author: Fbnnbr, J.

text:
    No. 266.
    Leon M. Carter vs. The State of Louisiana.
    ' 1. An act of the Legislature authorizing a party to sue the State does not authorize'the issuance of a writ of fieri facias, commanding the seizure and sale of property of the State to satisfy the judgment rendered in such suit.
    2. The only effect of such judgment is to effect a settlement of disputed questions of law and fact involved, morally binding on the State, but possessing no executory force.
    ■8. The control, administration and disposition of the property and funds of the State and the appropriation thereof to the payment of debts are powers appertaining exclusively to the legislative department, and, under Articles 14 and 15 of the Constitution, can not be delegated to, or exercised by the judiciary department.

      APPEAL from the First District Court, Parish of Caddo. Taylor, J.

      Land & Land and A. H. Leonard for Plaintiff and Appellant:
    1. The judicial power, under the Constitution of the State, is one of the sovereign, powers of government, independent and exclusive of the legislative and executive powers of the government. See Arts. 14,15 and 80 of the Constitution.
    2. Under the present Constitution the courts of the State can only exercise judicial powers, and no law can be passed authorizing them or the several judges, thereof to exercise any other functions or to perform any other duties but such as are judicial. See Arts. 92,14 and 15.
    3. It is a universal principle oí jurisprudence that the judicial power of a court is. continuous, and ends only with the execution of its judgments; and that every court has the power to command the execution of its final sentences, decrees and orders.
    This principle of jurisprudence is stated by Sir William Blackstone in the following language: “All jurisdiction implies superiority of power; authority to, try would be vain and idle without an authority to redress; and the sentence of a court would be contemptible unless the court had power to command the execution of it.” 1 Blackstone’s Commentaries, 242.
    4. The same principle is expressly declared in our own State laws as follows: “The-execution of judgments belongs to the courts by which the causes have been, tried in the first instance, wnetlier such judgments have been affirmed or reversed on appeal.” See C. 1\, Arts. 017, 618.
    5. The same principle was recognized by the Supremo Court of the United States in the celebrated case of Chisholm vs. The State of Georgia, in which the State was sued by a citizen of another State, under a provision contained in the Constitution of the United States. See 2 Balias, p. 419; 1 Kent’s Commentaries, 297*
    45. The same principle, when a State consents to be sued and is properly brought into court, is recognized and declared by the Supreme Court of the United States in the case of Davis vs. Gray, in the following language: “When a State becomes a jjarty to a contract, the same rules of law are applied to it as to private persons, and, when properly brought into the forum of litigation, no right or immunity can be asserted by the State as an incident of its sovereignty* Davis vs. Gray, 16 Wall. BOB.
    7. A State can not be sued without its consent; but a State may waive this privilege and permit itself to be made a defendant in a suit by individuals or another-State. A State may prescribe the terms and conditions on which it consents to. be sued, and the manner in which the suit shall be conducted, and may withdraw its consent before trial and judgment. Boors vs. Arkansas, 20 Howard, 527; Clarke vs. Banard, 106 U. S. 4B7; Cunningham vs. Mason et al., 109 U. S. 446.
    8. The act of the Legislature authorizing the plaintiff to sue the State contains no terms or conditions, but declares in plain and positive language that he shall have the right to sue the State and recover the amount of money adjudged to be due to him by the court taking cognizance of the suit. See Act No. 81 of 1884.
    9. The judicial powers of a cou>rt only end with the execution of its judgment. 3 Blackstone, 313; C. P., Arts. 617, 618.
    10.A judgment directing the payment of a sum of money is executed by a writ o£ fieri facias against the property of the debtor. O. P., Art. 641. This writ lies against all persons and corporations, whether privileged or not. 3 Blackstone, 417; C. P. 641.
    11. The writ of fieri facias is not a writ of compulsion or coercion; it does not command the debtor to do any act, to exercise any power, or to perform any duty-contrary to his will or pleasure. C. 3?., Arts. 642, 643; Blackstone, 417.
    12. The Constitution of the State ordains that all courts shall be opened, and every person for injury done him in his rights, lands, goods, person or reputation., shall have adequate remedy by due process of law, and justice administered without denial or unmeasureable delay. See Art. 11. The due process of law is distinguished into original, intermediate and final. Ifinal process is the process of execution. 3 Blackstone, 279,413.
    13. A State is a supreme political corporation; but when it waives its sovereignty or exemption from suit, and is properly brought into the forum of litigation, it becomes subject to the jurisdiction of the court in the same way and to the some extent that subordinate political corporations are subjected under the constitutional laws of the State. There is no sovereignty intheparties to a lawsuit, and none can be asserted in bar of the jurisdiction of the court. The sovereignty is in the court. Davis vs. Gray, 16 Wall.
    14. In suits between sovereign States there can bo no plea of sovereignty in bar of the jurisdiction of the court. 1 Kent, 297, and notes.
    15. When the General Assembly of the State pass a law authorizing a suit against the State, the courts are bound to-enforce it to the full extent of their jurisdiction or judicial powers under the Constitution, unless the law prescribes limitations on the powers of the courts or terms and conditions inconsistent with the full exercise thereof in the suit. See Arts. 80,11,14,15 and 92 of the Constitution. Chisholm vs. The State of Georgia, 2 Dallas, 419.

      J. Henry Shepherd, District Attorney, for Defendant and Appellee:
    1. It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and general practice of mankind, and the exemption as one of the attributes of sovereignty is now enjoyed by the government of every State in the Union. Hans vs. Louisiana, 134 U. S. 13.
    2. State governments have the privilege of paying tlieir own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. Hans vs. Louisiana, 184 U. S. 13.
    3. The public property and money used for public purposes of the parishes of the State, to whom the sovereign has delegated but a portion of her powers, are exempt from seizure, even though judgments have been rendered in conformity to law. 1 An. 435 ; 4 An. 84; 6 An. 570: City vs. Sugshed, 35 An. 548.
    4. The public revenues and public property of the State are under the exclusive control of the legislative department of the government. That department is withoufauthority to divert them save in the method prescribed by the Constitution. A judgment authorizing the seizure of the property or money of the State would be a nullity.
    5. No money shall be drawn from the treasury except in pursuance of specific appropriation made by law. Article 43 of the Constitution. The General Assembly shall have no powernor authorize the payment of any claim against tlie State without express authority oí law. Article 45 of the Constitution. When the judgment orders the payment of a sum of money the party in whose favor it is rendered may apply to the clerk and obtain from him a writ of fieri facias against the property of his debtor. C. P. 641.
   The opinion of the court was delivered by

Fbnnbr, J.

By an act of the General Assembly, No. 81 of 1884, plaintiff was authorized to sue the State of Louisiana for a certain indebtedness alleged to be due under a contract with the State. In accordance therewith he brought his suit and recovered a judgment against the State in March, 1885, which became final without appeal. He alleges that at the session of the General Assembly in 1886 and at the subsequent session in 1888 he applied for an appropriation to satisfy his said judgment by bills for that purpose introduced by members, which said bills were defeated, and that his only remedy for the enforcement of his rights under said judgment is by the exercise of the judicial power.

He avers that the State owns property, rights and credits, which form no part of its annual revenues, derived from taxation for the support of the government, and which are not exempt from seizure and sale, and that he has the right to execute his judgment by seizure and sale thereof under the usual process.

He prays, therefore, that the State be cited through her Governor and that, after due proceedings, there be judgment decreeing that a writ of execution or fieri facias issue on said judgment against the State commanding the seizure and sale of any of her property not forming part of her annual revenues derived from taxation, to an amount sufficient to pay and satisfy said judgment.

The State appeared by counsel and filed an exception of no cause of action, and from a judgment sustaining said exception the plaintiff brings the present appeal.

The learned counsel of plaintiff fully and frankly concedes the principle, now fortunately too firmly established by repeated judicial decisions to admit of further controversy,- that a State of this Union can not, directly or indirectly, be sued by its own citizens, or by the citizens of other States or of foreign nations, either in its own courts or in the Federal courts, without its consent. His contention, as we understand it, is that the State, in this case, has consented to be sued, and that the effect of such consent is to subject the State to the judicial power and jurisdiction, not only for the purpose of entertaining, hearing and deciding the suit, but also for the purpose of executing and enforcing the judgment by the seizure and sale of the property of the State and by applying the proceeds to the satisfaction thereof.

Our answer to this contention is twofold, viz:

1. The consent to execute the judgment rendered by seizure and sale of the property of the State, is not implied by, and does not follow from, the consent given to the suit.

2. If such copsent had been expressly given by the legislative power, it would be unconstitutional, null and void.

I.

Legislative acts authorizing individuals to sue the State upon claims which the Legislature, for any cause, does not see fit to recognize and pay, have been of common occurrence in this and in other States. Their purpose and effect, as commonly understood, are undoubtedly nothing more than to refer to the judiciary the settlement of the questions of law and fact involved in the claims, and the determination, in the form of a judgment, of the rights of the parties. It is implied, as a matter of course, that the legislative power, after making such a reference, will accept and abide by the judicial determination, will recognize the judgment rendered as final and conclusive, and will, in due and ordinary course, make provision for the satisfaction thereof.

