author: Nicholls, 0. J.

text:
    No. 12,684.
    State of Louisiana vs. Ruffin Walker.
    A provocation which would not naturally cause instant resentment, but which would have to be thought or brooded over after its commission in order to produce rage or anger is not in contemplation of law a provocation sufficient to reduce an intentional killing from murder to manslaughter.
    The use of the words “ ordinary man ” for “ reasonable man ” in the charge given by the judge is in no sense prejudicial to the accused.
    It frequently happens that a witness contradicts himself for want of a proper application of- the questions asked him. Where there is a difference between counsel as to what the answers made were the court is authorized to give the witness an opportunity to set himself right. State vs. Wiggins, 45 An. 416.
    The District Attorney having propounded to the defendant then on the stand a certain question, his counsel objected that it had been several times asked and answered in the negative and should not be asked anew. The District Attorney contended that it had been answered in the affirmative. The court overruled the objection, stating “it seemed that this witness has answered this question both ■ways, and the court will permit the attorney to ask the question again so as to finally determine this matter.” Counsel of defendant objected to this statement and reserved a bill on the ground that “it was a comment on the evidence.” The court stated to the jury that it.was not intended as a comment on the evidence, but merely as a reason for permitting the question to be asked and that they should pay no attention to the statement.

      The object oí tbe question propounded by the State was through an affirmative answer given by the defendant to hold the ease down, to one of “ murder.” The effort was unsuccessful, the jury having returned a verdict of “ manslaughter.” Held, that while it is the duty of district judges to carefully abstain from any expression of opinion or comment upon the facts of a criminal ease not only in their charge to the jury, but in their rulings in the presence of the jury upon the admissibility of evidence, and to avoid, as far as possible, at all times, both in their language and in their conduct and actions, saying or doing anything from which the jury might draw any conclusion as to their view of the case before, them the statement of the judge in this particular case furnished no legal ground for reversal.
    APPEAL from the Tenth Judicial District Court for the Parish of Rapides. Hunter, J.

      M. J. Cunningham, Attorney General, and Phanor Breazeale, District Attorney, for Plaintiff, Appellee.

      Julius F. Ariail, Robert P. Hunter and John N. Ogden for Defendant, Appellant.
    Argued and submitted January 15, 1898.
    Opinion handed down February 21, 1898.
   The opinion of the court was delivered by

Nicholls, 0. J.

The defendant, indicted for murder, was convicted of manslaughter and sentenced to the penitentiary for eight years.' He has appealed. He relies for reversal upon two bills of exception. The first bill is as follows:

“ The District Judge charged the jury as follows:

“It is essential that the excited and angry condition of the party committing the act entitling him to a milder consideration of the law should be superinduced by some insult, provocation or injury which would instantly produce, in the minds of ordinary men situated as the prisoner .was the highest degree of exasperation,” which charge, read from the written charge of the judge, was objected to because it required of the accused more than the law demands, in erroneously restricting him to an instant of time and requiring that the tests should be applied to him as an “ordinary” man, and that the provocation should, in order to make the crime manslaughter, have produced the highest degree of exasperation; and particularly is the charge erroneous because subsequently, in the written charge, the court, without qualification, instructed the jury as follows: ‘ The prosecution must be such as would stir the resentment of an ordinary man.’ In reference to this bill the court made the following statement : ‘ This exception is directed at that part of the charge referring to manslaughter. The charge given in this case is taken directly from the criminal law writers and the decisions of our courts, and, taken altogether, the only fault to be found with it, In my opinion, is in its liberality. All the writers lay down the doctrine that the assault or provocation must be such as would stir the resentment of an ‘ ordinary ’ man in order to reduce the crime to manslaughter. There must be some standard by which an accused must be judged, and to judge him from the standard of an ordinary man is surely liberal enough. ' As to the objection directed at the word ‘ instant,’ the court followed the law, and besides this, fully charged the jury in reference to ‘cooling time,’ etc., as will appear by the charge attached to .the bill and made a part thereof. Wharton on Homicide, Secs. 449, 459; Desty, A. C. L. 378, Sec. 128, § 370.”

Defendant’s counsel tendered to the judge a bill of exception in which the following recitals were made.

“ That during the trial when the defendant was on the stand under caoss-examination by the District Attorney he was asked the following question: ‘ Did you not anticipate the probable result of calling the deceased Tallie Brown a liar at the time you uttered the words?’ to which the counsel for defendant objected, upon the ground that the same question had been propounded and answered by the witness several times. Whereupon his Honor Edwin G. Hunter, in the presence and hearing of the jury, ruled as follows: ‘ The District Attorney can ask the question becanse the witness (Ruffin Walker) has answered the question two or three different times in two or three different ways.

“ Immediately thereupon counsel for defendant reserved this his bill of exceptions to the ruling of the court, for the reason that it was an illegal comment upon the testimony of the accused, which bill being handed to the District Attorney, and by him found correct, is given to the judge presiding, for his consideration and signature after a statement of the District Attorney, which is attached to and made part of the bill.

The District Judge at the foot of the tendered bill, stated that he declined to sign the bill, because the facts were not correctly stated, that the court had written a statement of the facts and signed it, in place of this; that after it had prepared this statement it was submitted to the District Attorney, who stated that after reading it ho was satisfied of its correctness, and that the statement he had signed for defendant’s counsel was not correct; that he (the" judge) would not sign any bill which did not correctly state the facts.

The court’s statement of the facts referred to in his reasons for refusing to sign the bill as presented was as follows:

“While the accused was being cross-examined by the District Attorney he was asked: ‘ Did you not anticipate the probable result of calling the deceased, Tallie Brown, a liar at the time you uttered the words?’ Counsel for defendant objected and stated that the witness had answered the question several times stating that he did not. The District Attorney contended that he had answered him that he did. It was admitted by both counsel that to the State the witness had answered one way and to his own counsel another way. The District Attorney said he wanted a final answer upon this point. This was what defendant’s counsel objected to and was the cause of his contention. The court ruled that the District Attorney could ask the question and in giving the reasons for the ruling said: ‘It seems that the witness has answered this question both ways (meaning that by admission of counsel on both sides this wag a fact) and the court will permit the attorney to ask the question again so as to finally determine the matter. ‘ The counsel for defendant objected to this statement, and asked for an exception on the ground that it was a comment on the evidence. The court then stated to the jury that it was not intended as a comment on the evidence, but merely as the reason for permitting the question to be asked, and that they would pay no attention to this statement. I understand this rule to mean that ihe judge shall not state to the jury what has or has not been proven. This statement can not, in my opinion, be construed into a statement of what had or had not been proven or into any sort of a comment on the evidence in the sense meant by the law, and even if it had been, how could it have injured the defendant before the jury when his own counsel had admitted in their presence that he had answered the question both ways. My statement of it could not have made it more impressive than their own open admission. It is presumed that the jury followed the instructions of the court; that the remark' was not a comment on the evidence, and was not intended as such, and they must not regard it. There was certainly no injury to the accused since they only found him guilty of manslaughter, while if they had thought the accused contemplated the result of his words to deceased and used them to induce him to resent them in order to get a chance to kill deceased they would have found him guilty of murder.

“ Notwithstanding the statement of the court to counsel and to the jury, counsel insists on his exception, which, with the District Attorney’s statement, is attached hereto.”

The District Attorney’s statement referred to was as follows: “My recollection of the question asked by myself is: ‘ When you called Mr. Brown a liar did you not anticipate and expect him to resent it?’ The counsel for accused objected to this question on the ground that the witness had already answered it two or three times. The court overruled the objection. In ruling the question admissible, the court, in substance, said (as I recollect) that the District Attorney had the right to ask the witness the question, as he was evidently trying to get the witness to answer it positively, as the witness had answered it two or three different times in two or three different ways. When counsel objected, that it was a comment on the facts or testimony of the witness, the court denied that it was a comment on the facts or testimony of the witness. The court denied that it was a comment, and stated that he was merely giving his reasons for his ruling, and that as counsel for the accused and the State differed as to the statement of the witness, he merely gave the above as settling the controversy between counsel and as giving his reasons for the ruling. The court expressly denied that he was commenting on the facts, and I think so expressly stated to the jury. If not directly to them, certainly they heard his disclaimer.”

In the brief filed on behalf of appellant, counsel, referring to the judge’s charge, say:

“ To that part requiring the ‘ highest degree of exasperation’ without qualification we do strenuously object. The charge is too restrictive, in that it failed to warn the jury that this state of mind must be rendered incapable of cool reflection.” Am. and Eng. Ency. of Law, Vol. 9, p. 579.
“Following this portion of the charge and not connected therewith the court (incorrectly) lays down this proposition: ‘The law requires two things to reduce the crime from murder to manslaughter. First, there should be a provocation; and, second, the blow be clearly traced to the passion arising therefrom. The provocation must be such as would stir resentment of an ordinary man.’ ”

In Desty’s American Criminal Law (“ See. 128 d — Killing in Heat of Passion”), the author, referring to the condition of mind under the influence of which an accused who has committed a homicide must be in order to reduce the crime from murder to manslaughter, declares (citing Preston vs. The State, 25 Miss. 388) : “ The excited and angry condition must have been caused by some insult or injury which would naturally and instantly produce a high degree of exasperation.”

