text:
    No. 13,263.
    State of Louisiana vs. James Robinson.
    Syllabus.
    1. when a person is shot, and at once exclaims “Jim Robinson, yon shot me to death,” and, without delay, runs a distance of little more than half a block, yelling “Jim Robinson shot me,” and is there met by another person, who, at the sound of the shooting, had walked rapidly from a point, say a block distant, in the direction of tile shooting, so that the wounded man and the other met within thirty seconds after the shooting', and the wounded man, having fallen, said “1 am shot to death,” and being asked who shot him, replied “Jim Robinson shot me,' the statements thus made are part of the res gestae, and, as such, admissible in evidence on the trial of the person charged with the shooting.
    2. Where the accused, being on the stand, as a witness in his own behalf, is asked, on cross-examination, “Were you convicted for hanging on this murder, once, and the question is objected to, and the objection is sustained, and the jury is charged to disregard extraneous evidence, and confine themselves to the impartial consideration of the evidence adduced on the trial; and it appears that the fact of the former trial and conviction,referred to in the question, had come to the knowledge of the jury by means •of evidence provoked by cross-examination of State witnesses, and by the jury's being placed in possession of the indictment, with indorsements showing said former, trial, conviction, and sentence, the verdict and judgment appealed from will not be disturbed on the ground of injury resulting from the question thus ruled out.
    8. Where the accused, charged with murder, has voluntarily placed himself on the stand as a witness in his own behalf, and is asked the question, on cross-examination;' “You went up for cutting a man?” the overruling of the objection that the record is the best evidence is not reversible error.'
    4. It is not reversible error to permit the accused, charged with murder, who is on the stand as a witness in his own behalf, to be asked concerning a conversation, between himself and the man who had been.shot by him, in which the accused made statements, concerning the shooting, at varience with those made by him, under oath, before the jury.
    5. The interruption, by a brother of the deceased, of the testimony being given by the accused, by an exclamation denying a fact stated by the witness, does not justify the reversal of the verdict and judgment, where .it appears that the disturber was called to the bar, rebuked and sentenced to imprisonment, and the jury warned to disregard his ebulition, and the judge a quo certifies that, in his opinion, the exclamation produced no effect.
    APPEAL from the Criminal District Court, Parish of Orleans— Moise, J.

      Milton J. Cunningham, Attorney General, Robert R. Marr, District Attorney, and Joseph R. Generelly, Assistant District Attorney, for Plaintiff, Appellee.

      Paul R. Lassalle for Defendant, Appellant.
   The opinion of the court was delivered by

MoNroe, J.

Defendant was indicted for murder, tried, convicted -and sentenced to death, but, upon appeal to this court, a new trial was granted him. (State vs. Robinson, 51st Ann., 694.) He has been tried again, convicted of manslaughter, sentenced to imprisonment at hard labor for twenty years, and has again appealed. He now presents his case to this court in five bills of exception, and a motion for new trial.

Bill No. 1. It appears from the recitals of this bill, including the testimony incorporated in it, that, when Paul Valentine, the deceased, was shot, one John Williams, was one block away, that he started “right away” and “walked fast”, in the direction of the shooting, that Valentine had, in the meanwhile, been running in Williams’ direction, so that Williams testifies: “lie met me more than half way”. Being asked: “How far was he (Valentine) from the place where he was shot?” the witness replied: “I could not tell you that.” Q. — “Was it half a square?” A. — “Near about; a little over”. The court thereupon overruled the objection to the question, asked by the Assistant District Attorney: “What did Valentine tell you, when you got to him?”, and the witness answered: “He said that he was shot to death. I asked him who shot him. He said Jim Robinson.” And counsel for the defendant, thereupon, objected and excepted to the ruling of the court, upon the ground that the deceased had run one square after being shot, and that the deceased (witness?) was near the corner of Hancock and Dauphine, which was fully a square away from where the shooting occurred, and in company with another man, named “Butler, and that the prisoner was not there, and- that therefore any statement then made by the deceased, to this witness in regard to the shooting was irrelevant, inadmissible, and no part of the res gestae”.

The judge a quo gives the following as his reasons for his ruling; to-wit:

“The testimony objected to in John Williams’ evidence was clearly a part of the res gestae. The averment in the bill that the witness was a block from the scone of the shooting when Valentine made his statement is erroneous, as will be seen by Williams’ entire testimony, which is made part of these written reasons. The facts are: Lepage, an eye witness to the shooting, heard Valentine exclaim, when shot, ‘Jim Robinson, you shot me,to death!’ Valentine then sped' rapidly down Dauphine street, yelling ‘Jim Robinson shot me’, to use the language of the witness Descossa, whom he passed. Before completing the square, he fell. Williams immediately approached, and Valentine said: ‘I am shot to death’. Asked who shot him, he replied: ‘Jim Robinson shot me’. Thirty seconds could not have elapsed, since the shooting.”

* * # * *

“From the time he was shot until Williams reached him, it was the same outpouring of a distracted mind, without the addition of any new matter. Its sameness negatived any idea of premeditation or fabrication, 'or of its being a narrative, retrospective in character. Continued utterances of the same idea, uninterruptedly made, in the same language, indicate the absence of any suggestiveness. Each outburst is a link in the same chain of thought, and proceeds as much from the same original cause as the wave circles of a pond that dilate, from a point where a pebble is thrown upon its surface.”

Counsel for the defendant, in his brief, concedes the correctness of the judge’s statement as to the distance between the idace of the shooting and that of the declaration of the deceased to the witness, Williams. Fie says: “The declaration was,hot made at the place of the event, but a little over half a square away”. He argues, however, that the declaration occurred after “the trouble was all over, and after the parties had separated”, and that it contained “nothing but the words of one of the participants, when narrating what had become a past event.”

We agree with the judge a quo that, upon the facts as presented, the declaration objected to was part, of the res gestae. That it was made at a distance of half a square from the scene of the shooting, does not, under the circumstances disclosed, affect the question; since it was made within thirty seconds after the shooting, and as a direct, immediate, spontaneous, and continuous result of the impression, made by the shooting upon the man who was shot.

In State vs. Estoup, 39 Ann., 219, it appeared that, about ten minutes after the deceased had been shot, his brother was called out of the house, where he was, by some one, who said to him that his brother was shot, that when he went out, he found the man who had been shot, sitting on the steps of a house, about sixty or seventy yards from where the shooting was said to have taken place, in company with a brother-in-law, and it was then, and under those circumstances that the declaration was made to him, which was admitted as part of the res gestae. It was held by this court that such admission was erroneous. In State vs. Melton, 37th Ann., 77, it was sought by the defendants, to prove, as part of the res gestae, a certain declaration, made by them six or eight minutes after the killing, after they had gone sixty or eighty yards, and then returned , on their way home “or wherever they went”, which declaration the judge a quo held, was evidently “not spontaneous”, as the defendants had met the same witness a few minutes before, twenty-five or thirty yards from the gate, as they were leaving, and “they made no such statement.” The testimony was excluded by the trial judge, and this court said: “We cannot say the ruling, under these circumstances was erroneous, but, in any event, the matter is too unimportant to justify a reversal on that ground.”

Upon the other hand, in State vs. Eusebe, 42nd Ann., 727, the syllabus reads:

“Declarations made by the party shot, immediately after the shooting, are a part of the fapts of the case, and of the events inseparable from the crime, and are admissible in evidence as part of the res ges-taer

In Traveler’s Insurance Co. vs. Mosely, 8th Wallace, 397, it was held that:

“Declarations of a party as to the cause of his injury, as that he had fallen down stairs, made immediately after the occurrence, are admissible as part of the res gestae, to show such cause.”

In the case thus referred to, the Supreme Court of the United States cites Rex vs. Foster, 6th Carr & P., 325, in which there was an indictment for manslaughter, for killing the deceased by driving a cab over him. A wagoner, who was near, by, but did not see the accident, was allowed to testify that, immediately after it happened, on hearing the deceased groan, he went to him, and asked him what was the matter. ■ “Gurney, Baron, said, that what the deceased said at the instant, as to the cause of the accident, was clearly admissible. Park, Baron, said that it was the best possible testimony that, under the circumstances, could be adduced to show what knocked the deceased down. Mr. Justice Patterson concurred. The prisoner was convicted.” The court also cited Commonwealth vs. McPike, 3 Cush., (Mass.) 181, where the defendant was charged with killing his wife, and proof was admitted to the effect that the deceased came down stairs from her own room, crying murder, and bleeding, that another woman, into whose room she was admitted, went at her request, for a physician; that a third person, who had been attracted by her cries, went for a watchman, and, on his return, found the deceased on the floor, bleeding profusely, and that she then told him that her husband had stabbed her. It was held by the Supreme Court of Massachusetts that her declaration was “of the nature of res gesiae and that the time when it was made was so recent after the injury was inflicted as to justify receiving it on that ground.” The court cited other cases of a similar character, and then, referring to the case before it, said: “Here, the principal fact is the bodily injury. The res gestae are the ■statements of the cause made by the assured almost contemporaneously with the occurrence, and those relating to the consequences made while the latter subsisted, and were in progress. * * * ' The tendency of recent adjudications is to extend, rather than to narrow, the scope of the doctrine. Rightly guarded in its practical application, there is no principle in the law of evidence, more safe in its results. There is none which rests upon a more solid basis of reason and authority.”

