text:
    No. 1446.
    Annie W. Wilkins vs. Adelin Durio et al.
    Plaintiff placed the title to her property in the name oi‘ her creditor as owner as security in his favor.
    Many years afterward it was conveyed by the party in whose name the title was to a third party, with plaintiffs consent.
    Plaintiff subsequently became the lessee of the property.
    It not being proven that the parties intended to create an act of mortgage in adopting the form of the sale:
    The consideration not being greatly inadequate:
    The act of sale and the lease concurring in sustaining the sale, it must be held that it was a sale and effect given to the authentic deed between the parties.

      APPEAL from the Nineteenth District Court, Parish of St. Martin. Voorhies, J.

      William H. Peterman and E. Simon for Plaintiff and Appellant.

      Thomas H. Lewis, James E. Mouton and Robert Martin for Defendants and Appellees.
   The opinion of the court was delivered by

Breaux, J.

The most valuable portion of the land claimed by the plaintiff was sold to her by Zenon Broussard in 1878 for the price of $8930.66.

A short time prior to that year her vendor, Broussard, under sheriff’s adjudication, had acquired it for $5700,

The other portion she claims as forming part of the plantation was sold to her also by the said Broussard; it consisted of, a small adjacent tract.

At the time of Broussard’s death in 1881 the plaintiff was indebted to him in the sum of $8720.70, and several years’ interest, being the unpaid purchase price on the plantation.

His widow, at the sale of the property of his succession, became the owner of the notes made by plaintiff and representing the purchase price of the plantation.

The owner of these notes, Mrs. Broussard, recovered judgment upon them in 1883, and granted a stay of execution until February, 1884.

In 1885 Mrs. Neblett, plaintiff in this suit, sold the plantation to Mrs. Broussard the holder of these notes, the amount and interest of which amounted at the time to $13,484.47.

The deed recites that the plantation is conveyed and given in pay - ment in, satisfaction of vendor’s indebtedness to vendee.

The act contains the recital “ that the vendor (Mrs. Neblett) will continue to live and reside on said plantation until the 1st of February, 1886, on which day she will move away from and vacate the premises and deliver actual possession of all of said property.”

“And that in case she should refuse to vacate and deliver the said plantation,” she obligated herself to pay the sum of $500, and all other damages.”

Mrs. Broussard, the vendee, bound herself to reconvey the plantation to the vendor upon the latter’s payment to her of $9000, at any time prior to the 1st of February, 1886.

Mrs. Neblett remained in possession.

She was called upon by her creditor, Mrs. Broussard, for the amount due.

A short time subsequent, i. e. in 1886, plaintiff’s brother called on Mrs. Broussard and obtained from her the promise to take $6000 in cash and $3000 on time in satisfaction of her claim.

He offered his note for the credit portion of the payment, and this Mrs. Broussard consented to accept.

Subsequently to this instead of the $3000 in notes, she agreed to take $1500 in cash.

Mrs. Broussard, after this agreement, authorized her agent to sell the plantation for an amount not less than $6000.

At this point of the case the defendant, Durio, became a party to the transactions.

The agent of Mrs. Broussard, Judge O. H. Mouton, called on Durio and offered to sell a portion of the place for that price.

This was declined.

Plaintiff’s brother informed the witness that he would pay to the agent the $1500, before mentioned, if he sold to Durio. There was no agreement whatever entered into between him and the said defendant, Durio, about this amount.

He sold to him for the price of $6000, without reference to any other amount.

The act of sale by Mrs. Broussard to the defendant, Durio, bears date 4th May, 1886.

It is unconditional and absolute. The purchase price was paid cash as recited in the deed. No reference is made in this deed to any loan made to Mrs. Neblett, or to any right of hers on the property.

The same day the purchaser, Durio, leased the plantation to Mrs. Neblett for the sum of $488.20 annual rental and all the taxes on the place each year of the lease. This lease was entered into for the term of three years.

Immediately after these acts were executed the defendant, Durio, by authentic act, promised to sell the plantation to the lessee, Mrs. Neblett, for $6102, provided she paid him that sum on or before 31st December, 1888.

In default of payment the promise to sell was to become null and void ipso facto.” It was agreed that the same stipulation should also apply if the rent notes were not promptly paid at their maturity.

At the expiration of this lease it was renewed for three years, also the promise to sell.

About twenty days prior to the expiration of the lease and the term of the promise to sell, Durio notified the plaintiff that he would not renew the lease and that he would take possession at the end of the year.

The plaintiff, Mrs. Neblett, wrote to the defendant: “We expect to have the amount ready for you in time, as we know it is due; and should we not, we know of course we must give possession according to agreement.”

The value of the place is one of the issues presented.

The estimates of witnesses who testified upon the subject greatly differ and is quite contradictory.

The amounts for which lands were sold in the vicinity offer a safer criterion of value, also the'price this plantation sold for at different times, together with the testimony of witnesses, who somewhat accord in their estimate, with the market value of the plantation as established by sales and transactions. Hollingsworth vs. Hollingsworth, 45 An.

The amount of the annual lease of the place.

The price at which the plantation was sold at sheriff’s sale.

The abandonment of amounts by the owner, Mrs. Broussard, and the amount she was willing to take for her claim and which she finally accepted, do not prove correctness of the high estimate of a few of the witnesses.

Plaintiff obtained possession at the expiration of the lease.

These are the facts.

On the Merits.

Plaintiff’s petition sets forth clearly the grounds upon which she relies to have a contract, evidenced by authentic act, declared to be a mortgage or security for debt.

She avers that the dation en paiemeni by Mrs. Broussard to her was never intended to divest her title to the property, for .she never claimed title or possession as owner, but left her in full control.

That the office of the dation en paiement was to secure the indebtedness by placing the title in the name of Mrs. Broussard.

She alleges that Durio loaned' her the amount, and desiring to indemnify him against all loss and to secure him, she consented that proper title to the same should pass directly from Mrs. Broussard to Adelin Durio, “ it being further agreed that the annual interest of said loan should be secured to the said Durio by obligations in the shape of rent notes, and that the return of the title to said property to her name should be warranted by a promise of sale on the part of said Durio.”

The defendant interposed an exception that plaintiff, asa condition precedent to the institution of her action, should have tendered reimbursement to the defendant.

The defendant pleads the general issue, and sets forth the different transactions and grounds upon which he relies.

The judgment of the court a qua was pronounced in his favor, from which the plaintiff appeals.

The counsel for plaintiff disclaim that the action is revocatory or to rescind any of the acts connected with the title to the plantation, in this suit.

They argue that the deed from their client to Widow Broussard did not operate a divestiture of title, and they contend that the defendant knew that the plaintiff was the owner of the land, and in possession, and urge that the defendant took proper title from Widow Broussard as security for his loan.

The relief prayed is that the defendant shall convey, under the judgment for which they sue, title to the property, and that his claim be recognized as alien upon the property, and that she have reasonable time within which to pay it, and that possession of the property be delivered to her.

The evident purpose is to apply the principles laid down in Howe, Executor, vs. Powell et al., 40 An. 308; and in other authorities referred to in that decision in the case at bar.

The doctrine is stated as being settled that redeemable sales, unaccompanied by delivery of the thing sold, of which the consideration is inadequate, will be treated by courts, without sufficient evidence to the contrary, as contracts for which the thing nominally sold stands as security and nothing else.

It devolves upon the plaintiff to bring her cause within the application of these principles, that she may sustain her contention.

The Broussard act remained in the record, unquestioned as a sale, during nearly an entire decade, during which plaintiff was the vendor, without any written evidence whatever that she was the owner.

The vendees during the time have passed away.

The secret equities existing at the time, the verbal promises and conversations are now invoked by plaintiff as affecting the authentic act.

That which was a sale on the face of the papers would now be changed by plaintiff to a mortgage conferring hypothecary rights.

The verbal agreements, as testified to on the trial, are doubtless true.

But how unstable and uncertain would be title to immovable property if, after so many years, parol evidence were admissible to alter and change them.

The owner, who appears of record as defendant’s immediate author, desired to realize, it is said, the amount of her claim on the property.

It was known to plaintiff prior to the sale that she was offering the property for sale for an amount not less than $6000.

The plaintiff did not protest against the inadequacy of the price. She did not in the least object — on the contrary she gave the offer her unqualified approval, and sought and earnestly requested the defendant to become the owner. He finally consented and purchased. In all the preliminaries preceding the sale the plaintiff did not make any attempt to secure the recognition by an act or the least writing, of the right she now sets up to the property.

Immediately after the sale she became the lessee of the property. During these years she held it as plaintiff’s lessee, by authentic act.

She during the whole time unqualifiedly, admitted that plaintiff was the owner.

At the end of the three years the contract of lease was renewed, and during three more years she continued holding for the plaintiff as his lessee of the property.

On the face of the papers the defendant is a third person as to all transactions and acts preceding the one under which he became the owner.

His relation to these transactions can not be changed and he made a party to them, or affected by them, by verbal contradictory statements.

“ When parties really intend to create a mortgage for the security of an existing or contemplated debt, and adopt the form of a sale with a counter letter, which, taken together, exhibit such intention, the contract will be construed as a mortgage, and effect will be given to it accordingly. But when the act of sale and the counter letter both concur in asserting that it is a sale, the letter containing the agreement that the vendor may redeem within a given time, it must be held to be a sale with the right of redemption, and if the right is not exercised within the time agreed on it is lost forever.” 35 An. 271.

