testimony of the fact of the purchase, when and where and how consummated, is clear and unequivocal. Concerning her, the District Judge, in whose presence she testified, says: “I never saw a witness in court whose demeanor and conduct on the stand impressed me with more confidence in the truth of the statements made, and I have no doubt of the entire truth of all she stated.’’

She told how she became possessed of the money with which the purchase was made; how little by little it had been accumulated from gifts of funds made by her husband when he was prosperous, and how she had put it away and saved it until it had amounted to the sum of four thousand one hundred dollars; and how, taking four thousand dollars of it, and leaving a balance of one hundred dollars in the wooden box at her house, where it had been kept, she, with her mother-in-law, went to the house of Rayssiguier and effected the purchase of the bonds, taking his receipt for the money paid him for them. She produces this receipt, swears it was written then and there by her mother-in-law, and that she saw Rayssiguier affix his signature to it. She offered various other receipts executed by Rayssiguier for money paid him by his tenants, in order to prove by comparison of handwriting the genuineness of his signature to the receipt given her when she paid the money for the bonds.

All these receipts came up in the original, and the comparison of handwriting bears out her contention.

Are we to reject her testimony, hold she has perjured herself and that her brother, Jules Luminet, betrayedhis employer’s confidence, acted the scoundrel by filching these bonds from the safe and delivering them into the possession of his sister?

To reverse the judgment herein we would be required to do this. Plaintiff might have some ground for demanding this, did her testimony stand alone and uncorroborated. It has rightly been held that the testimony of a party in his own favor to establish a large claim against a succession is to be received with the greatest caution ; that it is, in itself, of the weakest character, and unless strongly corroborated can not serve as a basis for a judgment of recovery. Cutter vs. Succession of Collins, 37 An. 95.

But this is not a “ claim against a succession ” in the sense as used in that case. The testimony of Mrs. Darcourt is here used as a shield of defense against the attack of the representative of the succession, and in vindication of her possession of the bonds and her claim to their ownership. The presumption of ownership arises from the possession of a movable (19 An. 13), and her testimony in the case was essential to sustain this presumption against the assault of the plaintiff.

But her testimony stands not alone and uncorroborated.

It is corroborated by the testimony of E. C. Kelly, a lawyer, who states that the husband of Mrs. Darcourt, about the date of her purchase of the bonds, consulted him as to the legal requisites in effecting such a purchase, telling him at the time that his wife wanted to purchase bonds.

It is corroborated by the testimony of P. L. Fourchy, also an attorney, who states that Mrs. Darcourt herself had a conversation with him, about that time, in regard to the manner of purchasing bonds, and told him she had the opinion of Mr. Kelly on the subject.

It is corroborated by the receipt of September 2, 1894, for four thousand dollars for four city bonds, signed by the deceased, and the fact that it is not stated in this receipt from whom the money was received, but. simply that four thousand dollars had been received for four city bonds, does not invalidate it as an acknowledgment of the deceased, that he did not receive that much money for the bonds. From whom received is supplied by the testimony.

Besides the proven signature of the deceased to the receipt, its genuineness is further demonstrated by the fact that the paper upon which it is written is identical in texture, make and appearance with the paper used by him in various receipts which he had given to other parties for money paid him.

Mrs. Darcourt’s testimony |is further corroborated by the fact that the city paid her interest on the bonds, one hundred and twenty dollars, after she got possession of them. It is true it is she who testified to this payment, but she tells how the money was paid. She went to the City Hall and there a cheek for the one hundred and twenty dollars was given her on the State National Bank, and she collected it herself at the bank.

If this was false, plaintiff could have demonstrated it by ruling the bank or the city authorities to produce this canceled check. It Was not done.

It was unfortunate that'the mother-in-law, who was present when the money was paid and the bonds purchased, was not produced as a witness.

She should have been placed on the stand by defendants, and they failing to do so, by plaintiff.

Plaintiff’s counsel 'insist that the failure to produce her as a witness by defendants militates greatly against their case. And so it does.

But does it overthrow their case?

We can not hold that it does when the case is otherwise made out.

Nor will the failure to call a witness justify an arbitrary presumption of suppression. Wharton on Evidence, p. 126V.

Rayssiguier received four thousand dollars for the bonds in September, 1894. When he died in June, 1895, nine months later, all the cash that could be found belonging to him was six hundred and fifteen dollars and eighty cents.

How was the other used; what became of it? Plaintiff urges that this is a circumstance detrimental to defendants’ case, and it is not without weight.

Nevertheless, the failure to ñnd more of the money at his death is not incompatible with the theory of the sale of the bonds nine months before.

It could have been disposed of by Rayssiguier in various ways. For a period of six or seven months following the sale of the bonds he was rational and entirely able, mentally and physically, to care for himself and his property, and to dispose of the latter as he saw fit. It is just- as plausible, too, to suppose that the money could have been stolen as that the bonds were stolen.

Judgment affirmed.