In People vs. Callaghan, 6 Pac. Rep., 54, it appeared that five or six minutes after the shooting, .the deceased said: “Patsy Callaghan shot me”, and the court said: “The period of time at which it was made was so recent after the shooting as to justify its admission as part of the res gestae. No time had elapsed for the fabrication of a story.”

In Territory vs. Davis, 10 Pac. Rep., 359, it appeared that two or three minutes after he was shot, and after he had been carried to a drug store, a few feet away, the deceased, stated that the defendant called to him to get down on his knees, and on his refusal to do so, shot him. This declaration was permitted to be proved as part of the res gestae.

The more generally accepted rule, upon this subject, we think, is fairly stated as follows, to-wit:

That, only, is res gestae, which is part of the actual transaction, or 'which is said or done in so short a time “after the transaction that there could be no time for thought, and for saying the particular thing, or doing the particular act with reference to the probable effect upon future litigation. The real, or apparent conflict in the adjudications upon the subject, is the result, not of any ambiguity in the rule itself, but of the difference in opinion between courts, as to the length of time that may be permitted to intervene between the act complained of, and the words or acts that may be permitted to qualify or explain the original transaction.”

26th Central Law Journal, 207.

Rill No. 2. It appears from this bill, that, during the cross examination of the defendant, who had placed himself on the stand as a witness in his own behalf, the Assistant District Attorney asked him: “Were you convicted for hanging on this same murder once?” Defendant’s counsel thereupon objected, “to said question put to the accused”, and his objection was sustained by the court, lie nevertheless reserved a bill of exceptions to the questions asked the accused, notwithstanding the judge’s ruling thereon. “Because said question was intended and calculated to impress the jury with the fact that the accused had already been convicted of the same crime, for which he was then being tried, and that, therefore, they, the jury, ought to do likewise, because, if he was not guilty, the former jury would not have found him guilty. 2nd. Because it was in violation of defendant’s legal right, the presumption of innocence, until proven guilty beyond all reasonable doubt. It therefore had a tendency to bias the jury.”

The judge’s statement, made part of the bill, is that the objection to the question was sustained, and the question remained unanswered, that the jury was charged not to consider any extraneous evidence, but to confine themselves, strictly, to an impartial consideration of the evidence adduced- on the trial; but, that there had been a former trial, conviction, and sentence, was known to the jury, by reason of the fact that witnesses for the State,- being cross7examined on the second trial, were interrogated with regard to their testimony on said former trial, and also because the indictment with the indorsements thereon, showing the prisoner’s conviction and sentence, .was placed in the hands of the jury for the purposes of the second trial, without objection, although they were notified to disregard such indorsements. Under these circumstances, we are of opinion that no injury to the defendant, and no reversible error is disclosed in this bill.

Bill No. 3. During the cross-examination of the defendant, as to the length of time that he had been out of the penitentiary, and how long he had been there, he was asked by the Assistant District Attorney: “You went up for cutting a man?”, which question was objected to, on the ground that it “was' not a fair one, that the record was the best proof”. The court overruled the objection, for reasons which are given at length and which may be summarized as follows: That the question objected to was intended to show the unlawful and malicious commission of an act of personal violence; an offence similar to the one charged, and for the purpose of impeaching the credibility of the witness, in regard to his statements relating to the crime for which he was being tried. That it was not objected that evidence was not admissible to show that the witness had served in the penitentiary for cutting a man, but that it could not be shown by the witness, the record being the best evidence. That the record, however, was not the best evidence, since it would be necessary to identify the witness with the record. And, if it would be competent, after the production of the record, to ask the witness whether he was the person convicted of such a crime, on such a date, it was equally, competent to ask him the question as propounded in the absence of the record, inasmuch as, whether he was the individual who did the cutting, and was tried, convicted, sentenced and imprisoned, were facts within his knowledge, which the record, if produced, would fail to disclose, and which would, therefore, have to be established by evidence dehors the record.

We find no reversible error in this ruling. Mr. Wharton in his work on criminal evidence, to which we have been referred by the counsel for the defendant, says:

“In a leading case, Lord Ellenborough, C. L, compelled a witness to answer whether he had not been confined, for theft, in jail, and on the witness appealing to the court, said: 'If you do not answer, I will send you there’. In this country, there has been some hesitation in permitting a question, the answer to which not merely imputes disgrace, but touches on a matter of record; but the tendency now, is, if the question be given for the purpose of honestly discrediting a witness, to require an answer.”

Whar. Or. Ev., Sec. 474.

In Clemens vs. Conrad, 19 Mich., 170, the Supreme Court of Michigan, speaking through Chief Justice Cooley, said:

“The right to inquire of a witness, on cross-examination, whether he has not been indicted and convicted of a criminal offense, we regard as settled in this State by the case of Wilbur vs. Flood, 16th Mich., 40. It is true that, in that case, the question was, whether the’ witness had been confined in the State prison, not whether he had been convicted; but confinement in a State prison presupposes a conviction by law, and to justify the one inquiry and not the other, would be to uphold a technical rule, and at the same time, point out an easy mode of evading it, without in the least obviating the reasons on which it rests. We think the reasons for requiring record evidence of conviction have very little application to .a case where a party convicted is himself upon the stand, and is questioned concerning it, with a view to sifting his character upon cross-examination. The danger that he will falsely testify to a conviction which never took place, or that he may he mistaken about it, is so slight that it may almost be looked upon as purely imaginary; while the danger that worthless characters will unexpectedly he placed upon the stand with no opportunity’- for the opposite party to produce the record evidence of their infamyq is always palpable and iminent. We prefer the early English rule on this subject. Priddle’s Case, Leach O. L. 382. King vs. Edwards, 4 T. R. 440, and for the reasons which were stated in Wilbur vs. Flood.”

In State vs. Murphy, 45th Ann., 958, the question was asked a defendant in a criminal prosecution, who had voluntarily taken the stand, under Act 29 of 1886, as a witness in his own behalf: “Have you ever been arrested for stealing?”, and the objection was made, among others: “That the records, if any, were primary evidence of the facts sought to be proven”. It was held that: “Where, upon the trial the defendant offers himself as a witness, and testifies in his own behalf, under the statute of 1886, he thereby becomes subject to the same rules and is called upon to submit to the same tests which are legally applied to other witnesses,” and the ruling of the lower court, overruling the objection, was sustained.

This ruling has been affirmed in the State vs. Alexis, 45th Ann., 973, and in the State vs. Southern et als., 48th Ann., 628.

Rill No. 4, was reserved to the action of the trial judge, in overruling the objections to the following questions propounded by the Assistant District Attorney to the accused, whilst the latter was on the stand as a witness, on cross-examination, to-wit:

“Q. — You were brought to Valentine’s bed-side?

“A. — Yes, sir.

“Q.- — When you were brought there, did not Valentine say: ‘Jim, you shot me?’

“A. — Yes, sir.

“Q. — And did not you say ‘No, Paul, I did not do it’?

“A. — Yes, sir; I had a reason, because I seen his brother with a double-barrel shot gun in the yard.”

The ground of objection was “that anything said to the accused after the shooting by Paul Valentine, unless it was a dying declaration, was not evidence and not part of this case.” The reasons of the judge for overruling the objection are thus stated: “In his direct examination, the witness testified he did the killing. At the bedside of the accused (deceased?) he denied it. It was competent to show that out of court he made statements inconsistent with those he made in court, under oath. It was also competent to question the witness in relation to his prior statements, to lay the foundation for contradicting him, if they did not agree with those given in court. The repetition of the language of the deceased,.in the question: ‘Didn’t Valentine say Jim you shot me?’, could not possibly injure the accused, as he admitted the killing; and, as a part of the res gestae, many other witnesses swore that Valentine had used the identical language, while eye witnesses swore to the fact that Robinson did the killing, which was uncontradicted, and admitted, the defence being self-defence.”

It will be observed that the question of the admissibility of evidence as to this conversation between the accused and the wounded man now presents itself under very different circumstances from- those by which it was surrounded, when this case was before us on a previous occasion. The question' then was, whether the State could prove the conversation by Officer Felix Vauquelin, and two or three other per-, sons. It was held that the evidence was not admissible, because the statement made by the deceased to the accused was not a dying declaration, and was not part of the res gestae, and hence, that the testimony of the “officer” and the “others”, was merely a repetition, by those witnesses, of an accusation made against the accused, by another person, and denied by the accused. The court said: “This testimony must be regarded as that of Paul Valentine; and, if he were living and had been put on the stand, as a witness for the State, he certainly could not have been permitted to relate what accusations he made against the accused, as proof of his identity.’’

That Robinson had gone upon the stand as a witness, did not appear upon the former appeal. It was, therefore, said, in the course of the opinion: “It was certainly not the purpose of the 'State, in introducing these witnesses, to prove the defendant’s denial of Valen-' tine’s accusation.”

As the case is now presented, however, it appears that the accused voluntarily placed himself on the stand, as a witness in his own behalf, that he admitted the killing, and set up a plea of self-defence,' and the State had, therefore, the right to impeach his credibility, and t.o lay the foundation for such impeachment, by cross-examining him a's to a conversation which he had had upon the subject of- the killing, in which it was believed he had made a statement at variance with that made by him under oath, before the jury. • The questions asked, were, we think, a competent exercise of that right.

