text:
    No. 8852.
    The State of Louisiana vs. Washington Morgan.
    An instrument which reads as follows: “December 23d, 1882. Bleas lot James Johnson have ten dollars worth of dry goods, $10, and send the Bill, J. Dillixoeh,” which is transcribed in full in an indictment for forgery, supported by proper averments, is an order sufficient to sustain a prosecution and to justify a verdict.
    In a prosecution for forgery, the person whose name is alleged to have been forged is a competent witness to prove the forgery 1 Martin, p. 214, reaffirmed.
    Proof that the accused, with knowledge of the character of the instrument, attempted to pass it in the parish where the charge is brought, is sufficient proof of the venue, even where the instrument does not show on its face that it was executed in that parish.
    A clerical error in writing a name in an indictment cannot be invoked as vitiating the proceeding. State vs. G-iven, 32 An. 782.
    ApPEAL from the First District Court, Parish of Caddo. Jones, J.

      J. G. JSgan, Attorney General, for the State, Appellee:
    1. The person whose name is alleged to he forged is a competent witness to prove the forgery. 1M.215.
    2. A bill of exceptions will not he considered and passed upon when it is not plain and explicit as to the objections of defendant and ruling of the court thereon.
    .3. The Judge a qua is not confined or limited to the charge, or the use of language thereof, asked by defendant.
    4. In an indictment for forgery the setting forth of the forged instrument in full cures any lack of definiteness or technicality in the name given to said instrument. 13 An. 300; 3 . Eng. Law and E. Bep., p, 633; 27 An. 361.

      5. Eorgery is a “ a false making; ** a making malo animo, of any written instrument, for the purpose of fraud or deceit. 2 East. P. C. 852.
    6. An order to deliver goods, which is addressed to no one, may be the basis of a prosecution for forgery. 2 Lea, (Tenn.) 513; 52 Iowa, 68.

      M. S. Grain, District Attorney, on the same side.

      Hieles & Hieles for Defendant and Appellant:
    1. In criminal prosecutions, the rules of evidence prevailing in England in 1805 govern in this State. B. S. 976 ; 1 M, 111; 16 An. 274 ¡ 33 An. 1333. ,
    2. Therefore, he whose name is alleged to have been forged is an incompetent witness to prove the forgery. 2 Russ on Crimes, 392; Boscoe’s Crira. Ev. 141.
    3. Where the forged instrument is copied in the indictment, a variance between the copy and the instrument offered in evidence, in a letter, if it make a different word, is fatal. Arch. Crim, PI. 49, 293 ; 8 B. 540; 13 An. 300 * Bos. E. 511.
    4. The Judge did not define the crime of publishing aforged order, hut assumed that accused uttered the order, and instructed the jury that was sufficient evidence of his guilt, if the order was a forgery, and the judgment must he reversed without any exception having been taken. B. S-, Sec. 991; 32 An. 1100 ; 34 An. 106; 12 R. 162-6. A charge to the jury that an order not made in favor of the accused, nor indorsed, is not on its face the subject of forgery, but becomes so if he was unknown to the party to whom he offered it, with knowledge of the forgery, is erroneous.

      5. A charge that an offer to pass a forged instrument in the parish of Caddo, with full knowledge of the forgery, is sufficient evidence of the forgery in that parish, is erroneous. Eesty’s Am. Crim. Law, 150 q.; 3 G-. E., See. 112.

      6. We must look to the common law, as modified, explained and perfected by statutes in 1805, for tbe definition of a forged order; (R. S., Sec. 976 ; 8 R. 545 ; 30 An. 847; 33 An. 1292) j and it ia well settled that a mere request was not an order; and tbe forgery of a request to deliver goods was not punished till the passage of tbe 1 William, 4. 2 Russ, on Crimes, 516, 517, 520, 521, 526, 529; 6 Xerg., Tenn. Rep. 377, 384.
    7. A mere request to sell Johnson goods, if genuine, without indorsement or allegation of tbe accused’s right to receive tbe goods, does not show any liability of tbe drawer for the price of the goods, if delivered, and tbe indictment is bad. 2 R. C. L., 5th ed., Secs. 533, 537, 538, 541, 544, 545.
   The opinion of the Court was delivered by

Poché, J.

The accused appeals from a conviction of forgery and a sentence to ten years’ hard labor, under the following instrument, which was transcribed in full in tbe indictment:

“ December 23d, 1882.

Bleas let James Johnson have ten dollars worth of dry goods, $10, and send the Bill. J. Dillinger.”

He seeks relief on the ground of alleged errors, which he submits under several bills of exceptions :

1. He urges the incompetency, as a witness, of Dillinger, whose , signature is charged to have been forged, and rests bis objection on the common law rule of incompetency, on the ground of interest. An exactly similar objection was considered by this Court in the early case of Territory vs. Barran, 1 Martin, 214, in which the question was very carefully examined. In that casewe find the following language : The general principle of the common law in regard to the inadmissi- ■ bility of a witness, on account of interest in the event of the suit, is now clearly understood. It is confined to such cases in which the verdict may be given in evidence in a suit brought for or against the witness. In other cases the objection is said to go to bis credibility only. In this manner is the law now understood in England and the United States.” The opinion concludes with a ruling favorable to the competency of the witness. That decision was rendered several years after tbe enactment of the statute of 1805, under which the methods of trial, the rules of evidence, etc., prevailing under the common law of England were adopted as rules in criminal prosecutions in this State, and we adopt its reasoning as a correct interpretation of the rule as it then existed under the common law. Hence, we conclude, that the District Judge did not err in admitting the testimony of Dillinger to prove the forgery of his signature to'the instrument charged to have been forged.

2. The accused asked the court to charge that, if the order does not authorize Washington Morgan to obtain goods, and if there is no endorsement from James Johnson, it could not be the subject of forgery by the accused. The charge was given with the following modification, which is objected to : That if the jury found that the prisoner was a stranger to and unknown by the person to whom he attempted to pass the instrument, with full knowledge of its character, knowing it to be forged was sufficient.” There is no error in the charge as given, as it embodies the very essence of the crime of forgery as defined in our statute. The act thus described would show double deception, personating the party described in the order and publishing the forged instrument. ..

Nor is there error in the charge that, while the order did not purport on its face to have been executed in the parish of Caddo, the proof of the venue was sufficient, if the jury found from the evidence that the offer to pass the instrument by the accused, with full knowledge of its character, was made in the Parish of Caddo.

3. The defendant moved in arrest of judgment on the grounds: 1, that the order was not addressed or directed to any person; 2, that the instrument was a mere request and not an order.

The test under both of these propositions is to be found in the answer to the question whether Dillinger could have been held liable to any person who would have filled the order if proved to be genuine. It is plain to our minds that his liability could not be questioned for a moment. His undoubted liability under such circumstances and his alleged consequent interest in the issue of the case are the very grounds invoked by defendant’s counsel for the exclusion of Dillinger’s testimony in the case.

