text:
    No. 10,331.
    The State ex rel. R. W. Jones et al. vs. The Judges of the Tenth Judicial District et al.
    The law does not authorize a district judge, presiding over a court having criminal jurisdiction, to recuse himself simply because he is connected by blood or marriage with an accused.
    The Act of 1877, No. 35. which placed no restriction on such recusation whenever the judge was so connected, has been repealed. It was replaced by tlie Acts of 1880, No. 40. and of 1882, No. 48, which refer to hotli, civil and criminal cases, and which restrict recusation to oases in which the judge is related within tli & fourth degree, to an accused or other party.
    A judge has no right to recuse himself where a party to the case could not legally do so.
    A self recused judge, who acts without authority of law, in recusing himself, cannot appoint another to act in his lieu and stead in such case.
    APPEAL from tlie First and Tentli District Courts, Parish of DeSoto. Taylor, J., aml-Hall, J.
    -27. W. Butherlin; Bearles c£- Lee and G. W. JElam for the Relators:
    1. A district judge cannot recuse himself except for sufficient legal causo, as specifically provided by law. C. P. Art. 340; 2 Ann. 40, 503; 9 Ann. 321.

      2. A district judge who orroneously recuses himself in a criminal case without a legal cause, as specifically provided hy law, and thereupon declines to try such case under a mistaken sense of duty in respect of such question of law, preliminary to the whole case, may be compelled by mandamus to try such case, and the judge of au adjoining district appointed to try the same may be restrained therefrom hy prohibition. Mosos on Mandamus, p. 30, citing 28 Miss. 259; lb. pp. 40 and 41, citing 3 Seam. (111.) Hep. 351, and 6 Eng. Law and Equity Hep. 371; C. P. 829, 830, 831; Const. Art. 90; 32 Ann. 542, 597, 774; 33 Ami. 1070, 1096,1351; 34 Ann. 1177 ; 38 Ann. 499; High on Ex. Hem., Secs. 151, 250; 33 Ann. 180; 39 Ann. 994.
    3. In such proceeding for mandamus and prohibition, tlie criminal case is not the direct issue, but this proceeding is original process, the object of which is to ascertain whether the district judge wrongfully refuses to perform wliat is alleged to be his duty and to compel its performance if that refusal is wrongful. 20 Ann. 785.
    4. The district judge had no legal right to recuse himself because related to tlie wife of ono of the relators in the sixth degreo. Const. Art. 113; Acts of 1880, p. 38, No. 40; 34 Ann. 381.
    5. Section 1067 of the Nevised Statutes of 1870, as amended by Act 35, p. 35, of Neg. Ses. of 1877, is superseded hy Const. Art. 112 and Acts of 1880, No. 40, p. 38. In fact, Act 35 of 1867 is nugatory and inoperative for want of a legal manner of trying such recused oases.
    6. In no event did the judge have a legal right to recuse himself as to tlie relator Jones, to whom lie was in no way related or connected hy marriage. Even though a case is continued as to one defendant, anothor defendant jointly indicted cannot tlioreby be deprived of a trial. Nevised Statutes, Sec. 999; Bishop, Crim. Prac., Third Edition, vol. 1, Sec. 1023.
   Tlie opinion of tlie Court was delivered by

Bermudez, C. J.

This is an application for a mandamus to compel tlie judge of the Tenth Judicial .District, to try a criminal case, pending before the court over which he presides and in which he lias recused himself propria motu.

The application is coupled with a prayer for a prohibition to prevent the judge of the First Judicial District, appointed to act in the place of the recusing judge, from trying said case.

The judge of the Tenth District returns, admitting the facts alleged, but justifying his condirct by averring that he is connected by marriage with one of the relators, whose wife is his third cousin, a relation in the sixth degree, and that his recusation is justified by Section 1 of Act 35 of 1877.

The section relied on reads:

“ Any judge may bo recused, or may recuse himself, in criminal cases:
1. If said judge be connected by blood, or marriage, with the accused,” etc.

The question presented is pimply : whether this section is or not still in force, as far as it is applicable to the case before us.

A survey of the legislation of the subject of the recusation of judges, reveals its condition to be the following:

Pretermitting' what it was up to 1858, the only enactments on the matter at that time were those found in Article 338 of the O. P., which were applicable exclusively to civil cases.

In that year, deeming it proper that some legislation should exist affecting recusation in criminal cases, the General Assembly enlarged the provisions of the Code of Practice, and enumerated the cases, criminal in nature, in which a recusation should be entered — Acts 1858, p. 218.

The act was incorporated in the R. S. of 1870, and figures therein as Sections 1067 and 1068. The following section refers to cases occurring in the New Orleans Criminal Court:

The law provided that “any judge may be recused, or may recuse himself, in criminal cases, if said judge bo connected by blood or marriage, with any person charged with any offence against the laws of the State,” and it went on providing for the duty of district attorneys in such cases.

In 1877, by Act 35, tlie latter part of the first section of the Act of 1858 was eliminated, so as to relievo it from redundancy, and provision was made for the recusation of district attorneys, in specified cases.

The title of the act relates to the recusation of judges and of district attorneys in- criminal cases, and to the amendment of the Revised Statutes on the subject. The law was designed to have effect from and after its passage.

Some diversity of opinion having arisen as to the recusation of judges in both civil and criminal cases, the Convention of 1879 deemed it wise, by a special provision, to impower and direct the Legislature to provide by law for the trial of recused.cases in the District Courts, by the selection of licensed attorneys at law, by an interchange of judges, or otherwise. Article 112.

In furtherance of this delegated authority, and in discharge of the duties it imposed, the Legislature of 1880, adopted Act 40, p. 38, providing causes of recusation of district judges and for the trial of recused cases in District Courts, the parish of Orleans excepted.

It is apparent, from the absence of any limitation of the extent of the application of the law, either in its title or body, and particularly from the language used in paragraph 1, of section 1, which refers to civil and criminal cases, that the Legislature did not design that the statute should apply exclusively to civil cases.

The argument urged to establish that proposition does not bear it out. It militates against itself, is self-destructive and serves as well to prove the collateral cognate proposition, for, if it be true that the act effects civil cases only, and in no way criminal cases, because the latter are not included expressly in the title or in every section, it would equally be true that the act does not relate even to civil cases, for a like reason.

The construction would be a forced one. It would do violence to the legislative purpose. It would lead to the inadmissible conclusion that, as the title and the body refer specially, in every instance, neither to civil nor to criminal cases, the legislation applies to neither and becomes absolutely nugatory. It would amount to a gratuitous charge of legislative stultification.

The law does not discriminate. It was designed to apply to all cases in which recusation would take place. Ubi lex non distingnit, nee non distinguere debemus.

The sound interpretation of the statute clearly is, that the legislative intent was to regulate the recusation of judges, as well in civil as in criminal cases and thus have a uniform system on the subject.

That legislation, however, was subsequently reviewed in 1882, when an act was passed, No. 35, p. 48, whereby Article 338 of the C. P. was again amended, by a slight enlargement of the cases mentioned, in the first paragraph of the Act of 1880, relative to sheriffs and jurors.

Although there was subsequent legislation in 1884, p. 86, on the subject of recusation, it is unnecessary to notice it, as it provides merely for the interchange of judges.

By reference to the Act of 1882, which may be deemed, as containing the legislation applicable to the instant case, it will be seen that the Legislature enumerates and specifies the causes in which a judge shall be recused, the second of which isf that of “his being related to one of the parties within the fourth degree.” No. 35, p. 48, par. 2, sec. 1.

The district judge of the Tenth Judicial District contends that, as the Act of 1877 is not incompatible with the Acts of 1880 and of 1882, he had authority to recuse himself as he did.

In order to establish this proposition he urges that the Act of 1877 and the later acts mentioned, refer, the former to criminal cases only and the others to civil cases, or at least doubtfully to criminal cases and that'in cases of doubt, the right of self-recusation should prevail.

He further argues that the last acts, even if they refer to both civil and criminal cases, do not clash with, and cannot be considered as repealing, that of 1877, for the reason that the former are mandatory, while the latter is simply permissive.

A comparison of the three acts, that of 1877 and those of 1880 and 1882 impresses the mind irresistibly, that it was the intent of the Legislature to rejjeal the former; for, otherwise there would be two laws in existence — ■one authorizing the judge to recuse himself, whenever connected by blood or marriage, to any extent, with the accused, another authorizing his recusation only when related within the fourth degree.

■ We consider both laws as mandatory, as requiring the judge to recuse himself and authorizing parties to recuse him, whenever he is related to one of the parties within the fourth degree, and authorizing parties to recuse Mm, whenever, being so related, he does not recuse himself spontaneously, proprio motu.

Under the circumstances, considering that the law leaves no discretion to the district judge, and that he can legally recuse Mmself only where a party to the case has a right to recuse him, and that no one has recused him, or could legally do so in this case, it is his duty to sit upon the trial of the case, as the law provides.

It follows from this view of the case that, as the district judge of the Tenth Judicial District had no right to recuse himself, and his recusation is a nullity, he was witlumt power to appoint any other judge to replace him in the trial of the case before his court.