That such was the interpretation of his remedy adopted by the plaintiff himself is evinced by his applications to successive General Assemblies for an appropriation to satisfy his judgment.

But to assume that, by consenting to be sued, the Legislature intended to abdicate its constitutional function of controlling and administering the public funds and property and of appropriating them to such lawful purposes as it may deem best, and to delegate to the judicial department the power of seizing such property and applying it to the payment of a particular debt, would be, beyond measure, rash and unjustifiable. No such intention is expressed in the act or can be fairly implied from its terms; and we consider it beyond question that no such ever entered into the mind of any member of the legislative body. The incidents and appurtenances of ordinary jurisdiction have no application to a case like this. Undoubtedly jurisdiction granted to render judgments between parties subject to judicial power and control implies power to execute such judgments. But the sovereign is not subject to judicial power and control, except just so far as it has consented thereto; the moment the limit of that consent is reached the judiciary must instantly halt. Satisfied as we are that the Legislature has not consented and did not intend to consent to the execution of this judgment by writ of fieri facias, we are bound to deny such remedy.

Counsel asks, of what use is the power to render judgment against the State, if the court is powerless to execute the judgment? That question was anticipated by Mr. Hamilton in the discussion of the Constitution of the United States before its final adoption. ‘ To what purpose,” he asked, “ would it be to authorize suits against sovereign States for the debts they owe? How could recoveries be enforced? It is evident that it could not be done without waging war against the contracting State.” Federalist No. 81. He never dreamed that authorizing suit against a State would imply the right to issue fieri facias on the judgment.

Puffendorff says: “And if the prince gives the subject leave to enter an action against him in his own courts, the action itself proceeds rather upon natural equity than on municipal laws. For the end of the action is not to compel the prince to observe the contract, but to persuade him.”

In England claims against the Crown might be prosecuted before certain courts in the form of petitions of right, with the consent of the King, but it was held by Lord Mansfield that “ if there were a recovery against the Crown, application must be made to Parliament, and it would come under the head of supplies for the year.” Macbeth vs. Haldimand, 1 Durn. & East, 172.

We have examined all the authorities quoted by counsel and find none of them to support his contention. We are quite certain that no precedent exists sustaining the issuance of a fi. fa. on a judgment against a sovereign State in her own courts, though rendered with her own consent.

The only recourse for satisfaction is by application to the Legislature, with whom the judgment should surely have great persuasive force, but none compulsive.

II.

We are quite satisfied that, if the Legislature had expressly authorized the court to execute this judgment by the issuance of the writ of fl. fa., and the seizure and the sale of the property of the State for its satisfaction, such action would have been unconstitutional, null and void.

Articles 14 and 15 of the Constitution divide the powers of government into three distinct departments, and provide that “no one of these departments, nor any person or collection of persons holding office in any one of them, shall exercise power properly belonging to either of the others.”

The fiscal affairs of the State, the possession, control, administration and disposition of the property, funds and revenues of the State are matters appertaining exclusively to the legislative department. Except in so far as the Constitution itself has appropriated them to particular purposes, the legislative department has exclusive control of them. No debt of the State can be paid without an appropriation, and the Constitution provides the manner in which alone appropriations shall be made. The judicial department is vested with no right or authority over such matters directly or indirectly. If the Legislature, in authorizing the judiciary to entertain suits and render judgments against the State, should add the authority to execute the same by seizure and sale of the State’s property and the application thereof to the payment of the debt recognized by the judgment, it would be delegating to the judicial department powers exclusively vested in the legislative department, in violation of the express prohibition of the Constitution. The giving to the exercise of such powers the form of judicial process would not destroy its essential character. It would still be in effect the exercise of the purely legislative power of disposing of, and appropriating the property and funds of the State to the payment of a particular debt of the State. Such powers the judiciary and all members thereof are prohibited from exercising, with or without the legislative consent.

If the Legislature could delegate such power in one instance, it might refer all public creditors to the courts for satisfaction, and shoulder on the judiciary the whole burden of distributing the State’s property and funds amongst them in a concursus.

We will not further elaborate the subject.

Judgment affirmed.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 270.
    The State of Louisiana vs. Tom Patterson.
    An indictment charging that the accused did wilfully and feloniously, by force and violence, rob, etc., is sufficient without the additional words “ against his will.”
    APPEAL from the First District Court, Parish of Caddo. Hieles, J.

    J. Henry Shepherd, District Attorney, for the State, Appellee:
    1. An exception to an entire charge which points out no specific errors, but asserts generally that it did not properly inform the jury of the law of the case, and that the charge is not law, is too vague to be considered by the Supreme Court.
    It is the duty of counsel to point out each erroneous instruction specifically,and bring it to the attention of the court, so the court can pass upon it. Thompson on Ohaiging the Jury, p. 157; State vs. Williams, 30 An. 842; State vs. Biculfi, 35 An. 774; State vs. Melton, 37 An. 77.
    2. The tendency of modern jurisprudence is to relax strict technical rules of the common law, and to look rather to substance than form, to ideas rather than words. State vs. Williams, 32 An. 335.
    3. In an indictment for robbery the phrase, putting in fear, is not essential. It is an alternative element in the offence, only essential where there is no allegation of force. Bishop 2, Or. P. 1005, see p. 474.
    “If force is used there need be no other fear than the law will imply from it. There need be no fear in fact. It is sometimes said that there must be either force or fear, not necessarily both. Where there is actual force the fear is conclusively inferred. Bishop, G. L. 2,1174, p. 660.
    Hence, an indictment charging force and violence would be sufficient for the introduction of evidence of force and violence and authorize a legal conviction.
    4. Bobbery is compound larceny — larceny aggravated by force. It is a larceny of a high grade; hence the allegations of an indictment for robbery should be similar, with the addition of the essential aggravating matter which elevates the offence to robbery. Mr. Bishop says: “Evidently in this part of the indictment what is adequate in larceny is also in robbery,” Or. P., Sec. 1006. Therefore, where an information contains all necessary averment to support a charge of robbery, the failure to charge the defendant with any conversion or intent to convert to his own, is not available as an objection in a motion in arrest. State vs. Darbin, 22 An. 162.
    As the words did wilfully and feloniously steal, take and carry away sufficiently imply the taking without the consent of the owner. State vs. DeSewart, 33 An. 979; State vs. Jones, 41 An. 784. By parity of reasoning, the words wilfully and feloniously, by force and violence, rob from the person, would negative the owner’s consent sufficiently to imply the taking without consent of the person robbed. M. U. B. 189 defines robbery.

      J. W. Jones for Defendant and Appellant:
    1 Robbery at common law, is the felonious and forcible taking of the property of another, from his person, or in his presence, against his will, by violence and by putting him in fear. Wharton’s Am. C. L., par. 1695.
    2. The essential substantive averments in a bill of indictment required by the common law are not dispensed with by the statute of 1855. 20 An. 145.
    3. The statute of 1855 was not intended to make a radical change in the system of criminal pleading, but to simplify it and correct some supposed deficiencies. 20 An. 147.
    4. When the statute has adopted a common law offence by fixing a penalty to it, without otherwise defining the crime, all the common law requirements must befollowed by the indictment. 20 An. 408 ; 9 An. 210.
    5. Whatever was essential to the description of the offence in an indictment at common law, is essential here. 33 An. 1292 ; 30 An. 814; 29 An. 601.
   The opinion of the court was delivered by

Watkins, J.

The indictment charges that the accused “ did wilfully and feloniously, by force and violence, rob from the person of Ered. Sims a watch worth $16,” etc.

Having been tried and convicted, his counsel filed a motion in arrest of judgment, on the ground that the indictment was defective and insufficient to support a conviction, because ‘ ‘ it does not charge him with robbing the said Sims of the watch and chain against his will."

The District Judge disallowed the motion, because he regarded as sufficient the averment of the indictment that the watch and chain were taken from the prosecutor “by force and violence." He says that while it is true that ‘ ‘ an indictment (for robbing) must state upon its face that the goods were taken against the will of the party assaulted, (yet) it seems (that) it may be good without the use of those specific words, if the words used convey the same meaning.”

It is well settled that an indictment for robbery must set out, in substance, all the elements of that crime as a common law offence.

Such an indictment should state the crime as having been committed feloniously, violently and against the will, or by putting the person in fear.

An essential element of larceny is stealth, and that of robbery is force. The latter may be physically ’applied to the person robbed, or goods may be extorted from Mm by the employment of intimidation or putting him in fear. But manifestly either physical violence or intimidation implies a restraint of volition, nothing else; and the addition of the phrase “ against his will” would have 'been an unnecessary tautology instead of a requisite element of description.

The use of force, or putting in fear, are terms to be employed in alternative only. The indictment must allege either force or putting in fear. 2 Bishop, Orim. PL, Sec. 1005.

We do not understand that a contrary doctrine is announced in State vs. Durbin, 20 An. 408, or in State vs. Cook, 20 An. 145. In the former it was said that “ in an indictment for robbery from the person, the words feloniously, violently and against the will are essential; and it is usual, though it seems to be unnecessary, to allege a putting in fear.” The words “violently and against the will” are not more expressive than are the words “by force and violence.”

In the latter case it was said that at common law the crime of robbery “ consists in the felonious and forcible taking from the person of another, or in his presence, against his will, of any chattel, money or valuable security, to any value, by violence or putting him in fear.”