The words, send the bill,” at the end of the instrument, clearly give it the character of an order for which Dillinger intended to make himself responsible, and presents a feature not found in any of the cases quoted by defendant’s counsel.

4. The objection that the name of the signer of the order is not correctly transcribed in the indictment, because the last letter of the name as copied is an r,” when that letter in the original appears to be a w,” or l: n,” or tt,” is evidently, more fractious than serious. It would at most show a clerical error, which could not vitiate the proceedings. State vs. Given, 32 An. 782.

The judgment of the lower court is correct and it is, therefore, affirmed.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 8703.
    Succession of Laura E. Merrick, wife of Louis J. Bright.
    It is now settled that the representative of a succession may sell community property to pay community debts, the interest of minors therein non obstante.

    Where the separate funds of one spouse have been invested in property for the community, or otherwise, for its benefit, such spouse becomes a creoitor of the community to that extent. Where the husband becomes creditor in such mauner, he is postponed to other creditors of the community; but, as against the wife and her heirs, his claim is perfect.
    As such creditor, like any other creditor, he is entitled to have the community property sold, not only for his satisfaction, but for the necessary purpose of ascertaining the residue, if any, remaining in common.
    APPEAL from the Civil District Court for the Parish of Orleans, Lazarus, J.

      II. L. Edwards and Geo. L. Bright for the Tutor, Appellee :
    1. It is well settled, that a.representative of a succession may sell community property to pay debts, upon a proper showing, even though minors are interested therein, especially when the estate is insolvent. Minors have but a mere residuary interest in community property, and can take nothing until its debts are paid. 33 An. 473; 28 An. 176 ; 11 R. 508-10; 9 An. Í07.
    2. An administratrix and widow in community after having previously filed a tableau, sh owing-the debts, can obtain an order to sell the property of a succession to pay its debts. This is especially so where the estate is insolvent. 28 An. 270.
    3. There is no distinction or difference in the application of the principal between a third party, who is oreditor, and because the representative happens to he the creditor. The rule is the same. 15 An. 676-8; 28 An. 270.
    4. The exception filed by the under-tutor is a dilatory exception, and must be filed in limine. It is an exception of prematurity. When filed with the answer, and when issue is joined, it is waived, and cannot avail. There could he, and was no judgment upon it, it having been filed at the same time as the answer. 11 An. 688; 17 An. 232 ; 4 R. 392; 7 N. S. 284; 1 Jj. 420.
    5. Where the opposition of the under-tntor is unreasonable and unwarranted, the costs of the appeal should he put upon him, and not upon the succession. It is had faith on his part. 21 An. 17; 19 An. 153.

      A. E. Wilson and E. T. Merrick for the Under-tutor, Appellant.
   The opinion of the Court was delivered by

Fenner, J.

Louis J. Bright, surviving husband of the deceased, is administering her succession as the duly qualified natural tutor of their minor children. The inventory exhibited about three hundred dollars of personal property belonging to the separate estate of the wife, arid community property amounting to about fifty-six hundred dollars, the main item of which was a piece of real estate valued at five thousand dollars. The inventory further exhibits a declaration by the surviving husband that the community was indebted to him in the sum of about fifteen thousand dollars, amount of his separate funds owned prior to the marriage, and expended by him in the purchase of the property possessed by the community, and for the benefit of the community in other ways specified therein.

The under-tutor of the minors refused to sign the inventory, and opposed its homologation, which, however, was ordered upon rule to show cause, after trial contradictorily with him.

Thereafter, the tutor filed a tableau of the assets of the succession, as shown by the inventory, and of the liabilities of the community, consisting of the debt due to himself; and, at the same time, he filed his petition setting forth the insolvency of the community, the necessity of selling the community property in order to pay its debts, and praying for an order commanding the under-tutor to show cause, on a, day to be fixed, why such sale should not be made.

The under-tutor filed an oxcex>tion of prematurity, on the ground that there was no evidence that the community debts had been paid and that, until such full settlement, the surviving partner could not advance his own claim against the community, for the debts of which he was himself liable.

He, at the same time, reserving his exceptions, filed answer denying the insolvency of the community and putting at issue the claim of the tutor.

On these issues the case was tried, resulting in a judgment sustaining the prayer of the tutor’s petition, from which the present appeal of the under-tutor is taken.

It is clear, on both reason and authority, that the representative of a succession may sell community property to pay its debts, upon proper showing of the necessity therefor, even though minors have an interest therein. Such interest is only residuary after payment of community debts. Sue. Ira Smith, 9 An. 107; Richards vs. Denel, 11 Rob, 508; Davidson vs. Davidson, 28 An. 270; Sue. Hood, 33 An. 467.

It is equally well settled, that where the separate funds of one spouse have been invested in property for the community or otherwise properly expended for the community benefit, such spouse becomes a creditor of the community to that extent. Hen. Dig., Marriage, XIII, (h. 2,) Nos. 7, 8, 9, 10.

Of course, in the case of the husband, his debt, arising from such source, would he postponed to all other community debts, but, as against the wife and her heirs, his claim is perfect if established.

As such creditor he 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.

We can perceive no force in the objection that it is not shown that other creditors have been paid. If there are other creditors of the community unpaid, that would seem to furnish additional reason and necessity for the salé. They may he trusted to present themselves, if they exist, in the proceedings for distribution of the proceeds of the sale.

We have carefully examined the evidence in support of the tutor’s claim. It is not necessary to consider too critically all the items thereof. The claim to an amount exceeding the value of the community property is established, by uncontradicted evidence, in a manner clearly sufficient to authorize the order of sale, which is the sole matter adjudged.

This disposes of all the issues presented by the pleadings or passed on by the court a qua.

The under-tutor, however, has acted in good faith and should not be mulcted personally in costs.

Judgment affirmed, costs to be paid by the succession.

Rehearing refused.


author: Poci-ié, J..

text:
    No. 8827.

    Nathaniel Hoggatt vs. Virginia Thomas et als.
    An allegation made by a party defendant in answer to suit, but not considered by tlie court or disposed of in the judgment, cannot support the plea of res jmlieatct when it is made the basis of a suit by the same party against one of his co-defendants in the previous suit.
    An agreement by which one of two sureties ou a bond binds himself to hold his co surety harmless from any liability or loss on account of the bond, is not a promise to pay the debt of a third person, or a contract of suretyship; it forms no part of. but is distinct from the bond executed by the parties; it is an original contract between the parties, a contract of general indemnity from the obligor to tho obligee, and as such it can be proved by parol testimony.
    APPEAL from the Eighth District1 Court, Parish of Madison. Delony, J.