It is, therefore, ordered and decreed that the restraining order made ■in limine be maintained and that the mandamus against the judge of the Tenth Judicial District and the prohibition against the judge of the First Judicial District, be made peremptory, and that the trial of the case against the relators proceed' according to law, as though no recusation had ever been entered therein.


source: Caselaw Access Project

author: Poché, J.

license: Public Domain

text:
    No. 10,285.
    The State of Louisiana vs. Robert Nettles.
    A complaint that in a criminal conviction there was no proof of the vemie, involves a question of fact exclusively within the* province of the jury, anti over which the Supreme Court has no jurisdiction.
    APPEAL from the Seventeenth District Court; Parish of East Baton Rouge. Buekner, J.

      Walter II liogers, Attorney General, for the State, Appellee.

      II J. Fournot for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

The complaint of the accused in this case is that there was no proof of the venue of the commission of the offense charged against Mm.

This is a fact which belongs exclusively.to the province of the jury, and with which we have no possible concern, under our limited jurisdiction in criminal cases. State vs. Taylor, 37 Ann. 40; State vs. Tanner, 38 Ann. 307.

We can but express our painful surprise to see an appeal to this court on such a flimsy pretext, and we dismiss the subject with the remarks which we applied to the case of Williams, 38 Ann. 371, in which we were called to pass upon the facts contributing to the guilt or innocence of the. accused: “We had indulged the hope that the last of such errors had been committed in the case of Taylor, 37 Ann. 40. Hereafter we shall pass over such means of defense as absolutely trivial and unworthy of consideration.”

Judgment affirmed.


text:
    No. 10,340.
    In re Hardy Strickland and A. J. Alford Applying for Writ of Habeas Corpus for Bail.
    Tlie power vested by Article 89 of tbe Constitution in tbe Supreme Court and each of tlio judges thereof to issue writs of habeas corpus, is one of original and not of appellate jurisdiction,
    That jurisdiction is concurrent with, but not superior to tbe jurisdiction conferred on judges of tbe courts of appeal and district judges, witbin their respective circuits and districts, by Articles 104 and 115 of tbe Constitution.
    Hence tbe Supreme Court is powerless, and will decline, to review the action of a district judge who has jurisdiction over the place where tbe offense charged was committed, in refusing bail to tbe prisoner, after a full and fair preliminary examination, requested by the latter for tbe purpose of being admitted to bail.
    Such an examination fulfills tbe object of a writ of habeas corpus, which is to afford judicial relief to parties who may be illegally deprived of their liberty.
    The finding of the district judge at that examination cannot be reviewed by this court on the same evidence, on the alleged ground that his conclusion was erroneous.
    APPEAL from tlie Sixteenth District Court, Parish of St. Helena. Brame, J.
    TP". -F. Kernan for the Relators.
   The opinion of the Court was delivered by

Poché, J.

The applicants, who are held under a charge for murder, have had a preliminary examination, at their request, before the district judge having jurisdiction over the case, and they were remanded without the benefit of bail.

In their present application they rely on the evidence heard by the district judge, which is brought up under the certificate of the clerk of the District Court. They aver that the testimony would at most make out a case of manslaughter, which is a bailable offense; hence they charge that said decision of the said F. D. Brame, Judge of said District Court, on the facts disclosed on said preliminary examination is erroneous, and deprives petitioners of a right guaranteed to them by the Constitution.”

Although the proceeding purports to be an application to our original jurisdiction, a careful consideration of the petition shows -conclusively that the real intention of the applicants is to obtain at our hands a review of the action of the district judge in refusing to admit them to bail.

The basis of the relief sought here is his alleged error in concluding, from tlie facts disclosed at the preliminary examination, that the nature of the offense with which they are charged was not bailable.

And the means afforded us for the relief sought, are by considering exclusively the identical evidence which had been submitted to the district 'judge.

The evidence thus submitted is not brought up by consent, but as a matter of right, the consideration of which, should under the law, lead this court to a conclusion different from that followed by the district judge. It is therefore apparent that the proceeding, although called by another name, is nothing but a disguised appeal.

Now under a proper construction of the constitutional provisions which vests this court, in specified cases, with the power of entertain-, ing applications for writs of /tabeas corpus, it appears that the power is one of original, and not of appellate jurisdiction.

It is contained in Article 87 of the Constitution of 1879, which reads; The Supreme Court, and each of the judges thereof, shall have power to issue writs of habeas corpus at the instance of all persons in actual custody in cases where it may have appellate jurisdiction.”

The same power is conferred to the judges of the courts of appeal by Article 104, which reads : “ The judges of the courts of appeal shall have power to issue writs of habeas corpus at the instance of all persons in actual custody, within their respective circuits.”

And the power is likewise vested in judges of the District Courts. Article 115 provides that: “ The district judges shall have power to issue writs of habeas corpus at the instance of all persons in actual custody in their respective districts.”

Nothing in the language of the Constitution suggests the thought, or can justify the conclusion, that in the exercise of their respective powers in that connection, any of the judges referred to, are inferior to others, in the matter of the conclusions which they may reach. It is quite plain that the power is concurrent among all the judges therein referred to and enumerated.

The only difference is that in the case of the Supreme Court and of each of the judges thereof, the jurisdiction may extend to all parts of the State, whereas in the case of the others, the power can be exercised only within the territory embraced in their respective circuits or districts.

The Constitution contains no provision which even contemplates the right or authority of any court or judge to review the findings of any court or judge in the disposition of matters connected with a writ of habeas corpus.

The Constitutions of this State of 1845, 1852 and 1868 each contained a provision precisely similar in terms to Article 89 of tlie present Constitution. And in construing those provisions the Supreme Court has uniformly held that the jurisdiction thereby vested in that court was original and not appellate. Ex parte Mitchell 1 Ann. 413; State ex rel. Cook vs. Keeper of Parish Prison, 15 Ann. 347; State of Louisiana vs. Fenderson, 28 Ann. 82.

There is no attempt in the present case to invoke the aid of our supervision jurisdiction, and it is plain that it could not be applied" to the complaint which these proceedings involve.

Under similar provisions in the Constitutions and laws of other States of the Union, the same construction has prevailed. Prom decisions rendered on the point, respectable authors have culled the following principle:

“In some of the States the Supreme Court, the superior district courts, and other courts of general jurisdiction, are all on the same base, so far as their authority, power or jurisdiction is concerned, relative to proceedings on habeas corpus. They have the same powers, the same authority, the same jurisdiction. The statute has-invested them all with the same panoply of power, and neither sustains to the other the relation of a superior or inferior court, in the same sense that a district, superior or" supreme court is superior to a court of the justice of the peace or other court of special and limited jurisdiction.
“The word ‘superior’ or ‘inferior’ can with no propriety be applied to the jurisdiction exercised by either. It is in each the same, one and identical. ■ Therefore, to ask one of those tribunals to review the commitment made by another would be in reality a sort of collateral appeal from a jurisdiction to itself. And where the officer returns such a commitment, or the warrant is good on its face, the inquiry should extend no further, because the commitment has been made by a court of general jurisdiction, and one court of general jurisdiction should not review the proceedings of .another on the writ of habeas corpus.” Church on Habeas Corpus, p. 304.

The same views are expressed by another author, in the following language:

“ The writ of habeas corpus is designated as a searching- and inquisitorial process, and undoubtedly, may be issued by a court of appellate jurisdiction, on sufficient showing, at any period of the prisoner’s confinement. But when the cause of commitment is shown and the prisoner is found in the custody of a court of competent jurisdiction, not illegally asserted, the writ lias fulfilled its mission and tlie prisoner should he remanded.” Hurd on Habeas Corpus, 2nd Edition, p. 333.

The precise condition of things so clearly depicted in the foregoing-quotations is illustrated in the present case, which goes even a step further in the matter of the elements leading- to a denial of the relief sought at the hands of the appellate tribunal.

It is here shown that, at their special request, the applicants have had a hearing- on the question of bail, before the judge of a court of general jurisdiction, and of special and exclusive jurisdiction of the case on its merits, as well as of all matters and incidents connected with the charge propounded against them and of their arrest and detention. It appears that the preliminary examination which they have had, the avowed object of which was substantially an application for hail, was full and fair, at which the testimony of their own witnesses was taken and considered, and in which they were throughout represented by able and eminent counsel of their own choice.

That examination must he held to have fulfilled the great and primary object of the writ of habeas corpus which is to afford judicial relief to parties who are illegally deprived of their liberty. State ex rel. Condon vs. Sheriff, 36 Ann. 855.

The present record, therefore, on its face, negatives the allegation that the applicants are illegally deprived of their liberty. There is no pretense that new evidence lias been discovered, or that new facts have been unravelled or developed since the preliminary examination. On the contrary, the examination which this court is called to make is in terms restricted to the testimony which has been heard and considered by the district judge. The sole contention here is that he reached an erroneous conclusion of law from the facts elicited at the preliminary examination.

We, therefore, repeat that in inquiring into that evidence with a view to test the correctness or error of tfie district judge’s conclusion in the premises, we would exercise an appellate jurisdiction with which we are not invested. Const., Art. 81.

Our attention is called to the case of Jones Hamilton and another, in which the Supreme Court of Mississippi, it is contended, reviewed the finding of a chancellor on an application for habeas corpus.

The facts of that case are that, on an application for a writ of habeas corpus to the chancellor, the prisoners were denied bail. After indictment they sued out another writ before the Chief Justice of the Supreme Court, who declined to reopen the case, and from that decision they took an appeal to the Supreme Court, where the judgment was affirmed. Southern Reporter, Vol. 3, ex parte Hamilton and another, p. 69.

The appellate jurisdiction of the Supreme Court of Mississippi, in such cases, is derived from Article 2534 of the Code of 1880, which in terms provides for appeals from judgments on applications for habeas corpus.