That is, doubtless, a correct definition of the crime of robbery, but the opinion in that case does not state that this identical phraseology is essential to the validity of an indictment. On the contrary, it is apparent that the felonious and forcible taking of goods or property of another against his will is to be accomplished “ by violence or putting him in fear.” So that an averment in an indictment that the goods were taken by force and violence necessarily implies that they were taken against his will.

Our conclusion, therefó're, is that the indictment is not defective or insufficient.

Judgment affirmed.


author: McEnery, J.

text:
    No. 271.
    The State of Louisiana vs. Wilson Bowser.
    In a bill of exception, where there is variance in the statement of facts between counsel and the trial judge, the latter’s statement will be accepted.
    When the proper foundation has not been laid, evidence can not be received as to the prior acts, conduct or threats of the accused against the defendant.
    A difficulty, on the day previous to the homicide, with another person than the accused, is not admissible in evidence as a part of the res gestee.

      APPEAL from the Nineteenth District Court, Parish of St. Mary. Allen, J.

      J. Henry Shepherd, District Attorney, for the State, Appellee:
    1. The erasure of the Christian name and insertion of another as the name o£ defendant in an indictment is no cause for arresting judgment. State vs. Turner, 25 An. 573. The identification is all that is necessary, it matters not by what name the accused is known.
    2. The evidence upon which a motion for new trial was denied by the court below can not be considered on appeal, unless brought up by a bill of .exceptions. State vs. Given, 32 An. 782; State vs. Nelson, 32 An. 842; State vs. Belden, 35 An. 823; State vs. Miller, 36 An. 158; State vs. Redwine, 37 An. 780; State vs. Deas, 38 An. 581. The bill must set out the evidence to show the facts involved m the ruling. State vs. Nelson, 32 An. 842.
    3. The setting out in a motion for new trial what defendant’s counsel consider the proof does not answer the requirement; the evidence itself is what is needed.
    A difficulty on the day previous to a homicide with aperson other than the accused by the deceased is not admissible upon trial, and is not part of the res gesta. The deceased is not a party to the prosecution, and his utterances are hearsay to the same extent as those of any other third person. Bishop Or. Pro., Vol. 2, 623. If prosecutor is dead the evidence is lost. Bishop Or. L. 1082, Vol. 1.

      Todd & Todd and P. P. Sigur for Defendant and Appellant:
    1. Where it appears that deceased armed himself with a dangerous weapon and sought, by force, to enter the home of the accused at night, against the latter’s protest, and the accused slew him in the attempt, it is error to exclude from the jury evidence of a fuss the day before with the brother of the accused.
    2. Under the circumstances, the defendant has a right to show the jury, by pertinentfaets, what was the object of the assailant and his motive for the attack. Bisb. Crim. Pro., 3d Ed., Vol. 2, Secs. 610-618.
    3. In such an attack any lodger may interfere to prevent a felonious assault against a fellow inmate. So proof of a previous fuss with another inmate of the house would go to show the animus of the intruder and might serve to excuse his slayer if it should appear that a felony was intended by the former. Russell Crimes, Vol. 1, p. 602; Wharton on Homicide, 2d Ed., Secs. 542, 544, 546, 550; Wharton Crim. Law, Vol. 1, Secs. 508, 505, 493, 495, see 8th edition; Bishop Crim. Law, Vol. 1, Sec. 858 (7th edition).
   The opinion of the court was delivered by

McEnery, J.

The accused was indicted for the crime of murder, ■and convicted without capital punishment.

There are several defences urged, but only one is relied upon by the accused. The others are without merit, which we presume is ■the reason they are not mentioned or referred to in the brief of the counsel for the accused. As stated in their brief, the case comes up on one bill of exception. There is variance in the statement of the facts by the counsel and the trial judge. Following the invariable rule, we accept the statement of the latter. It is as follows: “ The witness, Robert McNally, a witness for the State, who said on examination in chief that he was acting as constable at the fair given at the house of the father of the prisoner, swore that he advised the deceased and Gilmore, who were entering the yard, not to come in.

‘ ‘ The District Attorney then asked the witness why he advised this. He replied there was a fuss the day before, which he saw. The District Attorney then said never mind about that fuss. Defendant’s attorney contended that all the circumstances of the fuss should be detailed. The District Attorney objected. The court ruled that the District Attorney could not be forced to ask the question that would bring out the details of the fuss; that the defendant had his right on cross-examination.

“On cross-examination defendant’s attorney asked the witness to detail the circumstances of the fuss, which he had said he saw the day before. The witness answered ‘ that the fuss was with the young man, the prisoner’s brother.’

“The District Attorney objected to the question, and contended that the foundation for the introduction of previous difficulties had not been made. Defendant contended that the foundation had been made. He contended that it was in proof that the deceased had come into the yard of the house occupied by the prisoner at night and, although halted by the accused, was advancing toward the house with a pair of brass knuckles, which were afterward found in his hand when he was shot.

“ The court ruled that without binding the court and without deciding whether or not the foundation for the introduction of the evidence of previous acts of violence by the deceased toward the prisoner was made, that the evidence as given by the witnesses in answer to the question was not admissible, because it showed a difficulty, not with the prisoner, but with another person.”

In order to mitigate, to excuse the homicide on the ground of self-defence on passion, the prior conduct, threats or other utterances of the deceased party in the special instance may be given in evidence, not simply to show that the deceased was bad, but, in the particular case, he was dangerous; and it so appeared to the accused. But what was unknown to the defendant can not thus be shown, because he could not have acted upon it.

In the instant case the course of the examination necessarily led to the mental condition of the defendant which prompted the homicide. What he knew was therefore only relevant. What he did not know could not have influenced his mind. Bishop on Orim. Pro., Vol. 2, pars. 610, 611, 613, 619, 620.

It does not appear from the record that any foundation was laid for the introduction of evidence as to the prior acts, conduct or threats of the deceased against the defendant. There are no facts brought up in the bill of exception to show that the deceased made threats against the defendant, which were communicated to him, and that he attacked the defendant or committed any overt act to carry out the threats so communicated. The “fuss” referred to by the witness McNally was not with the accused, but a third party, and is not a part of the res gestae, and is therefore not admissible upon the trial.

Judgment affirmed.


author: Breaxjx, J.

text:
    No. 272.
    The Parish of Caddo vs. The Parish of Bossier.
    Aparisli lias no right to charge for the more use of its jail to incarcerate prisoners sent from an adjacent parish under an order of the District Judge issued in accordance with authority of Section 2839 of the R. S. when it has, through its authorized agents, given consent to the use, and they have acquiesced by that consent in the execution of the order.
    The use of the jail is not intended to be permanent, and the sheriff alone is authorized to charge under the statute.
    Each parish must provide a jail. It is not intended that one parish shall permanently have charge of the prisoners of another.
    When the discretion of the District Judge has not been abused, and it has the-consent of the proper authorities, charges for the mere use of the jail will not be allowed.

      Boone, J. PPEAL from the. Second District Court, Parish of Bossier.

      J. Henry Shepherd and Alexander & Blanchard for Plaintiff and Appellant.

      J. A. W. Lowry for Defendant and Appellee.
   The opinion of the court was delivered by

Breaxjx, J.

The plaintiff, the police jury of the parish of Caddo, alleges that the parish has a secure and sufficient jail maintained at its expense.

. That since September 1, 1882, the police jury of Bossier has failed to maintain a jail for that parish, and that, all persons imprisoned in compliance with judicial authority were placed in the jail of Caddo parish; that it has been used continuously,. with the consent of the police jury of the last named parish, by the sheriff of Bossier parish, for the detention and incarceration of accused persons, charged with crime and ordered to jail, and all persons sentenced to imprisonment by the District Court of Bossier.

That the use of the jail is worth $3 a month, for each prisoner, and aggregates the sum of $3000 claimed as due. The defendant alleges that plaintiff’s petition discloses no cause of action, in that plaintiff has no authority to recover fees or other compensation from an adjacent parish for confining therein persons imprisoned in accordance with the orders of the judicial authorities of the parish; that a parochial corporation, without special legislative authority, can not maintain a jail and charge for its use.

On the trial of the exception it was proven that the jail of Bossier parish was destroyed by fire in the winter of 1884 and 1885. Since that time the parish has had no safe prison in which to confine criminals and offenders.

The District Judge gave the sheriff of Bossier orders to confine them in the Caddo or Webster jail until a safe place of confinement will have been provided.

At this time the parish of Bossier has no jail.

The exception was maintained and plaintiff’s demand rejected. From the judgment plaintiff appeals and prays that the judgment be reversed and the case remanded to enable it to prove the amount due.

It was admitted in argument that the fees of the sheriff of Caddo for the maintenance of the prisoners have been paid by the parish of Bossier; also the services rendered by physicians, and all claims except those made for the use of the jail.

Provision is made by statute for the payment of the sheriff in whose charge the prisoners are.placed. None for the payment of the parish.

' The prisoners were confined in the jail with the consent of the proper authorities of the parish of Caddo, and during a number of years no claim has been made for the use of the jail.

The judge of the district ordered them to be confined in the Caddo parish jail, evidently without thinking that any charge would be made for the use of the jail.

