text:
    No. 229.
    The State of Louisiana vs. Adolphus Banks et al.
    If, in a'criminal case, it appears from the whole tenor of the proceedings, that an indictment against several persons therein charged jointly with an offense, properly endorsed as against “ A and ais ” was presented in open court by the grand jury, the fact that, in his minutes of the day the clerk erroneously copied the title so as to make it read as against “A” only, cannot vitiate the proceedings.
    "When conspiracy has once been proved, in the opinion of the trial judge, evidence of the acts and declarations of one of the conspirators in the prosecution of the common design is admissible against all others. Affirming State vs. Ford, 37, Ann. 443.
    An accomplice jointly accused with other persons, but not on trial and discharged under a nolle prosequi, is a legal or competent witness j the fact of his being an accomplice can affect only his credibility, of which the jury are the sole judges. Hence the trial judge cannot be required to instruct the jury to discredit his testimony unless corroborated by unimpeached evidence.
    Nor can the judge be required to give as a charge the legal maxim falsus in uno, falsus in omnibus.

    APPEAL from the Sixteenth District ana. Court, Parish of East Felica. Brame, J.

      ■J. Henry Shepherd, District Attorney, for the State, of Appellee:
    1. The accused has no right to exact a list of the State witnesses to be produced b fore the petit jury, nor can the Court require the district attorney to'furnish such a list as a condition precedent to a trial of the cause. 32 Ann., 782. State ex rel. 'Wickliffoj 39 Ann., 847,
    2.- The fact that a witness was an accomplice may affect his credibility, but not his competency. 23 Ann., 78 ; 25 Ann., 592. In the last case the law plainly stated that a jury may convict on the uncorroborated testimony of an accomplice. There is no rule of law requiring the judge to charge the jury that the testimony of an accomplice needs confirmation; itisarnLe of practice. 25 Ann., 522, reaffirmed in State vs. Bussell, 33 Ann., 138; State vs. Mason, 38 Ann., 476; State vs. Crowley, 32 Ann., 782. Bisliop 1 vol. C. P., 1169.
    3. "When one or more persons are acting in concert with the defendant about the particular thing in question, all with a common object, the declaration of any one of the others during the time of the transaction, whether present or absent, may be given in evidence against the defendant. Bishop, C. P., Vo'. 1,1248; 35 Ann., 89 ; 37 Ann., 460.
    4. In accord with the current of the combined adjudications in reason and as general doctrine the declarations of the deceased or of any other third person who participated in the transaction, which ended in death, when either they or some fact, which they tend to explain, may he deemed apart of such transaction * * provided that either the declaration or the fact it would illustrate is pertinent to the main inquiry. Bishop. C. P,v 625. See note 2, also 1086 samo.
    5. Corroborating circumstances, if attainable, should always be offered in proof of the evidence of an accomplice, and courts should favor the admission of such corroborating evidence, Bish. C. P., 1150, 1162,1169,1170.
    6. The maxim f alsus in uno falsas in omnibus is a maxim, not of law, but of sound sense, and it is to be applied or not by the jury according to their own understanding of the truth of the individual case. Bishop, C. P., 1149.

      1.1). Wall and Okas. Kilboivrne, fox Defendants and Appellants.
   The opinion of the Court was delivered by

Poché, J.

In this case, in which Adolphus Banks, Louis Edwards, Edmond Drennels, and Prudy Williams had been indicted for conspiracy and murder, a nolle prosequi was entered as to Banks, who was afterwards used as a State wintess, and ,the trial resulted in the acquittal of Prudy Williams, and in the conviction of murder, by an unqualified verdict, of Edmond Drennells, and in the conviction of Louis Edwards for murder without capital punishment.

The two convicted defendants prosecute this appeal and urge numerous complaints for our examination.

1st. They contend that the minutes of the court fail to show that an indictment was presented against them in open court, because the entry in the minutes on the subject refers to an indictment against Adolphus Bcmlcs only.

But the record shows that the indictment, which was presented on that day, was entitled: “State of Louisiana vs. Adolphus Banks et als.," and the indictment itself charges all four of the persons hereinabove enumerated with the crime of murder and conspiracy. This and other errors in the general confection of the transcript may go a great way to prove gross negligence or glaring incompetency on the part of the clerk, but they cannot vitiate the proceedings, from the whole tenor of which it appears to our entire satisfaction that an indictment was duly presented against the two defendants who are now appellants before us, and that their complaint in this particular is groundless.

2d. The next complaint involves the ruling of the trial judge in admitting as evidence the statement by the State witness, Adolphus Banks, that Louis Edwards had told him where he had procured the ax with which the homicide had been committed.

In the opinion of the judge the conspiracy for the perpetration of the murder had been proved against the two appellants, and it appeared that the statement had been made at the time and place of the homicide, hence it follows that the declaration of one of the conspirators in connection with the common purpose must be held as that of all the others, and it was therefore admissible as evidence against them all.

In Ford’s case, 37 Ann. 443, this court, guided by undisputed authority, formulated the rule as follows : “When conspiracy has once been proved, in the opinion of the trial judge, evidence of the acts and declarations of one of the conspirators in the prosecution of the common design, is admissible against all the others.” Wharton’s Criminal Evidence, Secs. 698, 701; United States vs. Goodwin, 12 Wharton, 469. We therefore uphold the trial judge in the ruliug complained of.

3d. It is next charged as error on the part of the judge to have admitted the testimony of a witness to the effect that Banks had shown him the place where the homicide had been committed, and the spot where the body of the victim had been found. The evidence was properly admitted to corroborate the testimony of Banks who had already testified. There is no force in the contention that the facts disclosed by that evidence were res inter alios aeta, as it appear® that, at the time, Banks was one of the accused in the case. The objection that the State could not corroborate her testimony before it was attacked finds no sanction in law or reason. The parties to a suit can not be controlled in the order of introducing this evidence. It was not only competent for the district attorney to seek, at any stage of the trial, to corroborate the testimony of an accomplice who had turned State’s evidence, but it was his duty to do so, in compliance with well settled jurisprudence, and in justice to the accused themselves, whose counsel were zealous in their efforts to prevent a conviction on the uncorroborated testimony of an accomplice, and this was the subject of their fourth bill of exception, in which they complain of the refusal of the judge to charge the jury to give no faith to the statements of the accomplice implicating other persons but himself, unless he was therein corroborated by unimpeached evidence.

The judge very properly refused the charge as requested, because it was unwarranted by the laws of this State; and because in his general charge to the jury, he had covered the whole ground in a manner fully sanctioned Dy criminal jurisprudence in this State as well as in other commonwealths of the American Union. He had charged as follows: “The fact that a witness was an accomplice may affect his credibility but not bis competency, that is, he is a legal witness, and you must determine what credit you think his testimony is entitled to, whether corroborated or uncorroborated.”

In these few clear and terse utterances, the judge successfully announced the whole doctrine as established in jurisprudence, and complied at the same time with the rule of law which places the solution of the facts in a criminal prosecution within the exclusive province of the jury. Bishop, C. P., 1160, 1169. State vs. Mason, 39 Ann. 476; State vs. Prudhomme, 25 Ann. 522; State vs. Bayonne, 23 Ann. 78. Proffatt on Jury Trials, § 365.

5th. Prom the foregoing considerations we conclude that the trial judge was> equally correct in refusing the charge requested by counsel for tbe defense embodying the legal maxim “ falsus in umo,falsus in omnibus,” which is tbe subject of their fifth bill of exception, and which was likewise intended to affect tbe testimony of the accomplice, Banks. As the jury were the sole judges of the credibility of the witness, it was their right, untrammelled by any direction, check or restraint on the part of the court, to adopt their own rules or modes of testing the credit to which the witness was entitled to, and of weighing the value of his testimony. Bishop, C. P., 1149; Wharton’s Criminal Evidence, § 380; Waterman’s Criminal Digest, p. 130 No. 34.

After a thorough examination and minute consideration of all the grounds of error urged by these appellants, we reach the conclusion that they have had a fair and impartial trial, and that they are entitled to no relief at our hands.

Judgment affirmed.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 237.
    The State of Louisiana vs. Gilbert Dorsey.
    An objection to tbe effect that the names of persons who are summoned as tales jurors were not ■written on ballots and placed in tbe venire box and drawn therefrom, but that same were called from * a list that was made out and furnished to tbe counsel by tbe sheriff, will not prevail in case it appears that tbe entire list was exhausted before tbe panel was completed.

      The expression of opinion which disqualifies a juror is a fixed, deliberate and determined one, and which will not yield to evidence.
    It is not proper for the trial judge to charge that, if one witness swears positively to the occurrence of a certain fact, and other witnesses, who had equal facilities of witnessing it, swear that, if same had occurred they would have seen it, the latter must prevail. It is necessary that the court should charge, in addition, that such witnesses exercised such facilities and testified that no such occurrence happened, in order that their evidence should preponderate.
    An objection that a juror held a whispered conversation with a person not connected with the court, and in the presence of the judge and the defendant’s counsel, cannot avail the accused as a disqualification of the juror. He had the opportunity of requesting the judge to discharge the jury, and did not, and his compiaint comes too late, after he has enjoyed the opportunity of an acquittal.
    As a rule it is safer to exclude spirituous liquors entirely from the use of the jury in a capital case, yet if the proof shows that no injurious consequences followed from its use, no ground is furnished for the allownnce of a new trial.
    A motion in arrest of judgment should concisely state the defects complained of as being patent upon the face of the record.
    APPEAL from the Sixth District Court, Parish of Morehouse. Vaughcm, J.