It is, therefore, clear that tlm case referred to cannot be invoked as a precedent in'the proceedings now under consideration.

We conclude that we have no power to reopen the case of applicants in the manner suggested by their pleadings.

It is, therefore, ordered that the present apxilication for bail be denied and that the proceedings for habeas corpus herein be dismissed.


author: Watkins, J.

text:
    No. 10,308.
    The State of Louisiana vs. Charles Davis, Washington Fletcher and Alfred alias The Kid.
    If tlie record contains neither a bill of exceptions, motion in arrest of judgment, assignment of error or error patent on its face, the judgment appealed from will be affirmed.
    APPEAL from the Criminal District Court, for the Parish of Orleans. Marr, J.

      Walter II. Rogers, Attorney General, for the State, Appellee.

      Lionel Adams for Defendant and Appellant.
   The opinion of the Court was delivered by

Watkins, J.

These several defendants were jointly indicted for the perpetration of a robbery, and Charles Davis and Alfred, alias the Kid, were tried and convicted, and sentenced to imprisonment at hard labor for a period of eighteen months.

The record does not contain anything for the consideration of the court, as we find neither a bill of exceptions, motion in arrest of judgment, or an assignment of error, and there are no errors apparent from an inspection of it, entitling the accused to relief at our hands ex proprio mota.

In such case the judgment appealed from will not be disturbed. State vs. Wise, 38 Ann. 684; State vs. Darrow, 39 Ann. 677.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 10,248.
    The State of Louisiana and City of New Orleans vs. The Traders’ Bank.
    Under tho provisions of Act Mo. 101 of 1886, tho defendant hank is liable to each, the State and tho City, for a license of $600.
    Tlio licenses asked are equal and uniform on all banks within tho purview of the eighth class, mentioned in said act,
    The constitutional requirement that licenses be graduated, loaves it to the Legislature to determine-tho method to be adopted in effecting such graduation. The judiciary has no authority to interfere in such matter, in tho absence of any rule to guide its investigation and scrutiny.
    Tho court cannot distinguish between odious laws and laws entitled to favor.
    Its duty is, when the same are not unconstitutional, to interpret and apply them, as they are found in the statutes.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      W. B. Sommerville for Plaintiffs and Appellees :
    The General Assembly shall graduate tho amount of liceuse tax tobo collected. Constitution, Art. 206.
    It is not in the power of tho courts to lay down any rule for graduating license taxos. 35 Ann. 76 ; 36 Ann. 94; 37 Ann. 42; 38 Ann. 897; 4th So. It. 504 and 512.
    Municipal corporations have tho right to mako rules for the collection of taxos due them. 20 Ann. 674, 708 and 710.
    The Slate and city arc entitled to restraining orders commanding license tax delinquents to desist, from the further pursuit of their business until tlieir licenses are paid. Section 17, p. 184, Act 101 of 1886; Act 119 of 1882.

      While (6 Saunders for Defendant and Appellant:
    1. Defendant bank is sued for State and city licenses under tlve Act oí’ 1886 and the city ordinance.

      2. Its defense is, that the pretended graduation, as to banks, contained in the License Law of 1886, is virtually no graduation at all. As shown by the sfcatomont on file, it finds no application with reference to tho hanks actually existing in this State; all banks, with one single exception, being thrown into one class.
    3. A license law which practically puts all persons pursuing a particular business in the same class, no matter how different tho capitals or results of tho several licenses, is not a graduation under the Constitution, and is, therefore, unconstitutional.
    4. As a law would be unconstitutional which would expressly put all licenses on the same footing without any pretense of graduation, so_ and equally is a law unconstitutional which adopts only a pretext of graduation. By pretext of graduation, wo mean a scheme which refers to business on a scale of magnitude hot known in this State, and the effect of which is to put all licenses in tho same class.
   Tlio opinion of tlio Court was delivered by

Bermudez, C. J.

Tlio plaintiffs sue to recover tlie sum of sis bundred dollars, respectively due them by the defendant bank, for its licenses for the year 1888, payable on March 1st, of that year. Certain interest and attorneys’ commissions are also asked.

The defenses are, that the licenses are not equal and uniform and not graduated, as required by Articles 203 and 206 of the Constitution; that the Act of 1886, No. 101, under which the licenses are claimed, is unconstitutional and void, and that the licenses are demandable under Act 4 of 1882, which fixes the same at $200 for each of the plaintiffs.

From a judgment for plaintiffs, the defendant appeals.

By answer to the appeal, plaintiffs ask that the judgment appealed from be amended by allowing an injunction to prevent defendant from carryin g on its business, until the licenses are paid, which prayer the District Court ignored.

I.

The Constitution, Article 203, provides that taxation shall be equal and uniform, etc.

By reference to the Act of 1886, it appears that the licenses of $600 claimed by the State and by the city as due each, is equal and uniform on all banks constituting the eighth class, namely: those, the capital of which is less than $800,000.

HacLthe licenses claimed been the same on all the other classes, they would be amenable to the charge of lacking equality and uniformity. 23 Ann. 449, 663; 26 Ann. 140; 28 Ann. 102.

II.

The Constitution, Article 206, provides, that “ the General Assembly may levy a license tax, and in such case, shall graduate the amount of such tax, to be collected from the persons pursuing the several trades, professions and callings.”

In a number of cases, this court has been called upon to consider this constitutional provision and to determine the extent of the power vested by it in the Legislature and the mode in which it was to be exercised.

Considering that no restriction was placed by the Constitution on the Legislature, it has held, that this body has the exclusive right of determining the method in which the graduation should take place.

The latitude left may be an occasion for abuses; but the judiciary cannot, on that account, undertake to check legislative and administrative discretion, by correcting mistakes and errors of judgment. 35 Ann. 76; 36 Ann. 94; 37 Ann. 42 j 38 Ann. 397 ; 40 Ann. 463.

The charge that the graduation is not fair and equitable and operates unjustly on tlie defendant, does not authorize this court to institute an inquiry behind the action of the Legislature and to declare that the amount of the licenses asked is disproportionate and excessive, in the absence of any constitutional mandate and of rules of comparison prescribed by the organic law, to enable it to reach such conclusions.

The distinction of laws into odious laws and laws entitled to favor, with a view of narrowing, or extending their construction, cannot be made by those whose duty it is to interpret them. R. C. C. 20.

We do not consider that the defendant claims shelter under the Act of 1888, which was adopted after the licenses had become exigible.

The Act of 1886, and not that of 1882, is the proper authority for the claims herein.

Under Section 17 of the former Act, p. 184, the plaintiffs are entitled to the amendment asked by them.

It is, therefore, ordered and decreed that the judgment appealed from be amended so that the defendant bank be enjoined from pursuing its business until after the licenses sued for shall have been paid and that thus amended, said judgment be affirmed with costs.


text:
    No. 10,274.
    Emancipation of R. P. Pochelu.
    The Supreme Court has jurisdiction of an appeal in emancipation proceedings, -which show that the estate of the minor amounts to $50,000, and in which it appears by affidavit that the interest of the minor in the result exceeds $2000.
    A minor above the age of eighteen years is not entitled to be emancipated unless it appears affirmatively and conclusively from the evidence in the case that he is fully capable of managing his own affairs.
    APPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J.

      Frank D. Chrétien and P. F. Théard & Son for the Minor, Appellant.

      Ambrose Smith and N. B. Trist for the Tutor, Appellee :
    1. The right to entertain jurisdiction upon an appeal from a judgment granting or refusing an application for a decree of emancipation has not been conferred upon the Supreme Court, and cannot, therefore, be assumed. The value of the property of the minor seeking emancipation is not the test and criterion on which the right of jurisdiction is to be ascertained. The minor’s property, whatever its value, is not in such case, the matter in dispute, the control and destination thereof being a mere incident to the judgment; the real issue is the right of the minor to be relieved from the disabilities attaching to minority, and to have conferred on him the full power to do and perform all acts as fully as if he had arrived at t-lje age of twenty-one years. Const. Art. 81 (as amended); 39 Ann. 114; 34 Ann. 834.; 38 Ann. 394.
    2. A minor over the ago ol‘ eighteen years who desires to be emancipated kgs the right to present and prosecute his demand, and is competent to stand in judgment without assistance. Where the minor has a duly appointed, qualified and acting tutor, whose consent is to he obtained, or against whom the proceedings are to he contradictorily conducted, the appointment of a special tutor ad 7ioc, or special tutor is not authorized or sanctioned by the law. C. C. Art. 385.
    3. To be entitled to the decree of emancipation herein sought the applicant must be over eighteen years of age — he must allege and show that he is fully capable of managing his own affairs,— and ho must, besides, assign and prove the existence of good and satisfactory reasons and exceptional conditions, which make the granting of the decree in his favor i>©culiarly desirable and advisable, and most likely to enure to- his benefit and advantage. C. C. Art. 385.
    4. A minor who is unable to manage his own affairs and who is unwilling to work, is not entitled to be emancipated. 4 Ann. 375.
    5. A minor,, though fully and unquestionably capable of managing his own affairs, is not entitled to he emancipated unless, besides this qualification, ho presents and establishes substantial reasons therefor — reasons which commend themselves to the judgment and conscience of the judge as being conducive to the minor’s benefit and promotive of his welfare and advancement. O. C. 385; 10 Ann, 423.
   The opinion of the Court was delivered by

Poché, J.

The minor aj)peals from a judgment which rejects his application to he emancipated.