      J. G. Hawlces and J. JB. Stone for Plaintiff and Appellee:
    1. A contract to indemnify, by which one surety agrees to indemnify a co-surety against loss, by reason of goiug upon the bond, is an original contract and. may he proved by parol; and this is true, although there is no proof showing the real motive of the person making the promise. Thomas vs Cook, 8 Barn. &Cres.728; G Curbing, 553; Chapman vs. Morrill, 4 Wind. 057; Anderson vs. Spouce, 37 American Reports, IG3.
    2. Even if the promise made by defendant is in form of a promise to pay the debt of a third person, it can be proved by parol, because it has been proved that the object of tl.e defendant was not to serve or accommodate any third person, but to subserve a distinct purpose of his own. And by reason of the agreement, the promisor obtained a pecuniary and business advantage. Emerson vs. Sanlter, 22 Howard. 43; Starkio on Evidence, 477; Parsons on Contracts, vol. 2, p. 10, Gth ed,; Helson va. Boynton, 3 Metcalf, 400; Alger vs. Scoville, 1 Gray, 391.

      3. The exception of res judicata cannot he sustained; the issues iu this case "were not decided in the previous suit. No evidence was introduced in the former suit as to the issues in the present action. 5 An. 103 ; 30 An. 521.

      Spencer & Lucas for Defendants and Appellants.
   Tlie opinion of the Court was delivered by

Poci-ié, J..

Plaintiff seeks to enforce against the widow and heirs of B. R. Thomas a contract by which Thomas had agreed to hold Hoggatt harmless from all liability and losses on an official bond furnished by A. V. Brown iu 1872, as Treasurer of the .School Board of Madison Parish, with Hoggatt, Thomas and a third party as securities.

He charges that he signed said bond at the urgent request and solicitation of Thomas, who agreed to protect him as above stated, and whose advantage in thus procuring securities for Brown consisted in an agreement with the latter by virtue of which Thomas, who was a banker in Vicksburg, had the possession as depositary and the use and control of the funds entrusted to the treasurer Brown.

It appears from the record that Brown, having become a defaulter as treasurer for a large amount, judgment was rendered against his sureties in solido for six thousand dollars, the full amount of his official bond, and that Hoggatt has paid fourteen hundred dollars on account of said judgment. Board of School Directors vs. Brown et ah, 33 An. 384.

Defendants appeal from the judgment of the lower court condemning them, as legal representatives of the succession of B. R. Thomas, to pay the sum of fourteen hundred dollars disbursed by Hoggatt, and to reimburse him for all other sums which he may be compelled to pay on account of said bond and of said final judgment.

Numerous defenses were urged in the lower court, but all have been abandoned on appeal except the following:

1. The plea of res judicata, predicated on the fact that in the suit of the School Board against Brown and his sureties, Hoggatt had incorporated in his defense the alleged contract of indemnity in his favor on the part of Thomas, which is the identical contract made the basis of his present action.

As such a contract could not be invoked by Hoggatt as a shield of his responsibility towards the obligee on the bond, the court entirely ignored that defense and did not pass upon it at all. It makes no part of the judgment rendered in the case, and hence, it cannot be set up as included in the judgment, as an element to support the plea of res judicata. Such a stipulation formed no part of the bond executed by Brown and his securities, and it could create no obligation or affect quoad any of the parties to the bond, except Hoggatt and Thomas, and it could operate no issue between any other persons. Its nature and its effect come up for the first time for judicial investigation, and neither can be affected by any previous adjudication on other and distinct issues disposed of in the suit above referred to. Fink vs. Martin, 5 An. 103; Carroll vs. Hamilton et al., 30 An. 520.

2. As the alleged agreement was not made in writing, the defendants on trial objected to the introduction of any parol testimony intended to prove the contract, on the following grounds:

1. That the alleged contract was one of suretyship or personal warranty.

2. That it was the promise to pay the debt of a third person.

3. That parol testimony was inadmissible to prove a debt prescribed against a deceased person.

A proper definition of the contract alleged by plaintiff will dispose of these three objections.

It is alleged that the promise or agreement of Thomas to hold Hoggatt harmless from all responsibility as surety on the bond was made previous to the execution of the bond as an inducement and as a consideration to his consent to becom'e surety on said bond, and before the existence of any liability from any source on the bond. The agreement was not in favor or for the account of any third person, but for the exclusive protection of Hoggatt. As a contract it was no part of the bond executed by them as co-sureties, but it was a distinct and original contract between Hoggatt and Thomas, by which the former agreed to bind himself on Brown’s bond, and in consideration of which Thomas bound himself to Hoggatt for his protection and indemnity. Hence, it follows, that the contract was one of general indemnity against all losses which Hoggatt might hereafter incur as.surety on Brown’s official bond.

We therefore conclude, that the contract alleged by plaintiff was not amenable to either of the three rules of law invoked against it by defendants, and that such a contract can be proved by parol testimony. Keane vs. Hober, 12 An. 562, Spofford, J., concurring opinion; Evans vs. Baer, 23 An. 692.

The contract as alleged by plaintiff is amply proved by the evidence in the record, which fully justifies the judgment appealed from.

Judgment affirmed.


author: Manning, J.

text:
    No. 8798.
    The Mayor and Council of Alexandria vs. Abraham Heyman.
    The payment of taxes, whether due to the State, or parish, or to incorporated villages, towns, or cities, can no longer he enforced by suit, but only in the mode provided by the Act of the General Assembly approved July 5,1882.
    APPEAL from the Twelfth District Court, Parish of Rapides. Blackman, J.

      Jno. O. Byan for Plaintiff and Appellee.

      Bolt. F. Hunter and A. J. Ilertzog for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The object of this suit is to compel the payment by the defendant of one hundred and twenty 60-100 dollars, alleged to he due for taxes upon real and personal property within the corporate limits of the town of Alexandria.

The defendant peremptorily excepted on the ground, that the institution of a suit, and the attempt to collect a tax through its instrumentality, was prohibited by the Constitution.

The Constitution commands that the tax collector shall advertise for sale the property, on which taxes are due, in the manner provided for judicial sales, after giving notice to the delinquent in the manner to he provided by law, and that this shall be done without suit. The quantity of property to be sold, and the manner of selling it, are prescribed in the same Article, (Art. 210) and its provisions are extended to municipal taxes by Art. 218.

The manifest object was to prevent the oppressive accumulation of costs, which had attended the indiscriminate institution of suits for the collection of taxes, and to substitute to it a less expensive and more expeditious method of realizing the public revenue. While prohibiting suits, the Constitution prescribed what should be done instead, but inasmuch as the law of 1880 (Acts, p. 88) provided the manner of giving notice to the delinquent only in the collection of the State and parish taxes, and not for those of New Orleans, which was the first step in the new method of collection, it was held that the former method was in force iu the City until the legislature should otherwise provide. New Orleans vs. Wood, 34 Ann. 732.