Nicholls, O. J., takes no part; having been absent at the argument of the case.


text:
    No. 12,480.
    Miss Mary Hottinger vs. John G. Hottinger et als.
    The amount fixed by the District Court ior rental was amply sustained by the facts, and it in consequence remains unchanged.
    The plea of forgery of a paper held by one of the heirs is not sustained by a preponderance of evidence. In matter suggesting fraud and crime on the one hand, and integrity and fairness is claimed on the other (in defence against the charge) the latter should prevail, unless the evidence shows that the crime ■ was committed.
    Altering a written instrument in any immaterial point, without consent, is not of itself cause to void the instrument.
    The collation claimed was not allowed, as the weight of the evidence sustained the plea of its settlement.
    The appellees named in the petition to this court for an amendment of the judgment on appeal must be sent back for the exercise of their appeal, as the judgment can not in this appeal be amended as to them. The opinion in Fields vs* Creditors, 10 An. 545, has been repeatedly affirmed by this court. Under an answer amendments can not be made betweeu an appellee and his co-appellees.
    A PPEAL from the Oivil District Court for the Parish of Orleans. Monroe, J.

      John Bassich, Jr., for Plaintiff, Appellee.

      A. E. Blaekmar for Mrs. Mary Traub, Mrs. Carrie Morreau and Mrs. Marie Louise Ballauf, Defendants, Appellees.

      W. S. Parkerson for F. R. Hottinger, Defendant, Appellant.

      Mrs. Catherine Langenstein, Defendant, Appellee, in propria persona.

    Argued and submitted on briefs June 15, 1897.
    Opinion handed down December 13, 1897.
   The opinion of the court was delivered by

Breaux, J.

This suit'is brought by the widow of Frederick Hot-tinger against her children for the partition of the community property. In the partition proceedings the widow claimed that the expense for graveling the street in front of the property paid by her during her usufruct be allowed her, and that some of the heirs be ordered to collate money alleged to have been advanced them; demands for collection were also advanced by some of the heirs against their coheirs ; it was claimed besides that one of the heirs should pay rent for community property occupied by him; and there was a demand by one of the heirs for compensation for services rendered by her to her deceased father. The judgment of the lower court directing the partition rejected the plaintiff’s demand for the graveling expense paid by her; decreed collations by two of the heirs, and that one of them should pay rent for his occupancy of the community property, and rejected the demand of the heir claiming compensation for personal services to her father. From this judgment decreeing the partition and disposing of the claims of the widow against the heirs and of the heirs against their coheirs, there is but one appeal, that of Frederick Hottinger, who complains only of the judgment against him for collation of money and for rent of the community property.

There are answers to the appeal by the widow and some of the heirs praying for an increase of the judgment against the appellant. The answers ask besides that the judgments as between the appellees be changed. Thus the widow taking no appeal asks that she be allowed the money she paid for graveling the street; Mrs. Langenstein, the heir claiming for services rendered her father, asks that her demand be allowed. Others of the heirs, without appealing, ask that collations be decreed against their coheirs, and the widow and some of the heirs pray that the designation by the lower court of the auctioneer to make the partition sale be changed' The appeal of Frederick Hottinger submits the question of the collation required of him, and whether he is liable for rent, and the •answers to his appeal are competent to demand that liability in both respects be increased. In all other respects it is manifest the answers seek to change the judgment as between the appellees. It is claimed that the right to such changes is conferred by Art. 887 of the Code of Practice, but this article entitling the appellee without appealing to ask by his answer a change in the judgment is limited to those modifications that affect only the appellant, and does not authorize any changes in the judgment as between appellees. It results we can deal with the issue between the appellant and the appellees, but in other respects the judgment of the lower court must remain undisturbed. Fields vs. His Creditors, 11 An. 545; Converse vs. Steamer Lucy Robinson, 15 An. 433; Lallande vs. McRae, 16 An. 193; Berthelot vs. Fitch, 44 An. 504.

In aid of the demand that the appellant, Frederick Hottinger, shall pay the rent of property of the community, it is shown that his occupancy was for the years 1874, 1875 and 1876, accompanied by proof of the rental value. On the other hand, we think it proved •that the agreement between Frederick Hottinger, the father, and his son was that he was to pay taxes and make necessary repairs to be in full compensation for his occupancy. The property consisted of two tenements under one roof, singly assessed for taxes. The contention of the son is that occupying but one of the tenements he should pay but half the taxes. If a division of taxes had been intended we think it would have been expressed. As we appreciate the agreement, he is bound for the taxes on the whole property, a conclusion we more readily accept under the proof that these taxes, are about, if not not less than a fair rent, and this was the view of the lower court.