The suggestion of appellee’s counsel that the ease is not within our appellate jurisdiction is unfounded.

The record shows that the minor’s estate amounts to some $50,000, and he has filed an affidavit alleging an interest exceeding $2000 in the. controversy.

It is easy to conceive that' the right of the minor, who is now over the age of eighteen years, to administer so large an estate until his majority, could involve or produce results, for or against his true interests, exceeding the lower limit of our jurisdiction. Knight vs. Knight, 12 Ann. 59; Burke vs. Wall, 29 Ann. 38.

We, therefore, must decline to dismiss the appeal, and we shall now proceed to examine the case on its merits.

The proceedings are controlled by the provisions of Article 385 of the Civil Code, which reads as follows:

“Whenever a minor, over the age of eighteen years, shall desire to be relieved from the time prescribed by law for attaining the age of majority, he shall present a petition to the judge having jurisdiction, wherein he shall set forth the reasons therefor and also the amount of Ms estate. This petition shall ho accompanied by the written assent of the tutor, if there be one, otherwise by that of a special tutor appointed for that purpose; and this assent sliall contain the specific declara lion that the minor is fully capable of managing his own affairs. If the tutor refuses to give his assent to such emancipation, or shall refuse to appear by way of answer in the application of the minor, he shall be cited according to law, to show cause why the minor should not be emancipated.”

In his answer, the tutor denies that the minor, Pochelu, is capable of managing his own affairs, hence lie refuses to give his assent to the emancipation prayed for.

And the whole evidence in the record is mainly restricted to that issue.

The testimony is conflicting, but a careful analysis thereof, and particularly of that of the minor himself, has led us to the conclusion that in his own interest, the judgment of the District Court should be affirmed.

We understand that no useful purpose can be subserved by detailing, in this opinion, the full analysis, which we have made of the evidence, and of the considerations flowing therefrom, which have led us to the decree which we shall render in the case.

We deem it sufficient to indicate our opinion, that the minor lias not made out a case entitling him to he emancipated.

Judgment affirmed.


author: Fenner, J.

text:
    No. 10,307.
    Henry Guillotte vs. L. A. Poincy.
    1. Under tho law of this State an action to determine a disputed title to a public office can only be brought in the manner prescribed by the statute, viz: In the name of the State, by the Attorney General, or a district attorney, on his own information, or on tho information of another who may be then joined as plaintiff.
    2. Proceedings by injunction cannot be used, as a means of determining disputed title to office; but they may be properly used to protect the possession of officers defacto against tho interference of claimants whose title is disputed until tlie latter sliall establish their title by the judicial proceeding provided by law.
    3. The statutes on the subject of intrusion into office clearly contemplate that the claimant of tho office is the necessary plaintiff in the action thereby provided and that tho officer de facto in actual possession is the necessary defendant.
    4. The claimant cannot take the law in his own hands and, with tho assistance of others, practically oust the incumbent in advance of judicial determination of the disputed right, and he and such others may be properly enjoined from such interference until tho dispute shall be judicially settled.
    APPEAL "from the Civil District Court for the Parish of Orleans. Voorhies, J.

      Lionel Adams, A. L. Tissol and II. L. Lasaras for Plaintiff and Appellee.
    1. Tlie manner of fixing causes for trial in the Civil District Court is set out in Act 23 of 1882.
    2. Injunction cases must “be placed, as soon as they are at issue, on the summary docket from which the cases are required to be called in their order.
    3. Cases which are required by Act 39 of 1880 to be placed on tbe summary docket cannot bo fixed on motion. Rules Civil District Court, rule 9.
    4. Act 23 of 1882 amends and reenacts Act 39 of 1S80.

    5. The actual incumbent of an office can only be removed or his title questioned and determined by an action brought by the Attorney General in the name of the State. R. S., §§ 2593, 2594; Cramer vs. Brown, 26 Ann. 272,
    O. But while title to public office cannot be tried by injunction proceedings, yet pending a contest, the officer defacto is entitled to bo protected from interference with his profession and with the exercise of the functions oí his office. High on Injunction, 1315.
    7. The article of tlie Constitution which confers upon the Governor the power to fill vacancies happening during the recess of the Senate does not extend to eases of vacancies occurring previous to or during the sessions of that body. State ex rel., etc., vs. Raresliide, 32 Ann. 939.
    P. JEJ. Théard é Sons and Omer Villeré for Defendant and Appellant:
    The test of the right to dissolve an injunction on bond is whether the damage resulting from the act sought to be prohibited is compensable in money. C. P. Art. 307; 32 Ann. 1195; 34 Ann. 1181; 37 Ann. 111.
    The test is the same when the injunction prohibits the taking possession of a public office, on the exercise of its functions. 37 Ann. Ill; 36 Ann. 832.
    The sworn allegation that the injury sustained will be irreparable is not binding on the court. The irreparability velnon of the injury is a matter of fact to he ascertained by the court from all tlie allegations of the petition. 33 Ann. 930, 495; 34 Ann. 1181; 32 Ann. 1195.
    An action to determine the conflicting claims of two individuals to the office of flour inspector, for the city and port of New Orleans, must be instituted in the name of the State on the information of the Attorney General. Plaintiff cannot stand in court alone and unassisted by the State. R. S. §§ 2593, 2594; Cramer vs. Brown, 26 Ann. 272; 21 Ann. 710, 655; 33 Ann. 493, 263, 709; 25 Ann. 364 ; 30 Ann. 64; 21 Ann. 18; 23 Ann. 787.
    Injunction is not the proper remedy to try title to a public office. High on Inj., §§ 798, 799; High’s Extra Rem., § 619; 47 Penn. 103; R. S. §§ 2593, 2594.
    The Constitution of 1879 vacated all offices. Since its adoption, the terms of all officers in the Parish of Orleans, unless otherwise provided, must he computed from the first Monday of August, 1880, at which time only the first officers appointed under the Constitution were inducted in office. Wilson vs. Wiltz, 32 Ann. 688 ; Constitution of 1879, Arts. 258, 259, 265, 266.
    The Governor has the power to fill during the recess of the Senate all vacancies, occurring by any cause whatever; hence, he can fill a vacancy occasioned by tlie removal of an officer. R. S. §§ 1577, 2606; 38 Ann. 446.
    The Governor has the power to remove for cause any officer, whose appointment is vested in him. He is tlie sole judge of the existence of tlie cause, and liis action, when he removes, is not subject to correction or revision by the judiciary. R. S. §§ 1829, 1850; Acts of 1877, p. 194, Extra Session; 33 Ann. 452; 25 Ann. 396; 26 Ann. 537.
    Where the power to remove is lodged in the hands of the Governor, the appointment of a successor vice the incumbent of an office is per se an express exercise of that power, and the appointment made during the recess of the Senato to iili the vacancy is valid. 13 Peters 230; Manning’s TTnrep. Cases, p. 74; 19 Ann. 211; 25 Ann. 396. Hence when tizo determination of a contest for an office depends solely upon two commissions, the one bearing the later date must prevail. 25 Ann. 396.
   The opinion of the Court was delivered by

Fenner, J.

Simplified and shorn of redundancy, the averments of plaintiff’s petition are to the substantial effect: that he is the actual incumbent, duly appointed, commissioned and qualified, of the office of member of the Board of Flour Inspectors for the City and Port of New Orleans; that he is entitled, under the Constitution and laws of the State, to continue in the enjoyment and exercise the functions of his said office until his successor is duly appointed and qualified; that the said board is composed of five members, a majority of whom constitute a quorum, and that under its organization the revenues and receipts constitute a common fund placed in the custody of a member appointed as treasurer, whose duty it is to account for the same monthly to the board, and after deduction of expenses, to divide the same equally among the members; that the defendant, acting under the pretended authority of an invalid appointment by the Governor of the State, unless restrained by injunction, will present himself to the other members of said board for recognition as a member thereof, and that the said members, unless also restrained, will grant him such recognition and will admit him, as such member, to the discharge of the duties of said office and to participation in the emoluments thereof, to the irreparable injury of plaintiff; that pending the judicial determination of the disputed right to said office, plaintiff, as the actual incumbent thereof, is entitled to be protected in his possession, and that defendant and Ins fellow-members of the board should be enjoined from any action interfering therewith or infringing his rights of discharging the duties and receiving the emoluments of said office, “until such time as the disputed right thereto shall be judicially determined, after proper proceedings in due course of law.” *

The defendant, Poincy, excepted on two grounds : 1. That plaintiff could not stand judgment without the assistance of the State; 2. that the petition disclosed no cause of action, in this, that the title to public office cannot be tested by injunction.

The exceptions attribute to the action a character wMch, clearly, it does not possess, viz: the character of an action to determine a disputed title to a public office. .If it were such an action, nothing can be better settled than that, under the laws of this State, it could only be brought in the name of the State by the Attorney General (in the parish of Orleans) on his own information, or on the information of any other person interested, and who may be joined as plaintiff therein. R. S. Secs. 2593 etseq; Hayes vs. Tnompson, 21 Ann. 655; State vs. Delassize, id. 710; Osgood vs. Black, 33 Ann. 493.

It is a corrollary of the above principle that an injunction is not a proper remedy to try title to public office. High on Inj. ( 2nd Edition) § 1312-3.