The General Assembly, by Act approved July 5, 1882, prescribed anew the method of collecting the taxes imposed by the State for her own purposes, and the parish taxes as well, Sess. Acts, p. 119, and on the following day extended these provisions to her subordinate political corporations. Ibid, p. 167. Since then, the payment of taxes whether due to the State, or parish, or to incorporated villages, towns, or the City, cannot he enforced by a suit, but only in the' mode provided by the Act of July 5, 1882.

This suit was instituted in January, 1883.

It is therefore ordered and decreed that the judgment of the lower court is avoided and reversed, and that there he judgment now in. favor of defendant as in case of non-suit upon the claim herein preferred, and that he recover of the plaintiff his costs in the lower court and the costs of this appeal.


author: Todd, J.

text:
    No. 8639.
    The State of Louisiana vs. Henry Revells.
    Where, after a criminal case is taken up for trial and the jury is being impanelled, the regular venire is exhausted, the trial Judge is authorized to order the summoning of tales- . men from the bystanders in the courthouse and in proximity thereto. And where ' the sheriff summons a talesman from the bystanders in the vicinity of tho courthouse and nearest thereto after the court has adjourned, on the day and on the next morning thereafter, before the court resumes its session, the summons is regular, and the juror, if n ofc otherwise disqualified, competent.
    Where the juror, examined on his voir din, says he has no fixed opinion touching the guilt or innocence of the accused, and no bias or prejudice against him, he is competent, though he may previously have had an opinion or impression on the subject, where it appears that such opinion or impression will yield to the evidence in the case.
    Though an accused be under arrest, bis confession to one of those arresting and guarding him" may be admitted against him where it was not induced by promises or threats, but appears free and voluntary.
    APPEAL from the Eighth District Court, Parish of East Carroll. Hawlces, Judge ad hoc.

    ■ J. G. JSgmi, Attorney General, for the State, Appellee:
    • 1. Tales-jurors may be summoned to serve from outside the presence of tiie court when it becomes necessary to have their services. Sec. 7, Act 44 of 1877, p. 57; 5 An. 316; 1 Chitty’s Grim. Law, p. 218; 14 An. 464; 23 An. 148; 26 An. 47.
    2. A juTor whose opinion is not fixed and deliberate, is competent to serve if he is not otlier- ■ wise incapacitated. 32 An. 1101; 14 An. 462; 22 An. 43 ; *23 An. 148; 33 An. 889.
    3. The confession of accused, made while under arrest, is admissible in evidence, if made voluntarily. 3 An. 497; 12 An. 895; 15 An 568; 16 An. 377; 34 An. 149, etc.
    Chas. M. Tilcher for Defendant and Appellant:
    1. Where, on account of challenges, absence of jurymen or other legal excuse, the jury is not complete, the court shall order the sheriff to summon a certain number of persons present, having the legal qualifications, in order to complete it. C. P. 513; 3 Yol. Black, 365.
    2. Where the jury cannot be completed by summoning bystanders, recourse may then be had to other persons not within the presence of the court. 26 An. 46; 14 An. 464. It is the duty of the Judge to order tales-jurors to he summoned from amongst persons present in the court, and others cannot be summoned till the bystanders have been exhausted. 32 An. 1000.
    3. Where the petit jury has not been drawn in the mode prescribed by law, the trial, convictions and sentence, and the person stands as though he had never been tried. 20 An. 356»

      4. "Where jurors have formed an opinion as to the guilt or innocence of the accused previous to their "being sworn as jurors for his trial, such jurors are incompetent. Strong and deep impressions, which will close the mind against the testimony that may be offered in opposition to them, and whioh will combat and resist its force, constitute a sufficient objection. 8 Hob - 537.
    5. Where a juror has formed a fixed opinion in regard to the guilt or innocence of the accused, but that said opinion would yield to testimony showing the facts to be different • from what he had heard, he is an incompetent juror. 32 An. 1101.
    6. The confessions of the prisoner while in the hands of a party of armed men, who had kidnapped him in the State of Mississippi and brought him to Louisiana, were not voluntary confessions of guilt. The circumstance of his capture was such as to inspire fear and alarm, and at no time while in the hands of his said captors could he with deliberation and voluntarily make a solemn declaration of this character. 25 An. 192; State vs. Garvey and Earle, 28 An. 925; 34 An- 381, State vs. Hevells.
    7. When, from the whole case as presented, the Supreme Court is left with the impression that there may have been irregularities in the trial, although all the points made by the accused have been properly ruled against him, the case will be remanded for a new trial. 30 An., State vs. Gunter.
   The opinion of the Court was delivered by

Todd, J.

The defendant was indicted for murder, found guilty and sentenced to death, and has appealed.

During the progress of the trial there were five bills of exception taken, which appear in the record and which are relied on alone to reverse the sentence. ■ •

1. The first shows the following facts and proceedings:

That when the case was called for trial, in the impanelling of the jury the regular venire was exhausted. That twenty-nine tales-men were, by direction of the court, summoned and examined, some of whom were challenged for cause and some peremptorily, leaving the jury still incomplete. That the sheriff was then ordered to summon fifteen additional talesmen from the bystanders in the courthouse and vicinity, and the court then adjourned for the day.

On the following morning, after the hour for the opening of the court hut before the court had resumed its session, the sheriff finding no persons at or in the courthouse who had not already been examined as regular or tales-jurors, except one whom he summoned, proceeded from the courthouse into the town in which the co'urthouse was situated and summoned, as he came to them, those in the vicinity and nearest to the courthouse, until lie had summoned the requisite number.

1 Among those thus summoned was one Andrew J. Porter. This juror was objected to on the ground that he was improperly summoned, because he was away from the courthouse at the time of summons.” This objection was overruled by the court.

There was no error in this ruling. Section 7 of Act 44 of 1877,- after authorizing the District Judge, whenever he thinks proper, to require the Jury Commission to draw additional jurors, either as regular jurors or as talesmen, further provides (quoting): “but nothing herein shall be construed so as to limit the right of the Judge to order the summoning of talesmen from among the bystanders or persons in proximity to the courthouse.”

Even before the passage of this Act, the right of the Judge, as exercised in this instance, has been substantially recognized by adjudications of this Court. State vs. Bunger, 14 An. 464; State vs. Caulfield et al., 23 An. 148; State vs. Gallagher, 26 An. 46.

It is not essential that the court should be in actual session whilst the sheriff is summoning the talesmen required under the order, as argued by the defendant’s counsel, though'no such objection appears in the bill. The only question raised by the bill was as to the alleged incapacity of the juror mentioned, because of beiug away from the courthouse when summoned. The order of the Judge did not confine the summoning of talesmen to bystanders alone, but gave the sheriff .authority to summon those also in proximity to the courthouse. The Judge had the right to grant such order, and the juror was summoned in the vicinity of the courthouse and nearest thereto, as the record shows.