The consent given heretofore by the police jury of Caddo has not been in such terms as to give notice thatpayment would be required. If it can not be considered as an express approval, it was equivalent to an acquiescence, and the expression of a willingness to its being complied with by the sheriff as intended, free of any charge for the mere use of the jail.

Bach parish must provide a jail to confine prisoners.

It is not contemplated under the law that one-parish shall continuously furnish another with necessary jail rooms, and an adjacent parish can not be compelled to render such a service permanently.

Under the circumstances of this case we will not hold that plaintiff has the right to recover.

The use intended under Section 2839 of the Revised Statutes is temporary.

The time, the necessity are left to the discretion of the District Judge.

We conclude that this discretion has been properly exercised, and we the more readily reach that conclusion from the fact that the consent given by the proper authorities' sustains the correctness and necessity of the order given, and no charges can be made for its use to date.

Judgment affirmed.


author: Fenner, J.

text:
    No. 267.
    The State of Louisiana vs. John Hinson and Jesse Martin.
    Where an indictment is found during a term of court, and no further proceedings are had except the arrest of defendants and their discharge on bond to appear at a succeeding term, a motion made on the first day of such .succeeding term to quash the indictment on the ground that the clerk had not been sworn as a member of the jury commission, is not too late, on proof that the defect "was only discovered at that date.

      A PPEAL from the Second District Court, Parish of Webster. Boone, J.

      J. Henry Shepherd, District Attorney, for the State, Appellant:
    1. The statute provides that all objections to the manner of drawing juries, or to any defect that can be pleaded against any array or venire must be urged the first day of the term, or all such objections shall be considered wajved. Sec. 11, Act 44 of 1877.
    2. The want of capacity of a jury commissioner is a matter of record in the court, easily obtained by a bare inspection of the record. State vs. Tisdale, 41 An. 344.
    3. The simple denial under oath of the want of capacity of a jury commissioner is insufficient if the accused had abundant opportunity to examine the record and prepare his defence prior to the motion to quash. The accused is bound to use due diligence to discover defects, which must be urged limine. State vs. Watson, 31 An. 379; State vs. Jackson, 36 An. 96; State vs. Tisdale,41 An. 344.
    4. Where an accused has ample time to inspect the record, and abundant opportunity to advise with counsel eight months prior to his motion to quash, although it bo the first day of the term subsequent to his appearance in court, and the accused is out on bond, the objection to the capacity of the jury commissioner is not seasonably made. State vs. Ashunth, 41 An. 685; State vs. Sterling, 41 An. 681.

      Drew & Stewart and Watkins & Watkins for Defendants and Appellees:
    1. The clerk of court is required to take a special oath as jury commissioner, and when he participates in drawing the venire without having taken such an oath, it vitiates an indictment found by a grand jury drawn from such a venire. Act No. 44 of 1877; State vs. Williams, 30 An. 1028; State vs. Vance, 31 An. 398; State vs. Bradley, 32 An. 402; State vs. Thompson, 3? An. 879; State vs. Conway, 36 An. 350; State vs. Strickland, 41 An. 513.
    2. Clerk is a competent witness to prove the want of proper qualification by. State vs. Ainsworth, 41 An. 683.

      3. A motion to quash for this reason will lie if seasonably made, and is in time if made before trial and as soon as the defect complained of* was discovered. State vs. Bradley, 32 An. 402; State vs. Conway, 35 An. 350; State vs. Strickland, 41 An. 513.
    4. When the crime was committed after the first day of the term, the motion is in time if made as soon as discovered, and before trial. State vs. Bradley, 32 An. 302; State vs. Conway. 35 An. 350; 41 An. 513-679.
   The opinion of the court was delivered by

Fenner, J.

The State appeals from a judgment quashing the indictment on the ground that the clerk of court, who acted as jury commissioner in the drawing of the venire from which the grand jury finding the bill was chosen, had not taken the oath as such commissioner as required by law. It is fully proved that he had not taken the oath, and it is well settled that such omission, if seasonably urged, invalidates the venire and vitiates indictments returned by a grand jury drawn therefrom. State vs. Strickland, 41 An. 513; State vs. Oonway, 35 An. 350; State vs. Bradley, 32 An. 402.

We find no merit in the State’s contention that the motion to quash was made too late. The indictment was found at the February term of the court, and no other proceedings were had at that term except the arrest of the defendants and their discharge on bond to appear at the following September term. On the first day of the September term the motion to quash was filed, and the evidence shows that the defect was only discovered at that time.

In Strickland’s case (41 An. 513) we sustained the seasonableness of such a motion to quash, though not made until after arraignment and plea, on proof that the defect, which was not apparent on the face of the record, was not known to defendant or his counsel until after plea, and was urged as soon as discovered.

This decision fully covers and sustains the ruling of the judge a quo.

Judgment affirmed.


text:
    No. 268.
    The State of Louisiana vs. Ed. Oliver.
    otion to quash indictment on ground that clerk had not been sworn as jury commissioner, made after arraignment but before trial, will be held seasonable if proved that the defect was not known to accused or his counsel before arraignment and was urged as soon as discovered.
    PPEAL from the Second District Oourt, Parish of Webster. Boone, J.

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

      Drew & Stewart for Defendant and Appellee.
   The opinion of the court was delivered by

Fenner, J.

This case involves the same question passed on in the case of State vs. Hinson & Martin, just decided.

The only difference in the facts is that, in this case, the defendant had been arraigned and had pleaded at the February term, and, immediately after pleading, had applied for and obtained a continuance to the September term. On the first day of the latter term he filed the motion to quash, accompanied by full proof that the defect was only discovered by him or his counsel immediately before that date.

The difference is insignificant, and does not remove his case from the protection of our decision in Strickland’s ease, 41 An. 513, in which the motion to quash was also filed after arraignment and plea.

Judgment affirmed.


text:
    No. 269.
    The State of Louisiana vs. Charlie Mims.
    PPEAL from the Second District Court, Parish of Webster. Boone, J.

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

      Drew & Stewart for Defendant and Appellee.
   The opinion of the court was delivered by

Fenner, J.

This case is in all respects simila to that of State vs. Oliver, just decided, and for the reasons therein assigned, judgment affirmed.


text:
    No. 276.
    The State of Louisiana vs. Gustave Antoine, alias Figaro, and Guilliame Vallere.
    Aii indictment charging, in one count, one defendant with larceny of three hogs and another defendant, in another count, with having received seme three hogs knowing them to have been stolen property, a verdict and judgment acquitting the defendant of the charge of larceny necessitates the discharge of the other defendant. In such indictment, two generic crimes being conjunctively charged, the former is a necessary ingredient of the latter, and the foundation of it.
    APPEAL from the Twenty-first District Court, Parish of St. Martin. Mouton, J.

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

      Edward Simon for Defendants and Appellants.
   The opinion of the court was delivered by

Watkins, J.

On the 7th of October, 1885, an indictment was presented against Gustave Antoine alias Figaro, charging him, in one count, with the larceny of three hogs; and against Guilliame Vallere, charging him, in another count, with having received said stolen property, he well knowing same to have been stolen.

On the 15th of October, 1886, Figaro was tried and acquitted of the charge of larceny, and on the 5th of September, 1890, Vallere was tried, convicted of receiving stolen property, and sentenced to imprisonment in the penitentiary, and from this verdict the latter has appealed.

A motion in arrest of judgment was filed on the ground that the last verdict, the one against Vallere, convicting him of receiving stolen property, could not stand, inasmuch as Figaro had been long previously acquitted of the larceny of the same goods. The trial judge overruled this motion, but we think his ruling was clearly erroneous.

Vallere was charged with having received the identical goods that were stolen by Figaro from Antoine Poehé, and on the same day they were stolen. And it is further charged that Vallere knew that said goods had been stolen when he received them from Figaro. If, in point of fact, the hogs had not been stolen by Figaro, and he had not committed a larceny of them, Valiere could not have received stolen goods of him. The indictment charges two crimes conjunctively in two counts, and the former is an essential ingredient of the latter. If no goods were stolen, stolen goods could not have been received. Valiere, when he received the three hogs, if he did receive them at all, could not have known that they had been stolen, when as a matter of fact they had not.

The previous acquittal of Figaro of the larceny of the hogs necessitates the discharge of Valiere on the charge of having received the same hogs, knowing them to have been stolen property.

The verdict and judgment appealed from are erroneous, and must be reversed.

It is therefore ordered, adjudged and decreed that the verdict and judgment against Guilliame Valiere, be annulled and set aside, and that he be discharged from custody.


text:
    No. 277.
    The State of Louisiana vs. Charles Jean.
    The jury commissioners appointed by District Judges of the State hold their offices during the pleasure of the District Judge in accordance with the pi*ovision$ of Act 44 of 1877.
    In a prosecution for perjury it must appear upon the face of the indictment that the matter alleged to be false is material, and to charge generally that the false oath was material on the trial of the issue upon which it was taken. It is not essential to show particularly in what manner it is material.
    Perjury may be proved by one witness and corroborating circumstances. The rule requiring more than the testimony of a single witness is limited to the question of the falsity of what the defendant delivered under oath. A second witness is not required to turn the scale against the defendant’s former oath, but circumstances or facts otherwise appearing may suffice, such as independent corroboration of the testifying witness, the defendant’s declarations contradictory of the testimony for which he is on trial.
    It is not necessary that this corroborating or ancillary evidence or circumstances should be of weight equal to the testimony of a single witness.
    By the modern rule it is sufficient either that there are two witnesses or that the testimony of the one witness is corroborated or sustained by other facts appearing in the case or testified to by other witnesses.
    It was not error for the trial judge to refuse to charge specially as follows: “Ona charge of perjury it takes two witnesses to convict, or one witness with strong corroborating circumstances growing out of and linked with the words charged, to have been sworn to falsely.”