      J. P. Madison, District Attorney, and J. Henry Shepheffl, for the State, Appellee.

      Todd & Todd and JRohert Whetstone for Defendant and Appellant.
   The opinion of the Court was delivered by

Watkins, J.

This appeal is prosecuted from a verdict convicting the accused of murder, and a sentence to life imprisonment. His counsel urge various complaints against the rulings of the trial judge, and charge that same were prejudicial to him, and that he has not had a fair trial. We shall deal with them in the order of their occurrence.

I.

During the process of empaneling the jury the regular venire' was exhausted before same was completed, and the court ordered the sheriff to summon six tales jurors to complete the panel.

The sheriff, having summoned said talesmen, returned' into court a list of their names, and from which list the call was proceeded with in regular order, commencing with the first. Objection was urged to this procedure by the defendant’s counsel on the ground that the names of the tales jurors should have been deposited in the venire box and drawn therefrom. Appiended to the bill of exceptions is a statement of the trial judge to the effect that the list of jurors summoned was exhausted before the panel was completed. We have decided that in such event the accused suffers no injury, and that such an objection is not good. 35 Ann. 315, State vs. Farrar.

II.

One of the jurors having been sworn on his voir dire stated that he had formed and expressed an opinion relative to the guilt or innocence of the accused, that same was a fixed opinion, but that he would be governed by the evidence. Thereupon defendant’s counsel tendered a challenge for cause, and it was disallowed by the court. The judge assigns that the juror stated that he would disregard his opinion and be governed by the evidence;

If the opinion which the juror entertained was of such a character that it would yield to the evidence adduced on the trial, it cannot avail as an objection to his competency. For it. has been decided by this Court that “the expression of an opinion which disqualifies a juror is a fixed, deliberate and determined one, which cannot be changed.” 35 Ann. 317, State vs. Farrar.

The opinion of the juror in question may be said to have been a fixed or decided opinion, but not an unyielding and determined one. It is not pretended — judging by the recitals of the defendant’s bill of exception — that the opinion of the juror was formed from hearing the witnesses’ testimony, or statements, and it must, therefore, have been ounded upon rumor, and could not have been a determined opinion, such as would be disqualifying.

Furthermore, it does not appear that the particular juror in question sat upon the jury of trial, or that the defendant’s peremptory challenges had been already exhausted when the objection was urged. 35 Ann. 315, State vs. Farrar.

III.

On the conclusion of the trial the defendant’s counsel requested the court to charge the jury that, where one witness swears positively to a fact, and other witnesses, who were present and had equal facilities of seeing the transaction, swear that if the same had occurred they would have seen it, the testimony of the latter is entitled to equal weight as that of the former, and should have as much force. This charge was declined by the judge.

The counsel admit the force of the rule that, when one witness swears positively to a certain fact and other witnesses swear that they did not see the occurrence, the testimony of the former will be considered as outweighing that of the latter. The reason for the rule undoubtedly is that the one is positive and the other negative testimony. But they insist that we have recently announced a doctrine that is compatible with their theory, and not at all inconsistent with the rule just stated, and they cite our opinion in State vs. Chevalier, 36 Ann 84.

In that case we employed this language, viz: “ The rule is that where one witness swears positively that he saw and heard a fact, and another, who was present, merely swears that he did not see it, and the witnesses were equally faith-worthy, the general principles would, in ordinary cases, create a preponderance in favor of the affirmative, when the positive can be reconciled with the negative without violence or constraint.

“ Evidence of a negative character may, under particular circumstances, not only be equal but superior to positive evidence. This must always depend upon the question : Whether the negative testimony can be attributed to inattention, error or defect of memory, and whether the witnesses had equal means and opportunities for ascertaining the facts to which they testify, and exercised the same? ” {The italics are those of the writer.)

Conceding the force of the rule and the foregoing qualification, taken together, and the requested charge was not a permissible one, because it was not formulated within its compass and pursuant to its provisions. Defendant’s counsel simply requested the court to charge that, if one witness swears positively to the occurrence of a certain fact, and other witnesses, who had equal facilities of witnessing it, state that if same had occurred they would have seen it. This was not sufficient. They should also have stated furthorjthat such witnesses exercised such facilities, and testified that no such occurrence took place. For it does not suffice that they had the opportunity to see, but did not; that they were present, but did not have their attention attracted to it. These are merely negative averments, and such evidence is negative,. and does not preponderate ovei, and is not entitled to equal weight with the positive testimony of a single witness. The mere fact of persons being present upon the happening of a transaction, and having an opportunity to witness it, and who, thereupon, state that if such a transaction had occurred they would have seen it, is not equivalent to saying that they exercised the opportunity presented and that no such an occurrence transpired. The charge requested was an improper one.

IY.

An application for a new trial was made on the grounds, viz :

First — That while the trial was in progress, and after some of the jurors had been sworn, one of them held a whispered conversation with a person not connected with the court, and with whom he had no right to converse.

Second — The jury were allowed to indulg ein spirituous liquors “during the trial of the case.”

The motion was refused, and defendants reserved a bill of exceptions.

1. On the trial of the motion it was stated by the deputy sheriff, as a witness for the accused, that he saw a person, not connected with the court, engaged in a whispered conversation with one of the jurors who had been sworn, and that he ordered him away immediately. This occurred while the juror was sitting in the jury-box, and in the presence of the court.

From this statement it does not appear that the juror was guilty of any improper conduct. He did not invite the conversation, nor participate in it. This occurrence took place in the immediate presence of the court. It was admitted by one of defendant’s counsel, in the course of the argument here, that he observed it at the time it happened, and that he made no objection to the court, and did not, on that account, request that the jury be discharged. It is quite firmly settled that an objection to the qualification of a juror must be taken advantage of seasonably to be of avail to the accused, and this rule may be wisely extended to an objection to the conduct of a juror in this regard. The counsel had an opportunity of tendering a seasonable objection to further proceeding with the trial, before that jury, and did not; consequently, his complaint comes with indifferent grace after he has taken the chance of an acquittal by the jury as constituted.

2. On the other branch of the motion the same witness testified that he asked the judge if there was any impropriety in giving the j urors a drinJc of whisky, as they said they were cired, and wanted it and he replied there was none.

He states, further, viz : “I had deputy sheriff, Taylor, to take a pint bottle of whisky to their room. The judge told me not to let them have enough to become intoxicated. The one pint is all that I know of.”

Was this a misdirection, or misdiscretion of the trial judge ? It does not appear from the motion or the evidence adduced on the trial thereof that this occurrence happened after the trial and during the deliberations of the jury upon their verdict; but, we understand that it is specifically laid “during the trial of the case.”

It was undoubtedly the duty of the judge to see to it that the com fort of tlie jurors was provided for, as well as their subsistence. In this instance the representation was made to him that the members of the jury had said they were tired and wanted a drink of whisky, and then only a pint was furnished them. Our predecessors have, under exceptional circumstances, permitted liquors to be furnished to the jury ¿¡wring a trial that was protracted. State vs. Caulfield, 23 Ann. 148.

In that case it was justly observed by the court that “ though we would be far from encouraging the practice in jurymen of taking an enemy intotheir months to steal away their brains, yet we must recognize the fact that alcohol has its use in case of exhaustion and illness.”

That sentiment is particularly applicable here.

In that case, as in this, the whisky was furnished to tlie jury during the trial. The court say: “ It does not appear that any liquors were furnished to the jury after they retired to consider their verdict.” The court declined to grant a new trial.

While it is true, as stated in State vs. Brunetto, 13 Ann. 45, that “the safer rule is to exclude spirituous liquors entirely from the use of the jury in capital cases, and so I understand the current of decisions to tend,” yet, in this particular instance, no opponent imjmious consequences flowed from the use of the modicum of whisky that was supplied during the progress of the trial, and it furnishes no ground to disturb the judge’s ruling.

V.

The motion ürarrest of judgment is altogether without merit, because it mentions no defect of any kind that is patent on the face of the record.

Judgment affirmed.


author: McEnery, J.

text:
    No. 231.
    The State of Louisiana vs. Robert Hoyer.
    A description in an indictment for larceny of tlie property stolen, as ‘1 some bottled beer, of tlie value of two dollars and fifty cents,” is insufficient, and being- a matter of substance, a motion in arrest of judgment will be sustained.
    APPEAL from the First District Court, Parish of Caddo. Hides, J.

      J. Henry Shepherd, District Attorney, for the State, Appellee:
    The tendency of modern jurisprudence is to relax tlio strict technical mies of the common law and look rather to substance than forms, to ideas rather than words. 32 Ann. 335.