2. The next three hills were taken to the rnlings of the Judge touching the competency of certain jurors. These jurors were challenged as incompetent, by reason of having formed and expressed opinions touching the guilt or innocence of the accused. We have attentively examined the bills and are satisfied, from the answers of the jurors on their voir dire, that they had no fixed opinions at the, time on the subject, that their answers to the questions asked them-showed that they would be governed in their verdict by the evidence, and that they were without bias or prejudice against the accused. In short, they came under no rule of exclusion known to the law. State vs. Johnson, 33 An. 889; 14 An. 462.

3. The last bill was taken to the admission in evidence of the prisoner’s confession. It is shown that, although at the time of the confession the accused Was under arrest, there was no promise held out, no threat made, or other improper influence used to induce the confession. It was, according to the proof, free and voluntary. Its admission was clearly authorized under the rule laid down and doctrine enunciated on this point in the case of State vs. Maimée Alphonse, 34 An. 11, supported by the authorities therein cited.

This completes the review of the case, as the record presents it, and we can find nothing therein that can afford the accused any ground of relief.

Judgment and sentence affirmed with costs.


text:
    No. 8741.
    Edward Ring vs. B. S. Labranche, Tax Collector, et al.
    Act of the General Assembly providing for a license for rice flumes inserted in the public levees is constitutional, and the parish ordinances under the provisions of said Act are legal and valid.
    The Court is without authority to impose damages iu the same judgment dissolving an in* j unction taken out to restrain the collection of a license.
    APPEAL from the Twenty-sixth District Court, Parish of St. Charles. Malm, J.

      Alfred Shaw and Chas. A Baqidé for Plaintiff and Appellant:
    Act No. 88 of 1880, so far as imposing other tax or license on rice growers for levee purposes than the State levee tax of Art. 213, the District levee tax of Art. 214, and the duty of excavating and constructing their own dolls and refilling them when disused, is unconstitutional. Also in requiring a license tax for continuing dolls previously in use as well as constructing new ones, the same being on an agricultural pursuit and in violation of Art. 2Ü6.
    Section 6 of Act No. 88 of 1880 does not vest in the police jury the right to levy such tax or determine its amount.
    Section 7 of said Act violates Art. 210, which foibids forfeiture and postpones sale for levee 0 and other taxes till expiration of year; it would make the seizure at anytime after 1st of May, without any judicial proceeding or process whatevor, and with a pretended first lien and privilege upon the crops of the year.
    No indication of the levy of a tax or license for levee purposes exists in the title.
    The tax is not equal and uniform because not ad valorem upon property; not equal or uniform between rice growers and other cultivators needing and using irrigation, nor between rice growers themselves, and because based on depth excavated and refilled totally at their own expense, thus graduating their tax, not according to their property or gains, but their burdens and expenses.
    The words, as hereinafter provided in Art. 204, Const. 1879, limit levee taxes to those enumerated in the Constitution.
    The assessment and levy herein also violate Art. 203, not being exercised by the parish for its purpose; Art. 206, being greater than State levies, there being none for license, and Art. 5, Amendments of (871 to Const. XT. S.
    Damages cannot be allowed where a money j udgmeat has not been enjoined. 22 An. 286; 9 An. 203; 29 An. 630; 30 An. 742.

      Jas. D. Augustin and N. St. Martin for Defendants and Appellees :
    1. Act No. 88 is constitutional; the title is sufficient, and the license tax provided for uniform. "Weise vs. Sheriff, 34 An. 656.
    2. Police Juries are vested with the control of levees, in their preservation and police, care and protection. Acts 1877, Extra Session, p. 214, See. 2; Acts 1878, Extra Session, p. 219, Sec. 10; Act No. 88, 1880, Sec. 1; Const., Art. 213; Parish vs. Treasurer, 34 An. 850, No. 9.
    3. The rice flume tax is nniform on all those using public levees for the benefit of their crops, and is merely a means of providing for the expense of refilling old cuts, of keeping new ones safe; of inspecting same, and repairing damage they do of themselves.
    4. The shutting up of an unsafe flume,* the forfeiture of a license abused by the beneficiary during the flushing time, by tbe 1st of May, constitute necessary corollaries of the exercise of proper care of the levees, and cannot he assimilated to the enforced sale of real and personal property, to pay the taxes due thereon; the abolishing of the forfeiture of such property to the State merely changes the mode of enforcing the collection of the regular State and Parish taxes,
   The opinion of the Court was delivered by

Todd, J.

The plaintiff appeals from a judgment dissolving, with damages, an injunction to restrain the collection of licenses demanded of him for six flumes constructed by him, and inserted in the public levee on the Mississippi river, for the purpose of irrigating his plantation in the Parish of St. Charles, on which crops of rice are grown.

The flumes were inserted, by permission of the proper parochial authority, prior to the year 1880.

The licenses mentioned were imposed by an ordinance of the Police Jury, passed in 1881, under authority of Act of the General Assembly No. 88 of 1880.

The payment of the licenses is resisted on the ground that the Act in question is unconstitutional, and the ordinance consequently illegal, null and void.

The Act 88 referred to is entitled':

An Act to provide for the-protection and preservation of completed public levees in conjunction with the Police Juries of the several parishes of the State, to prescribe the manner in which levees may be cut for rice flumes, roads and machinery, and to provide means for the expenses attending this ivorlc, and to provide penalties and punishments for the violations of the provisions of this Act, and for violations of parochial ordinances made in conformity with this Act.”

The following are some of the Sections of the Act bearing on the question at issue:

Section first provides : “That the Police Juries of the several parishes of this State are hereby invested with the management and control of all completed public levees of this State which may require public care, for protection and preservation, and they are hereby authorized and required to malee such laws as may be necessary and proper for their repair, preservation and protection, and to regulate the manner in which the same may be cut for rice flumes, or other purposes.” .

- Section fifth provides :■ “ That tlieBoard of State Engineers shall prepare plans for rice flumes, to which all flumes must conform ; and that no one shall be permitted to insert in any public levee, any flumes or piping to be used in flushing rice fields or other purposes, unless, upon written application of the owner of the land, he shall have obtained the consent of the Police Jury, where the levee may bb located, to permit him to make or use said flume or piping.”

Section 6 enacts: “ That in addition to the conditions prescribed in the preceding Section, the party applying for permission to cut the levee, and insert therein flumes or piping, shall pay previously into the .Parish Treasury an annual license on each and every flume or piping used for the cultivation of a crop, a sum not exceeding the rate of two dollars and fifty cents for every perpendicular foot of levee cut, counting from the bottom of the ditch or flume to the crown of the levee; and this license shall equally apply to rice flumes already in use at the passage of this Act; and the same shall be due and payable between the first day of May and the first day of October, annually; and should any person fail to pay said license by that latter date, he shall forfeit his right to the said flume, and the same shall be closed at his expense.”