The act of sale and the lease in the case at bar both concur in establishing that it is a sale and not a mortgage.

She was, it is true, in possession, but her possession was not that of an owner.

She paid the taxes on the property — these taxes in the contract of leases he bound herself to pay.

The price has not the feature of “ vile ” or gross inadequacy as was the case in 40 An. 307.

So that the case at bar differs from those in which this court has interpreted certain contracts as securities for the payment of debts, and not as sales as they purported.

Parties have none to blame but themselves who remain quiescent, or who hastily lend their approval, without securing themselves against the force and effect of authentic deeds.

Having reached this conclusion as to the legal effect of defendant’s authentic deed of sale, the objection to the process of ejectment and the legal proceedings by which defendant obtained possession lose importance.

The plaintiff urges certain grounds that would have been substantial and of some avail, if petition for conveyance, by proper muniment of title, had been granted.

Moreover, there was a settlement after the proceedings of ejectment, a compromise entered into and payment made, which concludes plaintiff.

It is therefore adjudged and-decreed that the judgment appealed from be affirmed at plaintiff and appellant’s costs.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 1438.
    Carmelite Thibodeaux, Wife, et al. vs. Valery Thibodeaux, Administrator.
    1. An appeal bond which is executed by the defendant, in his individual and personal capacity, does not respond to an order of appeal granted in favor of the same person in his fiduciary capacity of administrator of a succession.
    2. An appeal bond in the recitals of which no mention is made of the suit in which the judgment appealed from was rendered, either by number, title, amount, character or court, specifically, or in substance, does not conform to the requirements of the law.
    3. Were an adverse judgment rendered against the appellant by this court, there would be nothing discoverable on the face of the bond which could connect such decree with the one appealed from, or which would enable the lower court to fix the liability of the sureties of the appellant.
    APPEAL from the Nineteenth District Court, Parish of St. Martin. Simon, Judge ad hoc.

      J. E. Mouton for Plaintiffs and Appellees.

      O.H. Mouton and Robert Martin for Defendant and Appellant.
   On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Watkins, J.

The motion is grounded on certain alleged radical defects in the confection of the appeal bond, which render it nugatory.

They may be enumerated as follows, viz.:

1. That whereas a judgment was rendered against Valery Thibodeaux, administrator, and an order of appeal was granted in his favor as such administrator, the bond is drawn and signed by Valery Thibodeaux, individually.

2. That no mention is made, either in the caption or the body of the bond, of the title, or number of the suit, or the number or name of the court which rendered the-judgment that is appealed from.

3. That no mention is made, either in the caption or body of the bond, of the date, nature, or character of the judgment; nor of any indicia by which the said bond could be identified with the judgment appealed from, or the suit in which it was rendered.

The following is a synopsis of the bond, viz.:

“State of Louisiana, Nineteenth Judicial District, Parish of St. Martin.
“ Know all men by these presents, that we, Valery Thibodeaux as principal and * * * as sureties, are held and firmly bound unto Alexander V. Fornet, clerk * * * in the sum of $250, etc.
“Now the condition of the foregoing is such that whereas the said principal herein has obtained an order for a devolutive appeal from the judgment rendered by said Nineteenth Judicial District Court on the • — • day of-, to the Honorable Supreme Court of Louisiana, next to be holden at Opelousas, Louisiana, on the first Monday of July, 1893. * * *
Now this bond is given as security that said principal, as appellant, shall prosecute the said appeal, and that they shall satisfy whatever judgment may be rendered against them, or that the same shall be satisfied by the proceeds of the sale of their estate,” etc.

This bond is signed by Valery Thibodeaux, in his individual capacity, and by his securities, and not as administrator.

A casual inspection of the foregoing is quite sufficient to satisfy the judicial mind that each and every one of the charges that are preferred against the bond are true in every particular. Indeed it would be difficult to conceive of an appeal bond more completely barren of all sacramental and essential formalities than the instant one is.

This is an injunction suit in restraint of a judicial sale of succession property, based upon the averment that the defendant administrator was in sufficient funds to pay off the debts of the deceased and hence there was no necessity for a sale; and that a large part of the immovable property advertised for sale constituted an asset of the matrimonial community theretofore existing between the deceased and their ancestor, one undivided one-half interest in which was not liable for the individual debts of the deceased.

The plaintiffs are the children and grandchildren of Aspasie Le Blanc, deceased wife of Treville Thibodeaux, deceased, of whose joint succession the defendant is administrator; and the property, sale of which is enjoined, belongs, in greater part, to said community, and had been ordered to be sold to pay debts as binding on the community and the individual succession of Treville Thibodeaux. On the trial plaintiff’s injunction was successful, and was perpetuated to the extent of restraining the sale of their half of the community property.

From that judgment an order of appeal was granted in favor of the defendant administrator, and in response to said order the bond above outlined was furnished and filed.

It is evident that the bond does not specify the defendant administrator, as appellant, but Valery Thibodeaux, personally and individually. It is not signed by the administrator, or his counsel, but by Valery Thibodeaux, individually. In the recitals of the bond no mention is made of the suit in which the judgment was rendered, either by number, or title, or amount, or character, or court.

In the caption neither is designated, not even in substance. Were an adverse judgment to be rendered by this court, there would be nothing that is discoverable in this bond which could in any way connect such decree with the one that is appealed from, or which would fix the liability of the sureties of the appellant.

There would be nothing in the bond to fix any liability upon the succession of Treville Thibodeaux, or the administrator; and it could not serve as a legal basis for proceedings or execution against the administrator, or the succession.

In Succession of Walker, 32 An. 525, it was held that an appeal bond which contains no mention of the title to the suit, or matter in which the judgment appealed from was rendered, nor of the nature and scope of such judgment, nor of the date of the rendering and signing of the judgment, nor of the name of the party in whose favor it was rendered, nor of the party east in the suit,” is radically defective and can not support an appeal. 6 La. 586; 10 An. 155; 12 R. 205.

It goes without saying thai such a bond does not fulfil, not even substantially, the requisite formalities of the law.

Appeal dismissed.


author: Breaux, J.

text:
    No. 1439.
    Joseph Solari et al. vs. Amelina Barras et al.
    The value of the right involved is within the jurisdiction of this court, as alleged and supported by the inventories taken of the assets of the succession.
    If heirship be specially denied it must be proved in order that the heir may maintain his action.
    A notary public before whom a will was executed may be examined as a witness in opposition to testimony admitted to impeach the verity of his act.

      APPEAL from the Nineteenth District Oourt, Parish of St. Martin. Voorhies, J.

      Jas. E. Mouton and D. W. Voorhies for Plaintiffs and Appellees.

      C. H. Mouton and Robert Martin for Defendants and Appellants.
   The opinion of the court was delivered by

Breaux, J.

Plaintiffs allege that they are the collateral heirs of the late J. B. Wiltz, and institute this action to annul his will.

It bears date March 31, 1879.

The testator had no forced heirs.

He bequeathed all his property to his surviving widow.

The grounds of nullity alleged are substantially:

That it was not dictated to a notary; that it was not signed in the-presence of witnesses; that the names to the testament were of witnesses called upon by the notary, who signed in the absence of the testator, and did not even know that they were signing an act-purporting tó be a last will.

That it does not contain certain essential recitals, such as that-the testator signed it at all, or that he signed it in the presence of witnesses.

That the inventory shows assets in the sum of 15732.50 to be distributed.

The defendant, alleged legatee, denies plaintiffs’ allegations and denies specially that plaintiffs are the heirs at law of the testator.

She alleges that the will was executed before a competent notary,, in the presence of five witnesses; that it was nuncupative by public-act.

In the alternative she alleges that if the will is not good and valid as a testament by public act, it is valid and legal as a nuncupativetestament under private signature.

She prays that plaintiffs’ demand be rejected and that there be-judgment in her favor maintaining the validity of the testament and decreeing her the sole owner.

The inventory of the community property between the late J. B. Wiltz and his wife, now the defendant, amounted, in the parish of Sfc. Martin, to the sum of $2811.25, consisting of property movable and immovable in that parish.

In the parish of Calcasieu the inventory of property, part of which is described as community and part as separate, amounted to the sum of $2924.

The testament is written in French, from which we extract and translate:

Appeared before me at my office John Baptiste Wiltz, proprietor, domiciled in the parish of St. Martin, who dictated his testament to me in the presence of the undersigned witnesses, as follows, to-wit:

I give and bequeath to my wife, Amelina Barras, all the property in my possession at my death, to be owned and disposed of by her.

This testament was dictated by the testator to the undersigned notary, in presence of the witnesses, and the notary wrote it as dictated in presence of the witnesses, and read it to the testator in presence of the witnesses.

These formalities were followed in the presence of the witnesses, without interruption and without turning to other acts.

The witnesses and the notary, in the presence of each other, and the testator, signed the act on the 31st day of March, 18*79.

Two of the witnesses have died since, one could not be found, and two have testified on the trial.

The latter testified that their signatures as witnesses to the will are genuine, but that they never were witnesses to a testament of the defendant, never were present at the dictation of a will by him, and never were in the notary’s office while such a will was being dictated.

The testimony of the notary was ruled out on the ground, inter alia, that he could not be heard in proof of essential formalities not stated in the testament itself.

To the ruling a bill of exceptions was taken on the ground that such was not the purpose.