State vs. Murphy, 45th Ann., 958; State vs. Alexis, 45th Ann., 973; State vs. Southern et als., 48th Ann., 628.

The motion for new trial is based upon the grounds set up in the bills of exception which have been thus considered, and upon, the further ground, that, during the trial, when the accused testified that his reason for denying the shooting, in his conversation with Valentine, was, that Valentine’s brother was in the yard with a double-barrelled shot gun, the said brother, Procese Valentine, in open court, and in the presence of the jury, jumpe-d up and exclaimed, in a very excited, manner that “he didn’t have no gun”, and that said action operated, grave -injury and prejudice to the accused.

Bill No. 5 having been taken to the refusal to grant a new trial, in-eludes this ground of complaint. The judge a quo says: “Procese Valentine’s sudden exclamation was immediately noticed by the court. He was promptly brought to the bar, in the presence of the jury, rebuked, sentenced to imprisonment for twenty-four hours for contempt, and the jury instructed to disregard the negro’s ebullition. In my opinion, it did not affect the case.”

We have no reason for differing with the learned judge and do not-feel authorized to reverse his findings upon a matter with respect to which he was so peculiarly competent to determine.

Judgment affirmed.


source: Caselaw Access Project

author: Ere ujx, J.

license: Public Domain

text:
    No. 13,341.
    The State of Louisiana vs. Louisiana Debenture Company, Limited.
    Syllabus.
    The appellant Raving failed to file the transcript on the return day, or within the three judicial days thereafter, the law leaves the court no alternative. The appeal must be dismissed. The failure to file the transcript has always been taken as an abandonment of the- appeal. C. P-, 589 ; Sterling: vs. Heirs, of Sterling, 35tb. Ann., 8.40,; Archer vs. Gonso.ulin, 46th Ann.,. 144.
    APPEAL, from the Civil District Court, Parish of Orleans. King, 7., acting, for Theavd, J., absent.

      Millón -7, Gunningham, Attorney General, (EranJc E\ Bednold, and Slifíl <& Madison, of Counsel) for Plaintiff, Appellant.
    I?. Howard MaQaleb for George W. Nott, Receiver, Appellee.
   The opinion of the court was delivered by

Ere ujx, J.

George W. Nott, Receiver of the Louisiana Debenture Company, Limited, representing- tbal tbe appeal was not made- returnable to this court within ten days prescribed by law, that the return «lay of the appeal was not made in conformity to law, and that that fact is attributable to at-ipellant, and lastly that the transcript of appeal was filed in this court more'than three days after the return day, to-wit, on the thirteenth day of November, instead of the first Monday in that month, moves to set aside and dismiss the devolutive appeal taken in this cause.

We take up the grounds in their inverse order. Regarding the last ground of the motion to dismiss, the record discloses that the petition for the appeal was filed on the nineteenth day of 'September, 1899. The order of appeal issued on this petition shows that the appeal was made returnable on tho first Monday of November, 1899.

The first day of the term fell on the sixth of November, 1899. The minutes of the proceedings show that a daily session of the court was held from and including the sixth to the fourteenth of that month, with the exception of one day.

The transcript was filed on the thirteenth day of November, five days after the first judicial .day. The law is positive enough. It reads: “If the appellee prefers having execution on the judgment, he may, within three days after the time allowed for the appellant to file the record, obtain a certificate from the clerk of the appellate court declaring that the record has not been brought up, and, on the production of this certificate, the'lower court shall order execution on the judgment.” C. P., 589.

The return day was the first day of the session, which was extended so as to include a number of additional days as just stated.

This court has always decided that the law is mandatory, and has always dismissed the appeal if an extension had not been previously obtained. The question received careful attention in Sterling vs. Heirs of Sterling, 35th Ann., 840, also in Wood & Roan vs. Wood, 32nd Ann., 801. In each case the appeal was dismissed because the transcript had not been seasonably filed. In a case almost parallel to the instant one, the court substantially reaffirmed that which had been repeatedly decided in decisions rendered by this court (Archer vs. Consoulin, 46th Ann., 144), and for the reason that the transcript had not been filed in time. Sec also on this subject, Pierce vs. Cushing, 33rd Ann., 801. “The appeal shall be considered as abandoned, if the appellant does not file the transcript within the legal delays.” Decournau vs. Levistones, 44th Ann., 30.

The question is no longer a new one. It was referred to in the ease of Sterling- vs. Heirs of Sterling, cited supra, as one long since settled. No alternative is left to us save to dismiss the appeal.

For the reasons assigned, the appeal is dismissed.

Rehearing refused.


author: Nicholls, O. J.

text:
    No. 13,316.
    Germania Savings Bank of New Orleans vs. Joseph E. Muller.
    Syllabus.
    When the holder of five negotiable mortgage notes, two matured and three unmatured, takes out executory process, and a sale is made of the property, for fifty-four hundred dollars, eighteen hundred dollars cash, and the balance on credit, to correspond with the maturities of the notes, a judgment rejecting a third opposition, claiming priority of payment upon a claim of twenty-eight hundred dollars, is not appealable to the Supreme Court.
    APPEAL from the Civil District Court, Parish of Orleans. Theard, J.

      Such, Walshe <& Bucle for Plaintiff, Appellee.

      A. B. Blachmar for Intervenor, Appellant.
   ON Motion to Dismiss.

The opinion of the pourt was delivered by

Nicholls, O. J.

The plaintiff and appellee has moved to dismiss this appeal on the ground that the Supreme Court has no jurisdiction rations materias as appears by the face of the record, the amount involved being less than the lower limit of the court.

The plaintiff in this suit, alleging that it was the holder and owner for value of five certain promissory notes made by the defendant to his own order and by him endorsed and dated New Orleans, August 3rd, 1896, each for the sum of twelve hundred dollars, payable, respectively, in one, two, three, four and five years, and that payment of said notes was secured by certain described property in the city of New Orleans; that two of’ said notes, one of which was subject to a credit of one hundred and fifty dollars, were past due, and the others would fall due at the periods stated; that all of said notes were unpaid, save to the extent stated;’ that payment of the notes had been refused notwithstanding amicable demand; prayed that a writ of seizure and sale issue to the sheriff of Orleans directing him to seize, advertise and sell the said mortgaged property; the said sale to be on terms of the assumption by the purchaser of the three unmatured notes and the balance of the price cash.

An order of seizure and sale issued as prayed for. The property was seized, advertised, and sold.

The cash portion of the price (eighteen hundred dollars) was paid into the hands of the sheriff, and a deed made to the purchaser. Prior to this sale, Joseph Muller, as natural tiitor of his minor children and administrator of the succession of his deceased wife, Marie Landry Muller, with leave of court, filed in the matter of the executory proceedings a petition -of intervention in which, after reciting the proceedings and the advertised sale of the property, he averred that upon the sale thereof the proceeds would go into the hands of the Civil Sheriff; that the property was of the community between Joseph Muller and his deceased wife, Marie Landry Muller, who died on the 31st of December, 1898, leaving minor children, issue of the marriage with her said husband; that there were debts due by the community, which was then in 'process of administration in the Civil District Court; that all of the property owned by Muller belonged to the community; that all the movables belonging to the community had been sold under orders of court for the sum of nine hundred and twenty-two dollars; that there were debts due and owing by the said succession and community which had a privilege and preference over the mortgage claim of the plaintiff, which privileged claim amounted to the sum of twenty-eight hundred and forty-nine dollars, as shown by an itemized statement which was annexed; that intervenor and administrator and natural tutor was entitled to have the proceeds of the sale to be made by the sheriff held in his hands until his claim in intervention should be passed upon by the court; and that he was entitled to have paid the said sum over to him by the Civil Sheriff out of the proceeds of said sale of the real estate by preference and priority over the plaintiff; that he had, in law, a right to appear in court as natural tutor of.his children, and did so appear for the purpose of protecting their interests to the extent of the minors’ claim of one thousand dollars for the minors’ homestead.

He prayed that the plaintiff and the sheriff be cited; that in due course there be judgment in his favor against the plaintiff and the sheriff; and it be ordered that the proceeds of the real estate to be sold be held by the Civil Sheriff until further order of court; and the said sum be paid over to intervenor as administrator and tutor by priority and preference over the plaintiff.

The plaintiff excepted that intervenor was without right or capacity to intervene, and that his petition disclosed no cause of action.

Intervenor, after the sale of the real estate, filed a supplemental petition in which he averred that at the sale thereof the sum realized did not amount to or equal the amount of the privileged claims, and that there was then in the hands of the Civil Sheriff as the cash portion of the said sale a sum less than said amount, and that interverior was entitled to have an order issued to the sheriff to retain the cash portion realized in his hands until the court could pass upon his intervention.

He prayed that he have judgment against the plaintiff and the sheriff, and each of them, ordering that the proceeds of the sale of the real estate be held by the Civil Sheriff until further ordér of the court, and that the sum of $2,849 be paid over to intervenor by priority and preference over the claim of the plaintiff and for general relief.

Plaintiff, under benefit of his exceptions, answered. After pleading the general issue it denied that the debts claimed to be due and owing in the itemized statement had any claim or standing to be paid out of the proceeds of the real estate sold under its mortgage; that should it be otherwise, the same w;ere not due and owing, and if owing at all they were excessive.