The contention has been earnest as to the amount Frederick Hot-tinger received from his father. Our view in reference to the discharge from all liability, whatever the amount, makes unnecessary a detailed examination of the conflicting testimony as to this amount. In the testimony of the son there is the positive statement, all he received was five hundred and fifty dollars. He managed his father’s business, that of a dairy, sold the milk, received the money, paid taxes and made the disbursements necessary for conducting the business. He testifies, in effect, it was by his savings he accumulated the five hundred and fifty dollars he received. He knew the extent of the accumulations, and if truthfuj, his testimony is conclusive. The testimony of the mother is that he received nine hundred and fifty dollars, and at one time it is sensibly weakened by her state ■ ment, on cross-examination, that four hundred and fifty dollars of the amount was taken by her or by him from her armoir, and five hundred dollars he received from her son-in-law. The danghter’s testimony to the giving of the money is, we think, reduced by cross-examination to her witnessing the counting of four hundred and ninety dollars, but that she did not see the money given. We have too, from some of the heirs, testimony of the verbal admissions of Frederick Hottinger of the money he received. The remembrance of the perfectly honest witness of what another has said in reference to a disputed liability may not be accurate, and when the testifying witnesses are parties to a heated controversy in relation to the asserted liability, and interested in maintaining that liability claimed to have been admitted, there is reason to receive with caution such testimony of admissions. It is impressive, too, on this branch of the case, that years ago, soon after the father’s death, the collation to be made by Frederick Hottinger was the subject of controversy, on oppositions by the heirs to the mother’s account as administratrix of the succession of her husband. It is reasonable to suppose the amount Frederick Hottinger had received was then known to the heirs judicially asserting that amount. In the opposition to the account then filed by some of the heirs, it was alleged he received five hundred and fifty dollars; the same amount he now testifies was all he received. In the condition of the proof we would not feel at liberty to reject his positive testimony, but all discussion on this point is subordinated to the other issue as to the discharge from all liability he asserts, and which we now propose to examine.

It is in proof that the son, Frederick R. Hottinger, for years after his majority before his father’s death rendered services to which we have already alluded, in conducting the dairy. There was, undoubtedly, a basis for compensation for such services. The son testifies that in 1874, when he left his father’s house to be married, there was a settlement by which he was authorized to retain the five hundred and fifty dollars he had received. He produces a paper bearing date November 17, 1874, addressed to Father Bueargart, reading: “I, the undersigned, the father of F. R. Hottinger, have settled all claims between us both and 1 hereby give my consent that he may have what money he has in full settlement. Signed, yours respectfully, F. Hottinger.” On the right of this paper is what seems to be five dollars and fifty cents crossed by lines drawn through the figures, and on the left are figures claimed on one side to be five hundred and fifty dollars, and by the widow and heirs it is insisted that it is eight hundred and fifty dollars. The testimony is that the five dollars and fifty cents was placed on the paper by F. Hottinger when he signed the paper in 1874. Underneath this certificate of settlement is written in German a note to the priest requesting him to call on the writer in the evening, and this is signed Vater F. Hot-tinger. Vater is the German for father, and this addressing the priest is, we gather, in accordance with a custom observed when the son leaves the father’s house. The son, testifying both signatures are his father’s, states the certificate is in his hand, and he further testifies he was given the paper to take to the priest.

If this paper is not a forgery, with the son’s testimony it establishes his discharge from the liability asserted against him. The gravity of the imputation incident to a decision against the validity of the paper has not escaped our careful consideration of the issue. It is impressive that there has been no attempt by expert testimony to impeach the signature to the certificate, nor any testimony on the point save that of the son, distant and positive on the subject, unless weakened by his cross-examination.

Our attention is directed to that part of the cross-examination in which, after the sworn testimony to the signature,-he is asked: “Which is your signature here. Yours respectfully, F. Hottinger, or the last one?” The answer is: “ Yes sir, that German signature is father’s.” This is followed by the question: “ And this heading, Father Bueargart, was put there, and you were given it to go to the father; is that right?” To which the witness answers, “Yes.” And again to the question, “ This has been offered by you?” the witness answers, “Yes.” It is claimed that in this portion of the testimony the son admits he and not his father signed the paper. This cross-examination following quickly the witness’ explicit statements both signatures to the paper were his father’s, suggests that if a forgery was designed, the witness would have been careful not to put his statement and its succeeding contradiction in such marked juxtaposition. When the cross-examination had brought the witness in this apparent opposition to his previous statement, there was an interposition of counsel with the protest “ that is no way to examine the witness; show him the paper.” And the witness then renewed the statement, both signatures were his father’s. We do not feel at liberty to hold the paper a forgery, on an implication based on an answer that may naturally be attributable to inadvertence and corrected by the witness on his re-examination. Again, it is claimed there is a patent similarity between the signature— Vater P. Hottinger conceded to be genuine and P. Hottinger to the certificate of settlement. Usually, when forgery is the issue, the testimony of those familiar with the handwriting of the party is produced, and such testimony would be quite effective if, in this case, there was the variance between the signatures marked as claimed in the briefs. In the absence of any evidence assailing, and with the positive testimony sustaining the signature, we would have great difficulty in founding the conclusion of forgery merely on our impression derived from an inspection of the signatures, especially when our examination fails to detect the alleged variance. It is our opinion the paper stands proved.