But from the statement given above, it is quite apparent that this action does not invoke any decision upon the question .of the disputed title to the office. Plaintiff says simply: I am the actual incumbent in possession of the office to which I claim to be legally entitled; defendant, claiming under a title the validity of which I dispute, is seeking to oust me extra-judicially, in which effort he will have the aid of my fellow-members on the board; and I ask judicial aid to protect my incumbency and possession, until defendant shall, in due course of judicial proceeding, establish his right and title.”

Such an action falls within a well recognized branch of relief by injunction. The doctrine is announced by Mr. High as follows : While courts of equity uniformly refuse to interfere by the exercise of their preventive jurisdiction to determine questions relating to the title to office, they frequently recognize and protect the possession of officers de facto, by refusing to interfere with their possession in behalf of adverse claimants, or, if necessary, by protecting such possession against the interference of such claimants * * * And the granting of an injunction in such case in no manner determines the question of title involved, but merely goes to the protection of the present incumbents against the interference of claimants out of possession, and whose title is not yet established.” High on Inj., 2nd Edition, § 1315.

Tins doctrine is in the interest of social peace and order, and conforms to the object and policy of the law in all remedial provisions for the settlement of disputed rights, which always respect and maintain the status quo until the controversy shall be settled in orderly course of judicial procedure.

Plaintiff is undoubtedly the de facto officer, because he claims the office and is in possession of it, performing the duties under color of an appointment.” 5 Wait, Actions & Def., p. 7 § 9; Buckman vs. Ruggles, 15 Mass. 180; Com. vs. McCombs, 56 Penn. et. 436; State vs. Howe, 25 Ohio et. 588; Braidy vs. Theritt, 17 Kansas 468.

Such an officer cannot be dispossessed by a third person whose title lie disputes until tlie latter shall first try tlie disputed right. Brady vs. Sweetland, 13 Kan. 41; Palmer vs. Foley, 45 How. (N. Y.) 110.

■ The law of Louisiana has provided a very effective and summary remedy by which persons legally entitled to assume an office, when opposed by a de faeto officer in possession, may provoke a speedy determination of then' right and, if maintained, the prompt dispossession and ouster of the usurping holder. Rev. Stat., §§ 2593 et seq.

The whole purpose and tenor, of the statute conclusively indicate that the proper party plaintiff in the action provided is the party claiming tlie office as entitled de jure, and the necessary defendant is the officer de faeto who holds and possesses it and who is claimed to be an usurper and intruder.

The contention of the defendant that Guillottc, who is the actual incumbent enjoying possession and exercising the functions of the office, is bound to bring the action of ouster against defendant, or could even be listened to as plaintiff in such an action, unless he liad first surrendered tlie office to Poincy, is totally untenable and inconsistent with the statute.

The case of Cramer vs. Brown, 20 Ann. 272, relied on by defendant, is entirely inapplicable, because tlie statement in the opinion shows that, though the plaintiff therein had been the prior incumbent, the defendant alleged that he had entered upon the duties of the office with the consent of plaintiff and had been in the unmolested exercise thereof from June 16th, 1873, up to the institution of the suit; so that it was an action against an officer de faeto, and should properly have been brought under the intrusion act.

In all suits of this nature which have come before this Court,, the defendant has always been, as he must necessarily be, the officer de faeto, either by prior incumbency or by successful intrusion into, or usurpation of, the office.

The object of the present action is not to oust an usurper or intruder, but to prevent such usurpation or intrusion in advance of judicial determination of the disputed right.

We carefully abstain from any expression of opinion upon the disputed title to this office.

We simply hold that the plaintiff is the officer de faeto in actual incumbency and possession, and that, if lie be an usurper and intruder, the plain course pointed by the law to the defendant is to bring his action of ouster, wherein his right may be recognized and enforced. He cannot take the law in his own hands and, with the assistance of others, effect a practical ouster of plaintiff, in advance of judicial settlement of the rights of the parties.

The record shows that plaintiff’s apprehension of disturbance is well founded. It appears on the face of the pleadings that defendant chinned the right to enter into office as a member of the board, and that the remaining members of the board, but for the injunction, would have recognized his right and have admitted him as such member.

Against such action, we think the plaintiff was entitled to relief by injunction, in order to preserve the status quo until the right shall be judicially determined, which is the extent to which the injunction should ’ go.

Abuse of this remedy by officers de facto will be guarded against by the exercise of judicial discretion, which would refuse injunction unless serious showing of apparent right were made, as is certainly done in this case.

In his reasons for judgment, the judge a quo, to some extent, iiasses on the question of title, and his judgment is defective in not inserting the limitation just mentioned which was expressly embodied in the relief prayed for. In this respect it requises amendment.

It is, therefore, ordered and decreed that the judgment appealed from ho amended by reserving the right of defendant, Poinoy, to proceed judicially for the establishment of his claims, and by limiting the injunction to endure only until such judicial determination iu his favor; and, as thus amended, tliat it be now affirmed; appellee to pay costs of appeal.


text:
    No. 10,342.
    State of Louisiana vs. W. L. Tisdale.
    1. One appearing as a witness before tlie grand or petit jury to give bis testimony, must be called and his testimony hoard whether he has been summoned or not — hence sncli person is a witness within the intendment of Revised Statutes, Section 880. .
    2. The hest judicial authority is that the declaration to the jury that they are the judges of the law, must ho followed by au explanation of the sense in which they are the judges of the law; and it is the duty of the judge to give them a knowledge of the law applicable to the ease.
    3. It is well settled law that objections to the qualifications of jury-commissioners must ho urged in the preliminary stages of the trial, and cannot he heard after plea, trial and verdict.
    APPEAL from the Third District Court, Parish of Union. JBarlcsdale, J.

      Walter II. .Rogers, Attorney General, for tlie State, Appellee.

      G. II. Ellis and J. W. Halbert for Defendant and Appellant.
   Tlie opinion of tlie Court was delivered by

Watkins, J.

Tlie defendant was indicted under Section 880 of the Revised Statutes, on the charge of having intimidated a witness; and lie appeals from a judgment, and sentence to imprisonment of one year, at hard labor in the penitentiary.

The indictment avers that one W. L. Tisdale “ did wilfully, feloniously, and by threats and intimidation, attempt to prevent one Janies Oliver, a witness for the State in tlie ease of State of Louisiana vs. L. A. Kayes, in which case the said Kayés was, at the time, charged before the grand jury * with an assault and battery on James Oliver, from appearing' and testifying as a witness before said grand jury, etc.”

During the course of tlie trial, the counsel of the accused requested three special charges to the jury, which were refused ; excepted to one charge given by the judge; and, after the defendant’s conviction, made amotion for a new trial, which was denied; to all of which adverse rulings, bills of exception wei'e retained.

I.

Tli & first charge requested was, “that a person is not a witness, under Section 880, of the Revised Statutes of this State, until a summon has been served on said person, to appear at some stage of a criminal, or civil trial or prosecution;” but it was refused by the judge, on the ground that “ such a construction of the statute would render it perfectly nugatory and inoperative, in many cases, and, besides, would be giving tlie statute a meaning clearly not intended by the law-maker.”

The statute declares that “ whoever shall be convicted of bribery, or attempting to bribe any witness ; or by any force, or threat, or intimidation of any kind, or by persuasion, to prevent any witness in a criminal case, in any of the stages of ])roseeu.iion, from making tlie oath in order to obtain a warrant of arrest, to the final trial inclusive, from appearing or testifying as a witness, shall be sentenced, etc.”

The construction of this statute, which is insisted upon by the defendant’s counsel, is too strained and technical, and the requested instruction to the jury was properly refused.

While it is true" that, for many purposes, in the course of judicial proceedings, one cannot be treated as a witness, until he has been regularly summoned, it does not follow tliat he may not be a witness, notwithstanding process has not been issued for his attendance as such, in a given ease.

For instance, one cannot bo attached and fined for non-attendance, until a summon is first produced, and the service of it duly proved.

Until a summon is produced and due proof made of attendance as a witness, one cannot obtain a certificate, entitling him to compensation for services.

Yet, such person may be called and sworn as a witness, and liis testimony taken in a case, though he has not been summoned.

Indeed, the law declares that “it shall be the duty of alb courts in this State to call and hear the testimony of all competent witnesses, in any case, or proceeding' in open court, when the witness appears to give testimony, whether he is subpcened or not." R. S. Sec. 3960.

Thus, it is affirmatively declared by the Legislature that one appearing as a witness, must be called, and his testimony heard, whether he has been summoned or not; hence the conclusion is perfectly irresistible, that such a person is a witness though he be not summoned as such. State vs. Diskin, 35 Ann. 48; State vs. Kam, 36 Ann. 153; State ex rel. Wickliffe vs. Judge, 39 Ann. 847.

Section 881 of the Revised Statutes — the one succeeding that under which the accused was indicted — provides that “ any witness in a criminal proceeding, in any of its stages from making oath to obtain a warrant of arrest to the final trial inclusive, who shall fail to appear, or give evidence when legally required to do so, by reason of being bribed or persuaded not to do so, upon due conviction thereof, shall be sentenced to imprisonment at hard labor, etc.”

It will be observed that the phrase “ when legally required to do so,” occurring in this section, is absent from the one preceding.