The intervenor obtained a rule on the plaintiff and the Civil Sheriff to show cause why the sheriff should not retain in his hands the sum previously ordered to be retained until the succession of Marie Landry Muller should have had presented the final account of the intervening administrator and judgment rendered upon the various items of said account in the succession proceedings.

This rule was taken on a suggestion by the intervenor, that the proper practice would be to refer the question of the amounts and sums due and to be allowed to the various items set out in the intervention to the mortuary proceedings entitled Succession of Marie Landry Muller, for the reason that the court should not properly fix and determine the exact amount due and owing of privileged claims by said succession, and for the further reason that the administrator could not file his account as administrator until he had constructive possession of the funds.

After hearing, the court dismissed this rule and the intervenor appealed.

The case went to trial upon the intervention, and the court rendered judgment dismissing the' same and the intervenor appealed.

OPINION.

The only question before this court is as to its jurisdiction as -affected by the matter in dispute or amount involved.

Had the notes held by the plaintiff been all due when this proceeding was instituted, and he had caused executory process to issue thqreon, the whole amount of the purchaser’s bid of fifty-four .hundred dollars would have gone into the sheriff’s hands, and intervenor’s third opposition based upon the asserted priority of the claims he contends he has the authority to represent collectively to an amount of over twenty-eight hundred dollars, might have presented an issue for determination by the District Court appealable to the Supreme Court.

But only two of the five notes held by plaintiff had then matured, and in consequence of that fact he was forced, under the law, to pray for a sale partly for cash "and partly on credit to correspond with the maturities of the notes.

The adjudication of the property brought the cash portion of the bid into the hands of the sheriff, in the present suit, under the writ placed in his hands, for disposal according to law under orders of court.

The credit portion of the bid, however, consisting simply of an obligation on the part of the purchaser, did not come under the control of the sheriff or of the court in this ease. When a deed was signed by the sheriff the purchaser had no longer any connection with the suit.

ITis obligations were to be enforced thereafter not by supplemental piroceedings as a continuation of those inaugurated by the executory process, but, if necessary, by a new and independent action. He is not a party to the present litigation and no judgment rendered in this controversy could reach to or affect him.

Independently of this, the mortgage debt assumed by the purchaser secures the payment of negotiable notes, and it is impossible to know in whose hands those notes will be at the date of their maturities.

The effect of any decree rendered by us herein could not reach beyond the fund in the hands of the sheriff for distribution.

The intervention and third opposition was predicated upon the funds to pass into his hands under the writ.

Intervenor does not contest the validity or amount of plaintiff’s claim, but simply asserts a priority of payment out of the fund produced by its enforcement.

The District Court was simply called on to declare the principle of law applicable to the distribution of the particular assets under its jurisdiction.

It could go no further, and this case is kept within the same limit.

We are of the opinion that this court has no jurisdiction in the matter of this appeal, and it is therefore dismissed.


author: Monroe, J.

text:
    No. 13,274.
    State of Louisiana vs. Thomas Nathaniel.
    Syllabus.
    1. The finding of the District Judge that, irrespective of the question, “■whether the provision of Act No. 67 of 1894, requiring the applicant to set forth, under oath, what he 'expects to prove by the additional- witnesses whom he desires summoned, is constitutional or not,” the defendant herein had not exercised due diligence with respect to the summoning of such witnesses, will not be reviewed by this court, since it presents no disputed question of law, but merely an issue of fact.
    2. The provision of Act 67 of 1894, which requires that an application for subpoenas for additional witnesses shall set forth, under oath, what the applicant expects to prove by such witnesses, does not contravene the provision of Article 9 of the Constitution, which secures to the accused in a criminal prosecution the right “to compulsory process for obtaining witnesses in his behalf.” The statutory provision in question is intended to apply only to witnesses summoned at the expense of the' parish, and is not restrictive of the right of the accused to compulsory process for obtaining witnesses at his own expense.
    APPEAL from the Eighteenth Judicial District, Parish of Lafourche. Gaillouei, J. •

      Milton J. Cunningham, Attorney General, and Leonard C. Moise, District Attorney, for Plaintiff, Appellee.

      John S. Billiu for Defendant, Aijpellant.
   The opinion of the court was delivered by

Monroe, J.

The defendant was found guilty of murder and sen-' tenced to be hanged, and, a new trial having been refused, has appealed.

The only question reserved for the consideration of this court is presented in. a bill of exception, which reads as follows, to-wit:

“Be it remembered that, on the trial of this cause, the accused, “ through his counsel, moved a postponement of the trial for the pur“pose of obtaining certain witnesses, which were important for his “ defense, said motion being in writing and being made part of this “ bill of exception, together with a statement of P. J. Aucoin, deputy “ clerk, also annexed hereto. 'Said motion showing (that) the process “ (application) for subpcenas had been made in due form, and refused “ by said deputy clerk, for tbe reason set forth in bis statement, which “ is also corroboration of the said motion.

“The said motion having- been submitted to the court, together with “ the statement of said clerk, at the trial hereof, the same wás refused “ and overruled,” etc.

The motion referred to reads:

“And now, into this Honorable Court, comes Thomas Nathaniel, “ defendant in a trial for murder, and, through his counsel, gives this “ court to know and be informed that, in due time, he applied to the “ clerk of said court for proper process to compel the attendance of “ the following- named witnesses for the defendant, to-wit: Tucker “ Adam and Camille Smith, the first named on the order book. That “ the clerk of said court refused to issue said subpoena, on the ground “that under Act No. 67, Acts of 1894, he could not issue a subpoena “ for more than six witnesses, unless an order and affidavit were pre- “ sented, as required by said act. That undersigned counsel refused “ to make application, (or) affidavit, or to disclose what he proposed “ to prove by said witnesses in the instant case, where it is an inqui- “ sition for murder, and hence, your defendant is not ready to go to “ trial in the absence of said witnesses, who are important for his “ defense; and would move a postponement of the case until said wit- “ nesses can be summoned. That said act,' requiring an affidavit to “ disclose the testimony, before the trial is commenced, is illegal and “non-constitutional in the present indictment for murder against “ said defendant, and he has been illegally deprived, of his rights “ under the Constitution, as aforesaid, Article 9. Wherefore he prays, “ that the clerk be ordered to issue said subpoena for said witnesses, “ and postponement be had until their attendance upon this court be “ had,” etc.

The statement of the clerk, also made part of the bill, reads as follows:

“The counsel for the accused placed an order on the witness book “ for additional witnesses over and above the limitation of six for “which process had already issued. I refused to issue subpoenas, “ because I was bound, under Act 67 of the Acts of 1894, and said so “to the counsel for the accused and I required him to make the “proper affidavit, as required by said act, and to apply to the judge; “ counsel of accused said that he would not do so, because he could “not disclose, anterior to the trial, what-said witnesses would prove. “ The allegations in the motion for postponement are true.”

The judge a quo, in signing the bill, gives the following reasons for denying the motion, to-wit:

1. That due diligence was not used to secure the presence of the witnesses named, in this; that the case being fixed for Monday, September 18th, the application for subpcenas for said additional witnesses was made on the Saturday preceding, to the clerk, and thq refusal of the latter to issue said subpcena was not called to the attention of the court until Monday; when the ease was called for trial, and no application was previously made to the judge, who was present, at the parish seat.

2. That it does not appear, from the motion to postpone the case, that the testimony of the witnesses, whose presence was desired, would have been material, or even competent.

3. That it does not appear from said motion, that said witnesses could easily have been produced at a time to which the case might have been postponed.

4. That said motion was not sworn to.

The judge further states that the six witnesses who were subpoenaed on behalf of the accused, were put on the stand as character witnesses, and were not interrogated on any other point.

Counsel for the State refer to Act No. 139, of 1890, and to the Constitution of 1819, as the law governing the case. The second section of Act No. 67, of 1894, reads as follows:

“Section 2. Be it. further enacted, etc., That Act No. 139 of 1890, and all other laws, or parts of laws, inconsistent herewith are hereby repealed.”

It needs no argument to demonstrate that, the defendant, having-been tried under the dominion of the Constitution of 1898, the proceedings must conform to the provisions of that instrument. As to the question at issue, however, the language of the two Constitutions is, practically, identical, and confers upon the accused the right “to have compulsory process for obtaining witnesses in his favor.” (Constitution of 1879, Article 8; Constitution of 1898, Article 9). The particular, and only, point made in behalf of the defendant, is, that the Act of 1894, in so far as it requires, as a condition precedent to the obtention of “compulsory process,” that the accused should disclose what he expects to prove by the witnesses as against whom he asks such process should issue, goes beyond, and is in contravention of, the Constitution; his counsel, arguing that, under the Constitution, the accused was entitled to the process, without making any disclosures, and that its refusal, and the refusal to'“postpone” the case, on account of the absence of such witnesses, amounted to the denial of a legal and constitutional right.

The section containing the paragraph which is objected to — reads as follows:

, “That in all criminal cases, on final trial, each side shall not be allowed to summon more than six witnesses, unless the District Attorney, representing the State, or the accused, or his counsel, as the case may be, shall present a written application to the judge, setting forth, under oath, what he expects to prove by the additional witnesses, that an additional number is required to meet the ends of justice, and to make a proper prosecution, or defense, as the case may be; provided, that in no ease shall the parish pay more than twelve (Í2) witnesses on each side in any case, and whenever more than that number have been summoned, and claim pay for their attendance, the judge shall designate which twelve (12) shall be paid, according to the financial condition of the witnesses respectively; and the trouble and expense entailed by their attendance.”