It is claimed on another ground that the paper is void, that is altered. It is incontestably proved that the son of F. R. Hottinger crossed the 5.50 and placed the figures on the right of the paper. His statement is that looking over the paper with his mother a short time previous to the trial he crossed the §5.50 and placed the figures intended to be $550 on the left, and that he did this to make the paper conform to the sum his father had received. The suggestion that P. R. Hottinger added the $5.50 is opposed to his own testimony as well as that of his son, who drew the lines across the 5.50 already on the paper. It is difficult to conceive any motive for P. R. Hottinger to add 5.50 to a paper expressing his full discharge for all the money he had received. The suggestion he added the $5.50 is based on his cross- examination. He had testified that his father had written the 5.50 in 1874 when he signed the paper, and that Hottinger, Jr., had added the left-hand figures about a month previous. On the cross-examination the witness was asked, “Did you not say these figures were put there a month ago?” he answers yes, and then follows the question, “There were no figures there previous?” elicting no. This part of the testimony it is claimed is inconsistent with his statement that his father placed the §5.50 on the paper. The form of the question was well calculated to direct the witness’ attention to the left-hand figures, and his answer if understood to refer to those figures is consistent. Those figures he had stated had been added a month previous, not the right-hand figures placed there, he testified, twenty years before — i. e., 1874.

Our attention is also directed on this question of alteration to the testimony of F. R. Hottinger that the $6.50 was written with the same pen and ink. The trial judge looking through the microscope observed that the figures did not seem to bear out that statement. Thereupon, the witness using the microscope stated he would now say not the same ink, but the same pen. The issue was whether the witness’ father had placed the figures on the paper, and to this the witness had testified. Any witness, it seems to us, testifying to a paper made more than twenty years before, might be mistaken as to the details of the pen and ink used without discrediting his statement to the main fact under investigation. Because mistaken as to the pen and ink we can not infer that therefore the witness added the 5.60 and not his father as he testifies. Here again the absence of any motive for the sonto add the 5.50 confronts us. The paper without any addition expressed the discharge. The probability harmonizes with the witness’ testimony that the apposition of the 5.50 was the father’s act, and hence there is no basis to impute to the witness any alteration in this x-espect.

There remains the question of the effect of the additions to the-paper by the son of the witness, F. Hottinger, Jr. His explanation, accompanied with the statement he did not know of this suit when he crossed the five dollars and fifty cents and added the figures on the right, is commented upon as improbable, but the controlling question is the effect of the changes he made, whatever his knowledge. If this paper was before us expressing, as it does, a discharge of F. R. Hottinger from liability for the money he had received, it would not detract from that discharge to find five dollars and fifty cents at the foot. That insignificant sum we would readily interpret to refer to the five hundred and fifty dollars, the amount the son testified he received. No discharge would have been sought, least of all formally granted, if all the son had received was five and a. half dollars. The paper fully proved granting the discharge, or, to use its own language, expressing a full settlement of all claims between the son and the father, and the father’s consent that the son may have what money he has, in full settlement, would have been construed to refer to the money the son had received, as shown by the testimony, ñve hundred and fifty dollars and five dollars and fifty cents, would be deemed an error intended to mean five hundred and fifty dollars. The lines drawn through the 5.60, if not detracting from the paper, added no force to it. Without any crossing the rational interpretation would have read five hundred and fifty dollars, as intended by the father. The testimony as to the figures on the left is they were designed to represent $550. The witness who put them there knew that five hundred and fifty dollars was the sum his father claimed to have received. Naturally he would have placed that sum on the paper, not eight hundred and fifty dollars. There was no reason for the apposition of eight hundred and fifty dollars. It would tend to conflict with his father’s testimony. When, therefore, the witness who wrote the figures testifies he intended five hundred and fifty dollars, consistent as it is with probability, it seems to us we must accept the testimony. In this view the changes on the paper made by Hottinger, Jr., were of an immaterial character. We have had on this branch of the case an elaborate citation of authority as to the effect of alterations in written instruments offered in evidence, but the result of all authority is to affirm the principle in the text-book, i. e., the alteration must be material, “ that causes the writing to speak a language different in legal effect from that it originally spoke.” 1 Greenleaf on Evidence, Secs. 567, 568. While deprecating any changes in writing to be used in evidence, we find no basis either in the motive that prompted the changes in the paper or in their effect, to annul a paper fully proved, and which without the changes would be equally, if not more effective, to show the settlement and discharge of F. R. Hottinger from liability for the collation demanded.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed in so far as it condemns F. R. Hottinger to collate five hundred and fifty dollars, and in all other respects be affirmed at appellee’s cost.