      APPEAL from the Twenty-first District Court, Parish of St. Martin-. Mouton, J.

      J. Henry Shepherd, District Attorney, for the State, Appellee:
    1. The jury commissioners appointed by the several District Judges of the State-hold their office during the pleasure of the District Judge. Act 44 of 1817.
    2. The correct doctrine as to proof of perjury is, it may be proved by one witness and circumstances and facts otherwise appearing. Nor is it correct to say that the corroborating evidence or circumstance must be of weight equal to the testimony of one witness. There must simply be enough plainly to turn the scale against the defendant’s .former oath. Bishop’s Criin. Proc., Sec. 932,. Vol. 2. The one witness to the falsity thus assumed to be necessary, is not always so. This part of the ease may be made out by documentary or other-like evidence.
    3. The question of materiality in a prosecution for perjury is one of law and fact,, and therefore is passed on with the rest under instruction of the court. Bishop’s Crim. Proc., See. 933. The province of a bill of exceptions is to bring upon the record facts which would not otherwise appear, and to disclose the objectionable rulings of the trial court so that the questions of law raised by the ruling in the matter excepted to may be reviewed by the appellate court. State ox rel. Gaines vs. Judge, 32 An. 1034; State ex rel. Mullen vs. Drew, 32 An. 1034. Unless the evidence necessary to present was taken, the bill of exceptions to-the ruling of the court can not be considered by the Supreme Court on review..

      Edward Simon and James Simon for Defendant and Appellant.
   The opinion of the court was delivered by

McEnery, J.

The accused was prosecuted by information for the-crime of perjury, tried, convicted and sentenced to hard labor for-the period of three years. He appealed from the verdict and sentence.

He complains of the ruling of the trial judge in overruling the-motion to quash the venire, on the ground that two of the commissioners were not qualified to draw the venire; the refusal to grant a new trial; the denial of a motion in arrest of a judgment. There are three bills of exception, one to the refusal of the trial judge to charge the jury as requested, one to the refusal of the judge to sustain the motion in arrest of judgment, and the third is to the admission of the whole of the testimony of Charles Jean, taken on the preliminary examination of the case of the State vs. Bertrand, at which examination the perjury is charged to have been committed-.

The first motion to quash went out of existence with the failure of the defendant to be tried at the term of court for which the venire was drawn by the disqualified jury commissioner.

The second notice to quash is based on the fact that the judge appointed another commissioner in place of the one disqualified. The last appointed commissioner assisted in drawing the venire for the term of court at which the defendant was tried.

The record shows that the commissioner whose place was that filled by the judge, had qualified as police juror, thus vacating the office of jury commissioner. There was a vacancy in the office of jury commissioner, and it was the duty of the judge to make the appointment. The jury commissioners appointed by the District Judge for the districts outside of New Orleans hold their office at his pleasure. He can remove a commissioner whenever the exigencies of the case require it. Act 44 of 1877.

No other reason than that the judge was without power to make the appointment is assigned for the disqualification of the commissioner.

The motion in arrest of judgment contains but two points which it is necessary to consider.

The first is that no date is alleged when the perjury was committed. The information charges the date with certainty, and alleges specially that the perjury was committed on the 10th day of July, 1888.

The second is that the information fails to allege that the false oath was material to the issue pending.

The law is that it must appear upon the face of the indictment that the matter alleged to be false was material. It is sufficient to charge generally that the false oath was material on the trial of the issue upon which it was taken. It is not necessary to show particularly how it was material. Wharton’s Criminal Law, paragraph 2263.

In the information the materiality of the evidence is charged directly, and the statement in charging the false oath and the circumstances make its materiality plain. 28 An. 361.

On the trial the entire evidence of the accused on the preliminary trial of Bertrand, instead of that part of the testimony in which the perjury is alleged to have been committed, was admitted in evidence. To this the accused excepted. We see no error in its admission. It was evidently necessary to understand the matter falsified or charged as perjury.

In the last and remaining bill of exceptions the matter urged as a defence is more serious.

In addition to the charge given, the defendant’s counsel requested the judge to charge “That it takes two witnesses in order to connect on a charge of perjury, or one witness with strong corroborating circumstances growing out and linked with the words charged to have been sworn to falsely. His honor refused to do so, saying that he had charged the very reverse, and on the further grounds: In lieu thereof I charged it is not absolutely necessary to prove perjury that there should be at least two witnesses, or one witness with strong corroborating circumstances; it may be proven even without one witness, if the circumstances are such as to fully satisfy the jury beyond a reasonable doubt that the crime was committed as charged by the accused.”

While judges are not permitted to discuss the facts of the case in charges to juries, yet they are expected to refer to the law applicable to the particular case.

The general rule which is limited to the question of falsity, is that the mere unaided testimony of one witness is not sufficient to convict of perjury.

The rule requiring more than the testimony of a single witness is limited to the question of the falsity of what the defendant delivered under oath. A second witness is not required to turn the scale against the defendant’s former oath, but circumstances or facts otherwise appearing may suffice, such as independent corroboration of the testifying witness, the defendant’s declarations contradictory of the testimony for which he is on trial. It is not necessary that this corroborating or ancillary evidence and circumstances should be of weight equal to the testimony of a single witness. It is sufficient to turn the scale against the defendant’s former oath.

The one witness to the falsity thus assumed to be necessary, is not always so. This part of the case, the same as any other, may be made out by documentary and other like evidence. Bishop’s Crim. Proc., pars. 928-932.

“Hence,” says Mr. Bishop in the work quoted and referred to, “by the modern rule it is sufficient either that there are two witnesses, or that the testimony of the one witness is corroborated or sustained by other facts appearing in the case or testified to by the other witnesses.” Id. 927.

Prom the above statement of the general doctrine relating to the crime of perjury, it 'is very manifest the charge requested by the •accused was properly refused by the judge.

The charge which he had delivered, and a part of which he rejected in his refusal to charge as requested, was not excepted to.

Judgment affirmed.


author: Breaux, J.

text:
    No. 284.
    Rossura Krouse and Husband vs. T. B. Neal et al.
    . A married woman wlio sells her separate property and stipulates the right to redeem and remains in possession of the property, can not be made to deliver it, when it is proven that the only amount with which she could have been charged has been paid by her since the sale and the remainder of the price unpaid was her husband’s debt.
    . 1 Boone, J. PPEAL from the Second District Court, Parish of Webster.

      Young, Drew <& Stewart for Plaintiff and Appellee:

      ie The wife, whether separated in property by contract or by judgment or not separated, can not bind herself for her husband, nor conjointly with him, for debts contracted by him before or during the marriage.” It. O. 0., 2398; 29 An. 75-123.
    Individuals can not by their conventions derogate from the force of laws made for the preservation of the public good, or good morals. It. O. O. II
    The law forbids the wife to become security for her husband, or to bind herself or her property for his debts. Her note for such a purpose in the hands of her husband’s creditors, who took it knowingly, is utterly null and void.” 80 An. 291; 29 An. 75; 15 An. 628; 16 An. 11.
    A married woman can not bind herself with her husband to secure advances to carry on the plantation. 16 An. 309; 24 An. 142; 26 An. 737; 30 An. 1106.
    She is not responsible for debts incurred by her husband in cultivating her paraphernal esta'to. 36 An. 824; 32 An. 1033.
    She can not alienate her paraphernal property to pay her husband’s debts. 33 An. 406; 37 An. 728; 27 An. 193; 38 An. 813; 39 An. 878; 26 An. 376; U. O. O. 2397-126-127.
    The law forbids the transfer of the paraphernal property of the wife to pay the debts of the husband or the debts of the community which he was bound to pay. Provost vs. Provost, 5 An. 562.
    Nor can the wife hypothecate her property to pay lier husband’s debts. 12 An. 852; 14 An. 169-419.
    "The contract in this case was never intended to operate as a sale, but simply as a security. No possession was ever given, no rents claimed, no assessment made or taxes paid on this land by Neal. The possession, ownership and administration remained in Mrs. Krouse just as it did before. The whole object was to secure the debts of Dr. Krouse and procure further advances.
    If there was ever any valid consideration it did not inure to the separate benefit of the wife.
    ■“ It is for those who treat with a married woman tobe on their guard, and see that the obligation innres to her separate advantage.” 34 An. 975; 37 An. 212; 29 An. 24; 24 An. 89; 12 An. 525; 14 An. 700; 12 An. 725.