The passage quoted by appellant from the American and English Encyclopedia oí Law, under the subheading of “ Provocation causing passion — What provocation sufficient,” states the law to be that “the provocation sufficient to reduce an intentional killing from murder to that of manslaughter must arise at the time of the commission of the offence, ór before the passion of the slayer had time to cool. The provocation by deceased must be the direct and controlling cause of the passion, and it must be such as naturally and instantly to produce in the minds of persons ordinarily constituted the highest degree of exasperation, rage, sudden resentment or terror, rendering the mind incapable of cool reflection.”

The District Court, in its charge, substantially adopted this presentation of the law, which counsel refers to as correct. If it has departed from it the departure can not be said to have been to .the prejudice of the accused.

In making use of the word “instantly,” the.court was evidently dealing with the character of the provocation given. A provocation which would not naturally' cause instant resentment, but which would have to be . thought or brooded over after its commission in order to produce rage or anger was declared by it not to be a provocation such as the law contemplated, as one sufficient to reduce an intentional killing from murder to manslaughter. We see no error in that statement. Desty’s Am. Crim. Law (Sec. 128-g), referring to “ provocation,” quotes Rex vs. Thomas, 7 Car. and P. 817; Judge vs. State, 58 Ala. 413, and Fields vs. State, 52 Ala. 348, in support of the following propositions which he adopts: “That the law requires two things: first, there should be provocation, and second, the blow must be clearly traced to the passion arising therefrom, and that the provocation must be such as would stir the.resentment of a reasonable man.”

These two propositions were given by the District Court to the jury, the only deviation therefrom being in the substitution of the words an “ ordinary man ” for the words, a “ reasonable man.” Here again we think that the departure was not prejudicial to the accused. If there be any substantial difference between a “ reasonable man” and an “ ordinary man,” or a man of ordinary reason, influenced and governed in his conduct by such passions and resentments as are found in the “ average ” man, we think the standard adopted more liberal than the one contended for. The term used conveys to the every-day juror a much clearer and better idea of the standard of man called for by the law than the one which it is desired to replace it by.

We do not attach the same significance and importance to the remark made by the District Judge during the progress of the trial, and which is referred to in the second bill of exceptions, as counsel of defendant do. We do not understand the District Judge to have made any statement in court that defendant’s counsel had made an admission relative to his client. The declaration made by the judge that “it was admitted by both counsel that the witness had answered the State one way and his own counsel another ” is a statement made by him not in court, but in the bill of exceptions which was reserved in order to explain the reason and grounds upon which he had acted. That particular statement never went to the jury. We understand the judge as intending to inform this court that precisely what the answer of the witness to a particular question of the District Attorney had been, and what that to the same question propounded to him by his own counsel had been, was a matter of contention between counsel; that the District Attorney insisted upon having the question asked and answered another time to the. end of settling the contention; that counsel of accused objected to this being allowed, that the question was permitted (over the objection) to be asked and answered. After making this statement of fact, the judge declares that in ruling upon the point submitted to him, he said : “It seems this witness has answered this question both ways. The court will permit the attorney to ask the question again to finally determine this matter.”

No exception was taken to the fact itself that the question was. permitted to be again asked, and we are not informed what the answer to the same was. The exception as made was to the words made use of by the court in announcing its ruling. The judge in the bill of exceptions asserts as a fact (and that assertion is not denied) that the witness,had answered the question in different ways. If so, it was right and proper if there was any contention between counsel as to what the answers were that the witness should be given an opportunity to set himself right. State vs. Wiggins, 45 An. 416. We presume he did so, for no complaint of prejudice through his answer is contended for.

We fully concur in the opinion expressed by our predecessors in State vs. Alphonse, 84 An. 9, that it is the duty of the District Judge to carefully abstain from any expression of opinion or comment upon the facts of the case in a criminal prosecution not only in his final charge to the jury, but also in his rulings upon the admissibility of evidence in the presence of the jury. Not only this, we think he should avoid, as far as possible, at all times, both in his language and in his actions or conduct, doing anything from which the jury might draw any conclusions as to his views in regard to the case before them. We do not think, however, in the case at bar, that the judge’s language created in the minds of the jury the unfavorable impressions touching the accused which counsel maintain they cjid. It frequently happens that a witness contradicts himself for want of a correct appreciation of the questions asked him, and where as a fact the testimony of a witness has been contradictory, we do not think the mere statement of that fact being assigned by the court as a reason for its permitting the witness to be asked to make a further statement without any opinion expressed adversely to the witness would bring about the serious consequences attributed to it.

The verdict rendered in the case would go to show otherwise. We see enough through the record to know that defendant called the deceased a liar; that the latter then struck him. Whereupon appellant killed him. We do not think it can be successfully claimed that, under such a condition of things appellant was justified in so doing and should have been acquitted. The object of the question propounded by the State was to hold the case down to one of murder. •This effort was unsuccessful. We find no ground for reversal.

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


source: Caselaw Access Project

author: Nicholls, C. J.

license: Public Domain

text:
    No. 12,744.
    State of Louisiana vs. E. R. McMichael et als.
    A statement made by sureties of an accused person who failed to make an appearance as required by his bond, and whose bond had in conseqence of said default been forfeited, that “ they weve prepared to produce their principal,” is not the formal surrender of a principal required by Sec. 1038 of the Revised Statutes. The court affirms State vs. Martin, 49 An. 752.
    Where the crime with which a person stands charged is a felony his attorney is without authority to waive his arraignment in his absence. State vs. Meek-ins, 41 An. 543; State vs. Jones, 70 Iowa, 505; Younger vs. State, 2 West Ya. 579; 98 Am. D. 791; Bishop’s New Criminal Procedure, Yol. 1, par. 268; People vs. Redinger, 55 Cal. 298; American and English Encyclopedia of Law, title, “ Criminal Procedure,” page 762.
    APPEAL from the Ninth Judicial District Court for the Parish of ,De Soto. Hall, J.

      J. B. Lee, District Attorney, for Plaintiff, Appellee.

      Elam & Egan (J. D. Wilkinson of Counsel) for Defendants, Appel lants.
    Argued and submitted February 26, 1898.
    Opinion handed down March 7, 1898.
   The opinion of the court was delivered by

Nicholls, C. J.

On the 4th of December, 1897, E. R. McMichael, as principal, and C. B. Hicks, L. M. Cook and 0. A. Douglas, as securities, executed a bond in favor of the Governor of the State, or his successors in office, in the sum of three hundred dollars. The condition of the bond was, that whereas, E. R. McMichael had been arrested under warrant issued by the justice of the sixth ward of the parish of De Soto, for assault, with intent to rape, and it had been ordered by the District Judge that he be allowed bail in ■said amount for his personal appearance before him at the next regular jury term of the District Court, commencing at the court house, in the town of Mansfield, on the 24th of January, 1898, to answer said charge — the obligation of the principal and sureties would be null and void if the said bounden McMichael should well :and truly appear on that day, and from day to day, and term to term, and to answer to said charge, or until legally discharged; otherwise it would remain in full force and effect.

The District Court for the parish of De Soto met in regular session on the 24th of January, 1897, being the fourth Monday of that month. On the 26th of January the grand jury returned an indictment against E. R. McMichael, charging him with an assault with intent to rape.

On the 27th of January, McMichael and his sureties were called on their appearance bond at the court house door, and defendant having failed to appear and answer, judgment of forfeiture was entered against both principal and sureties.

On the 3d of February the sureties appeared and moved to have the decree of forfeiture of the bond set aside, declaring that “they, were then prepared to produce their principal.”

On the trial of the rule to set aside the forfeiture (commenced February 3, and resumed February 4) it was admitted “that E. R„ McMichael was in the town of Mansfield on the morning of January 27, 1898, the day when he was called on his bond, but at the time he was called on his bond he had left town.