The Ohief Justice takes no part in this decision, as he was not present when the case was argued.


author: Nicholls, C. J.

text:
    No. 12,523.
    E. C. Drew vs. His Creditors.
    1. Incidental orders of a District Court made in the execution of a previous judgment of that court are generally not appealable.
    2. It is no ground for the dismissal of an appeal that papers involving proceedings 'which took place in the lower court at a date later than that of tbe judgment appealed from were omitted from the record. Tinder such a condition of facts the papers were properly omitted. If legally demandable by either party, for special reasons assigned, the party entitled thereto could have them produced by proper proceedings.
    3. When it is claimed in the Supreme Court, on a motion to dismiss by an appellee, that the appellant has, after taking his appeal,.forfeited the same by voluntary execution of the judgment, it is for that court to pass upon that question. Ordinarily its determination is dependent on matters enJ>ais, as to which oral testimony has to be taken. Under the practice of the Supreme Court it has been the rule to remand the case to the lower court to have such testimony taken before it contradictorily between the parties, with directions to forward the same to the Supreme Court for action. When, however, the evidence of the execution of the judgment by the appellant rests not upon matters enpais, but upon pleadings filed in the lower court by appellant after he has taken his appeal, provable bydulycer. tified copies of the same from the clerk of court, it would be a useless proceeding to remand the case, in order to have this copy embodied in the transcript. The annexing by the appellee of such cert.fled copy to the motion to dismiss is sufficient in the absence of allegation and showing of injury.
    4. Whereupon arule taken upon a party to show cause why he should not be punished for contempt for failing to obey an order of court directing him to make a cession of his property he attempted unsuccessfully to justify his action by claiming that he had appealed from such order, aud that his appeal, though under a bond simply for costs, had stayed the execution of the judgment and divested the District Court of jurisdiction, he should, when ordered to be imprisoned for contempt, if he did not obey the order, within a fixed delay, have applied to the Supreme Court for a writ of prohibition or certiorari. He can not, after having made the cession as ordered, and done away with the order of imprisonment, bring up and have tested through a devolutive appeal from the action of the court on the rule for contempt, the legality or correctness of that order. He can not substitute a devolutive appeal from an executed judgment for a prohibition or certiorari.

    5. An issue incidentally thrown into a pending suit solely for the purpose of determining the conclusions to be reached in the latter, can not, when the real issue in the case has been finally disposed of, be detached from it and made the subject of a separate and independent appeal. Succession of Rose, 48 An. 423; Gathe and .Broussard vs Hiriart, 49 An 313.
    6. Where a party ordered to make a cession of his property subsequently makes the surrender as ordered by the court, asking that his cession be accepted, and that he be fully discharged, and a meeting of creditors is held on his own petition, and a syndic nominated and elected, he takes his case outside and beyond the doctrine of the decisions in Factors and Traders’Insurance Oo. vs. Harbor Protection Co., 37 An. 233, and Ouny vs. Dudley, 6 R, 77, aud forfeits his right of appeal by voluntary acquiescence.

      7. It is immaterial that appellant stated that tile cession was made “under protest;” when by liis affirmative prayer lie prays that his cesslo bonorum be accepted, and that after legal delays and formalities he bo ftuly discharged.
    A PPEAL from the Second Judicial District Court for the Parish of Bienville. Watkins, J.

      Dormon <& Dormon, W. U. Richardson, J. W. Holberi and D. W. Stewart for Plaintiffs, various Creditors in Rule, Appellees.