      Lowry &.Smith for Defendants and Appellants:
    Duress or violence can not invalidate the contract of á married woman with an innocent third party, unless he participated therein or had knowledge thereof. Louisa Keicli, wife, vs. llosselin, 26 An. 418; 33 An. 1104.
    A wife, when she assumes separate control of her properly, may appoint her husband as her agent and displace him at will.
    A married woman who administers her separate paraphernal, the husband being wholly insolvent and without means of his own, must support the entire expense of the family. O. 0.2435; 29 An. 333.
    A married woman, duly authorized by her husband, or the judge, may alienate her paraphernal property without restriction as to the consideration, and should it be proven that a part of the consideration Avas a debt of her husband, she shall have a legal mortgage on the property of her husband for reimbursement of the same. O. 0.2389, 2390, 2397 ; 6 An. 455; Courtney vs. Davidson, 41 An. 711; Morrow vs. Godchaux.
    A married woman, duly authorized, may alienate her separate property and take in payment therefor a debt of another than her husband, and for the purpose of establishing her son in business. C. 0.122; 2 An. 1,903; 5 An. 569; 30 An. 795 (Spencer’s Dissenting Opinion); 6 An. 455; 41 An. 711.
    The conclusions of the judge a quo in treating the transaction between plaintiff and defendant as a mortgage instead of a complete alienation, are erroneous, inasmuch as the pleadings do not present this issue.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff’s husband in 1873 acknowledged an indebtedness to her in the sum of $5500. The written ackhowledgment was duly recorded, and there can be no question about the correctness of his indebtedness. A short time after, in satisfaction of this indebtedness, he transferred to her the lands in controversy in this suit, and other property described in the deed.

In 1882 she, authorized by her husband, made a deed to the defendant of part of the land she had received from her husband, in ■satisfaction of her paraphernal claim.

The price set forth in the deed was $1500 cash.

She, in the deed, reserved the right of redeeming the land on paying this amount' in three instalments and 8 per cent, interest.

She remained in possession of the land, and is at this time in possession.

The records do not disclose that any demand was ever made for the possession. The taxes are paid by her.

This suit is brought to annul the sale, on the ground that the price represents an amount due by her late husband to the defendant.

In her petition she alleges that although the conveyance is written in the form of a sale, that form was assumed for the purpose of disguising the true character of the contract.

Somewhat inconsistently she alleges lesion beyond moiety for the reason that she has never received any amount for the property.

The defendant filed a general denial, and claimed that he acquired the land for a sufficient consideration.

That the deed of sale was made by plaintiff and her husband.

That the latter was the master of the community of acquets and gains that existed between them, and to which the property belonged.

He also alleges that the sale was made with the right of redemption reserved by the vendors; that the limit of the right has expired, and that he now has the right to be placed in possession of the property.

The $1500 which figure in the sale were made up as follows:

One thousand dollars of the amount was an indebtedness of plaintiff’s husband to the defendant, viz:

Two hundred and twenty dollars was a security debt of the husband.

There was also due by him a sum of $500. This and the interest account made up the sum of $1000 charged to the husband on defendant’s commercial account books at the time of the sale.

The $500 remaining, which make up the $1500, is an amount advanced by defendant to plaintiff’s son to establish him in business.

The payment of the last sum was assumed by the plaintiff.

These $500 were returned, paid, as shown by the receipt in evidence.

To fix the responsibility of the remainder on the plaintiff, to change this indebtedness from the husband to the wife, it is urged that the security debt included in the price was transferred to the wife, and that she held the claim both against the principal and the security of her husband. This position of the defendant is not supported by the facts.

At the time that the accounts were cast just previous to the sale, this amount was included as an indebtedness of plaintiff’s husband to the defendant, and, as his indebtedness, it was added as part of the purchase price.

The records do not disclose that plaintiff ever became transferee of a claim for this amount.

It was carried in the husband’s account as due by him to the defendant, and as such it was made part of the price.

It was his debt, presented as his debt, included in the settlement as such. The name of the principal for whom the husband was security does not cut any figure in the transaction.

The wife, whether separated in property by contract or by judgment or not separated, can not bind herself for her husband, nor conjointly with him, for debts contracted by him before or during marriage. C. C. 2398.

The plaintiff did not become the owner of any claim against a debtor for whom her husband was security. We will not assume that the principal ever paid the amount to the defendant, or that the claim was ever considered as one due by him to her, particularly when it was presented by the defendant as due by plaintiff’s husband, and as such charged.

The next amount demanding our attention was also due by the husband. The defendant urges that it was properly brought into this sale as part of the price, for the wife ought to pay the household expenses. That the items of this amount consisted of supplies, of various kind.

The evidence does not satisfy us that these supplies went toward supporting the plaintiff and her children.

The agent of the defendant partner and his book keeper testifies:

“ The sale was made for $1500, with the right of redemption in three annual instalments of $500 each, with interest. The first instalment, which was $540, was paid. I did not know at that time that the $500 worth of goods sold in 1882 was to be used in establishing (defendant’s son) Otto Krouse in business.

“The $1000 were charged to Dr. Krouse’s account (plaintiff’s husband) on balancing the settlement on Neel’s books.”

It is proven that the supplies were furnished to the husband, to whom they were charged, and not to the wife.

It was his account, and not her account. He was trusted for its payment. After it became evident that it was no longer possible to collect from the husband, the account could not be charged to the wife. It has the appearance of an after-thought, for which possibly the husband, in his anxiety to pay, is responsible; but we are unable to conclude, after a careful examination of the evidence, that the charges are marriage .charges which the wife is bound by law to bear. The advances when made were certainly not made to her.

They were properly charged to the husband. The defendant now wishes to have it considered the debt of the wife.

There can be no question about the $1000 — they were due by the husband. It is finally urged that the last $500, to make the $1500 consideration, were for goods and merchandise advanced to plaintiff’s sonto establish him in business. This amount has since been paid.

It is true that it has been paid as price of the place sold by a sale ■a removée, and really as security, but as this is the only amount with which the plaintiff could possibly be charged, it extinguished all indebtedness and left the sale without the least consideration.

If we were to order this property to be delivered to the defendant, it would be in satisfaction of the debt of her husband.

There was no fraud or bad faith on the part of the plaintiff.

We attach no importance to the influences that were brought to bear on the wife to sign the deed.

We mention them as evidence only that there was no artful scheming on her part to obtain an undue advantage. In the interest of the family and of her own the rights of property of married women are entitled to some protection from the bad management of •the husband, his losses and extravagances.

When she only yields her signature to the solicitations of a very ■ importuning husband, and does not commit any act of fraud or bad faith whereby to obtain undue advantage, she can not legally be held to the conditions of a deed by compelling her to deliver her . separate property in payment of her husband’s debt.

In thus deciding we do not hold that the wife’s executed sale •would be vitiated by the fact that in an executed contract of sale part of the consideration may be a debt of the husband. There is no necessity in this case to pass upon that question.

Judgment affirmed.


text:
    No. 282.
    Nathan Weil vs. M. Israel.
    0.. A libel is any publication, whether in writing, printing, picture, effigy, or other representation to the eye, which exposes any person to hatred, contempt, ridicule or obloquy, or which causes him to be shunned, or which has a tendency to injure him in his occupation.

      ■2. The word “malice,” when used in civil or criminal pleading in eases of this kind, does not imply ill will or personal málice; its legal sense is a wrongful act done, without just cause or excuse. Malice is an imputation of the law from tlie false and injurious nature of the charge, and differs from actual malice or ill will, which latter may be proved to enhance tlie damages. Legal malice must not be proved. The law imputes it to the publisher of a libel, from the act of publication.
    3. Any publication which is false and defamatory subjects the publisher to damages, in favor of the party aggrieved-printed or written slander being justly considered wore pernicious than verbal. The law holds the publisher responsible, as the instrument used for the dissemination of calumny, whereby tlie character of any one may be blasted, or his social standing impaired, or his business injured. And it is not incumbent on the party assailed by falsehood and defamation to show malice against himself on the part of tlie publisher, nor to prove that he has been injured by the publication.
    The party libeled and slandered thus is entitled to redress. If a party has written or printed a statement or document, either by his own hand or by an agent or attorney at law, which contains false or defamatory language, charge, denunciation or epithet, whereby calumny or opprobrium is circulated to the detriment of another, and whereby his character may be blasted, or his social standing impaired, or his business injured, or which may have the tendency to degrade him in the esteem of his friends and of the public, is entitled to satisfaction in damages. It is a conclusive presumption of law that damage has ensued, under such a state of facts, and from the mere publication of such a libelous statement, and therefore no actual damage need be proved. Proof of particular or actual damage is only required to enhance a recovery.
    Kvery person has the right to enjoy that degree of respect, good will and social or business distinction to which his own acts, and his social and business habits entitle him; and any one who unlawfully interferes with this right, by circulating slanderous reports, renders himself liable for the consequent damages. And while it is true that injuries to one’s feelings and social standing are not susceptible of accurate admeasurement, yet they are recognized as a legitimate ground of action for reasonable indemnity.
    An averment in an answer to the suit of a clerk for the quantum meruit value of his services, to the effect that he is so notoriously unreliable and unworthy of trust, as a clerh, that he could not obtain employment as such, wherever he was known, filed in court and read in the presence of many witnesses, if untrue, is libelous and slanderous; and if not disproved, would have a tendency to injure such party in his occupation, to blast his character and impair his social standing.
    An affidavit charging a person with perjury, and causing him to be arrested and incarcerated in jail is a malicious prosecution, if said affidavit was made without probable cause, and his incarceration thereunder in jail is afalse imprisonment. Probable cause does not depend upon the truth of the charge m ado, but upon the honesty and. reasonableness of affiant’s fceZie/inthe truth of the charge when made. In the absence of probable cause the law infers malice. In order that advice of counsel should avail as a mitigating circumstance in behalf of the libelant, it must be alleged and proved that hemadc a full disclosure of all the facts of his case, as he understood them, on the faith of which counsel acted in advising the prosecution and in the preparation of the pleadings filed in court.
    APPEAL from the First District Court, Parish of Caddo. Hicks, J.