Section 9 pointedly says: “ That all money paid into the Parish Treasury for license for rice flumes, and for fines arising from convictions, as provided by the preceding Section, shall be set aside and used exclusively in taking out old and abandoned flumes, and restoring the original condition of ike levee, and for expenses of superintendence, and administration.'''1

Section 10 provides for the appointment of a Levee Inspector and Superintendent of the construction of all new rice flumes and other cuts; for his services he is to receive one-half of all sums annually collected from flume licenses.

Section 11 takes care to provide: “That nothing in this Act shall be so construed as to give any individual a proprietary right in any public levee of the State, by the act of his paying any license for the privilege herein granted, and if the Board of Engineers or Police Jury, at any time, should condemn as unsafe any such opening- in the levee, the license for the same shall be revoked on the return to the party of the full amount of the license which may have been paid for such privilege, and said authorities may, at any time, when any flume shall become unsafe, from decay of material or other cause, require the person using it to have same taken up and replaced in -a secure and substantial manner, and they shall also require all parties to drain off from the foot of the levee, on the land side, the .water that may accumulate there flowing from the flumes that they may use.”

It is charged that, among other Articles of the State Constitution that the above Act is obnoxious to, it violates Art. 29, requiring that every law shall embrace but one object, and that object to be expressed in its title, and Art. 203, providing that taxation shall be equal and uniform.

In the case of Weise vs. Thibault, 34 An. 556, where the same question was presented, we held that the Act did not contravene either of these Articles.

It is also contended that the Act violates several other provisions of the Constitution, but the argument of counsel renders a consideration only of the.following additional Articles necessary.

1. It is charged that it violates Article 206, because it is a tax on agriculture, one of the occupations or pursuits exempted by said' Article; and because it contravenes a further provision of the same Article, which declares that no political corporation shall impose a greater license than is imposed by the General Assembly for State purposes.

We cannot from any standpoint íegard the license in question as a tax on agriculture or rice planting, as contended. Under the general laws conferring authority on the Police Juries over public levees looking to their preservation and repair, apart from the special statute referred to, it is obvious that they, the Police Jnries, could absolutely prohibit the insertion of the flumes described in the levees. Indeed, it might be plausibly argued that the digging into the levees, necessary for the construction of these flumes, was hardly consistent with the duty imposed on the parochial authorities for their preservation. Such a process would certainly seem to weaken them, or impair the efficiency of the protection they are designed to afford; and to permit this to be done by persons engaged in rice culture, on condition even of paying a licouse, so far from affording a ground of complaint as being' a tax on agriculture or rice planting, might be reasonably viewed as a diroot encouragement of this species of agriculture. And if such a privilege is granted in favor-of this particular pursuit, at the risk, to some extent at least, of injury to the-public levees, and of lessening the protection they afford to the entire parish from inundation, it is certainly just that a charge or license should, at the same time, be imposed to provide the means for the additional supervision and expense necessary to avert any danger from the granting of the privilege, and the cutting or digging into the levees which it permits.

Nor is there any more force in the proposition that the ordinance imposing the liconso is illegal, for the reason that the State has imposed no such license. In fact, the proposition is founded upon a false assumption. The license, in truth, results directly and immediately from State legislation and may be properly viewed as imposed by State authority.

As already shown by the Sections of the Act quoted, the State has committed the care and protection of the levees to the parishes, and because of this has required (quoting from the Act) that a party applying for permission to cut the levee shall pay previously into the parish treasury an annual license on each and every flume used for the cultivation of a crop.” In other words, the State has exacted the license but directs it to be paid to the parish, in order to furnish or augment the means required to meet the expense that the increased care, vigilance and supervision over the levees make necessary./ And it must be borne in mind that in this work of protecting and repairing and guarding tlie levees, the parishes are but acting as State functionaries, and discharging in part the duties resting upon the State.

It is manifest, therefore, that this case does not fall within the scope and purview of that of Graves vs. New Orleans, 34 An. 840. Iii that case the State did not impose for State purposes the license therein involved, and neither directly nor indirectly delegated any power to the parishes or cities to impose such alicense, and that by reason of such non-action and silenee on the part of the State, there was no warrant for the authority exercised in that instance.

We find, therefore, that the Act in question is not in conflict with either clause of Article 206 of the Constitution.'

2. It is next contended that the statute is repugnant to Articles 204, 213 and 214, limiting or restricting taxation for levee purposes.

It will plainly appear, from what we have said before, that this license cannot be construed to be for levee purposes, that is, for the construction or repairs of levees, but, on the contrary, is really a charge imposed on those who, for their own benefit and private purposes, may damage the levees by digging into them and inserting their flumes therein.

The license was designed to raise the means to procure the necessary additional supervision over the levees and render effective the safeguards against the dangers that might result from such injuries to them. /

3. Article 210, which the Act is also charged with violating, does not refer to licenses, but to taxes on property.

There are other objections contained in the pleadings to this Act and ordinance, but as they are not urged in argument, we deem it unnecessary to notice them further than to say that, after due examination, we find them without force.

The damages should not have been allowed on the dissolution of the injunction. It was not an injunction taken out against a money judgment. 29 An. 630; 30 An. 742. In this respect the judgment must be amended. v

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be amended by rejecting the damages allowed upon the dissolution of the injunction, and as thus amended it be affirmed, costs of the lower court to be paid by the plaintiff and of this appeal by the defendants.


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    No. 8076.
    Peter G. Riddell vs. Anthony Vizard.
    Where a third person owes to a minor a debt secured by mortgage, which, is due, he has the absolute right to pay the same to the duly qualified tutor'of the minor, and thereby to extinguish the mortgage. And because the tutor has squandered the money, that is no reason why the minor may have recourse upon his former debtor or his assignees.
    APPEAL from the Sixth District Court for the Parish of Orleans/ Big!dor, J.

      J. Q. A. Fellows for Plaintiff and Appellant.

      Breaux & Hall for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

The evidence establishes that, by-a judicial partition the regularity of which is not questioned, the estate of J. L. Riddell,' the father of plaintiff, was divided in kind between him and his coheirs. In the establishment of the lots, the one falling to plaintiff was of less value than the one falling to his brother, Robert B. Riddell, by5 á sum which required a contribution of $1,601.85 from Robert, in order to equalize them. Both plaintiff and Robert being then minors, the-act of partition, under the advice of a family meeting, provided that Robert’s share, being immovable, passed to him burdened with a/ mortgage in favor of plaintiff for the said sum of $1,601.85.