      “ The object to be gained by the description of the stolen things, namely, to individualize transaction, will indicate liow definite it should be.” It is to enable the court to see from it that the things are in law subjects of larceny. Bishop O. P. 702.
    Goods charged to have been stolen must be described witb certainty to a common intent— that is with snck certainty as will enable a jury to say that the goods proved to have been stolen are the same as these charged in the indictment. Waterman, O. D., p. 387, section 166.

      Land & Land, for the Defendant and Appellant.
   The opinion of the Coart was delivered by

McEnery, J.

The indictment against defendant charges him with having, on the 24th day of December, 1887, in the parish of Caddo, feloniously stolen “some bottled beer, valued at two dollars and fifty cents, the property of Bovida & Jurggler.” This is all the description and designation of the stolen property. It is insufficient. A minute and detailed description of the property stolen is not required, but there must be such a description, numerically and specifically, as to individualize the property wit|i legal certainty so that the jury can determine whether the property proved to have been stolen is the same as that described in the indictment, thus enabling the defendant, in case of acquittal or conviction, to plead the same to a subsequent indictment relating to the same property.

The defect in the indictment being one of substance, the motion in arrest of judgment was properly sustained. 10 Ann. 30; 30 Ann., p. 1242; 21 Ann. p. 442.

Judgment affirmed.


author: Bermudez, C. J.,

text:
    No. 232.
    The State of Louisiana vs. Joseph Adam.
    The State attorney is the representative of the public and the legal adviser of the grand jury, who have a right to call upon him for advice on questions of law and procedure Although he has no right to influence or direct them in their finding, or express any opinion on questions of fact, he may assist them in their labors. Surely, his telling witnesses to state to the jury all they know, is no improper interference.
    The constitutional provision which guarantees to an accused the light to compulsory process is not a dead-letter, and must be enforced.
    "Under a proper showing for a continuance, on the ground of the absence of a material witness, the trial must he postponed.
    Sufficient assistance must be afforded an accused to procure his witnesses. When it does not clearly appear that such was given him in a capital case, the accused is entitled to the benefit of the doubt.
    APPEAL from the Twenty-first District Court, Parish of St. Martin. Moiüon, J.

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

      jEdward Simon for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.,

On a. conviction of murder, without capital punishment, the defendant was sentenced for life, to hard labor.

On appeal, he complains that the lower court erred, 1st. in overruling his motion to quash: 2d, in refusing an application for a continuance, and, 3d, in allowing certain testimony.

I.

The motion to quash rests upon the ground that the district attorney was present before the grand jury during a part of the examination of the witnesses.

Conceding that a motion to quash can be predicated on such ground, there is nothing to show that the district attorney was present at their deliberations, took any part therein, or influenced or directed them in their finding. It appears that he merely told one or two of the witnesses to state to the grand jury what they knew about the case.

The district attorney is the representative of the public and the legal adviser of the grand jury. They have a right to call upon him for assistance as to the mode of proceeding and on questions of law, although it is undeniable that it would be unlawful for him to participate in their counsel and express"opinions on questions of fact. It would not be illegitimate for him to assist them in the examination of witnesses, so as to elicit from them the material or essential facts on which the prosecution necessarily rests.

The custom is one of long standing. It prevails in other sister States, and, as a conservative measure, it should not be interfered with in the absence of express legislative prohibition. Bishop on Cr. Pr. par. 861, 696; Davis’ Prac. 18-26.

II.

The second ground of complaint will now be considered.

The application rests on the fact of the absence; on the day of trial, of an alleged material witness, residing in another parish, ordered to be summoned, and concerning whom no return had been made.

It appears that some seven days before that fixed for the trial, the defendant offered a petition, verified by his oath, setting forth material facts expected to be proved by a witness residing in an adjoining parish, praying that he be summoned to testify.

On the day fixed for the trial the witness’ name was called, but the witness did not answer. The sheriff of the parish of the residence, to whom the subpoena had been directed, had made no return.

Thereupon the defendant moved for a continuance, based on his affidavit, which establishes the material facts which he expected to prove by the absent witness, which, if proved, might have supported a case of self defence; next, due diligence; further, his inability to prove the same facts by any other blown witness, and, last, that the summons which had been regularly issued to, had not been returned by, the sheriff of the parish of the residence of said witness.

The District Court overruled the motion, substantially, on the grounds: that the accused had not given proper directions as to the whereabouts of the witness, averring only that he is informed that he is on the Hope plantation in Iberia ; that it is to the knowledge of the court that said witness is not there, and that he is absent from and beyond the process of the court; that the defendant has not shown the due diligence required by law, particularly when more than ordinary opportunity had been given; that the defendant does not swear that the facts alleged as material cannot be proved by any other witness, but simply that ho knows of none, when it appears in the record of this case that several other witnesses, summoned by him on preliminary examination, have testified to identically the same facts; that it is evident, from all the circumstances, that delay is the object of the motion; that no showing is made to induce the belief that the attendance of the witness at a future day can be procured, and that the witness may never more be seen.

It will suffice to say that the accused gave the only direction possible, under the circumstances, when he stated the name of the plantation on which he had been informed that the witness resided; that the knowledge which the court claimed to have, that the witness was not at that place, but is beyond the process of the court, is not defined, and may have been acquired on some misinformation, not stated, which the accused had no opportunity to contradict; that this knowledge is not such in itself, under the circumstances, as can overthrow the presumption of verity which attaches to defendant’s affidavit; that it is not perceived in what respect the accused could have shown more diligence ; that it was sufficient for the accused to swear that he knew of no other witness who could prove the same facts; that the right of the trial judge to question the truthfulness of the affidavit of the accused in the manner attempted, is more than doubtful; that if, as stated, other witnesses at the preliminary examination had testified to the same purport, it is not impossible that 'such witnesses may have since died or disappeared for parts unknown ; that there is nothing to show that the object of the defendant was to obtain further delay, and that his expectation to procure the attendance of the witness, at any subsequent time, is sufficiently established.

It may be added, that it is at least a possibility that the sheriff of the parish of the residence of the witness, to whom the subpoena had been issued, had served it and had not had time to make a return, or had not done so for some good reason. The accused was entitled to know of such return, and in the absence thereof, could not be driven to a trial.

The constitutional guarantee to an accused of a right to compulsory process for the attendance of his witnesses, is not to be trifled with. It is not a dead-letter, and must be enforced.

Considering, as we do, that the defendant was entitled to a continuance to procure the attendance of the witness, and that, if the facts stated in the affidavit had been established by him, it is plausible to conjecture that the jury, in the absence of outbalancing evidence, might have returned a different verdict, we apprehend that the accused has not had the fair and impartial trial to which he is by law entitled, and that it is our duty to extend the relief sought.

It is settled that where it is doubtful that an accused, charged with a capital offence, was afforded sufficient assistance to procure his witnesses, he is entitled to the benefit of such doubt. State vs. Boitreaux, 31 Ann. 188.

There is no necessity for expressing an opinion on the third ground of complaint.

III.

It is, therefore, ordered and decreed that the verdict of the jury and the judgment and sentence upon it be annulled and reversed, and that this case be remanded to the lower court for further proceedings, according to law.


author: Poche, J.

text:
    No. 233.
    The State of Louisiana vs. Pat Pate.
    Under the provisions of Section 1634 of the Revised Statutes of 1870 a district judge has the discretionary power to adjourn, by a written order to the sheriff, a regular term of the court, to any day preceding tbe next regular session, as he thinks proper; and to require the attendance of jurors accordingly.
    Under the effect of such an order the first day of the actual session becomes the first day of the regular jury term for that month, within the contemplation of Section 6 of Act 44 of 1877, requiring that the Grand Jury be di awn on the first day of the regular term.
    A Grand Jury thus drawn is a legal body, and a motion to quash an indictment presented by that body, on the ground of illegality in the organization thereof, cannot prevail.

      PPEAL from the Tenth District Court, Parish of De Soto. Mall, J.

      J. Menry Shepherd, District Attorney, and J. O. Pugh, District Attorney, for the State, Appellee.

      18. W. Sufherlin, O. M. Pegues and J. B. Bee, for Defendant and Appellant., •
   The opinion of the Court was delivered by

Poche, J.

This appeal, which was taken from a conviction of manslaughter under an indictment for murder, presents but one point for review.

Before trial the accused moved to quash the indictment on the ground that the Grand Jury which had presented it had not been legally organized.

The alleged illegality is drawn from the following incident: On the 3d day of February, 1888, the judge issued a written order to adjourn the regularterm of the court, which had been fixed aceording to law for the first Monday, to the second Monday of that month, and to require the attendance of the jurors drawn for that term, in accordance with the adjourned session of the court.

The term was held in pursuance of the adjournment, and the Grand Jury was organized-on the first day of the session, which begun on the 13th, which was the second Monday of February.

The contention is that the order of adjournment was illegal, because it was issued without sufficient or legal reason, and that in consequence thereof the Grand Jury was not empanelled on the first day of the term, and was not drawn from a venire of jurors serving for the week for which they had been drawn, as required by law.