Jurisdiction Rations Materi®.

Plaintiffs and appellees in this court move for a dismissal of the appeal, on the ground that the court is without jurisdiction ratione materise.

The petition for orders to take inventories, in general terms, refers to property of the community; the order on this petition was issued to make an inventory and appraisement of all the property of the estate.

In the no Gary’s proces verbal of the inventory, part of the property is described as belonging to the community, part as belonging to the •separate estate of the deceased, and part of the property to the defendant personally.

These inventories are ex parte, and do not of themselves fix the ownership of the property.

The jurisdictional allegation of plaintiffs, based upon the inventories, sets forth that the community property amounts to the sum already stated and which is within this court’s jurisdiction.

For the purpose of establishing jurisdiction, plaintiffs are bound by their allegations supported by inventories of the property.

They have alleged a total representing community assets.

The inventories, as made, do not make it apparent that their allegation is erroneous.

The question at this time is one of fact, and does not present an issue of ownership, which necessarily must be left to future settle - ment, and not prejudiced by our conclusion maintaining jurisdiction.

The interpretation placed by the plaintiffs upon the recitals and description of the inventories in alleging in reference to jurisdiction only, is sufficient to maintain the jurisdiction for which the defendant contends. She is the only other interested party in the property.

The plaintiffs having alleged that the community property amounted to more than $5000, and this allegation appearing correct, we will not dismiss the appeal on the motion filed.

Proof of Heirship.

The defendant’s first contention is that the heirship of the plaintiffs being denied, they must be held to the proof of heirship, and that as they failed to offer any evidence upon this issue, she is entitled to judgment.

In Blair’s Heirs vs. Wade’s Heirs, 1 La. 113, the defendants in their answer denied in express terms the capacity and quality of the plaintiffs, named as heirs.

On the trial no evidence was offered to prove heirship.

In the appellate court their counsel relied on the order of the court below, by which they were permitted to prosecute the suit in the capacity assumed, as dispensing them from proof of heirship.

It was held that this ground was not tenable. The order of the court authorizing them to prosecute the suit as heirs is generally made ex parte, says the court, on the mere' suggestion of the party interested to obtain it unsupported by any evidence.

“ The answer explicitly required proof of heirship on the part of the appellees, and as they failed to make it, the judgment of the District Court must be reversed.”

The judgment in this case was one of non-suit.

In Bennet vs. Cignoni, 41 An. 1146, the defendant denied that plaintiff was a legitimate son, as a defence.

The court said that he had not made out his case and dismissed his suit-

The plaintiffs to sustain their suit and to meet defendant’s contention refer to a number of decisions.

The first in order of time is the case of Parish of St. John ex rel. Parish Treasurer vs. Shexnaydre, 34 An. 850, from which we quote:

‘ ‘ The exception as to the right of the parish treasurer to sue for and recover such fine came too late, having been made after default. Besides he denied his authority in the premises under the ordinance in question as well as from R. S., Sec. 2641,” empowering each officer to direct prosecutions for all debts due the parish.

The case is not analogous. The question was one exclusively of capacity, which was maintained by the court upon grounds entirely different from those involved in the case at bar.

All the other decisions to which our attention is invited by plaintiff’s counsel support the proposition that objection to plaintiff’s capacity must be pleaded in limine when he sues in a representative capacity.

Not one relates to the necessity of proving heirship when denied in the answer.

Those decisions referred to by us are directly in point and support the proposition that plaintiff’s ¡authority to sue as an heir must be proved when specially denied in the answer.

The authority of the heir is not representative, but is connected with or part of the right of action to recover, and must be proved, being intimately connected with the claim.

The prayer of the answer, that the plaintiff’s demand be rejected and that her title under the will be recognized, is not a waiver of the special denial, or an admission of plaintiff’s right to sue. This demand did not change the onus of proof, or relieve the plaintiff from proving the authority of an heir to sue, where authority is specially placed at issue.

In thus pleading for title under the will, defendant does not admit that which she expressly denies — that is, the heirs’ authority to sue.

We will not depart from the authority upon this point laid down in a number of decisions, but we will not extend it further than to dismiss the action.

The failure to make the proof required does not divest the plaintiffs of their rights in a future action.

In every suit, and particularly in litigation arising in the settlement of estates, useless delays should be avoided and the rights of parties finally determined in accordance with the forms and the terms required; we will, therefore, pass upon and decide questions brought up in a bill of exceptions, for it may obviate the necessity of remanding the case, should another appeal be taken.

Part of the excluded testimony of the notary is admissible — that is, that which does not add to, vary, explain or contradict the will.

Certain of the excluded questions propounded were directed to certain statements and declarations in the will.

The testimony of the witnesses to the will should not be considered final.

Other witnesses may be heard upon the subject if they do not contradict the terms of the will.

To illustrate, we will mention that the notary can not be heard to testify that the testator-signed the will, it being silent upon the subject, but he is a competent witness to support the defence that witnesses did sign, as declared in the will.

It is therefore adjudged and decreed that the judgment of the court below be avoided, reversed and annulled.

It is further adjudged and decreed that judgment as in ease of non-suit be entered against the plaintiff and appellee with costs in both courts.


author: Fenner, J.

text:
    No. 1448.
    Godefroy Dupre, Administrator, vs. Mrs. M. M. Anderson, and Mrs. M. M. Anderson vs. Godefroy Dupre, Administrator.
    1. Injunction to restrain the execution of an order of seizure and sale by the debtor, only lies in cases prescribed by Art. 739, C. P.

      2. The legal representative of the deceased debtor stands in the latter’s shoes and has no other or greater rights than his.
    3. Insufficiency of the authentic evidence on which the order issued is no ground for injunction; the remedy is by appeal.
    4. Inability to furnish a suspensive appeal bond furnishes no title to relief by injunction.
    APPEAL from the Eleventh District Court, Parish of St. Landry. Perrault, J.

      E. North Oullorn for Appellant.

      Estillette & Dupré for Appellee.
   The opinion of the court was delivered by

Fenner, J.

The plaintiff in the first case, as holder of mortgage notes of W. H. Anderson, deceased, took out executory proceedings thereon against defendant, his widow and sole universal legatee, and obtained an order of seizure and sale of the mortgaged property.

Thereupon the defendant instituted the second suit to restrain by injunction the sale of the property.

Art. 739, Code of Practice, provides: “ The debtor can only arrest (by injunction) the sale of the thing thus seized by alleging some of the following reasons, to-wib:” and it proceeds to enumerate specifically eight grounds.

It is admitted that the petition for injunction in this case alleges not one of these grounds, and indeed the party admits that her injunction is not based on Art. 739, but on Art. 296 of the Oode of Practice, which is the general article declaring that “injunction or prohibition is a mandate obtained from'a court by a plaintiff, prohibiting one from doing an act which he contends may be injurious to him or impair a right which he claims.” This is a mere definition of injunction, and it is impossible that it should derogate from the prohibition contained in Art. 739, which confines the power of arresting the execution of orders of seizure and sale by injunction to the specific cases therein enumerated, and, by clear implication, prohibits that remedy in any other case.

The contention that Art. 739 only applies to “the debtor,” and that the defendant here is not the “ debtor,” is without force. Mrs. Anderson is the legal representative of the debtor, stands in his shoes, and can have no rights except his rights.

Equally meritless is the contention that the article only applies to injunctions without bond. The language applies to all injunctions, and denies that remedy, except in the specified eases, and the fact that in subsequent articles bond is dispensed with in those cases, does not authorize injunctions in other cases, even with bond.

The particular ground upon which the injunction is rested is that the order of seizure and sale issued without production of the complete authentic evidence required by law. It has been repeatedly and distinctly held that this affords no ground for injunction in any case, but that the remedy is by appeal. Durae vs. Ferrari, 25 An. 80; Shreveport vs. Flournoy, 26 An. 709.

The plea that defendant should be granted relief by injunction because she was unable to furnish a suspensive appeal bond is surely untenable. If recognized, the remedy of suspensive appeal would be substituted in many cases by injunctions. It should seem that the fact that the law only allows an appeal to suspend execution of a judgment when the ample bond required in such cases is furnished would be the strongest argument against allowing the same purpose to be accomplished by an injunction issued on a comparatively insignificant bond.

Judgment affirmed.


author: Nicholls, O. J.

text:
    No. 1455.
    Antenor Bernard et al. vs. Edouard Noel.
    Where a wife who has made a donation inter vivos of all her property to her husband without reserving anything in the act for her subsistence, dies without having either revoked or attacked the donation as being violative of Art. 1497 of the Civil Code, the right of attack does not pass to her collateral heirs cut dies with her.
    APPEAL frem the Seventeenth District Oourt, Parish of Vermilion. Allen, J.

      L. L. Bourges for Plaintiff and Appellant.

      C. DeBaillon and Lastie Broussard for Defendant and Appellee.
   The opinion of the court was delivered by

Nicholls, O. J.

Plaintiffs seek to annul a donation of certain property made by Francoise Marie Nezat to her husband, upon the ground that the donation was in violation of Art. 1497 of the Oivil Code, which declares that the donor shall in no case divest the donor of all his property — he must reserve to himself enough for subsistence ; if he does not, the donation is null for the whole.

The wife died some time in the year 1892, without having attempted to invoke the nullity of that act.

She left no descendants nor ascendants, and no question of an interference with the rights of forced heirs is involved in this case.