      J, O. Thens for Drew, Defendant in Rule, Appellant.
    Argued and submitted June 1, 1897.
    Opinion handed down June 14, 1897.
    Rehearing refused December 1, 1897.
    Statement of Facts.
    E. 0. Drew having applied for the bene.fit of a respite, certain of his creditors made opposition to the same. The District Oourt on the 16th day of July, 1896, rejected the application, but, simultaneously, ordered the applicant to make a surrender of his property within ten days and granted him an appeal, suspensive in character, upon furnishing a bond of five thousand dollars and devolutive upon furnishing a bond of five hundred dollars.
    Drew on the 30th day of July, 1896, furnished a bond for five hundred dollars, the recitals of the same stating that “ it was conditioned for a devolutive appeal from the judgment.”
    The Supreme Oourt on appeal affirmed the judgment in so far as it rejected the application for a respite, but reversed it in so far as it ordered a forced surrender to be made. The case will be found reported in the 49 An.
    On the 1st of October, 1896, the District Oourt, upon the application of the opposing creditors, ordered Drew to show cause in open court on the 22d of October why he should not be held as in contempt of court and punished therefor for failing and refusing to obey the judgment and orders of the court and filing his schedule and making the surrender in insolvency as required of him in said orders and -judgment, and also to show cause why a day should not be fixed for a meeting of his creditors as required and prayed for.
    Drew for answer to the rule averred that he had taken an appeal and had perfected same by giving bond for costs within ten-days from the filing of the judgment in the respite proceedings sustaining the opposition and ordering him to make a surrender. That he had the right of appeal on said opposition, and that said bond was-under the law a suspensive appeal bond, and to file a schedule-of insolvency would be to acquiesce in the judgment appealed from of which he complained. That if said appeal bond was not good for a suspensive, it was good for a devolutive appeal. That the judgment appealed from was not for any specific sum of money, nor for the delivery of real estate nor movables, and that a bond for costs therefore was sufficient for a suspensive appeal. That he had the right, under said order of appeal granted and bond given, to an appeal from the judgment to the Supreme Court and to have same decided on appeal before he could be compelled to make a surrender.
    That he had not complied with the judgment and filed his schedule for the reason that he would thereby have acquiesced in the judgment then on appeal, and this action would have resulted in defeating his appeal and caused it to be dismissed. That his failure to-comply was not due to any disrespect to the court or its decrees, but-for the purpose of preventing an irreparable injury, as he had the right to do under the law. That all of his acts were done under the advice of his counsel, and he desired to exercise his right of appeal and have said judgment reversed thereon. That he had made efforts to give the suspensive bond as fixed, but it-was utterly impossible for him to execute said bond, as all of his property and funds were in-the hands of the court under writs of attachment sued out by the-opposing and other creditors and under the respite proceedings and schedule in the case.
    On the 28th of October, 1898, the District Oourt ordered and decreed that the rule be made absolute and that E. 0. Drew be incarcerated in the parish jail for a period of ten days, or until he complied with the orders of court, and that the clerk of court, e£-officio notary public, convoke and hold a meeting of creditors to appoint a syndic and to vote on the acceptance of the surrender, and that Drew be granted an extension of ten days from the adjournment of court in which to file his schedule.

      On the next day Drew applied for and obtained an order of appeal, suspensive and devolutive, from this judgment of the court, the court fixing the bond for a suspensive appeal at five thousand, and that for a devolutive appeal at five hundred dollars.
    On the 19th of April, 1897, Drew filed a petition in the District Court in which, after inciting the fact that he had obtained an order for appeal — (suspensive and devolutive) but that the appeals had not been perfected — that he desired that said orders be rescinded and a new order fora devolutive appeal be granted, “he prayed that the first ordei’s be rescinded and the court grant him an order of devolutive appeal.” The court acted upon this application; rescinded the original orders of appeal and granted a new order for a devolutive appeal upon furnishing a bond of one hundred dollars. Bond was furnished as ordered on the 1st of May, 1897.
    Appellees moved in the Supreme Oourt to dismiss the appeal for the reason, first, that the entire record had not been sent up in the transcript; that there had been a schedule of assets and liabilities and motion making a surrender, filed in obedience to the order of the court appealed from, also a meeting of creditors held for the purpose of electing a syndic and acting upon said surrender; that that schedule and motion and prooes verbal of meeting of creditors had not been made a part of said transcript — that they were necessary parts of the record to be considered on appeal in this case.
    2. That the appellant Drew had acquiesced in the judgment appealed from by making the surrender as ordered and by actively participating in the proceedings of meeting of creditors in the way of nominating and urging the election of the syndic of his choice who was elected by alleging that “ he was an honest but unfortunate debtor and entitled to the benefit of the insolvent laws,” and “ praying that his eessio bonorum be accepted and that he be fully discharged ” — that he had sent out circular letters to his creditors Soliciting them to send powers of attorney to his attorney, J. 0. Theus, in order that the said attorney might cast the votes of said creditors for his choice for syndic and the acceptance of surrender— for his discharge and for the sale of the assets in the manner he desired, one of which circular letters and blank powers of attorney they annexed. That he had used every effort in his power to have said surrender accepted and himself discharged, and lacked but few votes of having his discharge voted.

      Appellees subsequently amended their motion by making part thereof “the certificate of the clerk of the court showing the omission from the record of material parts of the same in the lower court by the instructions of the appellant or his attorney [without which they declared appellee could not be heard on appeal] and by annexing for consideration a certified copy of the parts of the record so omitted.
    The document so annexed was as follows:
    District Oourt, Bienville Parish, State of Louisiana.
    E. 0. Drew vs. His Creditors. | No. 1577.
    Now comes E. 0. Drew, plaintiff herein, and in obedience to judgment of the Honorable Court decreeing him to be insolvent, and ordering him to take a surrender of his property and under protest and without acquiescing in the judgment or abandoning his appeal, herewith presents a true, correct and faithful schedule of his assets of every nature and kind, except those exempt by law from seizure and sale and all of which assets are delivered and turned over to B. M. Manning, sheriff, provisional syndic, appointed by the court, except certain notes which are pledged to the Bank of North Louisiana, and fifty-six bales of cotton which are likewise pledged to said bank and note of Mrs. M. B. Winfield which had been misplaced: all of which had been pledged before the filing of the respite proceedings and which is shown by said schedule and also plaintiff’s books which are already in the possession of the court, and plaintiff presents herewith a true and perfect schedule or list of his creditors and the respective amounts due each of them, and which schedules are hereto annexed and made a part hereof as if the same were copied and recorded in the body of the motion.
    Plaintiff further shows that he is an honest but unfortunate debtor, and that he is entitled to the benefit of the insolvent laws favoring such debtors, and he hence prays that his eessio bonorum be accepted. That after legal delays and formalities he bs fully discharged. He prays for all other orders and decrees necessary and for general relief.
    (Signed) J. 0. Theus,

      Attorney.