The judge relies, as authority for his action in the premises, on Section 1934 of the Revised Statutes, which reads as follows:

“In case the judge should not appear on the first day of any term, the sheriff, or in the event of his sickness, death, resignation, absence, inability or failure to act, the coroner, shall adjourn the court from day to day for not more than three days. The judge may also, by written order directed to the sheriff, adjourn the court to such day preceding the next regular session as he may think proper.”

But defendant’s counsel argues that under a proper construction of both paragraphs taken together, the written order of adjournment by the judge must be justified by a reason expressed in the order, or subsequently given when called for.

The argument finds no sanction in the words of the Statute. The first clause contemplates an adjournment by the sheriff in the absence of, and without any order from, the judge, the absence of the latter being the reason for the adjournment. The second clause provides for an adjournment of the term by means of a written order emanating from the judge, whether present or absent, at his discretion, and without being required to give any reasons. Barring the limit to the adjourned term, which must be to a day preceding the next regular session, the discretion which the law vests in the judge is unqualified, and no interference with ids exercise can be tolerated on the part of litigants by way of pleading.

Abuse of such power by a judge must be remedied by other modes, for which adequate provisions are afforded by the Constitution and laws of the State.

As the order was sanctioned by law, it had its legal effects, one of which was to legalize the session of the court which begun on the 2nd Monday of the month.

The first day of that session was the first day of the February term within the_scope and requirement of Section 6 of Act No. 44 of 1877, which provides that the Grand Jury must be drawn and organized on the first day of the regular jury term of the court.

This conclusion is not only sanctioned by the text of the law, but it is fully wairanted^by authority.

In Bringer’s case, 14 Ann. 461, this Court, in dealing with a germane question, held:

The court was not in session the first and second weeks. These jurors did not serve, or even attend court during that time; and the district judge properly held that, in contemplation of law, the first week of the actual session of court was that during which the jurors first enlisted had to attend court and serve in that capacity.”

The foregoing considerations lead to the logical conclusion that the Grand Jury which returned the indictment under which appellant was tried was a legally organized body, and that the district judge committed no error in overruling his motion to quash the bill.

Other points were made below, but are not pressed on appeal, and hence they are considered as abandoned.

Judgment affirmed.


text:
    No. 222.
    The State of Louisiana vs. Elbert Wilson.
    It is not misconduct on tlie part of a jury to procure and read law-books after they have concluded their deliberations, and decided upon their verdict, although it has not been formally rendered in open court.
    Because inartificial expressions and words are employed in framing a verdict by the jury, tbe same will not be annulled and set aside, if same are sufficient in terms to reasonably convey the idea intended,
    The rule idem sonans is applicable.
    APPEAL from tlie Third District Court, Parish of Lincoln. Barlcsdale, J.

      J. Henry Shepherd, District Attorney, for the State, Appellee:
    1. There is no'law requiring verdicts to be in writing. 8 U., 31 Ann. 96; 32 Ann. 854; 33 Ann. 1414.
    2. The law does not require jurors to be philologists. All that law requires is their ability to appreciate the facts and to apply the law. "When they have done that and expressed their sense in an intelligible and unequivocable form the law is satisfied. 31 Ann. 96; 32 Ann. 854; 33 Ann. 855.
    3. A written verdict badly spelled, which would otherwise leave its true meaning in doubt, has all its doubts removed, and is controlled by the language used by the clerk when reading the said verdict in the presence of the jury, and is conclusive of what the true verdict is, and that it is in accordance with, and fully supports, the sentence. 32 Ann. 854; 33 Ann. 1414,
    4. A verdict will not be set aside because there are law-books in the room in which the jury retired to deliberate, where there is no proof that the books were read and examined by the jury. State vs. farmer, 38 Ann. 309; 23 Ann. 678.
    5. It is not essential to embody in the verdict the name of the accused orto insert the offense charged. State vs. Tanek, 30 Ann. 832; 31 Ann. 717; 34 Ann. 370.

      B. H. Kidd, for Defendant and Appellant.
   The opinion of the Court was delivered by

Watkins, J.

The indictment charges that the defendant did “feloniously and of his malice aforethought, with a dangerous weapon, to wit, a pistol, shoot J. W. Davis, with intent to kill and murder him.’

Having been tried, convicted and sentenced to imprisonment in the penitentiary, he has appealed, and rests his claim to relief on two hills of exception, a motion in arrest of judgment, and an assignment of error in this Court.

I.

After conviction the accused claimed a new trial on the ground that the jury had been guilty of misconduct, to his prejudice, in this, viz : that “during their deliberations upon their verdict” they obtained and examined a law-book and consulted the same with reference to the case, and that this misconduct on their part vitiates the verdict. Annexed to the defendant’s bill, and brought up with it, is the testimony of the deputy sheriff, who states that the jury had a law-book in their hands prior to bringing in their verdict, but he did not know whether they examined it or not.

He further states that this was subsequent to their having been charged by the court, and, also, subsequent to the time when they had informed him that they had found a verdict, and requested him to inform the court.

If the jury had already concluded their deliberations and decided upon the verdict they were to render to the court, their examination of a law-book subsequently did not in any manner affect, or impair it, and it was not misconduct on their part, and the rights of the accused were not prejudiced. 35 Ann. 970, 96.

II.

The motion for a new trial having been overruled, the defend sought to arrest the judgment on the ground that the verdict — which was reduced to writing — is null and void, because it is vague, uncertain and illegal in form; not in accordance with the written instructions of the court; and not responsive to the charge in the indictment, or “any charge of crime known to the law,” and it cannot, therefore, be enforced.

The indictment is brought up in the original, and thereupon is indorsed the verdict of the jury, which is, ipsissimis verbis, viz:

“ We, the jury, find the accused guilty with and assault by sut-' inge with intent to murder. L. E. Richards, Foreman.”

There is special complaint made of the phraseology as being vague and uncertain, and our attention has been directed to the words “with and assault,” and “sutinge,” as illustrative.

It is clear to our minds that the idea the jury intended to convey by the former was, that they found the prisoner guilty of an assault with intent to murder, and only clothed that idea with inartificial verbiage.

Among the different forms of verdict which-the judge directed the jury they might render, is the one following, to wit: “We, the jury, find the prisoner guilty of an assault with intent to murder.”

The latter word “sutinge” is undoubtedly a lapsus pennce, and the result of accident, or inadvertence, and was intended to have been written shooting. It. appears from a bill of exceptions reserved by the district attorney that, when the verdict was first returned into court and read, he discovered there was some ambiguity, or uncertainty in its language, and requested the court to direct the jury to retire and bring in a plain and responsive veidict. This request was declined by tlie judge, who assigned the following reasons for so doing, viz: “The court considered the verdict responsive and intelligible. When reading the verdict the clerk hesitated at the word in the verdict spelled “sutinge,” and the foreman of the jury at once prompted by stating that the word was “shooting.” On motion of defendant’s counsel, the jury was polled, and the clerk read the verdict, distinctly, pronouncing said word “shooting.”

“The prompting by the foreman was before the district attorney made the motion to have the verdict corrected; and considering that word as being intended and written for shooting, the court considered the verdict as being intelligible and fully sufficient to be the basis of sentence.”

The judge declined to set aside the verdict at the request of the defendant, and to this ruling he reserved a bill, and thereto the judge appended a statement, in which he assigned like reasons, and some additional ones, viz : that many words beginning witli the letters “s” and “u” are pronounced as though spelled “shu” or “shoo,” and hence the rule idem sonans applied. He further assigned that “ if what followed the word “guilty” is not intelligible it is to be rejected as surplusage.”

In our minds there is no doubt of the fact that the jury intended the word “sutinge” for “shooting,” and such being the case, their verdict is responsive to the indictment, and to the charge of the court, and the judge correctly declined to set the same aside. Vide, State vs. Scott Ross, 32 Ann., 854, with which the instant case is almost identical.

Judgment affirmed.


author: McEneey, J.

text:
    No. 226.
    John Caldwell vs. Vicksburg, Shreveport and Pacific Railroad Company.
    Corporations must be sued at tbeir domicile for damages arising from the passive breach of their obligations, such as negligence and nonfeasance.
    The law as expounded in 30 Ann. 607; 33 Ann. 954; 36 Ann. 186 ; 39 Ann. 1066, as to the interpretation of Sec. 9, Art. 165, C. P., reaffirmed,
    APPEAL from the First District Court, Parish of Caddo. Hieles, J.

      Alexander & Blanchard for Plaintiff and Appellee.

      Wise & Herndon for Defendant and Appellant,
   The opinion of the Court was delivered by

McEneey, J.