So matters rested until Robert, having been emancipated, desired to sell tbe property assigned to him, and, for that purpose, to free it from plaintiff’s mortgage. With this view he arranged with Mrs. A. E; Riddell, the duly qualified and confirmed natural tutrix of plaintiff, that, in her said capacity, she should release and cancel said mortgage and receive payment thereof out of the purchase price for which the property was about to he sold. This was doue. The property was sold to defendant, who received the same free from mortgage, and Mrs. Riddell, tutrix, actually received full payment of the amount due her ward.

The plaintiff, after reaching majority, brought the present suit, claiming that the property in the hands of defendant still remains burdened with his mortgage, which he seeks to enforce.

The suit is utterly without foundation.

Robert B. Riddell had the absolute right to pay the debt which he owed to defendant and to free his property from incumbrance; and his right was equally unquestioned to pay it to the tutrix of defendant, who was the only person to whom it could lawfully he paid.

The authorities quoted by plaintiff’s counsel have uo application. .Tins is not a question of the right of a tutor to transfer negotiable assets of the ward, as in 17 An. 17, or 1 An. 222, or 22 An. 295, or 2 An. 577. Neither is it an attempt of the tutor to sell property specially •mortgaged by himself to his wards, for the purpose of paying to himself, as tutor, the amount due to them, as in 2 Rob. 417.

- Nor is it á question of the right of the tutor, of his own free will, to change the investments of the minors’ funds which have been made ■under the advice of a family meeting. It is a simple question of the ■right of a debtor of a minor to pay his debt when due, and to pay it to the tutor. '

There exists, and can exist, no doubt about such a matter.

- Judgment affirmed at appellant’s cost.


author: Poché, J.

text:
    No. 8451.
    Stephen Lombard et al. vs. H. F. Belanger et als.
    ■In an action of boundary by tbe owner of unimproved lands, tbe only matter in dispute is tlie value of tbe lands included between tbe' two contested boundary lines, and unless appellant shows that the value of sucb lands exceeds one thousand dollars, tbe Supreme Coart is without jurisdiction and tbe appeal must be dismissed. ,
    APPEAL from the Nineteenth District Court, Parish of Terrebonne. Goode, J.

      James Zingan for Plaintiffs and Appellees. .

      N. M. Calhoun and T. L. Winder for Defendants and Appellants,
   Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

Appellees urge that the matter in dispute in this casé, which is an action of boundary,, does.not exceed one thousand dollars.

The pleadings contain no averment ás to the value of the lands, the boundary lines of which are herein sought to be judicially established, or as to the value of that portion of the adjacent estates which would be involved by selecting either of the contested lines as the true boundary line between the two estates.

In our opinion, the latter is the real matter in dispute under the pleadings in this case.

In an affidavit made on appeal by one of the plaintiffs it is asserted that the value of the lauds in dispute exceeds the sum of twelve hundred dollars.

But, on the other hand, it is shown by a certificate of the assessor of the parish, that the whole tract of lauds owned by plaintiffs is assessed', on their own return, at three hundred dollars only. ■ ;

Referring to affidavits of several disinterested parties, filed in support of appellees’ motion, we see that, according to them, the matter in dispute does not exceed one hundred and fifty dollars. !

It appears, moreover, from the record, that plaintiffs’ lands are entirely unimproved, and hence, the judicial recognition of the boundary •line claimed by defendants and appellees will not disturb fences, ‘ditches or buildings, and it is apparent that the only possible matter in dispute is the value of the lands included between the two contested boundary lines.

As it appears from the sworn assessment return of plaintiffs themselves, that their entire tract is not worth more than three hundred dollars, it is very safe to conclude that any fractional part of the whole cannot, by any possible, computation or calculation, be shown to exceed one thousand dollars, and that appellants have failed to show that the matter in dispute in their appeal was within our appellate jurisdiction.

The appeal taken in this case is, therefore, dismissed at appellants’ ..costs.

Rehearing refused.


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    No. 8841.
    B. E. Hall, Executor, vs. Charles R. Egelly.
    A party seeking to be appointed dative executor cannot be injoined from further prosecuting bis demand in tbe courts. Tbe remedy is by opposition to the application and appeal from an adverse judgment.
    APPEAL from the Eighth District Court, Pariah of Madisbn. Delony, J.
    IF. (?. Wyly for Plaintiff and Appellant.

      J. M. Kennedy and F. F. Montgomery for Defendant and Appellee :
    No appeal lies from an interlocutory judgment Which causes no irreparable injury 5 nor wherever the appellant can be relieved on appeal from the final judgment in the case, Eields, Tutrix, vs. G-agné and Wife, 33 An. 339; 31 An. 47; 13 An. 300; 1 An. 25; 3 N. S. 25 ; and authorities collated in 1 H. t>M p. 23, No. 8, and p. 28, No. 22.
    An injunction cannot issue to prohibit one from suing or exercising his rights before a court of justice. The right to claim judicially what one believes be is entitled to, and the right to prosecute a suit in court, are rights which can be denied to no one. Brott vs. Eager, Ellerman & Co., 28 An, 262; 26 An. 500.
    The remedy by injunction cannot be substituted for that by appeal 5 and where a plaintiff in injunction can prosecute and vindicate his rights effectually by an appeal, his injunction will be dissolved for no cause of action. 4 An. 12.
   The opinion of the Court was delivered by

Manning, J.

This is an injunction restraining the defendant “ from proceeding further with his application to be appointed dative executor ” of the estate, of which the plaintiff is testamentary executor.

Certain creditors of the testatrix obtained an order on December 17, 1880, requiring the plaintiff to give bond with security for a sum exceeding by one-fourth- the amounts of their debts, within thirty days from the service of the order, and it was served on the same day. The bond and security was not given within that time.

On January 28, 1881, the defendant, alleging that the succession was without a representative because of the plaintiff’s failure to give the security as ordered, and that he was a privileged creditor .of the succession, applied for the appointment as dative executor, and his application was ordered to be published. Whereupon the present injunction was obtained on February 7th following.

The injunction was improvidently granted. Whether Egelly is such creditor as to entitle him to the appointment he seeks, and whether there is legal occasion for any appointment, are matters not now before us. He was asserting what he claims is a legal right by means of judicial proceedings, and it is an abuse of the writ of injunction to summarily prevent his prosecution of his suit thereby. Brott vs. Eager, 28 Ann. 262.

The plaintiff has his remedy, and the lower Judge has welded it into shape for him, by ordering his petition to stand as an opposition to Egelly’s application, while at the same time the injunction was dissolved. He thus lias preserved to him the right to contest the defendant’^ pretensions in their entirety, and does not illegally interfere with the defendant in the prosecution .of his own suit.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 8805.
    Clinton Atkinson vs. Mrs. Emma Rodney et als.
    'Where the móñuaria, proceedings in a succession show a full administration, closing with the putting in possession of the legatee or testamentary heir, and the discharge of the success sion representative, the proceedings cannot be reopened and another administration, inaugurated.
    Articles 1067 et seq. of the R. C. C. have reference to successions actually under administra» tration and not to such as have been thus wound up. They were intended for the protection of new, or straggling creditors, not previously known.
    APPEAL from the Fifteenth District Court, Parish of West Feliciana. Yoist, J.