      Land <& Land and T. Fell for Plaintiff and Appellant :
    1. A party is liable in damages for slanderous allegations set up by him in his. pleadings, where there is no probable cause in making same. 29 An. 66; 33 An* 1265.
    2. The only defences to slander are a denial, or a justification, or a confession under mitigating circumstances. O. 0.1934; 16 La. 389; 11 An. 207; 14 An. 198; 16 An. 389; 3 An. 69; 6 An. 779; 38 An. 161. The use of opprobrious language implies malice when it is slanderous per se. When plaintiff proves the use of such lan guage the burden of proof is on defendant to show exoneration from liability* Lobe vs. Oarey, 84 An, 1265; Swinfc vs. Van Bee, 36 An. 467; 38 An. 161.
    3. In a malicious prosecution plaintiff must prove: (1) The prosecution by defendant and its termination; (2) malice and want of probable cause. If express malice is proved, slight evidence of the want of probable cause is sufficient* Malice is inferred from want of probable cause. 33 An. 914; 33 An. 776; 3 It. 18* Defendant’s belief in the truth of the charge must not only be honest, but reasonable. 33 An. 392. The discharge of the accused by the judge on the ignoramus of the grandjury is prima facie evidence of malice and want of probable cause. 36 An. 471; 34 An. 246; 36 An. 103.
    4. In a suit for damages for slander or malicious prosecution, it is not necessary for plaintiff to prove special damages. 38 An. 161, and authorities cited.
    5. Plaintiff in a suit is a competent witness, O. O. 2282, and, like all other witnesses, he can not be contradicted as a witness without first laying the basis or-foundation. 1 G-en’l, Sec. 462; 33 An. 1073, 1252; 5 An. 406.
    6. Where the basis or foundation has not been laid the witness has no opportunity of recollecting the facts, and the law will not allow him to be contradicted; and for stronger reasons he can not be guilty of perjury. In such a case the law says he is notguilty of perjury; and consequently the defendant, who knew all the facts, in causing his arrest, acts without probable cause. 1 Gen’l, Sec* 462; Bishop O. L., Sec. 1034; Beg vs. Stolady, 1. F. and F.,p. 518; 23 An. 165. The law attaches more weight to a witness’ sworn than to his unsworn statements, and the fact that his statements out of court contradict his sworn statements does not prove perjury. 30 An. 305; 34 An. 346; 35 An. 9, 46; 38 An. 361, 364* One witness is not sufficient to prove perjury; and the statements charged to-be perjured must not only be false, but wilful and corrupt. Bishop O. P., Sees* 927, 928, 931, 1043.
    7. Bepufcation is the general opinion of a person held by the community. A witness’ knowledge of another’s reputation must be derived from what he has. heard others say on the subject. He is not required to bear every member of the community express himself on the subject. If he has heard the opinion o£ a considerable number, and if such opinion is concurrent, that suffices. 7 Southern Reporter, p. 132, State vs, Reed. The best character is that which is least talked about, and to prove good character (which is always presumed) witnesses are competent to testify that they have never heard anything against the character of the person on whose behalf they have been called. Wharton on Evidence, Sec. 49.
    Vise & Herndon for Plaintiff and Appellee:
    1. In an action for malicious prosecution, the plaintiff must prove: (a) That there was no probable cause for the prosecution; (b) that it was actuated by malice; and (c) that he has sustained damage thereby. All those must exist, and the burden of proof is upon the plaintiff. 3 R. 17; 9 R. 240; 8 An. 12; 10 An. 537; 12 An. 333; 13 An. 274; 16 An. 3; 33 An. 915.
    2. Probable cause does not depend on the actual state of the case in point of fact, but upon the honest and reasonable belief of the prosecutor. However innocent the plaintiff may have been of the crime charged, it is enough for defendant to show that he had reasonable grounds for believing him guilty at the time the charge was made. Ibid.
    3. An acquittal is not proof of want of probable cause. Ibid.
    4. Advice of counsel sought and followed in good faith will mitigate, if not relieve, defendant entirely from an action in damages, for the objectionable character of pleadings filed in a court ease.
    6. Actions in damages for a malicious prosecution are not favored by the law, and must be cautiously entertained. 8 R. 20; 15 An. 605.
   The opinion of the court was delivered by

Watkins, J.

Plaintiff claims of defendant $5000 as damages— $2500 for an alleged libel and slander, and $2500 for an alleged malicious prosecution and false imprisonment. These charges are grounded in certain judicial proceedings: The libel and slander in the answer of defendant in a certain civil suit, entitled N. Weil vs. M. Israel, the parties thereto being identical with those before this court, in which a claim was made for the quantum meruit value of plaintiff’s services rendered to the defendant as a clerk; the malicious prosecution and false imprisonment in an affidavit made by the defendant charging the plaintiff with perjury, and in causing his arrest thereunder and confinement in the parish jail.

The trial was had before a jury, who rendered a verdict in favor of the plaintiff for the nominal sum of $50, without stating on which of the grounds it was predicated.

From this judgment the plaintiff alone has appealed, and the defendant has not filed an answer to the plaintiff’s appeal, nor demanded any amendment to the judgment appealed from. The only question for us to consider and determine is whether the judgment-shall be increased or affirmed.

I.

The plaintiff’s petition makes the following specification of de-. fendant’s libel and slander substantially, viz:

That in the defendant’s answer in the suit of Weil vs. Israel, amongst other things, he averred that plaintiff “ was so notoriously-unreliable that he never would have entertained an idea of trusting-him with any trust or employment whatever.” That judgment in that suit having been rendered in plaintiff’s favor, and against the defendant, the latter made an application for a new trial; and, amongst other things in his motion, he averred under oath that the former “ is notoriously unworthy of trust as a clerk, and could not obtain employment as such wherever he was known.”

That said answer and written motion were filed in court and publicly read by defendant’s attorney in open court in the presence of many persons; and that said motion for new trial was, on due consideration, overruled by the presiding judge. That the said allegations in the answer and motion for new trial are and were false,, slanderous and libelous, and were made by the defendant wilfully, maliciously and without probable cause; and that by said slanderous, and libelous allegations made by said Israel he has been damaged in the amount stated by the insult and affront to Ms good name and reputation in the community in which he lives, and by the vexation,, humiliation, annoyance and outrage to his feelings.”

The defence is a justification and confession under mitigating circumstances. The latter are that “he consulted an able and experienced attorney in regard to the defence of his suit, to whom he-fairly and fully stated all the facts material and pertinent to his defence as he understood them; and he avers that the allegations in his answer are true, and were made in good faith and without malice.”

He likewise affirms the truth of the averments of his motion for-new trial. He further affirms that plaintiff has not been damaged, either in business or reputation by reason of the just, reasonable and bona fide, defences made by him in that suit, or in his motion for new-trial, which was made in pursuance of his legal rights. On the trial of the suit for wages plaintiff adduced proof of his demand to the effect that he was in the employment of the defendant, and entitled to compensation for his services. Defendant proposed to rebut that proof by showing the falsity of plaintiff’s statements as a witness; but, on plaintiff’s objection, the court held that the offered testimony was inadmissible, because the proper-basis for the introduction of such proof had not been laid. But the rejected evidence only went to the fact of plaintiff’s employment at all, or that he was not entitled to and was not to receive any salary for his services, as defendant was a brother-in-law, and had done him a conspicuous service. We do not understand that the rejected testimony touched the question of the plaintiff’s unreliability as a clerk, or for the performance of any trust or employment whatever, as alleged in defendant’s answer; nor did it even tend to prove the charge that plaintiff was “ notoriously unworthy of trust as a clerk, and could not obtain employment as such wherever he was known,”' as laid in the motion for a new trial. It does not appear in this case what testimony, if any, was adduced in that suit in support of the defendant’s quoted averments. The testimony in this case shows that instead of the plaintiff being so notoriously unreliable and untrustworthy as a clerk that he could not obtain employment as such wherever he was known, and so that the defendant “never would have entertained the idea of trusting him with any employment whatever,” the contrary is true. Several of the witnesses — those of the defendant as well as those of the plaintiff — testify that the plaintiff is at this time in the employ of a responsible merchant of Shreveport, and had for many years before been repeatedly and constantly thus employed. Many witnesses testify to his honesty and reliability as a clerk, and that his reputation in that regard is and has always been excellent in that city.

Among the persons and firms for whom he has worked are enumerated many of the most reputable merchants.

One of the defendant’s principal witnesses states:

“There are some things that I would trust Mr. Weil to do, and everybody else would. As far as honesty is concerned, I am satisfied he would not wrong his employer,” etc.