It is not charged that the act is unconstitutional in requiring that written application shall be made to the judge, or in exacting that the applicant shall set forth, under oath, that the additional witnesses are required to meet the ends of justice and make a proper defense in the case. There is no suggestion, however, that these conditions were complied with, and the trial judge was not afforded .the opportunity of passing upon the question, whether, upon, an application properly and -seasonably made, for subpoenas for additional witnesses, the accused could, constitutionally, be required to disclose what he expected to prove by such witnesses, for the reason that no such proper and seasonable application was made. An application was made, as appears from the bill of exception, to the clerk, two days before the trial, but it did not conform to any of the conditions imposed by the statute, since it was made to the clerk, not to the judge; it was un-sworn, not under oath; and it failed to set forth so far as the record discloses, either what was expected to be proved, or that the witnesses were material, or were required to meet the ends of justice and enable the defendant to make a proper defense. The attention of the judge was not called to the matter until “just at the time when the case was called for trial,” when the motion was offered, for the subpmnas, and for a “postponement” of the trial, “until said witnesses could be summoned,” and “until their attendance upon the court is had.”

This motion was unsupported by affidavit. It did not allege due diligence as to any previous effort to obtain the desired witnesses; or that their testimony would be admissible or material, or that the witnesses resided in the parish, or in the State, or elsewhere; nor did it allege that it would be possible to procure their attendance at any sub-seqeunt time.

It is true that it is said in the motion, on behalf of the defendant, that the witnesses are “important for his defense,” but the statement was unsupported by affidavit, and, being unexplained, afforded the judge no opportunity of forming an opinion as to its verity. Under these circumstances, the judge a quo was not called upon to decide whether the Act of 1894, as to the particular provision which is made the subject of attack, is constitutional or not, nor did he pass upon that question. Ilis ruling was based upon the defendant’s-lack of diligence, and upon the insufficiency of the motion, irrespective of the constitutional question presented, and, so far as we can see, his conclusion would have been the same, if that question admitted of a decision favorable to the views expressed by the defendant’s counsel.

We have been unable to distinguish, for the purposes of this case, between the application as made for a “postponement” and an application for a “continuance.” It is true that the word “postponement” is usually preferred, when the purpose is to obtain a continuance to another day during the term at which the case is fixed, rather than to a future term; but the terms of the District Courts are now continuous, and, in this particular case, the postponement was asked until witnesses, not alleged to reside in the parish, or State, or- elsewhere, and not alleged to be obtainable at any time, should be summoned, and their attendance obtained. The delay, therefore, if granted in accordance with the language of the application, would have been of the most indefinite character. The rule of practice, in such cases is well settled.

“To sustain the application for continuance, the affidavit should show—

“1. The material nature of the evidence sought.

“2. High degree of probability that it may be secured.

“3. The exercise of due diligence in the effort already made to “ obtain it.

“The case of King vs. D’Eon, 1 W. Black, 510, and 3 Burr, 1513, is “ a leading case on this subject, and contains the principles above “ formulated, which have since prevailed in reference to a continu- “ anee. Lord Mansfield says, in that case: ‘Three things are neces- “ sary to put off a trial.’

“1. That the witness is really material, and appears to the court “ to be so.

“2. That the party who applies has been guilty of no negligence.

“3. That the witness 'can be had at the time to which the trial is “ deferred,” etc. See Rice on Evidence, Vol. 3, Sec. 116.

“The doctrine is, that though a cause is ready for trial, either party “ may, as of right, or in the discretion of the tribunal, depending on “ the blended law and fact, have it continued to a future term, or postponed to a later period in the same term, if, in the circumstances, “ justice so requires.

“When not of right, the motion for continuance is addressed to the “ judicial discretion, and the decision of the trial court can, only in a “ strong case,- and in a part of the States, be reversed by a higher “ tribunal.

* * * * *• . *

“The rules for continuance are substantially the same in criminal “ cases as in civil. But, partly from statutes, and partly from judicial decisions, differences in practice in the respective States have “ arisen.” Bishop’s New Grim. Pr., Sec. 951.

In this State, it has been held that the Supreme Court “will not, “ upon an appeal, re-examine the decision of a district judge, upon a “ question of fact, such as, whether due diligence had been used to “procure the attendance of a witness.” State vs. Brette, 6th Ann., 653.

And this ruling is based on the conclusion that the court is without jurisdiction in the premises; its jurisdiction in criminal cases being-confined to law, alone. State vs. Hunt, 45th Ann., 438; State vs. Bradley, 6th Ann., 554. See also State vs. Rodrigues et als., 45th Ann., 1041 (and authorities there cited); State vs. Celestin, 40th Ann., 273; State vs. Guillory, 45th Ann., 31.

If, however, the application for continuance, in the instant ease, could be considered as properly presenting the question of the defendant’s right, under the Constitution “to have compulsory process for obtaining' witnesses in his favor,” without disclosing what he expected to prove by said witnesses, the law is still against him. Every Constitution which the people of Louisiana have adopted has contained the provision relied on, in substantially the same wm'ds as are used in the Constitution of 1898, and, so far as we have been able to discover, it has never been held that the right to “compulsory process” entitles an applicant to a continuance, save upon his compliance with those conditions, which, are required alike by the common law, and by the jurisprudence of this State.

The question has arisen, elsewhere, as to whether the right to “compulsory process” carries with it the right to have the witnesses brought in without expense to the defendant, and it has been settled • in the negative. Mr. Bice says:

“The Constitution of the United States, and the Constitutions or “ statutes of the several States, secure to the accused the right to com“pulsory process for obtaining witnesses in his behalf. * * * “ This provision has been construed to mean that the accused shall “not be debarred the right of issuing subpoenas for his witnesses, as “in civil cases, and not to entitle him, on application,-to a decree of “ the court, for an allowance to secure their attendance.” Bice on Evidence, Yol. 3, Sec. 108.

“A defendant’s constitutional right to compulsory process does not “ require the State to pay their (the witnesses) fees.” Bishop’s New Criminal Practice, See. 959.

The State of Louisiana has chosen to allow a defendant in a criminal case compulsory .process for the obtention of six witnesses, without charge, and has imposed conditions with respect to the further enjoyment of that particular privilege. He may obtain such process for additional 'witnesses provided he is willing and able to bear the expense. But, in any ease, he is bound to apply for the process in due time, and to the proper authority, and, if he has exhausted his privilege, should tender the amount necessary to defray the expense of bringing in the additional witnesses, and a failure in either of these particulars is a lack of due diligence. Thus

“A party is not entiled to a continuance on account of the absence “ of a witness for whom a subpoena was not delivered to the sheriff, in “ compliance with a rule of the court.” Brown vs. Forsyth, 10 R., 116.

Nor does the exercise of due diligence with respect to the issuance of a subpoena, and its delivery to the sheriff, relieve him of the obligation of complying, in other respects, with the rule which has been heretofore stated, in order to obtain a continuance by reason of the absence of a witness who has actually been summoned. Eor, if the right to “compulsory process,” which has existed ever since the State was organized, could be construed to mean that the defendant in a criminal prosecution could, upon the day of trial, demand and obtain a contiuance, in order to bring in a witness whom he had caused to be summoned, without making a satisfactory showing that the continuance was not intended merely for delay and to enable him to escape conviction and sentence without trial, no criminal could ever be convicted. That no such interpretation can properly be placed on the constitutional provision relied on, is plain uponf general principles, and upon the face of the jurisprudence which has been established during, the long period in which that, or a similar, provision has been in force.

In State vs. Lee, 50th Ann., 9, the defendant, who was indicted for murder, applied for a continuance, on the ground of the absence of a material witness. The State, agreeably to the provisions of Act 84 of 1894, offered to admit that the witness, if present, would testify as stated in the affidavit. It was conceded that the defendant had used due diligence, and that the testimony would be competent and material to the defense, and the accused insisted upon his right to compulsory process, in order to secure the personal attendance of the witness, and his presence before the jury, and contended that Act 84 of 1894 contravened the constitutional provision entitling him to such compulsory process. The trial judge refused the continuance and was sustained, on the appeal, in an opinion in which the constitutionality of the act in question was distinctly affirmed. Prior to the adoption of that act, it had been held that a demand for continuance, under such circumstances, could not be met by an admission that the witness would testify as stated in the affidavit, but that the fact expected to be proved must be admitted. State vs. Brette, 6th Ann., 653.

In either case, however, the applicant, after having complied with the law, and having exercised due diligence, to obtain the absent witness, was held bound to disclose, under'oath,"what he expected to prove by -him, and the trial judge was afforded an opportunity to determine, for himself, whether the testimony would be competent and material.

The appellant claims nothing in this court by reason of the motion for new trial filed in his behalf, which, so far as appears from the record, does not allege error in the -verdict, or injury or prejudice, of any kind, to the defendant.

Finding no error therein, it is ordered, adjudged, and decreed that the judgment appealed from be affirmed.