“ That when the State ordered him called on his bond counsel for defendant offered to waive arraignment.
“That he knew he was indicted at the time he left the town on January 27, 1898. That he returned to town on Tuesday, February 1, 1898, but did not appear in court.
“That the jury for the week had been discharged before he appeared or filed any rule to set aside the forfeiture of his bond; that the court, in open session, on February 2, 1898, discharged the jury for the next week, which was the last week for which a jury was drawn.
“That the indictment was returned January 26, 1898.
“That at the time the jury for the week was discharged, on February 3, 1898, a jury was out deliberating on a case which had been tried and submitted to them on February 2, 1898; that the jury was still out when the trial of the rule to set aside the forfeiture began, and after the trial of the rule had been adjourned over to the following day, to summon witnesses, this jury failing to agree, was discharged from the case and for the term, and a mistrial ordered in that case.
“That there was no suggestion or request máde to the court by counsel for defendant to hold either the jury for the week or the jury that was out deliberating on that case for the purpose of trying the defendant, McMichael.
“ That the rule to set aside the forfeiture was filed on the same day that the jury for that week was discharged, and after it had been discharged.
“ That two cases had been previously fixed for trial for the 3d of February, and that these two cases were continued on motion of the District Attorney, on account of sickness, and absence of witnesses before the rule was filed, and before the jury was discharged.
“ That the court was opened and held on February 4 for the trial of the rule to set aside the forfeiture and for the sentencing of the prisoners and other civil business, and that the court would have been held whether the rule was tried or not.
“That the District Judge informed counsel for defendant several days before the filing of the rule that court would be opened on February 4 for the purpose of trying.an account in a succession in which they were counsel.
“That there were nine cases fixed for February 3, 1898, in two of which cases Mr. T. G. McMichael, of counsel for defendant, was counsel, and that in these two cases he announced he was ready for trial when they were called; but the cases were continued as above stated.
“That in four of the cases fixed for February 3 the defendants pleaded guilty on January 81, and that three of them were nolle prosequied'on January 31; that on February 1 the defendants in two of the cases-were sentenced, thus disposing of all the cases fixed for Thursday, except the two referred to in the above admission.
“That no criminal cases were fixed for a later day than February 3.
“That for the past four years the ciiminal terms of the District Court have been held for three weeks, except for one term held in February, 1896, when it was held for only two weeks.
“That all cases of parties in custody, except the two cases previously referred to, had been tried when the jury was discharged.
“ That the defendant, McMichael, was in the town of Mansfield on Thursday, February 3, 1898, when the rule to set aside was filed, and for the purposes of the filing and trial of the rule, the District Attorney waived the presence of the accused in court.
“ That the defendant tendered the sheriff a new bond on the fourth day of February in the place of the one forfeited signed by sufficiently solvent securities, including among others the names of the sureties on the bond forfeited.
“That the principal, McMichael, and all his sureties were in the town of Mansfield on Tuesday, February 1, 1898.”

The sheriff as a witness testified that he did not see McMichael on Tuesday, February 1, 1898. That he saw Hicks, Douglass and Cook in Mansfield on that day; that there was no offer made by them to surrender McMichael to him on the bond and have it canceled.

The court refused to set aside the forfeiture and rendered judgment against McMichael and his sureties in solido for the sum,of three hundred dollars with legal interest from date for the use and benefit of the public schools of the parish of De Soto and all costs.

All the defendants appealed.

The fact that counsel of the accused on the second day of the term of court offered on his behalf to waive arraignment can have no influence upon the decision of this case. The crime with which the defendant was charged was a felony. His attorney was without authority to waive his arraignment on his absence. Am. and Eng. Ency. of Law, “Criminal Procedure, page 762; citing People vs. Redinger, 55 Cal. 298; Bishop’s New Criminal Procedure, First Vol., par. 268; Younger vs. State, 2 West Va. 579; 98 Am. D. 791; State vs. Jones, 70 Iowa, 505; State vs. Meekins, 41 An. 543.

A personal appearance and plea in person are necessary at the arraignment for a felony. This can not be done by attorney.

We are satisfied from the facts stated that McMichael’s course was actuated by a purpose to avoid trial at the term of court at which he was indicted, and that his presence in court on the 3d and 4th oj> February (had be been present) would have been simply by reason of the fact that he knew that he could not be tried. A statement made by the sureties of an accused person who had failed to make an appearance as required by his bond and whose bond had in consequence of said default been forfeited, that “ they were prepared to produce their principal" is something other than “the formal surrender of him by them to the sheriff or his deputy sheriff in open court, or within the four walls of the prison.”

This formal surrender so made is declared by Sec. 1033 of the Revised Statutes to be essentially necessary for the release of the sureties from their responsibility.

The law is precise, emphatic, and leaves no room for construction. We see no material difference between this case and that of the State vs. Martin, 49 An. 752.

For the reasons hereby assigned :

It is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed.


author: Nicholls, O. J.

text:
    No. 12,581.
    The State of Louisiana vs. Mrs. Louisa Hohn.
    Where the legality or constitutionality of a municipal ordinance imposing a fine js not attacked, this court can not, through an appeal, inquire into the legality OÍ tlle proceedings taken or the correctness of the judgment rendered.
    A PPEAL from the First Recorder’s Court of the Oity of New . x Orleans. Finnegan, J.

      C. H. La Villebeuvre, Assistant Oity Attorney, and 8. L. Gilmore, Oity Attorney, for Plaintiff, Appellee.
    ’ O. B. 8ansum, for Defendant, Appellant.
    Argued and submitted March 12, 1898.
    Opinion handed down March 21, 1898.
   The opinion of the court was delivered by

Nicholls, O. J.

Defendant having been found guilty of a violation of an ordinance of the city of New Orleans was sentenced io pay a fine of twenty-five dollars, and in default of payment of the same to be imprisoned in the parish jail for thirty days. She appealed. Her case is thus presented by her counsel:

Defendant was arrested and charged as stated in the affidavit as-follows:
“ State of Louisiana, First Recorder’s Oourt of the city of New Orleans.
“ The State “vs. ! “ Mrs. Louisa Hohn. f “531 First. J
“ Personally appeared before me, E. Finnegan, Recorder of the First Recorder’s Oourt of the city of New Orleans, and Justice of the Peace duly commissioned and sworn, Sergeant M. P. Oreagh, Sixth Precinct, who, having been duly sworn, doth depose and say:
“ That on the twenty-fourth day of July, 1897, at about 9 o’clock A. M., at 531 First street, between Rousseau and St. Thomas streets, in this district and city, one Mrs. Louisa Hohn did then and there violate Ordinance No. 4929, Art. 1081 Flynn’s Digest, relative to houses of prostitution or assignation, notice to remove by Mayor — all against the peace and dignity of the State. Wherefore, deponent charges the accused with violation of Ordinance 4929 O. S., and prays that she be arrested and dealt with according to law.
“ Sworn to and subscribed before me this twenty-fourth day of July, 1897.
“ (Signed) M. P. Oreagh.
“ (Signed) E. Finnegan,
“ Recorder.”

The defendant filed the following plea:

“ The defendant, Louisa Hohn, in her own proper person, comes into court here and says that the First Recorder’s Oourt has no jurisdiction to hear and determine the matter complained of, because, she says, that no. issuable facts are stated or alleged in the affidavit of M. P. Oreagh, and that the court here has no power or right to try the defendant upon any charge whatsoever until facts sufficient in law to constitute a breach or violation of law shall be stated and set forth upon the oath of some credible person charged with the duty of complaining against the defendant.
“ That no citizen can be arrested or put upon trial for any breach of any municipal ordinance until specific facts, particularly stated and set forth, stating the time, manner and place where the alleged breach was committed; because, until specific facts shall be set forth, and the time, manner and place certainly mentioned, the accused can not know or understand what witnesses or evidence shall be necessary and proper to defend the accusation.
“ That the affidavit upon which the recorder’s warrant was issued against the defendant states no matter or thing to which the defendant is bound by law to answer or controvert. Wherefore, defendant prays that she be discharged without bail.”

The objections were overruled, and to the ruling of the court defendant excepted and reserved a bill of exceptions.

In this court appellant complains of the rulings of the recorder in admitting and also in refusing to admit testimony, and charges that the judgment was not justified by the evidence.

Her counsel urges upon us that ‘ ‘ no power has been conferred upon the Common Council of New Orleans to compel any person, owner or lessee of any house to move out of or away from such house; but if any such power had been framed, it is unconstitutional and void, because it is an unreasonable penalty and destructive of the citizen’s rights of property without due process of law.”

That “the judgment of the court is erroneous because defendant is not charged with keeping a house of prostitution or assignation; nor is there any charge that defendant occupied her house for any purpose forbidden by law.”

That “the judgment of the courtis erroneous because it denies defendant one of the rights guaranteed by the Constitution of the United States and by the Constitution of the State of Louisiana to-wit:

“ The accused shall be informed of the nature and cause of the accusation.”

That “ the judgment is erroneous, because it deprives defendent Of her property without due process of law. That it is void because as appears by the proceedings certified to, that defendant was not adjudged guilty of keeping a house of prostitution, but she was condemned for failing and neglecting to move out of her house.”