The plaintiff sues the defendant for injuries sustained by the breaking through of a bridge^ constructed by defendant over a public crossing in the city of Shreveport. He alleges that the bridge was defective at the time of construction, and was built in an imnroper manner and of inferior material. The company excepted that its domicile was at Monroe, La.; that suit should have been brought there; that it had done no act to bring it within the provisions of Sec. 9 of Art. 165 of the Code of Practice. The exception was overruled, and on the trial on th s merits, there was judgment for the plaintiff condemning the defendant to pay damages to the amount of five thousand dollars. The plaintiff alleges gross negligence and default of defendant’s company in not constructing and maintaining a safe and suitable crossing at the place where he was injured. It is an act of omission, nonfeasance, dereliction of duty and not the commission of any act that implies force or violence that is alleged by plaintiff. Art. 165, C. P., provides that, “in all cases where any corporation shall commit trespass or do anything for which an action for damages lies, it shall be liable to be sued in the parish where such damage is done or trespass committed.” An interpretation of this article was given in the case of Montgomery vs. Louisiana Levee Company. 30 Ann. 607.

Act No. 4 of 1871, imposed upon the defendant company liability in damages for failure or neglect to keep up to standard height a levee, the breaking of which inundated plaintiff’s plantation. The defendant excepted to the jurisdiction of the court where the suit was brought, alleging the domicile of the company was in New Orleans. The exception was sustained. In rendering the opinion of the court, Associate Justice Marr clearly draws the distinction between acts of commission implying force and violence and acts of neglect, failure, or omission, passive violations of duty.

The court says: “The plain language of Sec. 9, of Art. 165 of the Code of Practice, is that for things done, for acts of commission for which an action for damages lies, the suit may be brought in the parish in which the damage is done, but that this rule does not apply to omissions, neglect or failure to do, because wrongs of this latter, class are not only not mentioned in this article but are excluded by the use of the words commit and committed, do and done, which necessarily imply action.”

In the case of the State ex rel. Morgan’s L. & T. R. R. and Steamship Company vs. the Judge of the Twenty-sixth Judicial District Court, after reconciling tlie provisions of defendant’s charter with Art. 165 C. P., the court say; “The word trespass used in the charter was employed in its broadest sense, so as to comprehend a variety of wrongs having the common element of a use of force whether direct or indirect.”

In the instant ease there is no allegation implying trespass, force or violence, either direct or indirect.

In the case of the heirs of Gossin vs. Williams and Morgan’s L. & T. R. R. and Steamship Company, this court said: “It is evident that the legislature by granting to the company immunity from suit, out of New Orleans, its legal domicile, except in eases of trespass, meant to confer some privilege or advantage which otherwise would not have existed. The design was clearly to restrict the character of suits not brought at the place of domicile to cases of trespass.”

In the case of St. Julien vs. Morgan’s L. & T. R. R. S. S. Co., 39 Ann. p. 1063, the authorities herein referred to were quoted and affirmed. In this case the doctrine was distinctly announced that, in case the owner of land permits its use and occupancy by a railroad company, and the construction of a quasi public building without resistance or complaint he can not thereafter require the demolition of the works nor prevent its use by the company, but that he is not debarred of his action for compensatory damages, if instituted at the domicile of the company. He can not treat such entry as tortious and sue the corporation as a trespasser at the place where the injury is alleged to have been sustained.”

The conclusion we have reached from a careful review of the authorities, is that the plaintiff’s suit does not come within the exception to the general rule that the defendant must be cited te appear at his domicile to answer plaintiff’s demand.

It is therefore ordered, adjudged and decreed that the verdict of the jury be set aside and the judgment appealed from be annulled, and it is now ordered, adjudged and decreed that. the defendant’s exception to the jurisdiction of the court a qua be sustained, the suit dismissed and that all costs he taxed agajpst plaintiff and appellee.


author: Bermudez, C. J.

text:
    No. 234.
    The State ex rel Parish Board of School Directors vs. Police Jury.
    The word -'may" found in section 54 of Act No. 81 of 1888, does not mean shall. Traced back, through the last sentence of Article 229 of the Constitution to Aot No. 23, Section 28, of 1877, which the framers of that instrument intended to continue in force in that respect, it simply means are authorized.

    The Constitution merely directed that the Legislature “shall provide that every parish way levy a tax, which means, is authorized or empowered.

    Any legislation seeming to impose upon police juries the duty or obligation of levying the tax woold transcend the delegated authority and so be unconstitutional and barren of effect.
    Police jurors are therefore clothed by law with the discretionary or optional power of levying or not, as in their wisdom they may see fit and proper, the tax in question for school purposes.
    Tn case of a failure to levy the tax, no mandamus can'isaue to compel the levy.
    APPEAL from the Tenth District Court, Parish of DeSoto. Sail, J.

      J. O. Pugh, District Attorney, for Plaintiff and Appellee.

      S. W. Sutherlin for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

Relying upon Section 54 of Act No. 81 of 1888, the relators seek by mandamus to have the Police Jury of De Soto parish commanded to levy a one and a half mills tax for common school purposes.

One of the grounds of resistance urged by the Police Jury, is that the levy of such tax rests in their discretion, and that they cannot be judicially constrained to exercise it.

The district court having made the mandamus peremptory and ordered the levy of the tax asked, the Police Jury have appealed.

The section relied on (54) enacts substantially, that the police jurors of the several parishes may levy, for the support of the common schools of their respective parishes, not less than one and a half mills of the ten mills on the dollar of the assessed valuation of the property thereof, to be provided for in their annual budgets, and that, on the refusal or neglect to levy said tax, or to vote for such levy, the parish school hoard shall have the right, and it shall be its duty, to compel by mandamus the levy of said tax.

The relators contend that this provision is mandatory and that the Legislature had the power, under the Constitution, to enact such legislation, which is obligatory and should be carried out.

In order to show that the language is mandatory, the relators argue that the Statute provides that, on the refusal or neglect of the Police. Jury to levy said tax or to vote for it, it shall be the right and duty of the school board to compel them to do so by mandamus, which is a writ which issues to coerce specific performance when no discretion to do or not to do exists, in other words, to coerce a ministerial duty.

It is evident that the first part of the section merely provides that police juries “may” levy a tax. The word “may,” in its usual acceptation, is merely permissive. It is true, however, that cases have occurred in which that word has been construed to mean must or shall; but the question is, in the instant controversy, whether it has that meaning and purport.

The Statute is not an original piece of legislation, which the General Assembly would be authorized to enact proprio mota, in consequence of the possession of the powers vesting generally in sucli bodies. It is a legislation which, in Louisiana, owing to constitutional restrictions on the law making power, must find, to be valid, its authority in the organic law itself, and which was enacted under a constitutional behest.

We deem it unnecessary to enter into any inquiry as to what the powers are of the State and of the parishes to levy taxes for the common schools for general or local purposes, as there exist in the Constitution special provisions for the'exercise of the right of taxation for those objects.

Article 229 of that instrument, in its concluding part, directs distinctly and unmistakably that the Legislature “shall provide that every parish may levy a tax for the public schools therein, which shall not exceed the State tax, provided that, witli such tax, the whole amount of parish taxes shall not exceed the limit of parish taxation fixed by this Constitution.”

It is apparent that the Legislature of 1888 bore this article in mind when the section in question was framed, as the very word “may.‘ which is found in the constitutional provision, is repeated in this section.

The law giver says : The Police Jurors of the several parishes may levy, etc. Had the word shall or must been used, it manifestly would have been employed in excess of the power delegated by the Constitution, unless the word may therein found was really designed to mean either shall or must,[and was intended to be imperative, from all standpoints, on the police juries.

It cannot be argued, however, that the word “may” in the article has that purport, for it is glaring that the framers of the organic law did not so propose, but merely contemplated to continue in existence, to some extent, a pre-existing statute on the same subject, namely, Act No. 23, Sec. 28, of 1877, p. 36, which provided that police juries are authorized to levy a tax for the support of common schools, which shall not exceed two mills, etc.

So that, in order to ascertain the meaning of the word “may” in Sec. 54 of Act 81 of 1888, recourse must be had to the concluding sentence of Article 229 of the Constitution, in which it is used, which requires the Legislature to vest police juries with the power of levying tiie tax, and, in order to realize the meaning of that word in that Article, reference must be had to the legislation in esse at the date of the adoption of the Constitution.

By this process, the purport and meaning of the word “may” in the Statute of 1888 are readily ascertained to be permissive and not mandatory.

Therefore, the section under consideration must be read as meaning that the police jurors of the several parishes, etc., we authorized to levy, etc., and cannot be viewed as imposing upon them absolutely, the duty or obligation to levy the tax.

It consequently follows that the term used is not mandatory, but permissive only, and that the propriety of the levy of the taxis merely optional with police juries, who, in their wisdom, may or not exercise the prerogative.

Having been clothed with discretionary powers only, and not burdened with any duty, it cannot be claimed that they can be forced by any judicial authority to exercise it, one way or the other, and that the relators have any standing in court to claim the tax as a matter of right.

It is, therefore, ordered and decreed that the judgment appealed from be reversed, and it is now ordered and decreed that the application for a mandamus herein be refused with costs.


author: Poché, J.

text:
    No. 1319.
    The State ex rel. R. T. McClendon vs. James H. Simmons.
    The proceedings of police juries must "be kept in writing.
    The minutes of their proceedings make up a public record imparting absolute verity, and they cannot be attacked or contradicted in a collateral action, to which the board are not made parties. Nor can their secretary in such an action be required to correct alleged errors, or supply aliegod omissions in their minutes.
    APPEAL from the Third District Court, Parish of Claiborne. Barhsdále, J. ,

      John A. Richardson and McClendon ds Seals for the Relator and Appellee.