      E. 0. Drew being by me duly sworn says: Thab all the allegations above set forth are true and correct. So help him God.
    (Signed) B. 0. Deew.
    Sworn to and subscribed before me this 6th day of November, 1896.
    (Signed) P. L. Mayfield,

      Deputy Clerk District Court.

    I certify the above to be a true and correct copy of the original on file and of record in my office.
    (Seal) (Signed) F. L. Mayfield,

      Deputy Clerk District Court, Bienville Parish, Louisiana.

    In opposition to the motion to dismiss, appellant referred to 1 La. '296, Leggett vs. Peet et al.; 24 An. 468, Yale vs. Howard; Johnson vs. Clark & Meader, 29 An. 762; Verges vs. Sheriff, S3 An. 410; .Jackson vs. Michie, 33 An. 724; and particularly to 37 An. 233, Factors & Traders’ Insurance Company vs. Harbor Protection Company, and Cuny vs. Dudley, 6 Rob. 77. He further contended that there was no evidence before the court of any fact tending to show .acquiescence in the judgment, and thab under no contingency could the court do more than remand the case. 32 An. 561.
    In appellant’s brief he said: “The judgment ordered respondent imprisoned in case the cession was nob filed within a prescribed time, and ordered a writ of arrest to issue at the expiration of the time in case the cession was not filed. The respondent being unable to give the suspensive appeal bond as fixed by the court under compulsion and under protest filed the schedule. The cession says that it is made under protest, and without waiving his right of appeal. This can not and does not acquiesce in the judgment and bar the ■right of appeal.”
   'The opinion of the court was delivered by

Nicholls, C. J.

The decree from which the present appeal is taken •directed that E. 0. Drew be incarcerated in the parish jail for a period ■of ten days, or until he comply with.the judgment of the court. It was rendered on a rule taken on him to show cause why he should not be punished for contempt of court in not executing the judgment which had ordered him to make a cession of his property within a specified delay.

In his answer to this rule Drew sought to excuse his non-execution of the judgment by claiming that had he done so without a direct, peremptory order so to do from the court, of a date later than that of the judgment, his action might have been construed as a voluntary acquiescence in the judgment, andmighthave cut him off from the appeal which he had taken from the judgment, which had-rejected his demand for a respite and ordered him to make a surrender.

The court overruled this objection, and entered the peremptory order for the execution of the judgment, which he had deemed necessary to have interposed as a safeguard for the prosecution of the appeal which he had taken. This decree having been made, Drew surrendered his property as ordered, though he declared in so doing that this was “ under protest and without acquiescing in the judgment or abandoning his appeal.”

The apprehension he was under that, in consequence of the execution'of the judgment prior to his appeal having been taken up and disposed of, the latter might be dismissed, was groundle s, as in due course the appeal was taken up and a final judgment rendered, affirming the judgment in so far as it rejected the application for a respite; but reversed it in so far as it ordered the applicant to make a surrender of his property.

The effect of the compliance by Drew with the orders of the court, whether done voluntarily or as the result of legal coercion, was to do away entirely and forever with the imprisonment which had been decreed on the trial of the mle for contempt of court. When the present appeal reaches us we find that the decree now appealed from has ceased to exist, and that this court has by its own judgment rendered in the main case (of which the order appealed from was a mere incident) already decided that that judgment was erroneous in so far as it ordered a cessio bonorwm to be made. In addition to this we find that the judgment of court ordering the surrender of property has in the meantime been executed in the lower court, on the ground that the appeal taken therefrom was not a suspensive, but a devolutive appeal. What precise, advantage appellant would, under the circumstances, expect to derive through this appeal, even if it were maintained, we do not see. We could not deal with the original judgment on this appeal, and besides our own judgment thereon, in so far as it annulled the same, has already furnished appellant with a basis for the protection or enforcement of his rights, if any such he has, resulting from the fact that there was error in such judgment as declared by us.

The reasons set up by appellant in his answer to the rule were raised to ward off possible punishment under that proceeding as incidental to the question of contempt. That issue and question having been entirely disposed of, we have not been advised of any substantive issues remaining to be passed on as matters for separate, independent adjudication. Succession of Rose, 48 An. 423; Gathe vs. Broussard & Hiriat, 49 An. 313.