It will be seen that no issue was made before the recorder as to the legality or constitutionality of the ordinance for the violation of which defendant was condemned by the judgment. The objections urged in the lower court were as to the affidavit on which defendant’s arrest and trial were based — the testimony sought to be introduced and sought bo be rejected at the trial — and the jurisdiction of the recorder based on the character of the affidavit.

■ Objections of that character can not be reached and reviewed by this court through an appeal, as we have repeatedly said. The extent of our inquiries in cases of this character is as to the legality and the constitutionality of the ordinances themselves. We can not through an appeal inquire into the legality of the proceedings taken, nor the correctness of a judgment rendered under a valid ordinance, or one not attacked for illegality in the trial court.

We are forced to dismiss the appeal.

The appeal is hereby dismissed.


author: Breaux, J.

text:
    No. 12,721.
    Succession of John A. Graves, Deceased; On Application of Charles G. Graves to be Appointed Administrator; Opposition of Mrs. C. E. Graves.
    The succession owed no deht. The appointment of an administrator would only be productive of delay and expense in the settlement of the sucees-. sion and would not effect more than can be done by the heirs in matter of the partition. The judgment of the District Court, rejecting the application of one to be appointed administrator, is affirmed.
    The administrator is not a necessary party to the final liquidation.
    APPEAL from the Ninth Judicial District Court for the Parish of De Soto. Hall, J.

      Mam & Egan for Applicant, Appellant.

      William Goss for Defendants, Appellees.
    Argued and submitted May 17, 1898.
    Opinion handed down May 30, 1898.
   The opinion of the court was delivered by

Breaux, J.

John A. Graves died in the parish of De Soto. He left a widow and two minor children, issue of his last marriage.

He left children of prior marriages. He owned property of which an inventory and appraisement were made a few days after his death. His son, Charles E. Graves, applied to be appointed administrator of his succession.

His widow, Mrs. C. E. Graves, alleging that there were no debts to pay and no necessity to incur the expense of an administration, opposed the appointment of an administrator.

In argument Oharles E. Graves affirmed that the succession was not sufficiently in debt to warrant the appointment of an administrator, but contended that none the less an administrator should be appointed for the reason that property was withheld from the succession which might be recovered by an administrator.

On the hearing of the application a number of witnesses were examined.

The District Judge was of the opinion that there were no debts or credits rendering it proper to appoint an administrator; that the heirs could sue each other for a partition now as well as after the delay and expense of an administration. He rejected the application of O. E. Graves to be appointed administrator.

From the judgment he appealed.

We have seen that there are no debts. The succession in consequence falls within the grasp of the general rule: where there are no debts and those in interest oppose the appointment no administrator should be appointed. It may well be, exceptionally, that a case might arise requiring the appointment of an administrator.

Here, no good reason suggests itself to justify such an appointment. The evidence does not make it appear that the succession had with any degree of certainty any credit against third persons which rendered the appointment of an administrator necessary for its recovery in the name of the succession. Why the expense of an administration if the succession is not to be benefited by it ? There would be a delay in the settlement of the succession; all to serve no useful purpose in so far as the record shows.

The rights of the parties inter se can be settled in a partition. The heirs and the widow of the, later John A. Graves are present and can properly make such a partition as will give to each of the interested parties that to which he is entitled.

The administrator would not make the partition and really has no authority to assist the heirs in making the partition in any matter.

The heir is completely authorized without the assistance of an administrator. If there were debts the appointment should be made. Succession of Olark, 30 An. 807.

But the . evidence discloses that there are no debts due by third persons. The indebtedness of the heirs is a matter which will come up in the partition proceedings.

In Brashear vs. Cornor, 29 An. 349, this court said: “The heirs may stop administration and provoke a partition among the coheirs at any time, if there are no debts.” A fortiori the heirs or other interested persons may oppose successfully the appointment of an administrator when there are no debts by the succession and the succession is in a condition that a partition may be made and the rights of all parties in interest fixed.

Even when there are debts the heirs may bring the administration to a close by giving security for their payment. It follows, there being no debts, that an opposition to the appointment of an administrator is without ground to stand on save in very exceptional cases. We have not found that the case before us should be considered at all exceptional, as it presents only the necessity of a partition.

Ordinarily, there is no necessity to appoint an administrator to administer a succession not burdened with debt. Succession of Melasie Hebert, 33 An. 1099.

In Succession of Walker, 32 An. 321, the heir was a minor, and yet the court held, as there was no debts to pay, and no legacies to discharge under the will, the appointment of an administrator would serve no useful purpose.

The decision in matter %of the Succession of Story, 3 An. 502, was a well considered decision by Judge Eustis.

The court, in that case, said: with reference to subjecting the succession to the charge of administration, the appointment of an administrator rested with the discretion of the judge on the facts before him. “The right of the heirs to the immediate partition can not be questioned; it was,” continued the court, “insisted on by the appellant, and this administration, if carried out, could be little else than an impediment to the proceedings in partition.”

There may be cases, said the 'court, in which an administration would be advantageous even in case there are no debts, but there was no advantage discovered in this respect in the case from which we quote, as there would be none in our judgment in the case now before us 'for determination. It would only, as in the cited case, occasion delay and useless expense.

Whether as against third persons alleged debtors to the succession, the applicant to be appointed administrator, has or has not indicated clearly enough that they are debtors as alleged, is of. no great importance here.

He and his coheirs, who may choose to sue third persons for claims they think are due will not be prejudiced by this refusal to grant this application.

It is ordered, adjndged and decreed that the judgment appealed from is affirmed.


text:
    No. 12,713.
    Riley Y. Woodlief vs. George C. Logan et als.
    A final judgment should be read in open court.
    While it is not necessary that the judgment shall recite that it was read in open court, if the judgment does not so recite, it should affirmatively appear by proper entry in the minutes.
    i’or the purpose of the trial of the rule to dissolve tho injunction, the averments of the petition were talren as confessed. By them it appears that the judgment was not read in open court. In the absence of any evidence of record, showing compliance with Art. 543, C. P., in regard to reading the judgment in open court, the court holds that the question is jurisdictional, and that there can be no valid judgment without reading it as required, and entry in minutes also showing that it has been signed. It must appear that the act of reading and signing the judgment was in open court and not at chambers.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Rice & Montgomery for Plaintiff (defendant in injunction), Appellee.

      James McConnell, Jr., for Defendants (plaintiffs in injunction), Appellants.
    Argued and submitted May 18, 1898.
    Opinion handed down May 30, 1898.
   The opinion of the court was delivered by

Breaux, J.

Some of the sureties of George C. Logan', a subcontractor for carrying the United States mail, appeal from an adverse judgment condemning them to pay an amount on the subcontractor’s bond.

The heirs and representatives of one of the sureties did not appeal from the judgment, but sued out an injunction and alleged in their petition that the judgment was null and void, for the reason that it was not read and signed by the judge in open court.

The special averment of the appellant on this point was, that during a temporary recess of the court and after the judge had left the bench, and prior to reascending the bench, without reading the judgment handed to him by plaintiff’s counsel, he (the judge) handed it to the clerk with instructions to enter it upon the minutes; and that he failed to comply with the requirement: “All judgments shall be read by the judge in open court.”

In the second place the averment is, that on the date the judgment bears, the presiding judge of the court was ill and unable to attend court, and that the judgment was not signed in open court.

There was, it appears, a hearing for preliminary injunction (on the application for an injunction) before another judge than the one by whom the judgment had been pronounced; the latter was at the time absent on leave.

On this hearing the judge took notice of the minutes of the Oivil District Court for June 18 and June 25, 1897. They were copied in the transcript of appeal.

Entertaining some doubts as to the validity of the judgment, for reasons assigned a preliminary writ of injunction or rule nisi was issued on the application for an injunction.

The judge by whom the judgment (assailed as null) had been pronounced having returned, counsel for plaintiff interposed before his court a rule to dissolve the injunction, on the ground chiefly that the petition for injunction disclosed nolegal or equitable grounds therefor.

Though other grounds were assigned in the rule to dissolve, appellants’ counsel informed us in open court that he urged in the lower court, only the ground last stated.

Appellants invoke the rule well known that upon the trial of a rule to dissolve, upon the face of the papers, its averments are taken as confessed by the plaintiff in rule.

The court sustained the rule and dissolved the injunction with damages.

From the judgment the plaintiff in injunction prosecutes this appeal.

It does not appear by the entries in the minutes that the judgment was read in open court. Nor do the minutes make it appear that the judgment was signed.

The article of the Code of Practice, 543, calls for the reading of all judgments by the judge in open court.

The chief reliance of the plaintiff Woodlief, defendant in injunction, in support of his execution of the judgment assailed by plaintiffs in injunction, is upon the minutes, contradicting, he asserts, the allegations of complainants’ petition, or explaining or modifying the averments of their petition, and he contends further that plaintiffs’ allegations could only be sustained by parol; that the minutes can not be contradicted by parol.