      Joel A. Richardson and John Young for the Respondent and Appellant.
   The opinion of the Court was delivered by

Poché, J.

This ease involves the right to the office of Treasurer of Claiborne parish, and defendant appeals from a judgment decreeing relator to be entitled to the office.

Both parties claim to have been elected tó the office on the same day by the police jury. The official minutes of the body for that day, which are in evidence, contain the following entry : “When, on motion, the board proceeded to the election of parish treasurer, and after several ballots, R. T. McClendon was elected treasurer for four years next ensuing,” and the proceedings of the succeeding day show that the minutes of the previous day were duly read and approved.

This showing unquestionably makes a prima facie case in favor of the relator. In order to meet it, defendant had recourse to parol evidence, the testimony of the secretary of the board to show that, at the first ballot taken on that day, defendant had received four out of seven votes cast, and that the president had arbitrarily refused to declare his election. He also proposed to require the witness to correct the minutes by supplying an omission to enter therein the fact and the result of alleged first ballot taken on that day resulting in his election, and of which no mention had been made in the minutes.

The attempt was properly resisted by relator, who contended that the minutes of the board could not be thus attacked in a proceeding to which the president and members of the police jury had not been made parties.

His position is fully sustained by law, and it disposes of defendant’s pretentions to the office.

It is elementary that the proceedings, ordinances and resolutions of police juries must be kept in writing. Police Jury of Ouachita vs. Town of Monroe, 88 Ann. 630. In that case the court'used the following language, in dealing with an effort to prove by parol, authority in the president to stand in judgment for the board :

“In his oral argument he (counsel) referred as proof of such authorization to the affidavit of plaintiff in support of the injunction prayed for, but he could not have been serious in such a contention.”
“Police juries act only by ordinances, or resolutions, and so parol testimony would be admissible to prove either.”

The argument of defendant’s counsel that the proposed correction of the minutes was not intended to contradict the record but merely to supply an omission, a proceeding sanctioned by jurisprudence, is untenable.

The record, as made by tlie minutes, show that E. T. McClendon was elected treasurer, and the proposed correction would show the election of another person, J. H. Simmons, his opponent at the election. If such a proceeding is not a contradiction we can hardly conceive an instance of contradiction.

The contention is squarely covered, and it must be controlled, by the views announced by the court in the case of Gaither vs. Tax Collector et al., 40 Ann. 362, from which we make the following quotation as fairly decisive of the point under present consideration:

“The official minutes of the proceedings of the board of levee commissioners show, that they levied the tax in question at a meeting duly convened and held at Delta, Louisiana, on the 22d of January, 1886.”
“ Plaintiff’s counsel sought to impeach this record by parol evidence, but the introduction of it was successfully resisted by defendants, on the grounds, viz:
1. “That the official minutes of the board constitute a public record which imports absolute verity on its face, and same cannot be contradicted by parol, nor attacked in collateral proceedings to which said commissioners are not made parties.” * * * * *
“In our view of this question, it cannot be examined and decided in the collateral way, and in a suit to which the commissioners, who levied the tax, are not made parties.” And the court refers with approval to the following dictum' from the court of a sister State :
“If a town corporation makes an erroneous record of its proceedings, this cannot be contradicted in a collateral action. In such action the record is conclusive. If false, and the corporation will not correct the record, a party interested may, by mandamus, compel it to make the correction.”

That utterance is strongly suggestive of the remedy which defendant once had within his reach for the protection of his rights, but which he has not seen fit to invoke.

Unless the members of a municipal corporation are before the court, there is no warrant for a judicial coercion on their secretary, who is not the officer of the court, to perform any act or duty, touching the records of the corporation.

We therefore conclude with the District Judge that the relator is the duly elected treasurer of the parish of Claiborne.

Judgment affirmed.


text:
    No. 223.
    H. B. Linman et al. vs. Mrs. Jane H. Riggins.
    A party who has been administrator of an estate, obtained the order of sale under which the property was sold to pay debts, and inaugurated and consummated the proceedings complained of in an action of nullity, cannot be permitted to impoacli them by Ms own testimony. Such a person cannot be permitted to impoach his own official acts, nor to contradict the judicial proceedings had in the course of his gestión.
    There is no legal prohibitiou against, but there is a legal permission granted to an administrator to purchase property at a probate sale of the effects of the succession he represents, provided, he be the surviving partner in community of the deceased.
    Complaint made of an order of court directing the sale of property to pay the debts of a sue- * cession, alleged not to be due, after the sale is perfected, and in a suit to which the administrator is not a party, do not go to the court’s want of jurisdiction, and to avail, same must be seasonably urged, else they will he barred.
    A purchaser at a probate sale, made under an order of court, to pay debts of a succession that are stated on a tableau therein filed, is not bound to look beyond the decree recognizing the necessity therefor.
    The five years’ proscription fixed by the terms of R. C. O. 3543, cures “all informalities connected with or growing out of any public sale made * * * at public auction,” and is a bar, perfect and complete, in respect to “minors, married women and interdicted persons.”
    APPEAL from the First District Court,- Parish of Caddo. Taylor, J.

      J. L. Hargrove for Plaintiffs and Appellants :
    1. Where the"petition alleges and shows there were no debts due^by^deceased, there is no administration necessary, and a sale by such administrator is void. *30 Ann. 479; Barton and wife vs. Bougier and Sheriff; 29 Ann. 560; Burns vs. Tan Loon and numerous others.
    2. Since the amendment to article 2237 C. C., forced heirs are not restricted in their right to annul simulated contracts of those from whom they acquire interest, by parol evidence to their legitime. The right of action in such* cases is now unlimited.»: 39 Ann. 316; Spencer, administrator,-] vs.” Lewis, administrator, et als., 39 Ann. 878; Cole, administrator, vs, Cole etal. (Act 5 of 1884). Minors whose property was,rsold.without legal authority can recover it without tendering the price of sale to the purchaser. 33 Ann. 745, 769.
    3. Prescription is suspended during minority of the party against whom it is pleaded. 38 Ann. 209, Barrow etal. vs. Wilson etal., and cannot be founded ¿upon a nullity* 39 Ann. 102, and 29 Ann. 560. Article 990 C. P. only contemplates sales of succession property to pay debts at the instance of creditors. 38 Ann. 651.
    4. Any sale or contract without a consideration is void. • “The want or failure of consideration may also be proven by parol evidence. Taylor’s Evidence, page 969, Sec. 1138, and page 978. Sec. 1150. Receipts in nearly every case can be explained by parol. Taylor’s Evidence, page 965, Sec. 1134.
    5. In sales of real estate to pay debts of succession] al) claims should.be]duly probated and recognized by¡the proper court. C. P. Arts 9984, 89, 990.
    6. The universal legatee stands in the place of her father, W. W. Harper. O. P. Art. 120.
    7. Actions to annul fraudulent sale must be commenced within a year after fraud is discovered. O. P. Art. 673. If no citation was served on the present appellants all the proceedings are void as to them. 30 Ann. 702, Successions W. O. Winn.

      Alexander <& Blanchard for Defendant and Appellee.
   The opinion of the Court was delivered by

Watkins, J.

Plaintiffs, as the heirs of Catherine Linman, deceased wife of Herman Linman, seek the revocation and dissolution of an alleged probate sale of real estate, which was, at the time of her death, an asset of the legal community ; and they claim one-half interest therein.

They substantially allege that, notwithstanding Herman Linman administered the succession of the deceased, an administration was wholly unnecessary, inasmuch as it owed no debts that could not have been satisfied out of the assets of the community, other than the real estate, for the sale of which there was no necessity.

The petition states that Linman was regularly appointed, qualified and confirmed administrator, caused an inventory to be made, filed a tableau of debts, procured an order for the sale of the real estate to pay debts of the succession, and caused a perfectly formal sale to be made, for the stated sum of about $13,000 cash.

That on the same day the ostensible purchaser transferred same property to Linman in his individual capacity, for $13,643, part cash and the remainder on terms of credit, with security of mortgage and vendor’s lien.

That the price of the probate sale was never paid,, and the conveyance thereat to Harper, and from Harper to Linman were simultaneous, and intended to enable the latter to acquire an apparent title to the property indirectly, which he could not acquire directly, and that same are null and void.

That, in the foreclosure of his mortgage, Harper became the adjudicatee at sheriff’s sale, and at his death the property passed to his legal representative, and that the conveyance was void because the note Harper held was without consideration.

The defendant plead, as an exception, the want of a previous tender of the amount of purchase price at the probate sale, and which went to discharge the debts of the deceased. With full reservation he answered and averred that Harper’s title is one acquired in good faith, under the probate proceedings above recited, under the order of a competent court to pay succession debts, and that the purchaser paid the price, and conveyed the property to Linman, He further avers that all of said proceedings were valid and legal and in good faith, and thereupon he pleads the prescription of one, three and five years in bar of this action.