The reason, to our minds, is obvious, and it is, that the Legislature intended that any person tampering with, bribing, or intimidating a known witness, whether summoned as such, at the time., or not, should be punished; but, that such witness, who should yield to such bribery, or persuasion, could not be punished therefor, unless he was, at the time, a duly summoned witness. This distinction is, certainly, a proper one, because there can be no difference to the person tendering the bribe, or resorting' to the intimidation, whether the person prevented from testifying was summoned or not, as, in either event, the evidenee is gotten rid of; while, on the other hand, the person bribed or persuaded, being duly summoned as a witness, occupies altogether a different position from the one he occupied before he was summoned. For by tbe summons it is made known to Mm that Ms testimony is required by tbe court, and be is commanded not to depart under tbe penalty of the law. If he contravenes that command, he is denounced as guilty of a penitentiary offense — a felony. If he has not been summoned, he may reasonably infer that the officers of justice were not aware of, or did not require Ms testimony.

The present case aptly illustrates the propriety of such an interpretation of the word “ witness,” as coming within the intendment of the ■statute in question, because the foregoing quotation from the indictment against the defendant shows, that the intimidated witness, James Oliver, was the person upon whom Kayes had committed an assault and battery, and was the prosecutor of the defendant in State vs. Kayes, pending an investigation before the grand jury.

Under such circumstances, Tisdale must have known that the finding of the grand jury greatly depended on the testimony of this individual before that body, and that, by intimidating Mm, and preventing him from testifying as a witness, an indictment against Kayes might be prevented. Surely, it does not require argument to demonstrate that the conduct of Tisdale was just as reprehensible as though Oliver had been regularly summoned as a witness, to appear before the grand jury, and that to his knowledge. The effect of intimidation in either case is just the same; and the motive which superinduced it, likewise, the same.

Evidently the Legislature intended to prevent and suppress sueh practices, and imposed severe penalties upon those violating its behest; and we deem it our imperative duty to rigorously enforce them. We approve the ruling of the trial judge.

II.

The second charge requested was “that the jury were the exclusive judges of the law, Section 880 of the Revised Statutes of this State, under which the defendant is charged as well as of the evidence.” It was refused, for the following reasons, viz:

“ The court had already read Section 880 R. S. to the jury and had charged them that they were the judges of the law and the evidence, after being charged by the court as to the law applicable to the case.
“Besides, juries are not the exclusive judges of the law, in the sense counsel desired the'court to charge; and the charge asked would only have tended to confuse the jury, if given after the court had fully explained to the jury the sense in which they were judges of the law, as had been done in this case, and defendant had not excepted thereto.”

Counsel for the accused qites in his brief, as supporting his objection and exception to the judge’s declination to charge the jury as he requested, State vs. Ford, 37 Ann. 465, and State vs. Johnson, 30 Ann. 905. It appears to us that they could have been- more appropriately cited in support of the judge’s ruling.

In the latter case the court said:

“ It is not correct to tell a jury that they are the judges of the law, without explaining the modified sense in which alone they are so. It is not, and never has been, within the province of á jury to decide what the law of a case is. Except in periods, when-revolutionary passions dominated men’s judgments, a jury has never been supposed to have the legal right to disregard the law pronounced by the court to them.”

In the former, after quoting- Article 168 of the Constitution, the Court said:

“ In formulating this familiar rule of criminal law, the framers of the Constitution did not purport to announce a new, or unknown doctrine. They merely proposed to incorporate into the organic law a principio which had been steadily enforced in our criminal jurisprudence since the dawn of its existence. State vs. Johnson recently decided. The best judicial authority is that the declaration to the jury that they are the judges of the law and of the facts must be followed by an explanation similar to that contained in the charge now under consideration.”

We have quoted from these two leading opinions, the foregoing extracts, because we deem it of importance that the principles announced should be constantly borne in mind, and given to juries in criminal trials as a sound exposition of law.

The trial judge seems to have been mindful of them, and was not guilty of any error in ruling as he did. State vs. Matthews, 38 Ann. 795; State vs. Cole, 38 Ann. 843.

III.

The third charge requested was that “tire jury were the exclusive judges of what is meant or intended by the word witness,’ in Section 880 of the Revised Statutes of the State of Louisiana.”

The judge a quo assigned as a reason why he declined to charge the jury as requested, that “ the court had already charged the jury as to whom were witnesses as contemplated by the section referred to, and that they (the jury) were judges of the law after being charged by the court as to what the law is; and defendant had not excepted to this charge.”

It has often been decided that “when an instruction to a jury appears misleading, it should be excepted to at the time, in order to give the court below an opportunity to correct the erroneous instruction.” 9 Ann. 210; 10 Ann. 458; 34 Ann. 105; 35 Ann. 543; 37 Ann. 51, 77.

The law provides that “in charging the jury in criminal cases, the judge must limit himself to giving them a knowledge of the law applicable to the ease.” R. S., Section 1936.

If, as the judge certifies, he “ had already charged the jury as to whom were witnesses as contemplated by the section referred to,” he had only given “them a knowledge of the law applicable to the case,” as ho was required to do; and, if in giving them the instructions he did, he committed an error it cannot be remedied by an application for a different charge at a subsequent .stage of the proceedings. State vs. Jones, 36 Ann. 204.

IY.

Counsel for defendant excepted to a portion of the judge’s instruction to the jury, and which he states, in Ms bill of exceptions, to have been as follows, viz:

“I charge you, gentlemen of the jury, not to consider any statement made by the counsel for the defendant which is not supported by the sworn testimony given in before you.”

The trial judge certifies that “ the court did not charge as stated above, by counsel in preparing this bill.” He then proceeds to make a statement, giving, in substance, what he said to the jury on this question. He says:

“ The charge which defendant excepted to, was given, as nearly as now remembered, in the following words — that the jury were to decide as to whether the defendant was guilty, or not guilty — that, in coming to a conclusion on this issue, they could not consider any statement of fact made by counsel in argument, which was not supported by evidence adduced on the trial, but must, under their oaths, consider the law as given in charge by the court, and the evidence adduced, and rehearsed and read in their hearing.”

As we have frequently decided, when there is a difference of opinion between counsel and the trial judge, appertaining to any question of fact occurring in the course of the trial, and the evidence has not been reduced to writing, and brought up in the transcript, we are bound to accept the version of the judge. Adhering to this rule, the alleged discrimination of the judge against counsel for defendant disappears, as the certificate states that reference was made in Ms charge to “ counsel” in general terms, and that it was not restricted in its application to the counsel of the defendant.

The burden of defendant’s counsel’s complaint of this charge is, as will appear from his brief, page 3, viz:

“ This charge is too restrictive, and is not borne out by any law, custom or usage; it is an infringement of the rights of the accused awarded him by the plain provisions of the Constitution. It restricts the consideration by the jury of the statements of counsel for the accused, while it leaves them untrammelled in considering statements made by the counsel for the State, though they wander far and wide from the record and misstate the sworn testimony in the case; This charge was injurious to the accused, and should not have been given.”

Under this phase of the question, there is no well grounded objection to the charge.

P.

The defendant’s next bill of exception relates to the refusal of the trial judge to grant him a new trial, the grounds for which are that the jury-commissioners who drew the venire wore not the legal jury-commissioners, and that said commissioners failed to take the special oath required of them by law.

Nothing appears from the record, of any objection having been urged on this score, in the preliminary stages of the trial; in fact, an affidavit was made by the defendant, and by his counsel, that they did not know of the. want of capacity of the jury-commissioners, until since the trial and verdict. The counsel insist that this complaint is well-founded, and is a matter of substance and that their objections maybe urged after verdict, and by motion for a new trial, citing: State vs. Whitington, 33 Ann. 1403; State vs. Watson, 34 Ann. 669; State vs. Thomas, 35 Ann. 24.

Neither of those cases present the question we have here. Two of them appertain to the want of qualifications of jurors, and the other to. the unauthorized appointment of one not a juror, and whose name did not appear on the venire, as clerk of the grand jury. Upon suitable affiidavit the defendant was permitted to take advantage of such objection by way of a motion in arrest of judgment, not by way of an application for a new trial. The want of capacity of the jxiry-commissioners assigned, is matter of record, and by the exercise of any sort of diligence, defendant could have known it before he went to trial.

In State vs. Washington, 33 Ann. 896, this Court said that “sncli objection, urged only after plea and trial, and motion for new trial, comes too late. It is well settled law, that objections to the qualifications of jury-commissioners * * must be urged in the preliminary stages of the trial, and cannot be heard after plea, trial and verdict.” State vs. Jackson, 36 Ann. 96; State vs. Watson, 31 Ann. 379; State vs. Miles, ib. 825.

We are not satisfied with defendant’s simple' denial under oath that he did not know of the disqualifications of the commissioners until after trial and verdict. If, upon sucli a simple and qualified averment, an accused person may escape the consequences of conviction, the right of the State to enforce punishment, is hold by a feeble tenure, indeed.

We have examined all the complaints of the defendant, and fool assured that none of them are meritorious.

Judgment affirmed.


author: McEnery, J.

text:
    No. 10,332.
    The State of Louisiana vs. Eugene Brown.
    It is well settled that wherever there is a chango in phraseology and a word not in tlio Statute is substituted in the indictment for one that is, and tlio word thus substituted is equivalent to the word used in the Statute, or is of more extensive signification than it, and includes it, the indictment will be sufficient.
    In an indictment for inflicting a wound less than mayhem, with a dangerous weapon, the character of the weapon is a fact to be determined by the jury. Rulings in cases of State vs. Jacobs, 10 Ann. 141; State vs. Scott, 39 Ann. 943.
    APPEAL from the Criminal District Court for the Parish of Orleans Baker, J.
    IF. II. Boyers, Attorney G-eneral, and O. II. Lvacnbery, District Attorney, for the State, Appellee.