Rehearing refused.


author: BREAUX, J.

text:
    No. 13,339.
    O. R. Moss vs. David Reims.
    Syllabus.
    1. Citation of Appellee, when an appeal has been taken, and security given as required by the court, the appellee shall be cited to appear before the Court of Appeals to answer at the next term of the appellate court, if there be sufficient time for doing so after allowing the same delay which is granted to defendants in ordinary suits.
    2. Appeal Returnable at the Next Term, After Bond, Filed, if Delap be Not Obtained. The order of appeal was granted and the required bond fur-. nished, but the transcript of appeal was not filed at the next term of the appellate court after the bond had been furnished and no delay was applied for within which to bring up the appeal.
    On the grounds urged by appellee, the appeal was dismissed in the case of Coudroy vs. Peeot, 51st Ann., 495.
    APPEAL from the Third Justice’s Court, Parish of Calcasieu. Wasey, J.

      A. B. Mitchell for Plaintiff, Appellant.

      B. B. Miller for Defendant, Appellee. '
   The opinion of the court was delivered by

BREAUX, J.

Defendant was sued before the Third Ward Justice Court, for the parish of Calcasieu, by O. R. Moss, cattle inspector for that parish, for three and 16-100 dollars ($3.16), with interest from judicial demand, for inspecting stock as per bill before that court.

Before the lower court, the defendant alleged'the illegality and unconstitutionality of the ordinance on the different grounds set out in the answer.

On the fourteenth day of November, 1898, a judgment was rendered by the justice of the peace in favor of the defendant. Notice of judgment was served on the plaintiff on the same day the judgment was rendered.

' At a date the record does not disclose, plaintiff applied for a sus-pensive appeal to the Supreme Court which was granted, the amount of the appeal bond being fixed at thirty dollars ($30).

On the seventeenth day of November, 1898, plaintiff filed his bond for a suspensive appeal. The transcript of appeal was filed in the clerk’s office of the Supreme Court on November 11th, 1899. The appeals from the Parish of Calcasieu are returnable to the Supreme Court on the second Mondays of January, April and November, as determined by statute 69 of 1894.

ON Motion to Dismiss the Appeal.

The defendant and appellee moves to dismiss the appeal on the following grounds, viz: There is no order of appeal; the Supreme Court has held several sessions at which appeals from the Parish of Calca-sieu were returnable since the illegal order of appeal was granted.

Although we did find the date of the order of appeal in the record, it is evident that it was entered prior to the 17th day of November, 1898, or if not on that date, that it was entered prior to the time the bond was filed. We have noticed that the bond for an appeal bears that date. There is only one order of appeal copied in the record.

Under the law, the case was returnable to the Supreme Court at the January term of 1899. The appeal had been completed as relates to the order of appeal and the bond, in the month of November preceding. It was necessarily returnable to the Supreme Court at the first session after the order of appeal had been granted and the bond fur■nished. In all cases, the judge of the court shall make the order of appeal returnable at the next term. After the term, the order of appeal had served its purpose and no other appeal could be taken therefrom, especially as a bond had previously been furnished. In the case of Coudroy vs. Pecot, 51st Ann., 495, similar grounds for dismissal were considered and decided against the appeal. A motion to dismiss was granted.

In the case before us for decision, appellant had no right, after having furnished his appeal bond in accordance with the order of appeal, to let the term pass without filing the transcript, and then file it and proceed with the prosecution of the appeal as if no term had been held. This would be in conflict with the law requiring the appeal to be made returnable at the first session of the court after it had been granted, if there is time within which to cite the appellee and complete the transcript. There is no question as to the sufficiency or insufficiency of the time within which to cite the appellee or to prepare the transcript before the court.

Of course an appellant has twelve months within which to take a devolutive appeal, but this does not secure a right to delay the filing of the transcript after the bond of appeal has been filed, if no order permitting delay has been obtained. If an appeal is taken after several terms of the Supreme Court have been held within the twelve months after the date of the judgment, appellant must obtain an order of appeal and not attempt to take up and complete an appeal tinder an order that has lapsed.

The appeal is dismissed at appellant’s costs.


author: WatkiNS, J.

text:
    No. 13,252.
    State of Louisiana ex rel. William Schwan et als. vs. Hon. A. C. Allen, Judge, et al.
    Syllabus.
    The sheriff having the custody of property seized under one writ, need not actually seize same under a subsequent writ, his having the second writ in his hands constituting an effective levy under the second writ. In such case an injunction taken out afterward to prevent a second seizure, will be unavailing to prevent this constructive seizure having its legal effect.'
    PPIJOATION for Writs of Certiorari,, Mandamus and Prohibition.

      Bucle, Walshe £ Buck, Milling & Sanders, and Charles A. O’Neill, for Relators.
    Respondent Judge pro se.

      D. Caffery £ Son, Placide P. Sigur, Philip IE. Menfz, J. Sully Martel, and Wilson £ Mayer, for the Other Respondent.
   The opinion of the court was delivered by

WatkiNS, J.

The relators, William Sehwan, Odille Moreira and Julia Moreira were named as the universal legatees in the will of Yal-entine Sehwan and it having- been probated, they were put in possession of the property of the testator — they having unconditionally accepted his succession.

Subsequently, the brothers and sisters of the deceased and particular legatees, filed a suit against the aforesaid universal legatees in possession, mainly on the ground, that they were legally incapacitated from receiving- said bequest; and their prayer was that the will be annulled and the estate given to them as the heirs at law of deceased.

The petitioners accompanied their petition with a demand for a sequestration of the movable- property thereunder which was valued at $60,000, and same was sequestered into the possession of the sheriff, the writ having issued without bond.

The relators herein were cited as defendants, and they appeared in said cause and moved to have the sequestration set aside; and, upon a contradictory hearing, it was so ordered.

Thereupon, the plaintiffs applied for and obtained an order of appeal to this court, and gave bond.

Seeking- to avoid the effect of said appeal and to obtain an immediate release of their property (1) because no appeal will lie in such case; (2) that if it is subject to revision by appeal, the appeal taken was devolutive, and did not prevent the execution of the order of court dissolving- the writ, said defendants applied to this court, in the exercise of its supervisory jurisdiction, to so decide.

State ex rel. William Schwan et als. vs. Hon. A. C. Allen, Judge, and Paul Pecot, Sheriff, 51st Ann., 1842.

But the relators’ application was denied and the effect of our judgment was to leave matters in statu quo.

It having- come to the knowledge of the plaintiffs in that suit that the sheriff intended to treat said appeal as devolutive, and to release the property from seizure, they applied to the district judge for a writ of injunction to restrain his action in the premises; but he declined to grant the same “on the ground that he had no jurisdiction over the “ subject-matter, the whole of which was before the Supreme Court.”

Thereupon, they applied to this court in the exercise of its supervisory jurisdiction to grant them a writ of prohibition against the judge and sheriff to prevent them from causing the property sequestered to be released from seizure, pending said appeal, and for a writ of mandamus to compel the judge to grant an injunction as prayed for restraining the sheriff from releasing the property from seizure.

State ex rel. Ludwig Schwan et al. vs. Hon. A. C. Allen, Judge, and Paul Pecot, Sheriff, 51st Ann., 1889.

The relators’ application was denied, on the ground that the respondent judge could not have granted “an injunction against the “ sherifE from complying with his own order as it was written, and so long as it remained unchanged.” But this court, in its opinion, said, that, under the circumstances stated, the respondent judge was “ entitled to fix the amount,of the bond for a suspensive appeal.”

The two opinions of this court that we have cited, give a full resume of the facts that are germane to the instant controversy — the relators in the former being the relators herein, and the defendants in the action to annul the will; and the relators in the latter being the plaintiffs in said action and the appellants from the order dissolving- the writ of sequestration.

Referring to the former proceeding on their part, relators, in the instant case aver, that before the judgment of this court became final by being transmitted to and filed in the district court, an application was made by three of the aforesaid plaintiffs and appellants, to the district judge for a second orde? of sequestration, and that same was entertained and granted by said judge upon said petitioners furnishing bond in the sum of $5,000, and thereunder, the sheriff was commanded to sequester the property the second time.

The relators complain of this application having been entertained and granted during the pendency of the said proceedings, and the aforesaid appeal, and of their rule on t-he sheriff to show cause why he should not release said property from seizure.

That immediately after the said second sequestration was granted, and before any seizure had been made thereunder, they sued out an injunction, restraining and prohibiting the sheriff from executing said order; and same was immediately served on the sheriff. That on the following day, the aforesaid rule on the sheriff to show cause, etc., came on for trial, and upon deciding same, the judge held, that the sheriff had no right to hold the property under the first order and writ of sequestration that had been dissolved, but that he must hold it under the second order and writ of sequestration; and he, thereupon refused to order the property surrendered, and notwithstanding their injunction — the judge holding that the poceedings then pending in this court on the petition of relators was an admission that the property was' still in the keeping and legal custody of the sheriff, and was necessarily so at the time the second order of sequestration was granted; and the property being in custodiam'legis, no further seizure or taking possession was necessary, and that the relators’ injunction against the second sequestration had accomplished nothing.

Relators aver that the second order of sequestration issued on a bond entirely too small in amount, and same, if executed, will cause the sheriff to seize $50,000 worth of property, of which about one-half is of a perishable nature and liable to waste and deteriorate in value.

That The action of the respondent judge in thus refusing to order the sheriff to surrender the property to them, and granting the aforesaid second order of sequestration without sufficient bond, and thus attempting to perpetuate the illegal and tortious possession of the sheriff, “is unwarrantable, oppressive and illegal,” on his part, and works them great and irreparable injury — stating with great circum-stantiality, the manner in which damages will be inflicted on them.