He invoked the rule that only that is considered pleaded at all which is pleaded well; that upon a rule to dissolve an injunction, pleadings are not to be taken as true when they lead to the impossible or impracticable, that it would serve no purpose to set aside proceedings and remand a case to enable one to offer evidence which the court under the rules of evidence must decline to receive as not admissible.

We have not discovered from the minute entries that the judgment was read in open court, or that it was signed. It is conceded that the judgment was signed, but it is alleged that it was signed by the judge at his home, as he was ill at the time and could not have been in court.

We have not found after an attentive reading of the record that the testimony, admissible under the allegations of the petition of plaintiff in injunction, would contradict the minutes. They (the minutes) are absolutely silent upon the subject, and for that reason evidence would be admissible to prove the facts alleged and to have them accordingly amended.

We were then brought to a consideration of the question presented of no ground for the injunction from the point of view urged by plaintiff, defendant in injunction, that the defect was one of form. The question was not free from difficulty in deciding it. Were it res nova it may be that our conclusion would be different.

In Hernandez vs. James, 23 An. 483, the court perpetuated an injunction on the ground that a judgment rendered out of term time is null, though the judge a quo assumed that it was term time.

In Laurent vs. Beelman, 30 An. 363, the court held that a final judgment in default signed at chambers is void.

A similar question was presented in State ex rel. R. R. Co. vs. Judges, 48 An. 905; this court in that case decided that a judgment must be, read and signed in open court; citing Culver vs. Hart, 21 An. 306; Hernandez vs. James, 23 An. 483; State ex rel. Dixon vs. Judge, 26 An. 119; Succession of Bougere, 29 An. 378; Laurent vs. Beelman, 30 An. 363.

The matter in hand was treated in all these cases as jurisdictional.

From that standpoint we are of the opinion that it should appear affirmatively somewhere in the proceedings that the j udgment was read and signed in open court; especially in view of the admission for the trial of the rule; that the judgment was not read and signed in open court.

The ease is remanded in order that the judgment may be read in open court, and signed, if it has not heretofore been read and signed in open Court.

It is ordered, adjudged and decreed that the judgment appealed from is annulled, avoided and reversed.

It is ordered, adjudged and decreed that the ease be remanded, to be proceeded with in accordance with law and the views herein expressed; that the appellee pay the costs of appeal.


author: Blanchard, J.

text:
    No. 12,634.
    Spiridone Loyacano vs. Frederick Jurgens.
    An owner is responsible for personal injuries inflicted by his wagon when engaged on his business, ,and which are occasioned by the want of care or negligence of the driver, his employee.
    The law of the road is to keep to the right, and city ordinances in New Orleans require it. But where the right or lower side of the street was not in proper condition for the safe and easy passage of vehicles and the upper side was, and it appearing that it was usual for vehicles to use the upper side whether going toward or from the river: Held — -the fact that plaintiffs vehicle (going from the river) was on the left or upper side of the street at the time of the collision does not militate against his case.
    A PPEAL from the Civil District Court for the Parish of Orleans. ***“ Rightor, J.

      Edwin T. Merrick for Plaintiff, Appellee.

      Dart & Kernan for Defendant, Appellant.

      Argued and submitted May 7, 1898.
    Opinion handed down May 30, 1898.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiff sues to recover three thousand and fifty dollars damages for personal injuries received.

A collision occurred between two wagons on Elysian Fields street, New Orleans, in October, 1895. e

One of the wagons was owned and driven by Paul Demagio; the other belonged to defendant, was on a business errand of his, and driven by an employee in his service.

The first mentioned wagon was the smaller of the two; was carrying a load, and three persons occupied a seat at its front. They were Demagio, the driver, sitting at the right, plaintiff sitting at the lef¿ and a boy four years old. the son of Demagio, sitting between them. The wagon was at the time in the service of plaintiff, a fruit and oyster dealer, who had hired it to transport a load of fruit and ice to his place of business, he making the trip with the wagon.

The wagon of defendant was of the character of vehicle used by coopers for transporting barrels, having arms or hoops extending along either side of the wagon-bed and projecting over and beyond it about one foot and a half. It was at the time of the accident empty, and the only person in it was the driver.

Elysian Fields street is a wide avenue, in the centre of which is a space called “Neutral Ground,” on which are located the tracks of a railroad company. On either side of the street is a roadway. It may be described as a double street, or two streets divided or separated from each other by the neutral ground.

The evidence is that the down-town side of the street is rough, • described as “a bad road,” not in use by vehicles. The up-town side is a fairly good roadway and is used by vehicles, whether going toward the river or in the reverse direction. On this roadway is located the track of a street railway.

The wagon in which plaintiff was riding had approached Elysian Fields street from the lower side, coming into it from Decatur street. It traveled across the street to the upper side and reaching the street railway track got on to it and proceeded slowly in the direction of the rear of the city.

Defendant’s wagon was on the same railway track going in the direction of the river or front of the city. It was moving at a more rapid pace than was the other vehicle.

The two wagons met between Decatur and Ohartres streets, a collision occurred with disastrous effects to the smaller wagon, whose three occupants were thrown out, one of them (plaintiff) having his leg broken. An ambulance was called, he was conveyed to the hospital, where he remained about a week receiving surgical attention, and was then carried to his home, where he was confined to his bed for eight months under the care of physicians. He was severely injured, being still on crutches at the time of the trial of the case below, more than a year and a half after the accident. That he will ever recover entirely from its effects appears altogether improbable. He is a young man, less than thirty years of age.

There is in the case the usual conflict of testimony characteristic of damage suits. The judgment below was in favor of plaintiff for five hundred dollars. Defendant appeals, and, in this court, plaintiff prays that the amount allowed him be increased to twenty-two hundred dollars.

The weight of testimony, we think, sustains plaintiff’s side of the controversy. The accident would have been avoided had the driver of defendant’s empty wagon been more attentive to his duties and made a more serious effort to avert a collision.

That he felt himself blameworthy is shown by the fact that as soon as he ascertained one of the occupants of the other wagon was hurt he ran away, was pursued by Demagio, driver of' the other wagon, captured and turned over to a policeman, who conveyed him under arrest to the station.

His testimony on the stand as a witness for the defence is intrinsically unworthy of belief, and is disregarded. No credence can be given to the evidence of a witness who so grossly misstates material facts and persists in such misstatement — facts shown by the testimony of other witnesses to have been misstated by him.

The driver of the wagon in which plaintiff was riding pulled to the right, as was the law of the road, on nearing the approaching wagon, and it does not appear that the charge of contributory negligence can be sustained against him. So thought the District Judge, who saw and heard the witnesses. While there was evidence to the effect that defendant’s drive'' also attempted to turn out of the track of the street railway, we are not satisfied that he took reasonable precaution to avoid the accident.

If the lower side of Elysian Fields street was not in proper condition for the safe and easy passage of vehicles, and the upper side was, and it appearing that it was usual for vehicles to use the upper side, whether going toward or from the river, then it can not militate against plaintiff’s case that the vehicle in which he was riding was on the left or upper side of the street instead of the right or lower side.

The law of the case is, an owner is responsible for personal injuries inflicted by his wagon when engaged on his business and when occasioned by the gross negligence of the driver, his employee. Wichtrecht vs.Fasnacht, 17 An. 166; Perez vs. Railroad Company, 47 An. 1391.

The quantum of damages, as fixed by the lower court is, we think, too low. Plaintiff had his leg broken and his feet crushed. He suffered great pain, and lay abed for eight months, during which time his shop was closed. He had a small remunerative business when the accident occurred, the profits, of which were lost as a consequence of the casualty. There is no testimony in the record touching the circumstances of defendant. . It may be, however, that the trial judge had knowledge otherwise of his circumstances, and this may account for the small allowance made by him. A party’s circumstances may not improperly be considered to a reasonable extent in estimating damages to be awarded in a case like this, where defendant personally was not at fault. It were the better practice, though, that the same be disclosed by the evidence when intended to be invoked.

Several times the amount awarded this plaintiff would not be too much for the injuries he' sustained. While this is so, we hardly feel warranted, in this particular case, in increasing the allowance beyond eight hundred dollars.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be amended by increasing the amount thereof from five hundred dollars principal to eight hundred dollars principal, and as thus amended the same is affirmed at the cost of defendant and appellant.


text:
    Nos. 12,839 and 12,840.
    State ex rel. Mary L. Neyland vs. Stephen D. Read, Judge Twelfth Judicial District Court, Parish of Calcasieu, and R. L. Belden, Plaintiff.
    There is no legislative authority to try appeal cases in the District Court before juries. The right to trial by jury is given in civil eases before courts exer cising original and not appellate jurisdiction.
    The issue regarding the improper division of tile amount into three different suits was not before the Supreme Court, it not having been raised before the District Court.
    QN APPLICATION for writs of Mandamus and Certiorari.