      Jas. C. Walker, Amicus Gurioe.'

   The opinion of the Court was delivered by

McEnery, J.

The accused was indicted and convicted for inflicting a wound less than mayhem and sentenced to imprisonment at hard labor for two years.

The information charged that he “did wantonly and maliciously, with a dangerous weapon, to.wit, a knife, feloniously inflict a wound less than mayhem.”

The record contains no bill of exception, assignment of errors, or motion of any kind.

Our attention, however, is called in the brief of counsel for the accused to alleged defects apparent on the face of the record.

These are the use of the word “wantonly” instead of .“wilfully,” found in the statute, and the word “knife,” instead of “bowle, dirk knife,” etc., as employed in Sec. 932, R. S., to describe a concealed weapon.

It is well settled that wherever there is a change made of phraseology and a word not in the statute is substituted in the indictment for one that is, and the word thus substituted is equivalent to the word used in the statute, or is of more extensive signification than it, and includes it, the indictment will be sufficient.

Wanton is of greater significance than wilfull mid includes it in its meaning. Wharton, par. 37(3, (itli od.; State vs. Williams, 32 Ann. 335.

The statute does not describe any particular kind of weapon as dangerous, and the character of the weapon is a fact to bo determined by the jury. Section 932 of- the Revised Statutes, in which the offense is carrying a weapon concealed, describes the weapon, and the designation of the weapon applies exclusively to the crime denounced in that section. The words “or any other dangerous weapon,” following immediately the kind of weapons declared to be dangerous, refer to oilier weapons not included in the description, but of the same class.

In State vs. Nelson, 38 Ann. 942, the law as stated, applies exclusively to the offense in Sec. 932 R. S., and can have no reference to other sections of the Revised Statutes in which the use of a dangerous weapon in inflicting wounds is made an offense, because in those sections there is no. description of a dangerous weapon. ■ The grievance of the offense in them is the inflicting of the wound less than mayhem, the stabbing, cutting and thrusting, and it may be well left (o the jury to determine the dangerous character of the weapon with which the wound is inflicted.

The question raised by the defense is not an open one. It has been, definitely and finally settled in the case of State vs. Jacobs, 10 Ann. 141, and State vs. Scott, 39 Ann. 943.

Judgment and sentence affirmed.


text:
    No. 10,352.
    The State of Louisiana vs. Laurent Pujo.
    Tlio appellate jurisdiction oí tlie Supremo Court iu criminal cases, does not extend to questions oí iaot touching the guilt or innocence oí the accused; but is restricted to questions of law. * '
    That court cannot review the action of atrial judge determining a motion for a new trial, grounded on questions of fact and relating to rulings made during tlio trial, to which no bill was reserved.
    Neither can it review such action, although a bill bo taken to tlie refusal of the judge to hear irrelevant testimony, in support of such motion for a new trial, when, had the testimony been heard and the motion denied, it would not have had the right or power to inquire into the sufficiency of the facts proved to justify the granting of a new trial.

      An unintended act derives its character from the intended crime. The original malicious intent affects both. A verdict and sentence in such case is a bar to further prosecution.
    APPEAL from the Fourteenth District Court, Parish of Calcasieu. Bead, J.

      Walter TT. Boyers, Attorney General, and J. G. Gibbs, District Attorney, for the State, Appellee.

      Vournet c& Pujo for Defendant and Appellant.-
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant was prosecuted for shooting with intent to murder, and on conviction, was sentenced to twenty-one years imprisoment at hard labor. He appeals from the verdict and sentence,

The record contains a motion for a new trial and a bill of exception.

The former is based on the ground that the verdict is contrary to law and evidence.

It states a discrepancy between the matters charged and those proved; it relates to evidence which is alleged to have illegally gone to the jury and charges that the verdict rendered, would be no bar to further prosecution. The whole complaint, after all,' is that the defendant was indicted for shooting at Rose Williams alias Pujo, named in the indictment, while the facts show that he intended to shoot and did shoot at another, not named in the bill.

When the motion for a new trial came úp for hearing, the defendant offered testimony in support thereof; but the same was, on the objection of the District Attorney, not admitted.

For so ruling, the dictrict judge states:

That the object to be established by the witnesses was not a proper subject for inquiry j that one juror could not know the reasons for the verdict of another, and that if the shooting at another person is a separate crime, this should not operate as a bar, and if it is the same, the verdict is full bar.

It is clear that it is impossible for this Court to determine whether the-district judge ruled correctly or not, as it has no jurisdiction over the facts submitted to the jury, touching the guilt or innocence of the accused, and as the rulings of the district judge on questions of evidence arisen during the course of ■ the trial are not presented in the proper form.

The bill of exception is taken to the refusal of the district judge to hear testimony in support of the motion for a new trial, which he considered irrelevant.

Had the witnesses been heard and had the judge, notwithstanding their testimony, refused the new trial, we would have had no authority to review his finding, for the reason that the matters at issue involved questions of fact.

The trial judge correctly refused to hear the testimony, for the reason that, had it been received, the defendant would have been as guilty for shooting as he says he did, as for shooting as he is charged to have done. Wharton Cr. L. 2346; State vs. L. Vines, 34 Ann. 1079.

The verdict of guilty and the sentence on it, would be a bar to further prosecution.

Judgment affirmed.


author: Poche, J.

text:
    No. 10,322.
    Heirs of Gee vs. G. W. Thompson and A. H. Burns. Heirs of Gee and Saunders vs. G. W. Thompson — A. H. Burns, Third Opponent. Heirs of Gee and Saunders vs. A. H. Burns, Garnishee.
    consolidated.
    The husband may become a creditor of the community for amounts of his separate funds invested for the benefit of the community.
    At the dissolution of the community the husband’s .judgment creditors may claim all flic rights and credits accruing to him from the community.
    The heirs and legatees of the wife, if they accept the community, will become liable for the debts of-the same to the extent of their shares therein.
    To entitle the husband to claim as a creditor of the community, the law demands substantial proof that the amounts were actually invested by him in the community.
    It is not sufficient to prove that during the marriage the husband received large amounts of separate funds, if it appears that ho spent a portion for his own pleasure and convenience and those of Ms wife; that he lost another portion by unfortunate loans, or by investment in securities which he afterwards disposed of.
    APPEAL from tlio Eleventh District Court, Parish of Natchitoches. Pierson, J.

      Scarborough, <& Carver for Plaintiffs and Appellants.

      Jaelc & Pismulces contra.

   The opinion of the Court was delivered by

Poche, J.

The transcript in this appeal contains the proceedings of a conglomeration of six distinct-suits which were consolidated for trial in the District Court for the alleged convenience of the numerous parties thereto and of their counsel, but, as it happens to the great inconvenience of the Appellate Court, whose labors have thus been increased to an intolerable degree, we, therefore, desire to be understood as discountenancing such a mode of proceeding. These numerous suits were not between tire, same parties, or parties in the same capacity, and rested on different and varied causes of action.

Fortunately for the court and other litigants having business before it, the appeal has been abandoned in three of the cases thus cumulated, and pur labors have thereby been confined to the examination of three of the aforesaid suits, as enumerated in the title of this opinion.

I.

.The first of these suits is an action for damages on an injunction bond against. G. W. Thompson as principal and A. II. Burns as surety.

It grows out of the following facts and proceedings:

In the matter of “The succession of B. L. Saunders on opposition of Saunders Heirs and Gee Heirs,” this court rendered a judgment, reported iu 37 Ann.’, p. 769, against G. W. Thompson, in favor of the heirs of Saunders, in the sum of $3444 44, and in favor of the heirs of Gee for legal interest on that sum from June 17, 1874, to the death of Hannah P. Gee, who had been the usufructuary of the fund due to the Saunders heirs.

Execution of that judgment having been issued at the instance of the Gee heirs, Thompson sued out an injunction on certain grounds, which were held untenable by this court in the case entitled: “State ex rel. Heirs of Gee vs. Drew Judge,” reported in the 38th of Annuals, p. 274. Under the effect of that judgment the injunction fell, and the seizing-creditors then brought the present suit for damages, which resulted in a judgment in their favor for the sum of $324 12. In this court they have prayed for an increase of the allowance in their favor up to $365 52.

Appellants’ counsel have been, utterly reticent, both in oral argument and in their brief, on the subject of that suit, thus leaving but one question open for discussion; and that presents appellee’s demand for an increase of the judgment in their favor. The district judge allowed as damages the actual losses sustained by the seizing- creditors, with interest of 10 per cent per annum on the amount of the execution enjoined, which was $1614 58.

Appellee’s contention on appeal is that, under the provisions of Article 304 of the Code of Practice, they are entitled to interest of 10 per cent per annum on the amount of their execution, for three months and five days, and damages of 20 per cent on the same, which, together, would foot up $365 52. As it appears from the decision of this court, in 38 Ann. 274, that the proceedings instituted by Thompson were a reprehensible abuse of the remedy of injunction, we think that the contention of appellees is well founded, and we shall, therefore, allow them the increase which they request at our hands.

II.