The respondent judge makes an extended return in which he deals with all the complex details of this remarkable litigation, but there are two points made therein which strike our minds with great force, and they are (1) that his order granting the second writ of sequestration, did not violate the first writ of prohibition of relators’, because the decision of this court refusing to make said writ peremptory, had become final prior to the signing of said order, and he had been so advised at the time the petition was presented to him; (2) that when the property is already in the possession of the sheriff under'one writ, the placing in his hands of a second writ for the seizure of the same property, operates as a seizure under the second writ.

Without elaborating all the various points made pro et con, we may, with safety say, that those stated are the crucial questions for us to decide; for, if in point of fact, the second order of sequestration was granted after our judgment refusing relators’ prohibition became final, those proceedings did not render the same void or inoperative; and if in point of law, the mere issuance of a second writ and placing the same in the hands of an officer holding property under seizure under a prior writ, operates as a legal seizure without a formal taking possession under the second writ, then the respondent judge’s return seems to be perfectly conclusive.

Tlie relators’ prohibition proceedings in the original case, were only intended to prevent further action oí the judge and sheriff in respect to the latter retaining possession of the property , on the grounds which have been already stated; and, in our opinion, they constitute an admission of the sheriff’s possession of the property at the time they obtained the preliminary order for the issuance of a writ of prohibition, and which operated as a stay of proceedings in the premises.

That being the case at the commencement of the litigation, necessarily, that condition of things continued to exist until it became legally terminated by the finality of the judgment of this court refusing to make the provisional writ peremptory.

Not only so, but one of the principal grounds that is relied upon by relators in this suit, is the claim that the respondent judge acted prematurely and immediately in granting the second writ of sequestration during the pendency of their former suit, in open and flagrant disregard of the restraining order of this court, the object of which was to preserve and maintain the existing status quo.

Failing in this object, to have this court declare that the aforesaid appeal was only a devolutive one, and that the order of the respondent judge dissolving the first writ of sequestration was executory, and that the sheriff should surrender the property into their custody and possession, relators were left in the same situation that they occupied when they first sought relief through the exercise of the supervisory jurisdiction of this court; that is to say, with the property in the possession of the sheriff.

But the fact appears to be that, at the moment of time when the decree of this court had become final, and the restraining order of this court had been withdrawn, the respondent judge granted the second writ of sequestration and the writ was placed in the sheriff’s hands— the property being still in custodiara legis.

We are of the opinion that under these circumstances, the respondent judge had undoubted authority to grant the second writ of sequestration in the exercise of the sound legal discretion the law vested in him ex virtute officii; and that it was of no consequence that the sheriff had, or had not retained possession of the jSroperty under the writ that had been dissolved.

That order having been granted, the writ of sequestration issued as a matter of course by the clerk, and it was at once placed in the sheriff’s hands for execution; but it became executed ipso facto, the moment it was placed in the bands of tbe sheriff, as he had the property already in possession under- the first writ.

That, as a matter of fact, is undoubted and undenied. The law does not contemplate the doing- of a vain thing, that is, to require an officer to make an actual, tangible seizure of property he has under seizure and in possession under a writ previously issued.

His possession under one writ operates as a constructive seizure and possession'under any and all writs against the same party defendant which may come into his possession afterwards.

If this were not the case, inextricable confusion would .unavoidably arise, as it would be necessary for the sheriff in order to carry out the theory contended for, to take the property seized under the first writ into actual possession again under the second writ; and so on, indefinitely throughout a series of attachments, sequestrations and executions.

The result would be that the sheriff w:ould have actual possession under the last writ instead of the first one.

This question has been frequently decided; and in Patterson vs. Spaulding, 5 Ann., 171, this court held that when property has- been seized under one writ, and the sheriff subsequently receives the second, the first levy is sufficient for both writs, “and that the receipt of the second is a constructive levy. If the first writ is super-ceded, the property may be held under the second.”

The same principle was applied by this court in Chaflin vs. Feibelman, etc., 44th Ann., 518. Under this view of the case, relators’ injunction against the second writ of sequestration accomplished nothing, because Vhen the order of injunction was granted and the sheriff prohibited from making a seizure, the seizure thereunder had already become effective by the receipt thereof by the sheriff; and the effort to restrain by an injunction, the legal effect of the writ in his hands, was vain and nugatory.

But the contention of relators is; that as the sheriff’s possession was, in their opinion, illegal, because he claimed to hold under the first sequestration which has been dissolved, there must needs have been an actual tangible seizure under the second, to make same available; and that same was prevented by their injunction.

That in their view, the possession of the sheriff was one of force and duress, and not by virtue of the custody the law had given him.

That contention is for all practical piirposes the same as the one this court has already decided adversely; for, to reach the conclusion that the sheriff’s possession is illegal, would be to traverse and decide questions we have declined to decide — as the legality of the sheriff’s possession under the first writ can not be determined until the character of the first appeal has been decided.

Therefore, this court must assume for the purpose of this discussion that the sheriff’s possession is to be taken for what it purports to be, the custody of the law; and, hence, the seizure under the second writ became effective the moment it came into his-hands.

We are of opinion that we can not consider the question of the alleged inadequacy of the bond in amount, because it is not the province of this court to examine and decide such questions in the exercise of its supervisory power.

Having carefully considered all the claims of the relators, we have reached the conclusion, that the case stated does not entitle them to the relief demanded.

It is therefore ordered and decreed, that the preliminary writs be annulled and set aside; and it is further ordered and decreed that the relators’ demands be refused at their cost.

Rehearing refused.

MonROE, J., dissents.


author: MONROE, J.

text:
    No. 13,353.
    State of Louisiana vs. Rubin Cately et als.
    Syllabus.
    1. where several persons are jointly indicted for an offense which'might have been committed by several, the question of severance, is a matter within the discretion of the trial judge, which will not be interfered with by this court.
    APPEAL.from the Nineteenth Judicial District, Parish of Iberia. Voorhies, J.

      Milton J. Cunningham, Attorney General, and James Simon, District Attorney, for Plaintiff, Appellee.

      T. D. Foster, David Todd, L. T. Dulaney and A. J. Oammach for Defendants, Appellants.
   Tire opinion of the court was delivered by

MONROE, J.

Ruben Cately, Iiyppolite Brown, Charles Brown, and John Green, were jointly indicted for the murder of ilartial Sorrel. The District Attorney moved to sever the trial of Cately from that of the other accused, on the ground that said Cately had made a confession which the State intended to use against him, and the severance was ordered. Thereafter, and before the trial, Charles Brown and John Green, through the counsel appointed by the court to defend them, objected to the severance which had been granted, for the reason, as alleged, “that no legal ground for a severance was disclosed in the motion of the District Attorney; that, if any legal reasons were given, which is denied, for severance, it was for the purpose of obtaining a confession of one of the conspirators, or parties, jointly indicted with John Green and Charles Brown, which confession was made, after .the consummation of the crime, and after the party making the same had been incarcerated in jail.” This objection having been overruled, a bill of exceptions was reserved. The three defendants, Hyp-polite and Charles Brown, and John Green, were tried, and, having been convicted, a motion in arrest of judgment was made upon, substantially, the same ground as that stated in the bill and upon further ground, set forth as follows:

“2nd. Because the case against Cately and these accused retained the same number on the docket as that originally given said case; that Cately was on trial with the accused, and the permission to him, Cately, to testify against the accused was in reality a permission to a co-defendant to make a confession by which he implicated his co-defendants, in violation of law; and that the record shows part of these facts, and a bill to the allowance of Oately’s testimony shows the other paid of the facts, which, taken together, go to 'invalidate the conviction of movers, and should avail to arrest the judgment.” This motion was overruled, a bill of exceptions was reserved, the defendants were then sentenced to death, and they have appealed.

In State vs. Lee et al., 46th Ann., 628, this court said: “The general rule is that persons jointly indicted are not entitled to a severance of trial as a matter' of right, though the trial judge may, in the exercise of his discretion, grant a severance.” •

It is proper for the judge to grant a severance, in case the confession of one, jointly indicted, may implicate both; in case the prosecution intends to offer same ■ on trial. Bishop Cr. Pr., Sec. 1019; Wharton Cr. Pl., Sec. 310.

In State vs. Cazeaux and Blanchard, 8th Ann., 114, it was said: “In an indictment against several, when the offense is such that'it may have been committed by several, they are not, of right, entitled to be tried separately, but are to be tried in that manner only when -the court, on sufficient cause, may think proper. It seems that'where several defendants, entirely disinterested in the transaction through which they are sought to be convicted, are jointly indicted, it would be sound exercise of discretion to grant them separate trials. We) however, can not review, in criminal cases, the acts of a judge of the first instance, ‘resting on his discretion.” State vs. Hunt, 4th Ann., 439.

In the case before us, the purpose of the severance vas to enable the State to use the confession of one of the accused, against himself, and not to make him a witness against his co-defendants. And, although the motion in arrest mentions a bill of exceptions “to the allowance of 'Oately’s testimony,” there is no such bill in the record; on the contrary, the record makes it manifest that Cately was not tried with his co-defendants, and fails to suggest that he testified on their trial. If the ease against Cately retained the same number on the docket as the case against the appellants, the record before us .fails to disclose it, and we are unable to see in what way the appellants are injured even if it be so.