The plaintiffs base their rights upon being the collateral heirs of the donor.

Defendant excepted that plaintiffs’ petition disclosed no cause of action. This exception was sustained, the suit dismissed and plaintiffs have appealed.

Plaintiffs’ allegations as to the donation are that on the 20th day of September, 1880, the said Marie Francoise Nezat passed an act of donation inter vivos to Edouard Noel without reserving anything for her subsistence.

For the purposes of this exception we must assume as true that the property donated was the whole of donor’s property, anfl that the act of donation was passed without reserving anything for her subsistence.

The donor and donee were husband and wife. The donation was not made to a stranger, but to one who under the law was bound to support her (O. O. 119-120), and who, as no complaint was ever made to the contrary, we must presume complied with his obligations. The use, fruits and revenues of the property donated enured to the benefit of the community in which the wife was a partner, and contributed to her subsistence. (C. O. 2402.) Again, donations between married persons during marriage, though termed inter vivos, are always revocable, thus differing essentially from donations inter vivos in a strict sense, as the latter are by law, when once accepted, irrevocable. A revocation of tbe donation by the wife to her husband may be made at any time by her without her being authorized to that effect by her husband or by a court of justice. O. O. 1749.

In the case at bar the act of donation received full effect up to the dissolution of the marriage by death. The wife had the legal right to have revoked the donation and to have left the whole of the property to her husband by will had she so desired, without the possibility of complaint from the plaintiff, who had no vested right, absolute or contingent, on it.

The nullity declared by Art. 1497 of the Civil Code is absolute only relatively to the particular persons for whose special interest it was passed, and among these can not be classed her collateral heirs invoking it when she had not done so herself. See Scott vs. Briscoe, 37 An. 178.

In the case at bar the right to invoke the nullity was a personal one in the sense that when she died the right to revoke the act died also. To discover the true meaning of a law we must often consider the reason and spirit of it, the cause which induced the Legislature to enact it and the mischief which it sought to prevent or to remedy. However general may be the terms in which it is couched, it only extends to those things or persons it appears the Legislature intended it to reach and apply to. The law in question in its enactment did not have in view collateral heirs, and it certainly was not passed for their benefit.

The possible interest which such heirs might set up in donation between two spouses was too remote and contingent, in our opinion, to have been attempted to have been safeguarded by the law-maker through this article of the code.

For the reasons herein assigned the judgment of the District Court is hereby affirmed.


author: McEnery, J. Fenner, J.

text:
    No. 1264.
    The State of Louisiana vs. Kid Nash and Kid Barnett.
    1. It is settled law in this State that rulings of the trial judge on questions not submitted to the jury, but to the judge alone, and involving blended issues of law and fact, are reviewable in this court, on the facts as well as on the law provided the testimony has been reduced to writing and embodied in, or attached to, the bill of exceptions taken to the ruling.

      2. To entitle an accused, as matter of right, to new trial, on the ground of nonage of a juror, he must prove affirmatively three facts, viz.: (1) the fact of nonage; f2) that this fact was unknown to accused or his counsel until after verdict;'(3) that the juror was questioned as to his age on his voir dire, and falsely answered that he was of the age required by law.
    3. The accused have the constitutional right to a trial by jury, by a jury of twelve men possessing the qualifications required by law, and when they show, by proof of the above facts, that they have been deprived of this right, notwithstanding the exercise of all due diligence to secure it, and by deception, they are entitled to relief, even after verdict.

      í. The evidence in this case was reduced to writing, and is regularly brought up as part of the bill of exceptions taken to the judge’s ruling refusing the new trial. There is no dispute as to actual nonage of the juror and as to its discovery only after verdict, and the evidence of ten unimpeached witnesses who swear that they heard the juror questioned as to his age and his answer that he was twenty-two years old, can not be overcome or even shaken by the negative testimony of five witnesses who say they did not hear the question or answer though admitting the possibility that it might have been asked and answered and not heard, or, if heard, forgotten by then!.
    y^PPEAL from the Eirst District Court, Parish of Caddo.

      J. B. Land and H. B. Lichtenstein for the State, Appellee.

      M. O. Elstner and A. L. Kahn for Defendants and Appellants.
   The opinion of the court was delivered by

McEnery, J.

The defendants were indicted jointly for murder, tried and convicted, and separate verdicts as to each returned by the jury, Nash guilty as charged, and Barnett guilty as charged without capital punishment. They were sentenced in accordance with the verdict, and appealed from the judgment.

Their defences are as follows:

I.

To the ruling of the court in setting the case for trial.

II.

To the ruling of the court in refusing motion for continuance.

III.

To the ruling of the court in refusing to let the witness, T. W. Tusten, testify before the jury as to the general reputation of the deceased, McOort, at Monroe, La.

IV.

To the ruling of the court in refusing to let P. W. Perry, one of the jury, testify on the motion for new trial; the said Perry having been offered as a witness by defendants to prove that when offered as a juror he was'asked as to his age, and that he answered that he was twenty-two years of age.

V.

To the ruling of the court in overruling motion for new trial.

VI.

To the ruling of the court in overruling the motion in arrest of judgment.

Exceptions 1 and 2 are controlled by the same principle and will be discussed together, as is done in defendants’ brief.

The rule of the District Court before which the defendants were tried is that the District Attorney has the exclusive right to fix eases, except where sufficient time is npt allowed the defendant to secure his witnesses.

On the 22d day of April, 1893, the first day on which cases on the calendar of the court were called under the rules for the purpose of being set down for trial, the District Attorney proposed and offered to fix the case of defendants for trial on the 25th of April following. The defendants objected on the ground that two important witnesses, residing in another State, would be present if the case was fixed at a later date; that there was not sufficient time to obtain their voluntary attendance, which was assured at a later period, and defendants had not the time to communicate with them and secure' their promised voluntary attendance.

The fixing of cases for trial by the court is a matter relating to its discipline, and, as we have often said, we will not interfere with this discipline unless a manifest wrong has been inflicted upon the defendants. From the statemenUof the trial judge we are satisfied that no such wrong has been inflicted upon the defendants. He says the absent witnesses were non-residents and could not be forced to appear by any process of his court.

It would be a most unusual proceeding to continue a case foi the purpose of allowing the defendants to communicate with absent witnesses to ascertain if their voluntary attendance could be obtained. Defendants in criminal cases could multiply absent witnesses at each succeeding term and impose upon the indulgence of the court, and thus indefinitely postpone the trial. But this is a matter, when the witnesses are beyond the jurisdiction of the court, for the exercise of discretion by the trial judge. There is no legal right for a case to be postponed on such a showing, and a refusal to grant the delay, even in a meritorious case, would not authorize us to review the discretion exercised by the trial judge.

He says the witnesses lived at points in Texas, from which they could reach the court in twenty-four hours, and that they could be reached by telegraph.

The defendants, as a matter of right, were not entitled to the delay, and we think the trial judge was fully justified in refusing to allow the delay, in the exercise of a discretion which, in such a case, was exclusively his, on the showing made by the defendants.

Por the reasons alleged in their protest defendants filed a motion for a continuance on the ground of the absence of these two alleged important witnesses. The reasons above stated will apply to the refusal to grant the continuance on account of the absence of these witnesses.

In the same motion it is alleged as a ground also for a continuance that two witnesses, who reside in Shreveport, material and important, were absent from said city, and that defendants had placed their names with the clerk of the court for the purpose of having them summoned. The facts which they expected to prove by said witnesses are detailed at length. Orisp, one of the witnesses, was in court during the trial and he was not placed on the stand. The trial judge stated this from his personal knowledge.

In respect to the facts expected to be proved by Bernstein, the absent witness, the trial judge .states that his testimony would be only cumulative; that several witnesses testified to the overt act of deceased, that he did make threats against the life of the accused Nash, and that he and his co-defendant were informed of these threats. But the evidence showed, to the satisfaction of the jury, that the deceased made no effort to carry these threats into execution. On this point the evidence was conflicting, but the trial judge says the jury rejected the testimony of an overt act by the deceased and accepted that of the witnesses who testified to the fact that the “ deceased was facing the bar counter, with his left side toward the front door of the saloon, when the accused entered by that door, and that immediately upon their entrance two pistol shots were fired by them, or one of them, at deceased, and that they saw no pistol in deceased’s hands, and no attempt by him to draw one.” These observations on the testimony, the trial judge says, are made for the purpose of showing that if he erred in refusing a continuance no injury was done the defendants, as they had through other witnesses and their own testimony the advantage which Bernstein’s testimony would have given them.

But we are of the opinion that the accused did not show due diligence in endeavoring to procure the attendance of Bernstein. On January 24, 1893, on motion of defendants, the case was continued. They had from this time on to the trial, to secure by legal process the attendance of Bernstein.

3. T. W. Tusten, a witness for the defence, was offered to prove the reputation of the deceased in Monroe, La., for being a dangerous and quarrelsome man, one who would likely carry his threats into execution. His testimony was rejected on the ground that it was not an effort to prove his character, where the deceased and accused resided, which would be a presumption that the accused knew his character.

To give the reputation of the deceased in evidence, which he bore in a distant community, it is necessary to show at least that the accused were aware of his character in said community. Ho attempt was made to show that the defendants knew the character deceased bore in the city of Monroe. Besides, the proof of some attempt on the part of deceased to commit an overt act against accused must be first shown as a foundation for such evidence.