As the two other suits involve issues closely blended together an d present the combined and continued efforts of the heirs of Gee and of Saunders to recover on the judgment rendered in their favor jointly in the case of the succession of B. L. Saunders, 37 Ann. 769, we shall, as did the district judge, treat them together and dispose of both in the same decree. While the litigation between Thompson and these parties was progressing, Mrs. Sallie E. Burns, wife of G. W. Thompson, brought suit against him for the recovery of her paraphernal funds, and for the dissolution of the community; in which the lieirs of Gee and of Saunders intervened for the purpose of protecting tlioir rights as judgment creditors of Thompson. That litigation, which is reported under the title of “Burns vs. Thompson,” in the 39th of Annual, p. 377, resulted in a judgment in favor of the wife for $1972 24 for her paraphernal funds, with recognition of a legal mortgage, dissolved the community between the spouses, and reserved the right of the wife to claim against her husband such additional sums as lie might have received for her out of the succession of one of her sisters.

Shortly thereafter Mrs. Thompson died without issue, leaving a will by which she instituted her brother, A. PI. Burns, the appellant herein, as universal legatee. Having- accepted the legacy, Burns made himself a party by third opposition to the litigation pending between Thompson and his judgment creditors. His main contention was his alleged superior mortgage to secure the amount of his sister’s paraphernal fluids as recognized by our decree in the case of “ Burns vs. Thompson,” 39 Ann. 377, together with an additional sum of $1611 87, under the reservation made in her favor in our decree. It is conceded by appellees that the sum total of Mrs. Thompson’s paraphernal funds, received by her husband, would thus be footed up to $3584 11. But the priority of mortgage claimed is denied for reasons to be hereinafter considered.

Those are the issues presented in the second of the above entitled causes.

Tire third suit is an action by appellees against Burns as garnishee, and it involves the contention that the indebtedness of the community to Thompson largely exceeds the amount of the wile’s paraphernal funds as judicially determined, and that the share of the community accruing to the legatee after satisfaction of the amount due to the deceased, was liable to Thompson and incidentally to his judgment creditors for the excess in l)is favor under a proper liquidation of the community.

The district judge [found that Burns, the appellant, had accepted the community as well as the succession of his sister as unconditional heir; hence lie ruled against him on Ms third opposition for superiority of mortgage; and he held him a debtor to the community in the sum of $3032 94, to be paid out of the proceeds of the community then under seizure.

These are the two decrees which we must now review. But they are depending upon issues closely blended together, and lienee they can be controlled by the same considerations.

The agreement of counsel for the consolidation of the cases in the transcript contains the following stipulation :

That all objections to ¡the mode of proceeding shall be and are hereby, waived, and said cases shall be submitted to the court as a matter of account to be liquidated.”

We shall, therefore, treat the two cases as presenting but one issue, which involves the proper liquidation of.the community once existing between G-. W. Thompson and Sallie E. Burns, his wife.

The solution of the -case involves the discussion of three propositions, which, are as follows :

1. The right of Thompson’s creditors to enforce their judgment against any balance which may be found in his favor in the liquidation of the community. ,

2. Whether Burns has or not accepted the succession and the community of the deceased as an unconditional heir.

3. To ascertain whether Thompson is a creditor of the community.

I.

Under the settled jurisprudence of the State it is undeniable that the husband may become a creditor of the community for any amount of his separate funds actually invested by him for the benefit of the community; and that at the liquidation thereof he is entitled to be reimbursed all such sums. Denègre vs. Denègre, 30 Ann. 275; Succession of Merrick, 35 Ann. 296; Succession of Boyer, 36 Ann. 506; Bartoli vs. Huguenard, 39 Ann. 411.

And it lias been held on abundant authority that the husband, as such creditor, “ is entitled, like any other creditor, to have the community property sold in satisfaction thereof, ¡in order that the residue, if any remaining in common, may he ascertained.” Succession of Merrick, 35 Ann. 297.

Now it is an elementary proposition, needing no support by authority or even hy argument at this stage of judicial history, that the judgment creditors of an insolvent can claim all of his available means and resources not exempt from seizure hy law, and that to reach the same they are legally authorized to exercise all the rights and to judicially urge all the claims and demands which he himself could do in his own behalf.

Hence we conclude and we hold that the judicial standing of appellees in this case to claim all that may accrue to Thompson as a creditor of the community heretofore existing between his wife and himself, is nnassailabie.

Wo have been at great pains, at the cost of tedious labor, to examine the almost innumerable authorities which appellant’s counsel submit on this point.

But they have no hearing on the two propositions which underlie the right of action claimed by appellees in this case.

Appellant’s proposition is that “in no case, and under no form of action, ca.n an antenuptial creditor of the husband be allowed to provoke a liquidation and settlement of the affairs of the conjugal partnership with the view and to the end of ultimately subjecting the community interest of the wife to the payment of his debt..”

If such was the nature of the case before us, there would he. no room for discussion under textual provisions of the code. But there is no attempt here to subject the community interest of the wife to the payment of tiie husband’s debts contracted before his marriage.

The object sought is to ascertain whether the community is indebted to the husband,-and to claim therefrom the amounts which may he due to him, and to subject these, his property, to the payment of his debt contracted before marriage.

II.

■ On the second point of discussion we are convinced, with the district judge, from the record, that Burns has accepted the succession of his sister as an unconditional heir, and that, hy liis judicial declarations, and by other acts, he has evinced his unmistakable intention of accepting the community hitherto existing between these spouses.

Hence he must he dealt with as if we were considering the legal attitude of the wife herself who had accepted the community after its dis ■ solution by our judgment in the case of Burns vs. Thompson, 39 Ann. 377. Having accepted the community she would become liable for its debts to the extent of her share therein. Collins vs. Babin, 16 Ann. 290; Lynch vs. Benton, 12 Rob. 113; Ludeling vs. Felton, 29 Ann. 719. And that is precisely the measure which must bo meted out to the appellee Burns in his present attitude in the litigation.

III.

On the third point of investigation the district judge found an indebtedness of- the community in favor of the husband in the sum of $9650, from which he deducted the amount of the wife’s paraphernal funds, $3584 11, leaving a balance to the credit of the husband amounting to $6065 89, one-half of which is extinguished by confusion, thus leaving the husband a creditor in the sum of $3032 94, for which judgment was rendered against Burps, the appellant.

The credit, as found in favor of the husband, was composed of the following amounts found by the judge to have been invested and used for the benefit of the community by the husband, out of his separate funds, to-wit:

Proceeds of an immovable sold after marriage and used for the community........................................ $ 900 09

Cost of a pleasure trip for himself and wife................. 2,000 00

Amount invested in railroad stock.......................... 800 00

Amount of a loan to commercial firm, which subsequently failed, causing loss of................................... 1,500 00

One-fourtli cost of a steam engine and fixtures............... 750 00

Other funds used for community............................ 3,700 00

Total...............................................$9,650 00

We are satisfied from the record that besides the amount realized from the sale of a piece of immovable property, which forms the first item, Thompson inherited .in 1870, from the succession of a cousin of his, about $10,000.

But the crucial question is to ascertain what proportion of those funds ho invested for the benefit of the community. On that point the burden of proof is on the husband or those claiming under him.

The rule which governs the question has been formulated as follows:

The law demands substantial proof that the amounts were actually invested in tlie community by tlie husband.” Succession of Rhodes, 39 Ann, 474; Succession of Foreman, 39 Ann. 700; Succession of Breaux, 38 Ann. 728; Succession of Boyer, 36 Ann. 506.

And it is also settled'that the solution of these claims must be made on the status of the community as its dissolution. Thibodaux vs. Thibodaux, 16 La.; Bartoli vs. Huguenard, 39 Ann. 411.

The measure of tlie rule, is not filled by proof that during the marriage and under the regime of the community, the husband received large amounts of separate funds, which he spent or used at his will, or which he invested in loans which he subsequently lost, or in values or securities which he afterwards sold. It must be borne in mind that the husband is head and master of the community which he administers without the consent and permisión of his wife. C. C. 2404. A fortiori can he thus dispose of his own property and funds.

Hence it follows that tlie amount spent by Thompson for a pleasure trip with his wife, tlie loan which he made to an unfortunate firm, the investment which he made in railroad stock, are not legal charges against the community, and that these three items must be stricken out of the credits allowed him.

Appellees’ counsel have prayed for an increase of the allowance for machinery bought with the husband’s separate funds. The proof is that the machinery was placed on a plantation, one-half of which belonged to the husband aloue, and tlie other half to the community. One-lialf of tlie cost should have been charged to the community, instead of one-fourth, as was done.

We are satisfied of the correctness of tlie two other charges made by the district judge, to-wit: The sums of $900 and $3700 which were used for the benefit of the community, mainly by enhancing the value of its property.

We, therefore, conclude that the account between Thompson and the community should be recast, as follows :

Thompson’s credits:

Funds realized from the Minden property...................$ 900 00

One-half cost of machinery................................. 1,500 00

Other funds used for the community............ 3,700 00

Total.......................................... $6,100 00

Deduct paraphernal funds of wife........................... 3,584 11

Balance credits......................................$2,515 89

Extinguished by confusion................................. 1,257 95

Balance in favor of Thompson........................$1,257 94

It is, therefore, ordered that the judgment appealed from in the case of heirs of Gee vs. Thompson, and A. K. Burns as surety, he amended by increasing the amount allowed to plaintiffs, as damages, from $342 12 to $365 52, and that as thus amended said judgment bo affirmed at appellant's costs.

It is further ordered that the judgment appealed from in the two other cases, as entitled in this opinion, be amended by decreasing and reducing the amount of the moneyed judgment against A. II. Burns $8032 94 to ($1257 95) Twelve Hundred and Fifty-seven Dollars and Ninety-fixe Cents, and that, as thus amended, said judgment be affirmed at appellee’s costs on appeal.

Mr. Justice Watkins recuses himself.