On the trial, the court a qua dismissed the plaintiffs’ action as of non-suit, and they have appealed. In this court the defendant answers the appeal, and prays for a final judgment rejecting plaintiffs’ demands in toto.

I.

The plaintiffs introduced as their witness the Linman who was the administrator and obtained the order of sale under which the property was sold, and who inaugurated and consummated all of the proceedings above-described, and by whom to substantiate the various allegations of their petition. To the introduction of this witness by whom to prove these facts, the defendant objected on various grounds, and among them are the following, viz :

1. That Linman could not be heard to stultify himself and impeach his own official acts as administrator, nor contradict the judicial allegations and judicial proceedings in the succession he administered.

2. That he woujd not be heard to contradict his own statement under oath, attesting the correctness and existence of the debts placed by him upon the tableau filed in said succession ; and, subsequently, the correctness of the final account, and the genuineness of the debts which purported to have been paid; or to state that same are not just and due by the succession ; or that he had not, as administrator, paid the same.

3. That he could not be heard to impeach, or contradict his receipt as administrator, in which he acknowledged the payment of the purchase price from Harper.

For the reasons assigned the testimony of the witness Linman was disallowed, and it has been brought up, annexed to a bill of exceptions.

It appears from the succession record that was offered in evidence by the plaintiffs’ attorney, that all the grounds of objection are well taken, and particularly the one to the effect that he had sworn, in open court, on the trial of the tableau and account, that the debts enumerated were due by the succession, and that same had been paid by him out of the proceeds of the succession sale.

It is absurd to suppose that any court of justice would listen to the statements of any witness in support of such propositions, which would, of necessity, involve the witness’ perjury and turpitude; and, although there is an abundance of it, we deem it unnecessary to cite authority in support of our opinion. There is no doubt of the correctness of the lower judge’s ruling.

II.

The only pertinent evidence in the record on the main issue is that of one of Linman’s attorneys.

He states his recollection to be that the whole of the purchase price was not paid in cash by Harper, and that Harper was a creditor of the succession, and desired a title in himself, and intended to convey it to Linman, and give him time to redeem, or pay the debt due Mm.

This testimony clearly demonstrates that these titles were not fraudulent simulations, but real and actual sales that were translative of the property, though it may have been for an inadequate price. 40 Ann. Pochelu vs. Catonet.

III.

Simple reference to the Code will suffice to show that there was no legal impediment to a purchase by Linman at the probate sale of the effects of the succession of his deceased wife, and late partner in community.

It provides that “any executor, administrator * * may purchase at the sale of the effects of the deceased, whose estate he may represent, when he is the surviving partner in community,” etc. R. C. C. 1146.

There was no occasion for Harper to have accepted title as a person, interposed for Linman. This pretension is groundless.

IV..

Conceding for the argument, that the evidence shows, or woul shojr, that only a small portion of the alleged succession debts were actually and really due, and it would, in no manner, affect the question at issue.

In Webb vs. Keller, 39 Ann., at page 55, we dicussed and decided this question, and used the following language, viz : “ The complaint made of the order of court directing the sale, on the ground that the estate of Dr. Webb owed no debts, or if it did, none that had been recognized and proved before a family meeting, or the court, does not go to the court’s want of jurisdiction. The debts were subsequently placed upon the tableau, aud proved to the satisfaction of the judge who was competent, and same was homologated, and he directed the proceeds of sale to be applied to their payment.

“ This was a mere irregularity, aud not a cause to challenge the proceeding as null and void.”

That suit was similar in many respects to this, and had a like object of attainment, and the quoted ruling is applicable.

V.

In that case we further said that it is the well settled jurisprudence of this court that the purchaser at a sale made under an order of the probate court, which is a judicial one, is not bound to look beyond the decree recognizing its necessity.

He must look to the jurisdiction of the court, but the truth of the record concerning matters within its jurisdiction, cannot be disputed.” 14 La. 146; 15 La. 182; 7 R. 66; 7 Ann. 468; 14 Ann. 154, 622; 26 Ann. 596; 29 Ann. 536; 31 Ann. 280. “ The purchaser at a judicial sale of property of a succession is not bound to look further back than the order of the court directing the sale.” 18 Ann. 485; 21 Ann. 505; 11 R. 72; 16 La. 440; 34 Ann. 1004; Nelson vs. Weis, 39 Ann. 55.

Defendant has stated his case strictly within this rule. All the motuary proceedings, and those leading up to, and embracing the probate and judicial sales in question are perfectly regular,and the probate sale was made under the authority of an order of the court to pay the debts of the succession.

YI.

The prescription of five years which the defendant pleads, under E. C. C. 3543, cures “all infomalities connected with or growing out of any public sale made * * * at public auction,” and this bar is perfect and complete in respect to “minors, married women or interdicted persons.”

The preceding argument and citation of authority, prove that the matters complained of are, in truth and reality, only matters of irregularity, and do not involve an absolute nullity, or illegality. They are all cut off by the defendant’s plea of five years’ prescription.

YII.

The learned judge of the district court dismissed the plaintiffs’ action as of non-suit. It appears clear to our minds that this was not just to the defendant, who has made out her defense most clearly and satisfactorily, and is entitled to final judgment, and the judgment of the court a qua must be amended.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be amended; and it is further ordered and decreed, that the demands of the plaintiffs be rejected and disallowed, and that, as thus amended, the judgment be affirmed, and at defendant’s costs in both courts.


text:
    No. 238.
    L. D. Sandidge vs. Turner Hunt.
    A petition in which is demanded by a vendee reimbursement *by the vendor of taxes paid since sale, which, existed anterior thereto, and damages sustained by him in a loss occasioned by a private disposition of the property, states a cause of action as to the former, but not as to the latter.
    Suit for reimbursement of taxes paid is a personal action only, prescribed by ten years.
    In such a suit no allegation of eviction is necessary, as a sine qua non for the discharge of the taxes encumbering the property acquired. It is only necessary to allege the existence and discharge of same.
    "While we are bound to take judicial cognizance of the principles of the common law as it prevails in other States, this is not true of the statutes of such States, which will be presumed to be just the same as our own in the absence of proof to the contrary.
    It will likewise be presumed, in the absence of contrary proof, that taxes assessed under and in pursuance of the laws of Tennessee, are secured by liens and privileges as are taxes assessed under our own laws.
    A PPEAL from the Second District Court, Parish of Bossier. XJL Boone, J.
    • Lowry & Vance for Plaintiff and Appellee.

      Snider & Smith for defendant and Appellant.
   The opinion of the Court was delivered by

Watkins, J.

Plaintiff’s claim is grounded on the following state of facts, viz:

That he and the defendant entered into a contract of exchange of certain real property, and the act was passed before a notary in this State. The plaintiff sold and exchanged to the defendant his plantation, situated in Bossier parish, Louisiana, and the defendant sold and gave in exchange to the plaintiff certain city lots, with improvements, in Memphis, Tennessee. There is a clause in the act stipulating full warranty and subrogation, in respect to the properlies which are mutually conveyed, with the exception of a lot situated on Orleans street, in said city of Memphis, in reference to which there is an express exclusion of warranty. This piece of property, however, cuts no important figure in the case. The properties each party respectively conveyed were specified in the act to be of the value of $4,000. The plaintiff surrendered possession of his property In Bossier parish to Hunt, and the latter surrendered possession of his property in Memphis to the former. This act of exchange and possession thereunder date in December, 1878, and the petition avers that in 1884 the property he received from Hunt was seized and proceeded against in the city of Memphis ” for delinquent and unpaid taxes, which had been assessed against the property he acquired anterior to the exchange and against which Hunt had given and contracted an obligation of warranty in his favor. It further represents that “ in this emergency he was compelled to sell all of the Linden street property at public auction, and received therefor $1525.” He alleges that he paid, in the discharge of such taxes, penalties and costs, the sum of $542.52, on the 25th of June, 1884. It is further specially averred that “ by said forced sale of said property, owing to the emergency, the unfavorable season of the year, and the existing depression of values, he was damaged in the sum of $2500, the difference between the estimated and true value of said property, by the parties in the contract of exchange and the amount received at the forced sale,” and he demands of the defendant the said two sums, viz: $542.52 taxes, and $2500 damages, and prays judgment therefor.

The defendant tenders the following peremptory exceptions, to-wit:

First. No cause of action shown, because plaintiff sold the property voluntarily.

Second. That there is no allegation of eviction, or threatened eviction, partial or in toto, of which he had notice, and on which proceeding for eviction he defended, nor that lie was evicted by a paramount title.

These exceptions having been by the court referred to the merits “ without prejudice,” defendant’s counsel filed an answer, in which he pleads the general issue, and specially avers that there was no encumbrance on the property in question, and denies that the plaintiff was, by any process of law, deprived of the property, or any part thereof, so as to make this defendant liable for breach of warranty, or for damages.”

He also pleads the prescription of one, three, five, ten and twenty years, to all and singular, the demands of the plaintiff.