4. P. W. Perry, a member of the jury, was placed on the witness stand by defendants to prove that when offered as a juror he was asked as to his age and answered that he was 22 years of age, when he was in fact only 20, and therefore an incompetent juror. The judge refused to admit his statement as a witness.

It is true that the evidence sought to be elicited from the witness was not to impeach the verdict, but we are of the opinion that the same rule will apply in rejecting such testimony as prevents the testimony of a juror to impeach the verdict rendered by him.

In case of State vs. Price, 37 An. 217, we said: The rule is of universal acceptance that jurymen will not be permitted to impeach their own verdict and thus declare their own perjury, for one oath would but offset the other. Both public decency and public policy alike demand the rejection of such testimony. In the instant case the juror’s oath, on the trial of the motion for a new trial, would be offset by his oath on his voir dire.

5. Evidence was introduced to show that the juror Perry was an incompetent juror, not having attained his majority. If the defendants had interrogated the juror Perry on his voir dire as to his age and he had deceived them by stating he was a major, this would be evidence of due diligence on part of defendants. If they had not so interrogated him, this would be a lack of diligence and a waiver of the cause of challenge. Thompson & Merriman on Juries, Sec. 802 et seq.; State vs. Garig, 43 An. 365.

If the fact had been shown conclusively on the trial of the motion that the witness had been questioned as to his age, then testimony could be heard as to his age, and if the fact of minority was proven, the defendants would be entitled to a new trial.

The testimony is conflicting as to whether*the juror had been interrogated as to his age.

The presumption is in favor of the juror’s competency, after he has been sworn and impaneled. To rebut this presumption the evidence must be strong and convincing. The trial judge believed that the question as to age had not been asked the juror, and he therefore overruled the motion for a new trial.

The trial judge says in his written opinion: “It can not be denied that defendants have, in the language of Bishop, failed to make it very distinct that the juror Perry was questioned as to his age before he was accepted.

“ It is not necessary to go into any examination of the evidence. It is admitted to be contradictory, and the admission might have gone to the extent of conceding tlíat it is flatly contradictory in some vital points — so contradictory, in fact, that no one can read it and be free of a reasonable doubt on the subject. It was the duty of defendants to remove these doubts, and as they have failed to do so, their application for a new trial must be denied.”

We can add nothing to the force of this statement. A disputed fact was submitted to him, and he has found the fact, and we will not, in a motion for a new trial in a criminal case, disturb his ruling in such a case.

The other matters in the motion have already been disposed of.

6. The motion in arrest of judgment assigns as a ground therefor the nonage of the juror Perry. This fact does not appear upon the face of the record. It also assigns as a reason for arresting the judgment ihe fact that one of the defendants was found guilty as charged, and the other guilty as charged without capital punishment.

They were jointly tried. The jury could have acquitted one and convicted the other. There is no reason why a qualified verdict could not be returned as to one, and an unqualified verdict as to the other.

The law authorizes such a verdict.

7. Two jurors were challenged for c'au^e by defendants, which was merited.- They were then peremptorily challenged. They did not serve on the jury, and the defendants have .no cause to complain. 35 An. 317; 35 An. 327; 37 An. 77; 36 An. 206; 37 An. 768.

Judgment affirmed.

On Rehearing.

Fenner, J.

This case has been transferred from the Monroe term to this term for decision under an application for rehearing.

The only point in our original opinion which demands reconsideration is the one based on the nonage of the juror Perry, who served on the jury and participated in the verdict.

■ This point is presented on a motion for new trial in the following terms: “That one of the jurors that composed the panel that tried the case against the defendants, P. W. Perry, was not a competent and qualified juror under the laws of Louisiana, for the reason that he was under twenty-one yehrs of age, and not a qualified elector at the time of said trial and at the time he was taken on said jury; that they, through their counsel, used all due diligence in their efforts to secure jurors competent and qualified; that one of their counsel asked the said juror, Perry, his age, and the said juror answered he was twenty-two years old; that said answer was untrue, misleading and a fraud upon defendants, and that by said answer he caused himself to be taken on said jury; that they had no knowledge of said juror’s disqualification and incompetency at the time he was tendered and accepted by them, and until after the trial of said case had been concluded and the verdict rendered and the jury discharged.” The facts thus alleged were verified by the affidavit of both the accused and of their counsel.

The motion was set down for trial, and evidence was taken contradictorily betw.een the parties, which evidence was reduced to writing. When the judge overruled the motion for new trial a bill of exceptions was duly taken to his ruling, and the evidence was attached to and made a part of the bill.

In this State it has been held in a long series of decisions that rulings of the judge made in the course of the trial, or on motions for new trial, on questions submitted to the judge alone and involving blended issues of law and fact, are reviewable in this court on the facts as well as the law, provided the testimony be reduced to writing and embodied in or attached to the bill of exceptions taken to the ruling.

The leading cases on this point are State vs. Nelson, 32 An. 842, and State vs. Seiley, 43 An. 143, in the last of which the whole subject was reviewed and the doctrine not only reaffirmed but extended (over a dissenting opinion) so as to authorize the parties to demand the reduction to writing of the testimony taken in such cases and to make a refusal of the judge to do so reversible error.

But the general doctrine has been announced in a multitude of cases: 32 An. 819, 854, 1052, 1086; 34 An. 69, 149, 881; 35 An. 770, 823; 36 An. 87, 158, 920; 37 An. 780, 172, 443; 38 An. 539, 581, 660, 684; 39 An. 319, 862, 919; 40 An. 75, 740; 41 An. 143; 42 An. 83.

It is no longer open to discussion, and it imposes on this court the. power and duty to review the findings of the judge in this case not only on the law, but on the facts as exhibited by the testimony, with which the questions of law are inseparably blended.

We consider that, for the maintenance of their motion for newtrial on this point, it was essential that defendants should prove all of three facts, viz.: (1) That the juror, Perry, was under the age of twenty-one; (2) that this fact was unknown to the defendants and their counsel until after verdict; (3) that the juror was questioned as to his age on his voir dire and answered that he was of the age required by law.

The sufficiency of the proof on the first two points was conceded by the judge a quo, and we find no ground for questioning it.

The learned judge, with his usual directness and perspicuity, says: “The pivotal point is, did the defendants examine the juror as to his age, and were they misled by his answers? This is purely a question of fact to be decided on the evidence adduced. If the juror was in fact interrogated as to his age and answered falsely, and defendants were induced by such false answers to accept him on the panel, they are entitled to a new trial although the juror may have been honest and conscientious in his belief and free from any intent to deceive. On the other hand, if the question was not asked and the false information not voluntarily given by the juror, it is too late, after verdict, to object on the ground of nonage.” We think this statement absolutely correct and fully sustained by authority. We affirmed it in our original opinion herein, saying: “ If the defendants had interrogated the juror Perry on his voir dire as to his age and he had deceived them by stating he was a major, this would be evidence of due diligence on their part. If they had not so interrogated him, this would be a lack of diligence and a waiver of the cause of challenge. Thompson and Merriman, Jury Trials, Secs. 302 et seq.; State vs. Garig, 43 An. 355.”

This court has decided the precise points, saying: “An opportunity is afforded the prisoner of inquiring into the qualifications of the juror on the voir dire examination. If, upon that inquiry, he be found to want the legal qualifications, he may be set aside for that cause. It would have been different if the juror,.when interrogated, had stated that he had acquired the requisite residence, was free from bias, or that he possessed any other legal qualification, and it had been subsequently discovered that the statement was false. This would have been a fraud upon the prisoner, from which .he could have been relieved.” State vs. Kennedy, 8 Rob. 596.

We have been at pains to make quite an extensive examination of the authorities bearing on this subject, and while we discover some conflict of opinion on the question- whether the incompetency of a juror, though discovered only after verdict, will be ground for new trial in absence of due diligence in testing his qualifications by proper inquiries during the examination on the voir dire, we find no authority holding or suggesting that the new trial can be denied when the party has exercised full diligence in questioning the juror on his voir dire and has been misled and deceived into accepting an incompetent juror by his own answers, avowing his competency, which are sub - sequently discovered to be false. We do not believe such a precedent exists or will ever be made.

The learned trial judge, however, while affirming the above principle, bases his refusal of the new trial on the ground that the evidence does not establish, with sufficient certainty, the pivotal fact that defendants did question the juror on his voir dire as to his age and did receive a false answer.

He quotes the following observation of Mr. Bishop in his work on Criminal Procedure, Vol. 1, Sec. —: “ But if, through undiseoverable and unknown wrong, the defendant has been tried and convicted by a panel containing an unfit juror, the evidence of which must be very distiuct where the verdict is right, a new trial will be granted.” He then proceeds to state his opinion that the verdict in this case is right, and that the defendants suffered no practical injury from the fact of the juror’s nonage, and then continues: “ These observations of Bishop do not affect the right of defendants to a new trial where the evidence distinctly shows that they were misled by incorrect answers touching a juror’s age, given before he is accepted and sworn. But they distinctly recognize the rule that the burden of proving that the preliminary examination was held is on the defendants, and the proof must be very distinct and clear where the verdict is right. A mere numerical preponderance of witnesses or a reasonable doubt whether the preliminary examination was or was not had is insufficient. The fact must be established with such a degree of distinct certainty as leaves no reasonable doubt of its existence. If there remains a reasonable doubt of its existence, such doubt can not enure to the benefit of the accused. On the contrary, it enures to the benefit of the verdict, where the latter is fully justified by the law and the evidence.”