      A. B. Mitchell for Relatrix.

      Thomas Kleinpeter and B. L. Belden for Respondents.
    Submitted on briefs May 21, 1898.
    Opinion handed down May 30, 1898.
   The opinion of the court was delivered by

Breaux, J.

Robert L. Belden sued the relator on a balance claimed as being due by her. The suit was brought before the magistrate of the Third Ward of Calcasieu.

The relator answered, and pleaded in reconvention an amount exceeding three hundred dollars.

Her demand in reconvention was dismissed for want of jurisdiction. The court pronounced judgment for plaintiff Belden in the sum of fifty-five dollars and fifty cents. The defendant, the relator here, appealed to the District Court.

The relator further sets forth in her application for a mandamus that five days afterward, before the same magistrate, the same plaintiff brought another suit against her for the sum of one hundred dollars for damages, to which she pleaded denying any indebtedness to him.

Judgment was pronounced against her for the amount plaintiff claimed.

She appealed to the District Court from this judgment.

The relator avers that another, a third suit, was brought against her by plaintiff seven days after the second suit, in which he claimed and recovered contradictorily with her in the same court the sum of one hundred dollars for a fee of attorney.

The relator alleged that each amount was due, if due at all, at the date the first suit was instituted and she asserts that separate suits were brought in order to deprive her from a trial by jury.

The relator avers that on appeal she made a deposit of twelve dollars as a jury fee, and prayed for trial by jury.

In this court a rule nisi was granted. In answer to the rule the respondent returned:

That no application had been made for a trial by jury before the magistrate court.

That his own court acting as an appellate tribunal not vested with original jurisdiction could not grant to the relator rights to which she would not have been entitled in the court below.

Lastly, it was urged that the complaint of a division of the demands and the consequent three suits, instead of one suit, is one which should have been raised in the magistrate’s court.

The prayer for a trial by jury presents the serious question for our determination.

In appeals from the magistrates’ courts to the District Courts, the District Court is exclusively a court of appeals. The case comes up de novo, it is true, but we take it that the words apply to the issues of the case to be reviewed on appeal. New issues may be raised. They are, however, to be tried by the appellate tribunal without a jury.

In our judgment they are to be reviewed as issues on appeal, and not to be regarded as if originally presented for consideration before the District Court.

The jurisdiction extends to the adjudication by the appellate court without a jury, of the law and the facts arising on appeal.

The right to trial by jury is given in civil cases before the courts exercising original jurisdiction and not in appellate courts.

We are not of the opinion that any court of appeal possesses the power to call in a jury for the trial of a case without some legislative authority. There is no legislative authority to try appeal cases before juries. Syndics of Brooke vs. Weyman, 3 Martin, O. S. 9.

In Bouquevalte vs. Young, 5 Rob. 163, this court said: “ It may moreover well be doubted whether a trial by jury could be asked in the District Court, considered as an appellate tribunal.”

There is no longer any doubt upon the subject. It is well settled, in our view, that there can be no appeal to a jury in such cases.

Next in order, the relator raised the question of division of amount of the claims, as made by the creditor, in order that he might bring three suits before the magistrate’s court, instead of one suit in the District Court.

The relator charges that the motive in making the division was to enable the creditor to avoid trial by jury. That motive would not be ground to set aside a judgment under our supervisory jurisdiction.

The greatest difficulty which confronts the relator in her attempt to sustain her application on this point, grows out of the fact that her pleadings have not raised the issues now before us for decision, in either the district or the magistrate’s court.

There was no timely exception of any sort of improper division of claim filed in one or the other court. The question of law must arise on the record filed below.

The judge of the magistrate’s court, or the judge of the District Court has not been called upon by the pleadings to decide what effect results, if any, from such division. This court under its supervisory jurisdiction must pronounce upon the correctness of the judgment or of the ruling of the District Court. There was no ruling made, or judgment pronounced upon the point. We are - constrained, under repeated adjudications, to decline to decide a point of law presented in the first place before this court without pleading or any document suggesting that it had received the least consideration below.

The law as relates to trial by jury being against relator’s position, no other ground is properly before us for decision.

The rule nisi which was issued in this case is discharged, and relator’s application for mandamus and certiorari is denied at her costs.


author: Miller, J.

text:
    No. 12,786.
    State of Louisiana vs. Robert Jacobs et als.
    An indictment for the larceny of one bale of cotton in the lint may be amended during the trial, to conform to the testimony the cotton was in the seed. Revised Statutes, Sec. 1047.

      Cotton raised on shares between the plantation owner and the laborer until the shares are allotted is properly charged in an indictment for larceny as the property of the owner of the plantation. Wharton, Criminal Law, Yol. 2, Sec. 1627,
    A PPEAL from the Eleventh Judicial District Court for the Parish of St. Landry. Dupré, J.

      M. J. Cunningham, Attorney General, and R. Lee Garland, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      C. P. Garland for Defendants, Appellants.
    Submitted on briefs April 9, 1898.
    Opinion handed down May 2, 1898.
   The opinion of the court was delivered by

Miller, J.

The defendants appeal from the sentence on the con - viction for larceny.

The indictment charged the defendants with the larceny of one bale of cotton in the lint. The first bill of exceptions is to the ruling of the court permitting the District Attorney to amend the indictment during the trial, by charging the larceny of one bale of cotton in the seed.' It is insisted on behalf of the defendants that the amendment was of substance, preferring a charge different from that s'tated in the indictment. Our statute permits the amendment of indictments “on or before the trial when there shall appear to be any variance between the statement in the indictment and the testimony in the names of places, or of persons, or in setting forth the ownership of property, or in the name or description of any matter or thing whatsoever named or described in the indictment, if the court should be of opinion the variance is not material and the amendment will not prejudice the defendant in his defence.” Revised Statutes, Sec. 1047. Our courts have had frequent occasion to deal with this statute. State vs. Smith, 31 An. 406; State vs. Hanks, 39 An. 234; State vs. Dominique, 39 An. 324; State vs. Morgan, 35 An. 1139. The substituted charge in this case was the larceny of one bale of cotton in the seed, the property of the party named in the indictment. The description “in the Jint,” when, in fact, it was in the seed, can not, in our view, be deemed a variance calculated to mislead the defendant as to the charge he was to meet, or in the least prejudice him in his defence. In one of the cases cited the amendment substituted “gun” for pistol in an indictment for shooting, and the amendment was sustained. Others of the cases cited have affirmed the right to amend as to names occurring in the indictment. On the other hand, the change in the name of the person on whom rape is charged to have been committed, has been held not an admissible amendment. State vs. Dillard, 85 An. 1049. But that decision in our view affirms the right to amend in a ease like this of substituting seed for lint in describing the bale of cotton the subject of the larceny.

The question raised by the other bills is as to the ownership of the property, the subject of the larceny. The testimony offered was that the cotton was raised under the agreement that the accused, a laborer on the plantation, was to share the crops with the owner. The indictment laid the property in the owner. It is contended on behalf of the accused that he could not be convicted of the larceny of cotton, he claims was owned in part by himself, and the proof adduced on the trial did not support the indictment. We have considered this line of argument and the authorities cited in support of it. The cotton raised on the plantation on shares must, we think, be deemed to belong to the owner of the plantation, while still in his possession, and before the share of the laborer has been separated. This is the view, toó, of the text writers. 2d Wharton’s Criminal Law, Sec. 1047. We hold the indictment properly charged the ownership in the owner of the plantation, and the testimony disclosed no variance between the fact and the charge.

It is therefore ordered, adjudged and decreed that the sentence of the lower court be affirmed.


author: Watkins, J.

text:
    No. 12,768.
    State of Louisiana vs. Jim Pool.
    The constitutional guarantee that the defendant in a criminal prosecution shall enjoy the right to defend himself and to have the assistance of counsel is not an empty formality, Tbut an inestimable priy ilege; and counsel should be allowed reasonable time to prepare the defence.

      APPEAL from the Sixteenth Judicial District Oourt for the Parish of St. Helena. Reid, J.

      M. J. Cunningham, Attorney General, and Duncan S. Kemp, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      W. C. Pipkin and W. T. Holland for Defendant, Appellant.
    Argued and submitted April 9, 1898.
    Opinion handed down April 18, 1898.
   The opinion of the court was delivered by

Watkins, J.

The defendant was indicted for the murder of a colored girl under fourteen years of age, and appeals from a verdict of guilty and sentence of death, relying upon three bills of exceptions which were reserved to the ruling of the court during the progress of the trial.

The first bill relates to the declination of the trial judge to grant a continuance of the case based upon two grounds: (1) The impossibility of procuring the attendance of an important witness who was absent; and (2) that sufficient time had not been allowed counsel for the examination of the case and the preparation of the defence of the accused — the homicide having been committed only a few days prior to the finding of the indictment on the 25th of February, 1898, and the cause having been assigned for trial on the 1st of March following.