Judgment went against the defendant for the sum of $240.36, with interest, Ms pleas and exceptions having been overruled, and he appeals. In this Court the plaintiff has filed an answer, and prays an increase of the judgment to the full amount demanded in his petition.

I.

Under the plain and unambiguous terms of the Civil Code, we think the plaintiff’s petition states no cause of action, in so far as his claim for $2500 damages is concerned, as will appear by reference to the clause we have quoted above from his petition. It is a concession that he disposed of the property in greater part at a voluntary sale, made at public auction. It makes no difference that it was done on account of financial embarrassment, depriving Mm of the means wherewith to discharge the taxes due oil the property. Indeed, the confessed unfavorableness of the season and the if existing depression of values ” ought to have been a strong reason why he should not have disposed of the property at a sacrifice.

Eviction is the loss suffered by the buyer of the totality of the thing sold, or a part thereof, occasioned by the right or claims of a third person.'' R. C. C. 275.

To argue that the claim of, and even the seizure of the property by the State of Tennessee, justifies a voluntary sale and sacrifice of the property, if jou will, under the circumstances given, may be the foundation of such a claim for damages as this, is, in our opinion, to argue against the precepts of the Civil Code. But we do think that this petition does state a cause of action with regard to the amount of taxes, penalties and costs he paid. The Code says that “ the seller is obliged, of course, to warrant the buyer against the eviction suffered by him from the totality or part of the thing sold, and against the charges claimed on such thing, which were not declared at the time of the sale.’’ R. C. C. 2501, This is even so, “ although, at the time of the sale, no stipulations have been made respecting the warranty.” Ibid. The taxes preferred by the State of Tennessee and the city of Memphis were evidently just such “ charges” claimed on the thing as are contemplated by the Code. The district judge evidently entertained this view of the law, and so decided.

II.

This is a suit for reimbursement of money expended in disencumbering the property of taxes, and not one for the collection of the taxes themselves. When payment was made, they became extinguished, and ceased to be.

Hence this is in the nature of a personal action and governed by the prescription of ten years. This period has not elapsed since the taxes were paid. It is alleged in the petition that the payment was made on the 25th of June, 1884, and this suit was brought on the 21st of January, 1886. The receipts, which are in evidence, show that the taxes were paid about the former date. R. C. C. 3544.

The defendant’s plea of prescription is directly addressed “to the demands of the plaintiff’s petition,” and not to the taxes assessed by the State of Tennessee. That State taxes are levied and collected pursuant to State laws this court will assume, as a fact coming within its judicial cognizance; and, inasmuch as the statutes of the State of Tennessee form no part of the body of the common law, we will presume that they are just the same as those of our State, in the absence of contrary proof.

It is only of the prbcepts of the commoii law that we are bound to tike judicial notice. Copely vs. Sanford, 2 Ann. 335; Klivey vs. Sejour, 4 Ann. 128.

We are of the opinion that the pleas of prescription urged by the defendant were correctly overruled by the judge a quo.

III.

The exceptions of defeudant, to the effect that there is no allegation that plaintiff had beeu evicted of the property, or dispossessed by a paramount title, are fully answered by the provisions above quoted from Article 2501 of the Civil Code. This law obliges the seller “to warrant the buyer against the eviction suffered by him of the totality, or a part of the thing sold, and against the eharqes claimed on such thing,” etc. In case the loss is sus' tained by an emotion, of course, proof of eviction is of the essence of the evidence required; but, if the loss is occasioned by the coerced discharge of taxes encumbering the property at the time of the sale, it is quite sufficient for the vendee to prove the existence of such taxes at.the date of his acquisition of the property to entitle him to recoup the same from the vendor. The Code does not seem to require that such “charges” should have effected an eviction of the vendee, but it appears to us to be clear that it contemplates that the mere existence of such charges at the time of sale was enough to authorize the vendee to discharge same, and call on his vendor for reimbursement. It would be quite unreasonable to hold that the vendee was without right to sue because the State of Tennessee failed to give defendant due notice of the tax proceedings in the contemplated expropriation of the property. He was at the dime a citizen of this State, and hence a non-resident of the State of Tennessee. Had he waited for that purpose his property might have been, in the meanwhile, sent to sale and the same conveyed to a stranger by an irredeemable tide. There is no force in this contention.

IV.

The numerous bills of exception found in (lie record attest the stubbornness of the contest in the court below, but the necessity for the consideration of very many of them has been obviated by bur rulings in preceding paragraphs of this opinion, eliminating the plaintiff’s demand for $2500 damages.

With regard to the quantum and sufficiency of the evidence to establish plaintiff’s claim to reimbursement for prior taxes paid, we deem it sufficient for us to state, in geneial terms, again, that this is. not a suit for the collection of taxes eo nomine, but for reimbursement-for taxes paid. While it is true that there was no proof administered as to the existence of any tax liens, privileges or mortgages, securing said taxes in the State of Tennessee, there is sufficient evidence to show the existence and exigibility of the taxes themselves. Now, if the statutes of Tennessee are to be presumed the same as our own, we are bound to know that the taxes that were assessed in 1878 to 1884 are thus secured on the property assessed, and that no registry of such lien is required.

V.

There seems to be no serious controversy with regard to the amount of the judgment appealed from.

The judge a quo had the testimony before him and seems to have carefully examined and analyzed it, and we shall not disturb his finding.

Judgment affirmed.


text:
    No. 10,193.
    The State ex rel. Mrs. Alfred Millard vs. The Judges of the Court of Appeals.
    Prohibition lies to prevent the Court of Appeals from exercising jurisdiction over a controversy involving a right to a servitude of light and view, valued at more than §1000 and a claim for $1000 damages, together exceeding §2000, the uppor jurisdictional limit of said court.
    APPLICATION for Prohibition.

      John T. WhitaJcer for the Relatrix.
    Brauglm, Buelc, Binkelspiel <& Bart for the Respondents.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a Prohibition.

The relatrix complains that the Court of Appeals has, over her objections, assumed jurisdiction over a controversy involving more than $2000.

The respondent judges return that the court over which they preside has jurisdiction, the matters at issue being less than $2000.

The relatrix brought suit to compel the'dosing of a window, 'opened in a wall built by an adjoining proprietor and overlooking her premises.

The substantial averment of the relatrix is, that the opening lias ■materially impaired and diminished the value of her property to an •extent exceeding one thousand dollars and that the enjoyment of the same by the defendant has occasioned her injury assessed at $1000.

The prayer is for a perpetual injunction and for one thousand doL lars damages.

From a judgment decreeing the closing of the window and reserving the claim for damages for future action, the defendant appealed to the Court of Appeals in this city.

Relatrix objected to the jurisdiction of that court, but her objections were discarded.

Thereupon, she sought relief here.

It is apparent that the suit rests upon the fundamental assumption that the relatrix is the owner of certain lots on which she resides, ■which are free from all right of servitude in favor of defendant’s ■property; that, in violation of the rights of relatrix, defendant has made an opening in his wall, overhanging her premises, in consequence ■of which the value of her property was materially impaired and has decreased to the extent exceeding one thousand dollars; that by the destruction thus occasioned of the privacy of her residence, she had •sustained damages assessed at $1000, at the time of the bringing of .her action, and that said damages are continuous, etc.

The petition, therefore, contains two demands: one that the defend-ant be forbiidden from enjoying the window, and another, that the defendant be condemned to pay $1000 for damages incurred.

The questions at issue are, therefore : 1st., the existence vel non of a right of servitude of light and view, involving á title to real estate; and 2d, a money demand put down : the former at more than $1000, the latter at $1000, which together surely exceed $2000, the upper jurisdictional limit of the Court of Appeals.

The depreciation of the property and the damages are not one and the same thing. They constitute two different objects and grounds of •complaint.

The depreciation does not constitute the damages claimed and the damages asked do not represent the depreciation.

It will not do to say that this is not so, because the prayer of the petitio'n is narrowed down to a demand for $1000 damages, as the prayer is also for the perpetuation of the injunction, which means a judicial recognition that the property of the plaintiff owes no servitude to that of the defendant,

If, iustead of the suit having been brought by the plaintiff, it bad been instituted by the defendant, to have her right to the window-recognized, under a propdr averment, it is undeniable that the case would have been appealable directly to this Court.

A germane question was decided in the case of State ex rel. D’Arcy, 25 Ann. 621, in which it was held that the question whether the relatrix had the right to build a wall on her property, involves a larger interest than the amonnt claimed as damages and concerns the right of property and its enjoyment, affecting the value of the property on which the wall is built. See 11 Ann. 455; 39 Ann. 1102.

The court subsequently passed on the merits of the suit. 28 Ann. 424.

In an analogous case, the present Court has ruled in a similar manner. State ex rel. Levet vs. Lapeyrollerie, 38 Ann. 913, and the doctrine there announced, was reiterated in a parallel controversy involving both a right to a servitude and a claim for damages. Russ vs. Egan, 39 Ann. 917.

It is therefore ordered and decreed that the restraining order herein made be maintained and the prohibition asked be made peremptory.