It must be admitted that the above is a very strong statement of the weight of the burden of proof carried by defendant; but while the language employed is perhaps a little too strenuous, we are disposed to approve the statement of the rule, with some moderation of its terms, as substantially correct.

The judge proceeds: “Testing the application of this rule, it can not be denied that defendants have failed, in the language of Bishop, to make it very distinct that the juror Perry was questioned as to his age before he was accepted. It is not necessary to go into an examination of the evidence. It is admitted to be contradictory in some vital points — so contradictory, in fact, that no one can read it and be free of a reasonable doubt on the subject. It was the duty of defendants to remove such doubt, and as they have- failed to do so, their application for a new trial must be denied.”

Influenced by these persuasive statements of the district judge, by our great respect for his rulings and indisposition to disturb them, we affirmed them in our original opinion without criticising the testimony very closely.

The application for rehearing emphasizes the solemnity of our duty, in a ease involving the life of one and the liberty of the other defendant, to review the testimony on the point involved and to determine whether or not it has been correctly weighed by the district judge, and sustains his conclusion that it leaves the fact in controversy subject to reasonable doubt. This duty we could not evade without ignoring the tenor of the constant jurisprudence of this court as settled by the numerous decisions above quoted.

We have now read again and re-read the evidence, and if any fact can be established by human testimony, we can not avoid the conclusion that the testimony in this case clearly establishes that the juror Perry was questioned on his voir dire as to his age, and that he did answer that he was 22 years of age.

Ten witnesses positively swear that they heard the question asked and the answer made. We name them because several of them are known to members of this court as honorable and creditable persons, and none of them are in any way impeached. They are M. O. Elstner, A. L. Kahn (the two counsel of defendants), W. M. D. Cawthon, T. T. Land, Jr., H. O. Rogers, C. W. Crane, S. Kahn, D. March, A. Holt and Prank Looney. Our late respected clerk, W. G. Boney, also testifies that he heard some juror questioned as to his age who answered that he was 22 years old, but could not say whether or not it was the juror Perry.

Against this positive testimony the State brings five witnesses, all of whom state that they were paying attention to the examination and to the questions and answers, and that they heard no such question to Perry or answer by him. One of them, M. L. Scovell, says: “ I am positive the question as to his age was not asked; but there is a possibility that it was asked and I might not have heard it.” Another, N. W. Buckalew, says: “ I will not swear that I heard all the questions asked him.” Another, J. H. Jordan, says: “I do not think the question was asked, but it possibly was.” Another, J. H. Prescott, says: “ I will not say it was impossible,” etc., and again, if the question was asked, “ I would have heard it, as I heard everything; but possibly it passed from my memory.” The last, John L. Hodges, simply swears that he did not hear the question asked; that he was paying pretty close attention and that to the best of his knowledge and belief it was not asked.

This is a fair statment of the whole testimony found in the record, with the exception of some conflicting evidence about certain statements made by one of the counsel, which has no substantial bearing on the question. On this evidence we are bound to determine whether the defendants have discharged the burden of proof devolving on them. If they have not, how could it be done? If ten unimpeached witnesses positively testifying to a fact evidenced by their own senses are not sufficient, what number would suffice? If the testimony of five persons who did not hear, or do not remember to have heard, a question asked and answered can overthrow or even shake the testimony of ten persons who positively swear that they heard the question and answer, how could such a fact be established in any case? A case of the kind could hardly arise in which witnesses could not be found who did not hear or remember the question and answer. The question as to a juror’s age is not one ordinarily calculated to attract anyone’s attention, or to fix itself on the memory. The question and answer may have been made and yet the witnesses of the State may be absolutely truthfal in their statements. But if the question and answer did not occur, the ten witnesses who swear positively that they heard them are undoubtedly perjurers. As we said in another ease, “ the assertion of a fact which has never had existence can not be consistent with truth, whereas the denial of a fact which has existence may, without violating truth, be the result of inattention or defective memory. Hence the rule that positive testimony on a given point must always predominate over negative testimony on the same point.” Story vs. Ins. Co., 87 An. 258; Guesnard vs. Bird, 88 An. 799.

In this case we do not think it to be a mere question of predomination of evidence. We consider that there is no conflict whatever in the evidence. It leaves no doubt on our minds, reasonable or unreasonable. Unless the ten witnesses of defendants are wilful and conscious perjurers, the defendant’s case is so clearly established that “ the probatio'n bears no hinge or loop to hang a doubt on.”

The defendants unquestionably had the constitutional right to a trial by jury — by the historical jury of twelve men possessing the qualifications required by law — legales et liberi homines — which unquestionably exclude aliens and minors. They have exercised all due diligence to secure the enjoyment of this right, and have done nothing and omitted nothing which disables them from asserting it, in the manner and at the time when they have done so. Whether guilty or innocent, they are entitled to the protection of the Oonsti - tution. Unless found guilty by due process of law, conducted according to legal and constitutional requirements, the judicial power has no more right to condemn to death the blackest criminal than it has to visit like penalty on the whitest innocent.

However much we may regret the necessity of setting aside a verdict approved as right by the trial judge, our duty under the law and on our official oaths leaves us no other alternative.

It is therefore ordered that our former decree herein be annulled.

It is now adjudged and decreed that the sentences appealed from be avoided and reversed, that the verdict be set aside, and that the case be remanded to the lower court for a new trial according to law.


text:
    No. 355.
    State of Louisiana vs. Ben Depass et als.
    The transcript of appeal in this case is so flagrantly defective that it can not be dealt with as a judicial record. The judgment and the verdict upon which it was based can not stand on such a record and must be set aside, and the defendants be detained in custody for further.proceedings.
    APPEAL from the Seventeenth District Oourt, Parish of St. Mary. Allen, J.

      John R. Land, District Attorney, for the State, Appellee.

      D.Caffrey & Son for Defendants and Appellants.
   The opinion of the cqurt was delivered by

Nicholls, O. J.

The defendants, Ben Depass, James Depass and Alexander Landry, Jr., were jointly indicted for the murder of Alfred Edwards, and upon trial by jury Ben and James Depass were found guilty as charged, without capital punishment, and Alexander Landry was acquitted.

Ben Depass and James Depass have appealed from the sentence against them, and rely for the reversal of the judgment of the lower court upon objections urged in a bill of exceptions reserved in that court and upon an assignment of error in the Supreme Oourt.

The bill of exceptions was as follows:

Bill op Exceptions.

1. “ The defendants placed upon the stand Alexander Landry, Sr. a witness, to prove that shortly before the fatal meeting between the accused and Alfred Edwards, the deceased, the said deceased was heard to utter threats against the lives of defendants, which threats were not communicated to defendants. The defendants having previously placed upon the stand Aaron Johnson, Henry Carlin, Ben Depass and Alexander Landry, Jr., to prove that Ben Depass, who fired the fatal shot, only fired after a demonstration made against him by the deceased, which demonstration consisted in the drawing of a pistol and the pointing of it at Ben Depass, and said witnesses having sworn to such a statement of facts, the evidence of uncommunieated threats, aforesaid, was sought to be introduced in support of the plea of self-defence, and not for the purpose of showing the quo animo of the defendants, but for the sole purpose of showing that the deceased sought the meeting, or began or provoked the combat, and to show the animus of the deceased and to illustrate his conduct and motives. The testimony of the four above mentioned witnesses showed that the acts of the deceased at the time of the encounter that resulted in death were at least of a doubtful character, and defendants offered to introduce the said evidence of uncommunicated threats for the sole purpose stated, and disclaimed any other purpose.”

The State objected to the introduction of this evidence, and the court sustained the objection for the following reasons:

“ The evidence of uncommunicated threats sought to be introduced in this case was rejected on the objection of the district attorney, because the proof in the case, even the testimony of the witnesses mentioned in this bill of exceptions, three of whom were prosecuted for the murder of Edwards, and the other, Aaron Johnson, was arrested for the same offence, left no doubt of the fact that the defendants were the aggressors, and it shows that they made the attack that resulted in the death of Edwards.
“The facts that led up to the homicide are the following: Three hours before the homicide, Jim Depass and Alexander Landry, two of the men charged with murder in the indictment, were beating another man. Edwards parted them 'and said it was not right for two to jump on one. This ended the difficulty and Edwards went off. Afterward Jim Depass met his brother,Ben Depáss, and had some conversation with him. Ben Depass then went to a store and bought some cartridges and loaded his pistol with them.
“Three hours afterward Ben Depass, Jim Depass, Alexander Landry, Henry Carlin, the cousin of the defendants, and Aaron Johnson assembled at a point near the railroad depot. As Edwards passed he saw them and stopped, and said ‘Good evening, gentlemen.’ They responded, and for several minutes they conversed quietly together. During this conversation one of the Depass boys said to Edwards: ‘ That little seven-shooter of yours is no account.’ Edwards answered: ‘ It is not a seven-shooter, but a good five-shooter.’ He took it out and showed it to them, and then put it back in his pocket.
“ The conversation continued with no reference to a difficulty. A short while afterward, while Edwards was leaning up against a post with his side toward the Depass boys, and not looking at them, Jim Depass suddenly struck Edwards on the head with a large rock, which staggered him and made him reel about in a dazed condition. While in this condition, Ben Depass shot and killed him. While Edwards was reeling and staggering from the blow on the head made with the rock, he attempted to draw his pistol, and did get it out before Ben Depass killed him. Ben Depass and Aaron Johnson said that Edwards pointed it at him. No other witnesses bear him out in this. All the disinterested witnesses, and there were several, say that Edwards was shot down while in the act of drawing and while he was dazed and staggering from the rock blow.
“ The evidence indicated a preconcerted design on the part of Bdwards’ slayers, and shows conclusively that they made an uprovoked attack upon him and killed him.”