The defence was that the homicide was accidental. The substance of the defendant’s motion is that his witness, Louis Brown, was temporarily absent from the parish, and for that reason he could not have been summoned and was not summoned by the sheriff, after seasonable and proper effort had been made, as is evidenced by his return upon the summons which had been issued for him.

That he could have testified, had he been present, to his declarations, appearance and demeanor after the homicide, as well as to the other facts and circumstances of the case, confirmatory and corroborative of the testimony in the case in his favor.

And it is further to the effect that he was incarcerated in jail without the benefit of bail, as soon as he surrendered himself to the sheriff; and being unable to employ counsel the court assigned counsel to represent him. But that counsel assigned to him were at the time engaged in the trial of other important cases in that court — the District Court being at the time in session — and could not then give immediate attention to the case; so that when the case was called for trial, three days later, on the day fixed for trial, they had not had an opportunity of conferring with the accused, and preparing and formulating his defence, and. were not prepared to go into the trial of such an important case under the circumstances related.

It appears from the record that the homicide was committed during a Sunday, in the house where the' girl lived, and within the hearing and in immediate proximity to several persons.

It appears that it occurred at some ten miles distance from the court house, but that the accused was on his way to the sheriff’s office to surrender himself when he was arrested and at once placed in jail.

The indictment of the accused followed a few days afterward; and within four days after that, one of them being a Sunday, he’had been tried, convicted and sentenced to the extreme penalty of the law.

It is not denied that the defendant was kept in close confinement between the time when he was first arrested and the trial; and it is not denied that the counsel who were appointed by the court to defend his cause were closely occupied in the trial of other important criminal cases in that court during the greater part of that interval.

The only question about which we feel concerned is, whether — circumstanced as the accused and his ease were — the ends of substantial justice demanded a trial so speedily, that is to say, within a week after the homicide, and within three days after the indictment was found.

Had the accused been at liberty under bond so that he could have conferred freely with counsel who were appointed and gone to .the scene of action and ascertained what evidence there was attainable in his favor, we would feel less like holding that the trial was unduly precipitate, but in view of the fact that he was incarcerated in jail from the day of the homicide and unable to see and confer with friends, or counsel whom the court had assigned for his defence, it does seem to us that .the hardship put upon him was unusually great — particularly in view of the fact that the indictment charged him with murder, that the jury found him guilty without qualification, and that the trial judge sentenced him to death.

The Constitution provides in the bill of rights that in all criminal prosecutions the accused shall enjoy, among other things, the right “ co defend himself, and to have the assistance of counsel.” Const., Art. 8.

In State vs. Ferris, 16 An. 425, our predecessors said on this subject:

“The law securing to (the accused in criminal eases) the assistance of counsel did not intend to extend a barren right; for, of what avail would be the privilege of counsel * * . * if, on the spur of the moment, without an opportunity of studying the case, the former should be compelled to enter into the investigation of the case.”

In the more recent case of State vs. Simpson, 38 An. 24, this court, with great deliberation, decided “that the right to be heard by counsel, guranteed by the Constitution to the accused, is not an empty formality, but an inestimable privilege, and that counsel should be allowed reasonable time to prepare the defence.”

On the faith of those two decisions this court made the same application of the same doctrine in State vs. Brooks, 39 An. 239, and from that opinion we make the subjoined extract, viz.:

“ From the foregoing recital it appears that the accused was convicted on the ninth day following the commission of the offence for which he was indicted, and that the application was made for a con - tinuance on the first calling of the case for trial.”

After quoting from the decisions referred to, the Chief Justice, speaking for the court, said:

“Precipitancy, instead of accelerating, at times procrastinates the trial of offenders.”

We thiuk the principle announced in those cases finds just application here.

But, in thus deciding, we wish it to be distinctly understood that we intend no reflection whacever upon neither the trial judge nor the District Attorney.

Upon other propositions presented and discussed in the briefs and argument of counsel on either side we express do opinion.

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


text:
    No. 12,793.
    State of Louisiana vs. Eugene Corcoran.
    1. This court has no jurisdiction to review the facts on which the verdict in criminal cause rests.
    2. A juror can not be heard to impeach his own verdict. Nor can this be do indirectly through a third person testifying to remarks made by a juror after the verdict.
    3. The law and motives of public policy alike exclude such testimony.
    A PPEAL from the Criminal District Court for the Parish of Orleans. Moise, J.

      M. J. Cunningham, Attorney General, and R. H. Marr, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      Wm. J. Hennessey for Defendant, Appellant.
    Argued and submitted April 9, 1898.
    Opinion handed down April 18, 1898.
   The opinion of the court was delivered by

Blanchard, J.

The accused, convicted of robbery, appeals from a sentence of fifteen months at hard labor.

He alleges error in the ruling of the trial court denying his origina and supplemental motions for a new trial, and in the ruling denying his motion in arrest of judgment.

The several grounds urged in the original motion for new trial are predicated upon the contention that certain facts necessary to establish defendant’s guilt were not proven. The trial judge, exercising the discretion vested in him by law, refused the application. It does not appear that this discretion has been abused, and it is well established that this court will not interfere with such rulings, unless manifestly erroneous. State vs. Moreau, 50 La. An. — ; Southern Rep., Vol. 22, p. 966.

Nor has this court jurisdiction to review the facts on which the verdict rests. State vs. Cook, 42 An. 88; State vs. Seiley, 41 An. 145: State vs. Nelson, 32 An. 844; State vs. Deschamps, 42 An. 575.

The ground urged in the supplemental motion for new trial is, that one of the jurors (naming him), who sat in the trial of the ease, after leaving the jury room, told one Monaghan that he (the juror) would have held out for the defendant and not consented to convict him had it not been that, by so doing, he would lose his job,” or was apprehensive that he would lose “ his job ” — meaning the place in service or employment he was then filling.

It is contended that by reason of the bias and extraneous influence thus controlling him this juror disregarded and ignored the charge of the court, as well as his oath, and the verdict is vitiated.

On the hearing of the motion Monaghan was sworn.as a witness, being tendered by the accused to prove its averments.

The State objected to the evidence sought to be adduced on the ground that if the juror were himself present, and it were sought to place him on the stand, he could not be heard to impeach his own verdict, and still less can a witness be examined as to certain unsworn statements alleged to have been made by the juror, the effect of which declaration would be to impeach the juror’s verdict.

The objection was sustained, the evidence excluded and defendant excepted.

The trial judge gives as reasons for its exclusion that the allegations as to the ineompetency of the juror were based on hearsay evidence; that the nature of the juror’s employment was not disclosed, nor suph relationship between that employment and the prosecution as would justify the-inference, conclusion or even probability that he would lose “ his job ” on account of his action as juror; that the witness was offered merely to prove the juror had made such a remark; that there was no representation the juror had been tampered with, nor were wrongful and corrupting influences averred or offered to be shown; and that, while the remark of the juror was sought to be made use of under guise of sustaining a charge of incompetency, it was plainly an attempt to impeach his verdict.

There was no error in the ruling of the court.

The law must be considered settled squarely against the contention of the accused that the evidence of this witness was admissible. State vs. Beatty, 30 An. 1267; State vs. Price 37 An. 218; State vs. Morris, 41 An. 785.

We quite agree with the observation of the learned judge of the court a qua that “if anew trial should be granted on this ground almost any verdict could be set aside by securing from sympathetic or timid jurors such expressions as would involve their own competency after the binding obligations of an oath had been removed.”

The law and motives of public policy alike exclude such testimony as that here offered.

The motion in arrest of judgment was urged on the ground that the information does not charge the accused feloniously took from the person of the prosecuting witness by violence, or by putting him in bodily fear, the property alleged to have been stolen. It is insisted that this was essential, and that its absence vitiates the information and all proceedings had thereunder.

A reading of the information shows that this complaint is groundless. The charge is that “one Eugene Corcoran * * * in and upon one W. J. Cummings feloniously did make an assault, and the said Cummings in bodily fear did then and there put, and' forty-five dollars of the lawful money of the United States of America, one match case of the value of three dollars, one handkerchief of the value of twenty-five cents and one cravat of the value of seventy-five cents, of the goods, property and chattels of said Cummings, from the person and against the will of him the said Cummings, then and there feloniously and violently did steal, take and carry away.” .

Judgment affirmed.


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    No. 12,769.
    State of Louisiana vs. Adam Robertson.
    1. A General Averment not Sufficient. — The allegation that tile verdict was contrary to the law, and the evidence does not present of itself question for review or appeal.
    2. Not Improperly Influenced. — Where there was no ground to suspect (though alleged) that the jury had been improperly influenced, the verdict and sentence must remain as returned.
    3. Sheriff in Charge of fury. — Communications between the jurors and the officer in whose charge they were affords no ground for á new trial, where it does not appear that prejudice resulted.