Judgment affirmed.


author: Breaux, J.

text:
    No. 13,340.
    Thomas J. Worden vs. Cooney B. Fisher.
    Syllabus.

      Plaintiff’s Burden in Matter of Title to Land. In order to obtain a judgment, by course of law, against one in possession, plaintiff must show a title as valid as any title tlie defendant can plead, whether it be his own or some one else’s.

      One in Possession, Under Title, Holds until a Better Right is Shown, Defendant who has a title, on its face, just and for value, may avail himself, in defense, of any defect in the title opposed to his.

      Plaintiff Has No Title. The property in dispute was'not subject to sale, and, therefore, plaintiff acquired no title.

      Tax Title a/nd Grant by the State to the Levee Board. Without title, plaintiff has no right to object to defective tax title, or to the incomplete recognition «of a grant on the part of the authorities representing the1 State, if incomplete.

      Damage. Demand for additional damages not allowed.
    APPEAL from the Tenth Judicial District, Parish of Avoyelles. Lafargue, J.

      'William Harris Peterman for Plaintiff, Appellant.

      Joseph Qlifton Cappel for Defendant, Appellee.
   The opinion of the court was delivered by

Breaux, J.

In this petitory action, plaintiff seeks to recover from the defendant the east half of the northeast quarter and the south half of section 19, T. 2, S. R. 6 E., and five thousand four hundred and sixty-two dollars for cypress trees alleged to have been cut by defendants on these lands.

Plaintiff in this suit obtained a writ of sequestration under which a number of trees were seized.

Defendant pleaded the general issue, and, in addition, specially denied the validity of plaintiff’s title,, and alleged that at the date plaintiff’s patent was issued to him, the State had already parted with her title and that, he, defendant, had acquired a title in good faith. The defendant company alleged that the State transferred the lands to the Levee Board, and that on the seventh (7th) of August, T894, the Board transferred it to Trist, and that Trist conveyed the title to Eisher, and that Fisher sold it to “The Fisher Land and Improvement Company,” the defendant.

Defendant prayed for judgment in reconvention in the sum of one thousand dollars.

With reference to the facts in this case, it appears that defendant’s title begins with the assessment of the land in the name -of J. A. D. Tureaud, for the years 1881 to 1886 inclusive. That Tureaud having become a delinquent tax payer, his property was adjudicated to the State in 1885. In 1889, the sheriff and ex-officio tax collector-(acting- under the provisions of Statute 80 of 1880 authorizing him to> sell at public auction, property adjudicated to the State for delinquent, taxes and not redeemed within the time prescribed) conveyed it to J. H. Bemiss.

The State of Louisiana brought suit to annul the title to Bemiss, and the title was annulled in that suit and the State’s title was sustained. The decree of the Supreme Court, recognizing the State’s tifie, was rendered in Kay, 1892.

The title of plaintiff, on the other hand, rests upon a certificate of entry dated May 31st, 1894, and a patent confirming- the certificate dated Tune 6fh, 1895.'

We have noticed that the title from the Auditor to the Levee Board conveyed the property to N. P. Trist. Both plaintiff and defendant trace their title to the State. The decree appealed from rejected plaintiff’s demand and recognized defendant’s title. It set aside the sequestration and awarded counsel fees to the defendant in the matter of dissolving the sequestration.

Plaintiff appeals.

It is true that the adjudication to the 'State has nothing to rest upon save the delinquent taxes assessed to Tureaud, but this adjudication is of a date long anterior to the date of plaintiff’s certificate and patent. Defendant has, in defense, at least a color of title under the tax deed to oppose to plaintiff’s claims, even if the defendant company be restricted to the right acquired by the State under the adjudication to her for taxes, though the lands were assessed in the name of one who was not the owner.

A plaintiff must make out his title satisfactory on all points, and, although the land was not assessed in the name of the owner when It was adjudicated to the State, it can not be of any cor -ern to the plaintiff unless he has a title. As tire land has been set aside by the State, and when the Register of the Land Office signed the deed to plaintiff for another purpose than its sale, it follows that plaintiff acquired no right and had none to oppose to the defendant who was in possession under a title apparently good and valid.

But this is not the only right the State had. The land was hers prior to the sale she made to Tureaud, and when the title to Tureaud was cancelled, the State resumed her rights as owner.

The Statute creating the Levee Board and providing the manner by which to raise a revenue for levees and drainage purposes was amended in 1892, and, in order to raise additional funds, all lands belonging to the State embraced within the limits of the district, whether originally granted by the Congress of the United States to the State or forfeited to, or bought by, the State for the non-payment of taxes, were conveyed to the Levee Board. This segregated these lands from the public lands of the State.

The title, we take it, had passed from the State to the Levee Board at the time that the property was transferred to Trist. It is true that the Auditor and Register of the State Land Office are both the selected agents to convey to the Board of Commissioners, by proper deed, the lands granted to the Board “whenever, from time to time, the State Auditor or Register of the Slate Land Office, or either of them, is requested 1)¶ the Board or its President/' and that under the statute both should sign the deed of conveyance.

Plaintiff urges that there is no proof that the Board or its President requested either the Auditor or the State Register to make the conveyance to it (the Board) of the land under the provision of the statute just quoted, and he contends that such a request is indispen-sible in putting the act into operation. This is met, we think, by the fact, that the Board received the purchase price from the one to whom it afterward sold the property (Trist). It appears that the amount has been placed to the credit of the Levee Board. This is a complete ratification, if such ratification was necessary.

This body, the only authority concerned, could not be heard at this time to urge that no request, as required, was made to convey the land in accordance with the provisions of the above cited statute. A third person, we take it, has no more right to urge this objection than the Board itself would have, and this third person is bound by the Board’s receipt of the price from Trist and consequent ratification, as well as the Board.

The purchaser, Trist, having paid the purchase price and it having been forwarded to the Auditor of Public Accounts of the State to be audited and placed to the credit of the Board, is no longer exposed to a loss of his rights as owner in this suit by plaintiff. He can not be placed in the position of having no title, though his vendor holds the price which it does not propose to return.

While it may be that the Board of Levee Commissioners could not have been compelled to accept title to these lands, however, having accepted, the-deed made out by the Auditor and having' sold the land, there is complete acceptance and nothing more suggests compulsion of the Board or failure of the Board to accept title.

Plaintiff, in the second place, attacks the conveyance to the Levee Board because it rests upon the signature of the Auditor alone and he invokes the provisions of the section of the amending act before cited, as requiring- a conveyance by the Auditor and Register of the State Land Office in' the name of the State. He earnestly contends .that there can be no conveyance unless signed by both Auditor and Register of the State Land Office. ■ This, we think, we have answered by reference to the fact that the Board has accepted the price. More-over, the 'State, at the time and by the terms of the Statute 46 of 1892, donated completely all the lands within the district, as before stated. From the date of the Statute, for the purpose mentioned in it, the title became absolutely vested in the Board. Though there were methods provided by its terms to complete the donation, the fact remains that the title was placed in the name of the Levee Board.

It happens, we have seen, that plaintiff obtained a certificate, and, afterward, a patent to the land donated. He, thereby, could acquire no right whatever to the land, and he, therefore, has no standing in court to have defendant’s deed annulled on the grounds he urges. Tic is without authority to champion the rights of the State, or the Levee-Board. As to himself, if he were to succeed in sustaining his position in this case, the land could not be decreed to be his.

The absence of -the Register’s signature did not have the effect for which plaintiff contends. The failure to comply with a matter of form is not of such a nature as to divest the Levee Board of the land conveyed.

In order to recover, plaintiff must make out a title. In this he failed. He alleged and proved that his title was issued to him by the State. This right he could not acquire under the plain provision of the Statute. Plaintiff further contends, though he is absolutely without title in himself, that, under the previous provisions of the Statute, the conveyance from the State to the Levee Board could only have effect from the time it was recorded in the parish wherein the lands named in the act are located. Upon this point we are not disposed to coincide with plaintiff. It must be borne in mind that this is not a controversy regarding title obtained from the same author or from any one, as relates to plaintiff, from whom he could acquire the least rig'bt. The State had parted with its title by conveying to Trist, and possession and delay, in recording- deeds, did not suspend the operation of the Statute, intending to effect an immediate conveyance of the land.

Defendant unquestionably has a title, and to set it aside, plaintiff must show that he has a superior right as owner. Qausa idónea trans-ferendum dominum. Even against one having only a “prima facie title or right, plaintiff must make out a title. In pari casu potior est conditio possidentis. Here there is no trial of title at all, as plaintiff has no title.

This brings us to defendant’s claim for damages pleaded in recon-vention and renewed on appeal in the answer to an appeal asking for air amendment of the judgment by increasing the amount of the damages allowed by the District Court. We have not found that defendant has suffered more damages than was allowed by that court. Owing to error, lie, the plaintiff, had gotten an illegal instrument of conveyance upon which he rested his right. Waiving that error, he would have had the right to proceed by way of sequestration as he did. The facts do not show that defendant suffered anything by the seizure of the logs.

Though a sequestration be illegal, if does not follow that the defendant must be reimbursed in damages when the preponderance of proof does not show that he has been damaged.

The law and the evidence being in favor of the defendant, the judgment is affirmed.