Defendant in this court urges that the ruling of the district judge upon the subject of uncommunieated threats was erroneous, claiming that “ proof of uncommunicated threats is admissible where the question is as to what was deceased’s attitude at the time of the fatal encounter or where it appears that other evidence has been introduced tending to show that the act of homicide was committed in self-defence.” Wharton on Criminal Law, Sec. 1027, and 93 U. S. Rep., p. 465. He contends that the present case was brought under the operation of that rule. We do not think so. Taking the recital of the district judge as to the testimony adduced (which was not taken down in writing) as correct, we do not see what applicability the rule invoked has to the case at bar, and the court under the state of facts shown could not do otherwise than act as it did.

Taking the testimony as a whole and considering it we do not think it can be said there was testimony legally tending to show a case of self-defence.

The accused assigned for error in this court the following irregularities in the proceedings of the court as being shown by the transcript :

“ That the bill of indictment on which defendants were tried was not found by a grand jury regularly organized, nor was it ever properly found and presented by such grand jury in open court.”

We have examined what purports to be a record of the proceedings of this case. On the last page we find a certificate signed by J. B. Verdun, Jr., deputy clerk of the Seventeenth Judicial District Court, parish of St. Mary, to the effect that “the foregoing twenty pages contain a true and correct transcript of all the proceedings had, evidence adduced and documents filed in the suit of the State of Louisiana vs. Ben Depass et als., No. 569 of the criminal docket of the Seventeenth Judicial District Court.” The transcript fails to show the opening of that court either on the first or any other day of the term; it fails to show that a grand jury was ever empaneled or sworn, or that any appointment of foreman was made, and it is throughout so flagrantly defective as to make it difficult to be dealt with as a judicial record at all. We see from it that a judgment has been rendered against these appellants sentencing them to the penitentiary for life. This judgment and the verdict upon which it was based can not stand on such a record. State vs. Shields, 33 An. 993.

For the reasons assigned it is ordered, adjudged and decreed that the judgment appealed from and the verdict upon which it was based be set aside, and that the said judgment be annulled and reversed, and that defendants be detained in custody subject to the order of the District Court of the parish of St. Mary to await further prosecution or proceedings according to law.


author: Nicholls, C. J.

text:
    No. 370.
    State of Louisiana vs. Jim Mack.
    Counsel assisting the district attorney has the right to open and close the argument.
    The State attorney should not say to the jury in his argument that he believed the accused to be guilty; but ¡Í the latter does not ask the judge to stop the argument, or to charge the jury to disregard the statement, he can not complain.
    It is only in case o£ gross and unambiguous error that this court will review the charge to the jury, if no objections were made at the time of its delivery and no bill of exceptions taken to the same.
    APPEAL from the Thirteenth District Court, Parish of East Feliciana. Brame, J.

      John B. Land, District Attorney, for the State, Appellee.

      W. F. Kernan for Defendant and Appellant.
   The opinion of the court was delivered by

Nicholls, C. J.

The defendant, having'been indicted for murder, was on trial convicted of manslaughter and sentenced to the penitentiary for the period of seven years. He has appealed, relying upon the following grounds set up in a motion for a new trial, which was overruled:

1. That the court allowed assistant counsel for the State to close the argument.

2. That the court allowed the assisting counsel for the prosecution to state to the jury in the closing argument that he believed said accused to be guilty.

8. That the court erred in charging the jury that it was involuntary manslaughter “ where in a scuffle to disarm a person a pistol or gun is accidentally discharged and kills a person.”

On the first two grounds bills of exception were reserved, but the last objection was set up for the first time in the motion for a new trial, and no exception was taken to the adverse ruling upon this motion.

No objection is urged to the employment of an assisting counsel for the prosecution and no claim is made that the State was not entitled to the closing argument, but it is contended that this argument should have been made by the district attorney himself. Counsel for the accused in his brief says that “ when the district attorney engages assisting counsel, it was held by this court in State vs. Anderson, 29 An. 774, the latter might open and close the argument, but that in the present case the assisting counsel was not employed by the district attorney. His appearance was by sufferance.” There is nothing in the record to show by whom this counsel was engaged or under what circumstances he took part in the proceedings. There is no evidence of the existence of the particular fact on the strength of which this case is sought to be taken from under the ruling in that of Anderson, and the decision in the latter determines adversely to the accused his first ground of complaint.

The second ground is thus stated by counsel in the bill of exceptions having relation to it: “On the trial of this case the assisting counsel for the prosecution stated in the closing argument that he believed the accused to be guilty, to which statement counsel for accused objected and excepted, and that the judge did not charge the jury to disregard said statement by said counsel.”

Before signing the bill the district judge added: “The assistant counsel for prosecution immediately added that he believed the accused guilty from the evidence, and that the jury should go by the evidence and not by his opinion.”

Counsel for the accused cite a number of decisions in support of his proposition that it is highly improper and unfair in a district attorney to declare to the jury that he believes the accused to be guilty, and that such a declaration warrants a new trial, among others that of People vs. Hess (Mich.), 48 N. W. Rep.; Raggio vs. People, 26 N. E. Rep.; Bery vs. The State, 10 Ga. 511, 522; Metchum vs. The State, 11 Ga. 615.

In State vs. Duck, 35 An. 764, this court said: “ Accused charged error in the refusal of the district judge to stop the district attorney in the course of the latter’s argument at the request of counsel for accused, charging that the district attorney was making an improper and unfair argument to the jury. There is no force in this complaint. This court can not and will not interfere with district judges in the manner of controlling their courts or of enforcing rules of propriety and decorum on the officers of the court.-

That a district attorney should not throw the weight of his personal influence into the case which he is conducting as a public official by announcing his individual opinion and belief as to the guilt if an accused is undoubtedly true. In the case at bar the assistant counsel after making the statement that he believed the accused guilty, modified it immediately by saying “he believed him guilty under the evidence, and that the evidence should go by the evidence, and not by his opinion.”

As so modified the private opinion of the counsel was still before the jury — and the expression was one which should not have been used. The bill of exception states that the accused excepted to it, and that the judge did not charge the jury to disregard said statement.

There was no demand made on the judge to stop the argument or to chai’ge the jury to disregard the statement, and no refusal on his part to comply with any request made on him in respect to it. Had the accused desired any action on the part of the judge he should have asked it.

The remark does not seem to have been reiterated, and the verdict rendered would not indicate that it carried with it any influence on the jury.

The third ground, leveled at a sentence in the judge’s charge, was set up for the first time after verdict. This court has repeatedly declared it to be the duty of the accused, at the time a charge is made, to make known any objections he might have to the end that the judge’s notice may be drawn to them and enable him to either strike out, modify or enlarge the instructions. 25 An. 147; 29 An. 364; 30 An. 536; 39 An. 229; 34 An. 104; 35 An. 543; 37 An. 57; 38 An. 497.

Defendant’s counsel cite State vs. Baird, 34 An. 104, and State vs. Curtis, 34 An. 1214, as cases in which we reviewed charges of a judge, although objections had not been made at the time of its delivery and no bill of exception had been reserved.

In the first of these cases we said: “ We held in State vs. Ricks, 32 An. 1098, that where the charge was in writing and embodied in the record we would notice errors under proper assignment thereof, although not presented by bill of exceptions;” but we also further said that only in case of gross and unambiguous error would we do so.

There has been no assignment of error in this court, and reference has been made to the judge’s charge only in the brief of defendant’s counsel.

We may say, however, that we have examined it and we discover “no gross and unambiguous error” in it.

Counsel has selected one of its sentences and attacked it as being erroneous, because, as be says, “not directly and pertinently coupled” with another portion which the court actually gave to the jury, and by reason of that fact calculated to mislead. We do not think the jury was misled. The charge was obviously made in view of and with reference to the facts of the particular case, of which we have no knowledge, but which the court and jury had before them and understood.

It is not pretended that the charge as made was not applicable to and justified by the facts, nor that taken as a whole it misstates the law.

It is simply contended that the charge was inartificially drawn, and therefore liable to mislead. The charge did not apparently so impress the accused on the trial. If it did so impress him it was his duty to have seasonably called for an alteration of its form.

For the reasons herein assigned the judgment appealed from is hereby affirmed.


text:
    No. 372.
    State of Louisiana vs. Richard Boswell.
    1. Defendant in a criminal ease is not entitled, as a matter of legal right, to offer testimony in rebuttal of testimony in rebuttal.
    2. The fact that after the defendant had closed his case the State recalled some of its own witnesses and interrogated them as to matters which might have been relevantly and properly introduced originally as part of the State’s evidence in chief, does not necessarily affix to that testimony the character of new and direct “ cumulative” evidence in chief. In the case at bar the testimony was strictly in the line of rebuttal, and not going beyond rebuttal must fall as to its contradiction, under the rules governing testimony. The purpose of the testimony was to disprove, not to prove, and was not offered at that late stage of the proceedings to introduce against the accused an admission or confession to establish bis guilt. If accused feared that tbe jury would give to the rebutting evidence, legally introduced, an effect beyond its legitimate scope, bis remedy lay in asking from tbe court special instruetionson that subject and not in departing from tbe rules governing the practico in relation to that kind of testmony.
    APPEAL from the Fifteenth District Court, Parish of East Baton Rouge. Buchner, J.