      4. Indictment Contained all Essential Allegations. — The terms of tile indictment technically charged the offence and brought the case within the provisions of the statute.
    5. The omission of the words “ in the peace of the State” did not vitiate the indictment.
    A PPEAL from the Sixteenth Judicial District Court for the Parish of St. Helena. Reid, J.

      M. J. Cunningham, Attorney General, and D. S. Kemp, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.
    Defendant, appellant, not represented by counsel in Supreme Court.
    Submitted on briefs April 9, 1898.
    Opinion handed down April 18, 1898.
   The opinion of the court was delivered by

Breaux, J.

The defendant was charged with murder. - He was tried and found guilty as charged, and condemned to suffer the extreme penalty of the law. Prom the verdict of the jury and sentence of the court he prosecutes this appeal.

He is not here represented by counsel.

A motion in his behalf was filed in the District Court for a new trial.

The grounds of the motion were that the verdict of the jury was contrary to the law and the evidence. That undue influence was brought to bear upon the jury to compel it to find a verdict of guilty; that improper communication was had with the jury to influence a verdict.

The first objection that the verdict was contrary to law and the evidence, we take it, was raised as preliminary to the objections that follow.

Considered as an independent proposition it has always been held that a motion on the single ground that the verdict is contrary to the law and the evidence does not present question for review on appeal.

Passing to the second ground set forth in the motion, viz.: undue influence upon the jury, the trial judge in his statement incorporated in the bill of exceptions declared that there was no improper influence brought to bear on the jury; that a large number of persons were present to see the trial of the accused; that they remained in the courtyard after the jury had retired; that the jury room has windows from which the jury could see persons in the courtyard; that, due to the construction of the building, their removal to any other room could not have prevented the jurors from seeing those persons who were in the yard; that it was not suggested, nor was it a fact, that those persons in the courtyard were riotous or disorderly. The record further discloses that they did not hold any communication with the jury; that there was absolute freedom from all interference with the trial, and not the least demonstration; those present conducted themselves quietly and in a most orderly manner; that the accused was fairly tried and convicted. It appears that the sheriff and his deputy were the only witnesses as relates to the jury and improper influence charged. Their testimony supports the statement of the District Judge as above given in regard to the conduct of those present; they were questioned and testified as to the orderly behavior of those present, and the total absence of any influence whatever against the accused.

There was no warrant for the charge of improper influence of persons present at the trial. Nearly always at the trial of criminal cases of great moment in the community persons assemble to witness the trial. Of itself the assembly of persons offers no ground for complaint on the score of prejudice to the accused. The court is not to assume that the jnrors were put in fear by the mere presence of a number of persons. The record does not disclose that the assembled persons were moved by any other desire than to witness the trial.

The evidence does not suggest the least ground upon which injury can be presumed. It was not shown that a word of threat was uttered, or that the least gesture was made while the jury was in the room deliberating.

After a careful consideration of the statement of the District Judge and of the evidence of the sheriff and deputy we arrived at the conclusion that the objection offers no basis upon which to reverse the verdict of the jury.

This conclusion brings us to the next ground urged by motion for a new trial, viz.: communication with the jury.

This charge was leveled against the sheriff; he had been entrusted by the court with the custody and care of the jury by the judge. The jury retired to the room of deliberation on Saturday afternoon; some time after, about two hours, the sheriff asked them if they wished supper. This inquiry led to some conversation between him and the members of the jury in which he said to them that unless they agreed and found a verdict by eight o’clock, they would have to remain over until Monday morning; eight o’clock it appears was the usual hour of the court’s adjournment.

This officer stated that he did not know at the time whether or not the jury had agreed upon a verdict.

It does not appear that he was present while the jury was deliberating.

It is not suggested that he sought, by speaking to them as he did in regard to the adjournment of the court, in any respect to influence the minds of the jurors.

While we must hold that all communications between jurors and officers of court should be as much as possible restricted, yet we are constrained to hold that such information as was given in this case was not ground for a new trial. In a case presenting a similar question it was decided, “where the officer told them that unless they agreed they. would be detained until the next day at noon,” this, though improper, was held not sufficient to avoid the verdict, “ since it did not amount to an illegal restraintof the jury.” Thompson on Trials, Vol. 2, pp. 1918, 2556.

We pass to defendant’s motion in arrest of judgment presenting grounds of objection: that he was not charged with any crime under the laws of the State; that the indictment did not state that the deceased was in the peace of the State.

With reference to the first objection, the indictment contains every essential recital. It charges in the language of the law, that the defendant at time stated, in the parish of St. Helena, wilfully, feloniously, and of his malice aforethought, did kill and murder James A. Carruth.

Nothing else was needed to make a complete and valid indictment.

It has been, as to the second ground of the motion in arrest, repeatedly held by this court that the absence of the allegation “ in the peace of the State ” was not ground for an arrest of judgment. State vs. Vincent, 36 An. 772, and decision cited. State vs. Simien, Ib., p. 924; State vs. Sonnier, 38 An. 962.

This completed the review of every objection and every point they suggested.

We found no ground upon which the accused can be granted a new trial.

There is nothing in the proceedings indicating that the law has not been complied with in every respect.

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


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    No. 12,788.
    State ex rel. L. D. Ford vs. S. M. Taylor, Justice of the Peace.
    A judgment and execution sale which are founded upon a citation and writ of attachment which have never been served in any manner upon the defendant, temporarily absent, will be held void in the exercise of the supervisory power of the Supreme Court by the writ of certiorari.

    QN APPLICATION for a Writ of Certiorari.

      G. P. Thornhill for Relator.
    Respondent pro se.

    Submitted on briefs April 7, 1898.
    Opinion handed down April 18, 1898.
    Application for Writ of Certiorari.
   The opinion of the court was delivered by

Watkins, J.

Relator alleges that notwithstanding he was a resident and citizen of the parish of Rapides, having permanently removed there from the parish of Caldwell, one A. D. McFarland, instituted a suit against him for the sum of four dollars and seventy-five cents in the court of the respondent, a justice of the peace for the fifth ward of the parish of Caldwell — said suit having been accompanied by an attachment predicated on the allegation that he was about to remove from the State permanently.

He avers that under said writ his property was seized and that the only notice of any kind that was attempted to be served was the posting of a citation on a church edifice called Palestine, which was in the vicinity of the court; and that thereupon the respondent tried the cause, and rendered judgment against him by default in favor of the plaintiff for the amount of his demand.

That under said judgment an execution was issued, his property seized and sold “ without any notice, legal or otherwise, having been given him;” and he charges “ that all the acts and things done in the premises by the respondent and his constable were illegal, null and void, because they had no jurisdiction of his person; and because no citation or noticé of the aforesaid proceedings was given him, ® * * and he was in total ignorance thereof at the time, and until his property had been sold. ”

He alleges that the judgment being unappealable his only redress is by resort to the supervisory writ of certiorari; and his prayer is, that the respondent be compelled to send the original proceedings up to this court, to the end that their legality and validity be tested, and on final hearing that same be annulled.

In his return the respondent avers that he produces and files a certified exemplification of said record in obedience to the order of the court, and he affirms that at the time of the filing of said suit the relator was a resident and citizen of the parish of Caldwell, temporarily absent from the parish “ doing day labor at Alexandria, La., and was fully apprised of the proceedings had against his property in the above entitled cause by letters mailed to him by a brother who resided at the time in the immediate vicinity of the property seized and sold.”

The respondent further returns “that relator’s failure to appear- and defend the suit above named is and was upon the assumption that if he failed to appear he would be, under the law, awarded heavy damages against him and the plaintiff.”

The transcript which is appended to the return shows that the citation was served by posting same “ on the late residence of L. D. Ford,” the relator; but it does not show any service whatever of the writ of attachment.

That upon the foregoing proceedings a judgment was rendered against the relator, who was absent, by default; but there is nothing therein recited with reference to the attachment having been either dissolved or sustained.

That soon afterward an execution was issued, and'relator’s property was thereunder seized, and that the notice of seizure was served by “ posting same on the residence of L. D. Ford,” the relator.

That, after due advertisement and appraisement, said property was advertised and sold.

Conceding all that is claimed in the return of the respondent it is evident that his proceedings were altogether illegal and irregular; for admitting that the relator’s residence and domicile were in the parish of Oaldwell, and that he was only temporarily in the parish of Rapides, it became essential that he should have been cited as a resident citizen in order to constitute the subsequent judgment and execution sale legal and valid.

On the contrary, it clearly appears that there was no legal service of the citation or writ of attachment of any kind that was at all effective.

The relator’s demand must be sustained.

It is therefore ordered and decreed that the relator’s demand be sustained and the provisional writ of certiorari made absolute, and that the alleged judicial proceedings which are complained of be annulled at the cost of the respondent.