The order appealed from was an incidental order of the District Court, made in execution of a previous judgment of that court. We have held a -number of times that, as a general rule, decrees of that character are not appealable. See Boutte vs. Executors of Boutte, 30 An. 180; State ex rel. Elder vs. Judge of the Third District Court, 30 An. 229; State ex rel. Remington Paper Co. vs. Ellis, Judge, 45 An. 1418; Murphy vs. Murphy, 45 An. 1484; Durward vs. Jewett, 46 An. 707; Succession of Bey, 47 An. 219; Wiley vs. Woodman, 19 An. 210; State vs. Judge of the Second District Court, 9 An. 302; Boyer vs. Sheriff, 46 An. 769.

We think this ease falls under the application of the general rule. We note the reason assigned by appellant in his answer to the rule for contempt that the bond furnished by him for costs carried with it as a consequence [by reason of the character of the judgment appealed from] a stay of execution of the judgment, and that, therefore, he was not called on to execute the judgment until after the appeal taken had been passed upon by the Supreme Court. The judgment appealed from covered two matters — it rejected Drew’s application for a respite and thereby set aside the stay of proceedings which had been granted at the beginning of the proceedings and it ordered a cession of property to be made within ten days. He appealed from it in its entirety. The court granted him at his choice either a suspensive or a devolutive appeal — a suspensive appeal on his furnishing bond in five thousand or a devolutive appeal on his furnishing bond for five hundred dollars. The latter bond was furnished. When called into court to show cause why he should not be punished for contempt, he assigned as a reason justifying his non-action that execution of the judgment was stayed by his appeal on a bond for five hundred dollars. This was substantially an exception to the jurisdiction of the District Oourt, a claim that the whole matter had been transferred for determination to the Supreme Oourt and a contention that the lower court was without power or authority to have the judgment executed pending the appeal. By this exception he had placed himself in a position, in the event of an adverse ruling, to test the character of the appeal and the legal situation or parties, through a writ of prohibition asked for from this court and directed against the District Judge. That was his proper remedy in the premises.

Instead of pursuing that course he at his own instance obtained a devolutive appeal from the decree for contempt and executed the orders of the court. We are advised by appellant’s own brief that the cession ordered has been made. To what extent it has proceeded we do not know, though appellees inform us that on one branch of the ease matters have gone so far as to have reached a vote on the question as to whether appellant should be discharged from all his debts, and that this question had been by a few votes decided adversely to the discharge. It is quite possible and probable that third parties have acquired rights based upon the execution of the judgment. Appellant can not be allowed to substitute a devolutive appeal from an executed judgment for a prohibition or certiorari. We have not so far directed our attention to the specific motion for dismissal filed by the appellees. We now do so.

It is no ground for dismissal that the papers referred to were not copied in the transcript. As they consisted of proceedings which took place in the lower court at a date later than that of the judgment appealed from, they were properly omitted from the record. If legally demandable by either party for special reasons assigned, the party entitled thereto could have them produced by proper proceedings.

Appellant contends that those papers not forming part of the transcript, there is no evidence before us of the facts on which ap-pellees base their claim of acquiescence by him in the judgment, and that we, under no contingency, could do more than remand the case. When it is claimed by an appellee that the appellant has, after having taken his appeal, forfeited the same by voluntary execution of the. judgment, it is for this court to pass upon that question. Ordinarily, its determination is dependent upon matters en pais as to which oral testimony has to be taken. Under such circumstances our practice has been to remand the case to the lower court, to have such testimony taken before it contradictorily between the parties, with directions to forward the same to this court for its consideration and action. When the evidence of the execution rests not upon matters in pais but upon pleadings filed in the lower court by the appellant himself after he had taken his appeal, provable by duly certified copy of the same from the clerk of court, it would be a useless proceeding to remand the cause in order to have this copy embodied into the transcript. Under such circumstances, we think, the course pursued here by the appellees of annexing such certified copy to the motion to dismiss sufficient. If there should be in any special case reasons which would make this particular course prejudicial to the appellant the court would see, of course, on assignment of such, that he was not injured and would depart from it.

Coming to the facts urged by appellees for dismissal we are of opinion, that appellant, by the allegations contained in his pleadings accompanying his final schedules and by his prayer therein asking affirmative relief, has taken his case outside and beyond the doctrine of the decisions in Factors and Traders’ Insurance Co. vs. New Harbor Protection Co., 37 An. 233, and Cuny vs. Dudley, 6 Rob. 77. Appellant obviously contemplated that the cession he was then making should stand and be continued to the end independently of whether it was improperly or illegally called for by order of court or not. It is true that appellant stated he made the cession under protest,” but none the less he affirmatively prayed that his eessio bonorum be accepted and that after legal delays and formalities he be fully discharged.” This protest was clearly made to guard against a possible motion which might be made to dismiss the appeal from the main judgment, which appeal was then pending. That object was fully accomplished, as the appeal was entertained and passed upon. We think the maxim “ Protestatio aotio contraria non prodest” controls this case. We think the appeal should be and it is hereby dismissed.