      John B. Land, District Attorney, for the State, Appellee.

      H. F. Brunot for Defendant and Appellant.
   The opinion of the court was delivered by

Nicholls, C. J.

The defendant, Richard Boswell, indicted for the murder of his wife, was tried by a jury, foung guilty as charged and sentenced to be hung. He has appealed.

He urges that during the trial of the ease and after the testimony of the defendant for the defendant, except for the right reserved to introduce rebuttal evidence was closed, the judge a quo improperly refused to permit the defendant to rebut certain evidence subsequently introduced by the State, which he claims to have been new evidence. He further urges that the court erred in overruling his motion for a new trial based upon the charge that the sheriff entered the jury room when the jury was deliberating upon a verdict in this case and called Juror Betz, who was in favor of a verdict of guilty without capital punishment, aside to a window out of the hearing of the other jurors and held an earnest conversation with said juror, which said juror immediately returned to the other jurors and voted and urged thereafter an unqualified verdict against defendant.

We will dispose of this last complaint by saying that every allegation made in the motion and every inference to be drawn from the same was affirmatively disproved by the testimony taken with the exception of that which stated that the sheriff who had the jury in charge had a conversation with the juror Betz.

The district judge correctly overruled the motion.

In signing the bill of exceptions which the counsel of accused reserved to his refusal to admit the testimony offered for the defence, the judge states the facts upon which his ruling was predicated, as follows:

“The accused was charged with the crime of murdering his wife. The State opened the case by introducing evidence to show accused’s guilt. The accused was placed on the stand as a witness in his own behalf. He admitted the killing, but claimed it was an accident, the pistol going off accidentally, and only one shot was fired, which fatally wounded his wife. He testified that after his pistol went off he went to the front gate and threw the pistol away in a certain direction. He said he told his attorney about four days before his trial the direction he had thrown his pistol. His attorney, Mr. Brunot, with three other witnesses, testified that they had gone to the place designated by accused and found a pistol with one chamber empty. The pistol was exhibited to the jury, was identified by the accused as the one he shot his wife with, and it was shown that the pistol had been exposed to the dew, rain and sun for over four weeks before it had been found by Mr. Brunot and the three witnesses. The State then introduced witnesses to show that the accused after he had shot his wife placed the pistol with which he did the shooting on a table; that the pistol showed two chambers discharged. Alec Johnson swore he had taken the pistol from the table in accused’s room and produced it before the jury, identifying it as aforesaid. There were a number of witnesses who corroboated the evidence of Johnson. After the State had closed in rebuttal, attorney for accused insisted on producing witnesses in rebuttal, which was objected to by the State, and the objection sustained.”

The recitals of the bill of exception, as made by the accused, were as follows: During the trial of the cause and after the testimony for the defendant, except for the right reserved to introduce rebuttal evidence, was closed, the State’s attorney offered a pistol in evidence, and proved by witness Aleck Franklin that said witness secured possession of said pistol at the house of defendant some days subsequent to the shooting with which defendant is charged, and that said witness had preserved said pistol to be produced and used'On the trial as evidence. Said State’s attorney also recalled witnesses Fannie Coleman, Chatty Taylor and Joe Johnson and proved by said witnesses that the said pistol, introduced at the time and as aforesaid, was lying upon a table near the bedside of deceased with two chambers of said pistol discharged when the said witnesses entered the room where deceased lay, shortly after the shooting occurred, and that said pistol remained upon said table in open view for two or three days thereafter. The State’s attorney also proved by witness Fannie Ooleman that defendant admitted to said witness, when defendant’s attention was called by said witness to said pistol on the morning after the shooting charged, that the said pistol was the weapon used by defendant, by said accused saying to said witness, “I don’t want anything to do with it; it has done enough already.” Neither this pistol nor this alleged admission, nor the testimony touching these matters, had been alluded to either directly or indirectly on the trial of the case prior to the announcement by counsel for the defence that the testimony for the defence was closed, except for rebuttal.

That said testimony uncontradicted and would do the defendant irreparable injury. That the said pistol and admission were new evidence introduced by the State upon a recall of the State’s witnesses above named, and after the examination in chief for both the State and defendant had closed. Whereupon defendant offered witnesses to rebut the new evidence introduced a? aforesaid, and was permitted to swear and interrogate one witness, Vick Williams, who testified that he was in the room and at the bedside of deceased early on the morning succeeding the night of the shooting, when the physician summoned to attend deceased first arrived. That witness arranged the physician’s instruments on the table whereon the aforesaid witness testified the said witness was lying. That there was no pistol on said table or in said room. Defendant then offered eleven witnesses to corroborate said witness and to prove that no-pistol was upon the table at the time stated or at any time subsequent to the shooting with which defendant is charged, and to prove-the defendant made no admission as testified by witness FannieOoleman to said witness or to any person. That the district attorney objected to the admission of this testimony, alleging that it was in the nature of sur-rebuttal evidence and not admissible under the law, which objection the court sustained by ruling that defendant’s offering was inadmissible.

It will be seen from the above statements that the testimony offered by the State after the accused had closed his case was intror duced without objection from the defendant either as to its character or as to the time at which it was presented.

The only contention made was that having been introduced, the accused was entitled to rebut it, the claim being that it was new direct evidence in chief.

If in fact it was rebutting testimony, this court has held several times that parties were not entitled of right to introduce testimony for its rebuttal. State vs. Woods, 31 An. 267. State vs. Gonsoulin, 38 An. 459.

The district judge refers to that testimony as rebutting. The record itself is silent as to whether it was so specially offered or not, or whether the judge ordered it to be so restricted, but as the court mentions it as having been in rebuttal and there is nothing to show that the defence made any objection as having been offered for too broad a purpose or as being offered too late as direct evidence in chief, we must assume that it was tendered as in rebuttal. Whether it was really such is another question.

The fact that the testimony was elicited from witnesses of the State who had been once upon the stand and recalled — that it was upon new matters which might have been relevantly and properly introduced originally as part of the State’s evidence in chief, does not necessarily determine that question, as the accused seems to think.

It appears that after the State had closed its case upon evidence deemed sufficient by the district attorney, the accused took the stand in his own behalf, giving his account and version of the killing. He admitted the killing of his wife, but claimed that it was accidental.

He stated that the pistol with which she was shot had gone oil accidentally, and that only one shot — that which caused the fatal wound — was fired; that he had thrown this pistol outside of his gate at a certain place, and that he informed his counsel of that fact, and after a particular pistol was produced, with one chamber empty, he declared it to be the identical pistol to which he had referred. He then placed his counsel and several others upon the stand, who testified that they had gone to the place designated and found a pistol with one chamber empty.

A pistol with one chamber empty was exhibited as being that so found, and testimony was adduced to prove that it had been exposed to the weather for several weeks.

The accused considered the establishment of these particular facts necessary for the purpose of proving his innocence. When the defence closed its case the State deemed it important to disprove this testimony as far as it could, and offered and was permitted without objection, as has been stated, to introduce another pistol with two chambers empty and testimony to show that it was that pistol and not the one which had been previously exhibited from which the fatal shot was fired, as had been sworn to by the accused.

For the purpose of disproving the testimony of the accused on that subject the State, after producing the second pistol, introduced a number of witnesses to show at what place after the killing of the deceased it was first seen, how long it had remained there, when it had been taken from that place, and where it hadremained until produced ; and witnesses having testified to the fact that that pistol was seen on a table in the room of the accused shortly after the wounding, and that it had remained there several days, the State undertook to show (according to defendant’s statement of facts) by a particular witness that the accused had stated to him that he “did not want anything to do with it — it had done enough already.”

Á comparison of the testimony offered by the State with that offered by the accused will show that its object and purpose was simply to disprove the identity of the pistol which the accused produced as being that from which the shot was fired, as had been testified to. It was perfectly legitimate for that purpose, and no part of it was irrelevant to that issue or went beyond it. The very failure to object in any way to it shows that it was unobjectionable. Being strictly in the line of rebuttal, and not passing beyond rebutt xl, it must fall as to its contradiction under the rules governing testimony offered in rebuttal of rebutting testimony.

The fact that for the purpose of disproving the identity of the first pistol the State had shown by testimony a statement by the accused tending to show an acknowledgment by him of the ownership and identity of the second pistol does not affix to that testimony the character of new and direct “criminative” evidence in chief, and does not show an attempt at that late stage of the proceeding to offer against the accused a confession or admission tó prove his guilt. Its purpose was not to prove, but to disprove. If the accused feared that the jury would give to the rebutting evidence legally introduced an effect beyond its legitimate "scope, his remedy lay in asking from the judge special instructions to the jury on the subject, and not in departing from the rules governing the practice in relation to that kind of testimony.

We are of the opinion that the district judge in refusing to permit the accused to introduce testimony in rebuttal of the State’s rebutting testimony exercised a judicial discretion which we are not called upon to reverse.

For the reasons herein assigned the judgment appealed from is affirmed.