Another one of his witnesses says:

“ I know if I needed a clerk I would just as soon hire Mr. Weil as anybody else.”

The defendant as a witness does not make any reference to the subject at all, and was not asked by his counsel a single question about it. Not only so, but the defendant’s counsel objected to any evidence on this subject being introduced in rebuttal in this case, because no such evidence was introduced on part of defendant.

In the course of the trial the following occurred, viz:

Q,. “Did you ever tell Mr. Israel that Mr. Nathan Weil was so notoriously unworthy of trust as a clerk that he could not obtain employment as such wherever he was known?”

“ Counsel for defendant objected to the question on the grounds that no such evidence was brought in on the part of defendant.” And this objection was sustained by the trial judge, and the evidence rejected.

Notwithstanding the manifest disposition of the defendant to repress this sort of evidence, there is a great deal of it in the record; and as a sample of the numerous statements on the subject, we will quote a part of the evidence of a gentleman who is familiarly known in business circles in Shreveport, to-wit:

Q,. “How long have you known Nathaniel Weil, the plaintiff in this suit?

A. “I think since 1855. I believe I can remember him that far back.

Q. “ What is his standing in the community as a trustworthy and reliable clerk?

A. “ I never heard anything against his character until recently, when the trouble arose between Mr. Israel and himself.

Q. “ Do you consider him a trustworthy and honest clerk?

A. “I always considered him as such. Had no occasion to consider him otherwise.

Q,. “ You know that during these times he has been employed by reputable merchants of this place?

A. “ I know he has, and never heard any of these merchants complain of his character.”

From the testimony related, and other evidence in the record, we are satisfied that the truth of the charges made in the answer of the defendant and his motion for new trial is not made out. On the contrary, their falsity is fully established. There was no evidence offered in their affirmance on the trial of the suit in which they were filed. None on the trial of this canse. The defendant did not offer any testimony- — -not even his own — in support of them, but objected to the introduction, by plaintiff, of evidence to prove their falsity.

With regard to the mitigating, circumstances' under which these pleas were filed, to-wit: the advice of counsel “to whom he fairly and fully stated all the facts material and pertinent to his defence as he understood them,” the record fails to disclose anything whatever. He placed his counsel on the stand, and interrogated him on other branches of this case, but not in regard to these pleas. And this he failed to do, notwithstanding the plaintiff’s counsel attracted his attention to the answer and motion, and asked him if he prepared them, and if he read them in open court; to which questions he replied in the affirmative.

The complaint of the plaintiff is not alone of the libelous allegations that are contained in an answer prepared by defendant’s counsel, but a more serious complaint is made of an averment that is contained in a written motion for a new trial, which was prepared by his counsel, but signed and sworn to by the defendant, from which we make this extract, to-wit: “That since this cause was tried, he has been informed that he can prove by A. Rebstock, Sam. Benjamin, E. M. Hicks, E. Jacobs and many others, that plaintiff is notoriously unworthy of trust as a clerk, and could not obtain employment as such"wherever he was known.” On the trial of this case only two of the witnesses named were put upon the stand, and they did not swear, as defendant swore they could. So, it is immaterial whether-the ease be considered with reference to the answer, as the act of counsel, or the sworn motion, as the act of the defendant; both are untrue, undefended and indefensible.

The law of libel and slander, as applicable to publications such as the one u'nder consideration, is carefully stated in Staub vs. Van Benthuysen, 80 An. 467, from which we make the following pertinent extracts, viz:

“A libel is any publication, whether in writing, printing, picture, effigy or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule or obloquy, or which causes him to be shunned, or which has a tendency to injure him in his occupation1'’ (our italics).

Ogden on Libel and Slander, p. 7, 20. Again: “The word‘malice,’ when used in a civil or criminal pleading in cases .of this kind, does not imply, much less mean, ill will or personal malice. Its legal sense is a wrongful act, done without just cause or excuse. Malice is an imputation of the law, from the false and injurious nature of the 'charge, and differs from actual malice or ill will, which latter may be proved to enhance the damages. Legal malice need not be proved. The law imputes it to the publisher of a libel from the act of publication.

“Any publication which is false and defamatory subjects the publisher to damages in favor of the party aggrieved, printed or written slander being justly considered more pernicious than verbal. The law holds the publisher responsible, as the instrument used for the dissemination of calumny, whereby the character of any one may be blasted, or his business injured, or his social standingimpaired. And it is not incumbent on the party assailed by falsehood and defamation, to show malice against himself on the part of the publisher, nor to prove that he has been injured by the publication.”

Perret vs. N. O. Times, 25 An. 170.

Again: “It follows as an inevitable consequence that the defendant is entitled to redress. If the plaintiff has published a libel of him, or to use the ordinary non-legal language, has sold, distributed and circulated a newspaper which contained a representation of the defendant in picture and printing, which exposed him to obloquy, or which has a tendency to injure him, in business, or impair his social position, or degrade him in the esteem of his friends and of the public, and being put to the proof not a scintilla of it is even tendered, to establish that it was the truth, but on the contrary, his own witnesses affirm the contrary — then has the plaintiff inflicted on the defendant an injury recognized as a legal case for satisfaction in damages.

“ It is a conclusive presumption of law that damages have ensued from a libelous publication, and therefore actual damages need not be proved.” (Italics ours.) Tusca vs. Maddox, 11 An. 207; Lobe vs. Cary, 33 An. 915; 14 An. 198; 16 An. 389; 3 An. 69; 6 An. 779; 14 La. 198; 12 An. 894; 23 An. 280.

In Williams vs. McMann, 38 An. 162, this court said: “ The use of opprobious epithets implies malice, when they are slanderous per se. It suffices to maintain an action to recover damages without proving special injury. Every person has the right to enjoy that degree of respect, good will, and social or business distinction, to which his own acts, and his social and business habits entitle him; and any one who unlawfully interferes with this right, by circulating slanderous reports, renders himself liable for consequent damages. Eolkard’s Stacker on Libel and Slander. s{s :|s :{s

“It is true that injuries to one’s feelings and social standing are not susceptible of precise adjustment, but such injuries are recognized as a legitimate ground of action for reasonable indemnity.” 17 An. 64; 19 An. 322; 23 An. 280.

The proof shows that the plaintiff is of middle age, wholly impecunious, and dependent on the meagre salary he obtains as a clerk for the means of subsistence. A statement to the effect that he is so notoriously unreliable and unworthy of trust as a clerk that he could not obtain employment as such wherever he was known, committed to writing, filed in court, and publicly read in the presence of a number of witnesses, if not disproved, would certainly tend to injure him in his occupation, to blast his character, and impair his social standing. Being proved to be untrue, such statement is libelous and slanderous, and we know of no more effectual way in which it could have been published to the world than by filing it among the records of the court, where it must remain beyond recall through all coming time. We think that in' this respect plaintiff’s case is made out, and that he is entitled to an increased allowance of damages. It was not necessary for the plaintiff to offer any proof of damage suffered, only to enhance the allowance due. As no such proof was introduced, it becomes our duty to assess such reasonable amount as will satisfy the law under the circumstances.

II.

With regard to the charge of malicious prosecution and false, imprisonment the facts appear to be as follows, viz:

Subsequent to the trial of the suit of W^eil vs. Israel for compensation for services, and prior to the rendition of judgment thereon, the defendant made an affidavit, before a justice of the peace, in due form of law, charging the plaintiff with having committed the crime of perjury in that suit, by'swearing falsely as to some material fact in that cause. Thereunder he caused the plaintiff to be arrested and incarcerated in jail for several hours, and until he could find a surety to go on his release bond. When the grand jury convened, they examined into this matter; summoned some witnesses and then ignored the complaint. On the trial of this case the defendant and his witnesses testify that it was his desire that the prosecution should be discontinued, and that neither the defendant nor his witnesses appeared before that body. There are several witnesses who testify as to .the untruthfulness of the plaintiff’s statements, as a witness in the former case; but the substance of this evidence is that the plaintiff had stated that he was not working with defendant for a salary, and was not employed ■ by him. That evidence has no application to the issues of that case; it was not a suit on a contract, but one for the quantum meruit value of the plaintiff’s services as a clerk. He never claimed a salary, nor that he had ever made any formal contract with the defendant. In the face of the record and the proof adduced, not only was the pláintiff not guilty of any perjury in point of fact, but we fail to perceive in what consists the honesty and reasonableness of defendant’s belief that he was. The fact that the motion for a new trial was filed only a few days after the affidavit was made. — causeless as it was — and that defendant voluntarily abandoned the prosecution a little later on go to confirm our conclusion that the defendant did not have even probable cause for making this affidavit and causing plaintiff’s arrest and incarceration in jail. In such case legal malice is implied, and the plaintiff is entitled to compensation.

III.

As to the quantum of damages we are disinclined to make an extravagant allowance, and as the plaintiff offered no proof of special damages, we think, under the circumstances of this case, that on both grounds of complaint there should be awarded to plaintiff the sum of $300, without interest.

It is therefore ordered and decreed that the judgment appealed from be amended and increased to the sum of $300, and that as thus amended the same be affirmed, and that defendant and appellee pay all costs.