      T. J. Kernan and 8. MoO. Lawrason. for Plaintiff and. Appellant.

      W. W. Lcalce for Defendants'and Appiellees.
   The opiniou of the Court was delivered by

Bermudez, C. J.

On the averment that he is an unpaid creditor of a deceased party, whose succession has been administered upon by an administrator who has obtained his discharge, the plaintiff brings this action to have the succession mortuoria reopened, in order to compel the legatee who was put in possession to return the legacy and to inaugurate another administration of the estate.

An exception of no cause of action was died and sustained by the 'lower court, from whose judgment this appeal is taken.

The plaintiff rests his claim on Articles 1067, 1068, R. C. C., which "provide for the payment of new or. straggling creditors who present themselves and who had not made themselves known before, when the funds iri the hands of' the administrator are insufficient, and which give them a right of action against legatees and creditors who have been paid for return and contribution, with a view to a now distribution.

These Articles were designed to apply 'only to successions under actual administration and were not intended to apply to successions "already administered upon, the assets of wliich have been distributed, the heirs put in possession, and the administrator of which has been discharged.

In such cases'the probate jurisdiction determines and can no more be revived. The mortuoria proceedings cannot be reopened and a new 'administration inaugurated. A prohibition lies to prevent such a course. 22 An. 61. The rights of creditors, which could have been exercised against the'succession representative, must then be asserted and enforced against the heir or legatee, whoever he be, that was recognized and putin possession of the estate. 28 An. 446; 29 An. 837; 25 An. 225, 335; 28 An. 367; 27 An. 686; 30 An. 93; 34 An. 31.

The judgment is affirmed with costs.


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    No. 8791.
    The State of Louisiana vs. Manuel Farrer.
    Attachments against absent jurors cannot be required to be issued where there is a sufficient number of jurors present to form the panel, or when there are only .four absent and they reside twenty-five miles from the courthouse, or when the, motion is not made before going to trial.
    "Where the accused voluntarily offers evidence to prove his good character and thus opens the door for contradiction, it is legitimate for the State to tender, in rebuttal, proof, of his bad reputation, tho more so when the inquiry is upon cross-examination of witnesses of the defense.
    District Judges are vested with a legal, not an arbitrary discretion. When they exercise such and objection is made, they should state all the reasons which have induced their rulings. Facts often transpiro in the- presence, or are to the knowledge of Judges, the existence of which is not established by the record. Proper information would, if known, enlighten, the court and enable it to test the correctness of such rulings. In the absence of such statement, those tacts cannot he divined by the appellate court, which, in default, is hound to assume that the grounds stated are the only ones.
    Bills of exceptions will not be considered when, even if well taken, the accused would not he . .hen.efitted thereby.
    Although a District Judge has improperly excluded jurors, the error is not such as entitles the defendant to a reversal of the verdict aud sentence, and to a remanding of the case for ' a new trial, where it does not appear that the accused had exhausted his peremptory challenges before the jury was fully made up aud did not obtain an entire panel of Ms own choice and an impartial trial.
    APPEAL from tlie Twelfth District Court, Parish of. Eapides. JBlaclcman, J.

      M. 6r. Hunter, District Attorney, for the State, Appellee :
    The absence of part of the jurors, when a case is called for trial, in no manner deprives the defendant of the opportunity of inquiring into the character and qualifications of tho jurors. A sufficient number of the jurors being present to form' the panel, the court did ' not err in ruling the defendant to trial. Having had all the notice the law requires in order to prepare challenges, the defendant was not entitled to a postponement of tho trial, because all the jurors summoned for the term were not present 26 An. 600; 29 An. 545, 546; 32 An. 222, 1144.
    'The' defendant in a oriminal trial has not the right to demand attachments for absent jurors, when there is present a sufficient number to form a panel. State.vsv Breaux, 32 An. 222.
    In the absence of any statement of the grounds, on which the Judge below excused two of the thirty j urors, who had been drawn for the week of the term in which the defendant was tried for and convicted of murder, it will he presumed that the Judgo excused them for •sufficient aud legal cause. 32 An. 222.
    "When an accused voluntarily puts his character in issue, rebutting evidence Qf bad reputation in t.lje community in which ho lives is admissible on the part of the State. "Wharton’s Criminal Evidence, p. 58; Archbold’s Criminal Practice, p. 401.
    The Judge, before whom the examination of a juror on his voir dire is held, is the most competent to pass upon Ms competency, and said judgment will not bo disturbed, unless there has been some error of law made therein, to the detriment of the accused. State vs. Barnes, 34 An. 395.

      M. Ryan and Jno. O. Ryan for Defendant and-Appellant. •
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant was indicted for murder, found guilty without capital punishment and sentenced to hard labor for life. Prom the verdict and judgment thereon he appeals.

The record contains four bills of exceptions, viz:

One to the refusal of the Judge to issue attachments against absent jurors;

Another to the ruling of the Judge permitting a question by the District Attorney, in reference to the general reputation of the accused in the community in which he lived ;

A third one to the discharge of a juror, at the instance of the State, on the ground of incompetency;

A last one, almost to the same effect and apparently for a like reason.

First. There being a sufficient number of jurors present to form the panel, the attachments were properly declined.' 26 An. 600; 29 An. 545, 546; 32 An. 222, 1144.

There were four jurors absent, who resided twenty-live miles from the courthouse. The motion for the attachments was not made before going to trial. The Judge exercised a proper discretion. The bill was not well taken.

Second. The accused having offered voluntarily evidence to prove his good character, and thus opened the door for contradiction, it was legitimate for the State to tender, in rebuttal, proof of his bad reputation among those in the midst of whom lie lived, for violence, passion and vindictiveness. Wharton’s Cr. Ev. 58; Archbold Cr. Pr. 401.

The rule is, that the prosecutor cannot enter into an inquiry as to the defendant’s character, unloss the defendant enables him to do so by calling witnesses in support of it.

This right is the more evident when the inquiry is instituted upon cross-examination of the witnesses brought forward by the defense.

We will consider the two next bills together:

Third, A juror was excluded by the District Judge, who states that ho did not think him competent and believed that ho knew all about the case, as he lived within a mile and a half from the place where the murder is charged to have been committed.

Fourth. Another juror was also excluded, who lived in the immediate neighborhood of the spot where the homicide is said to have occurred, who knew the witnesses, and who had stated that he had formed an opinion as to the guilt or innocence of the accused.

It enters into the philosophy and humanity of the law that an accused who is entitled to a jury, should be tried by his peers taken from the vicinage. This is his right, precisely because these are presumed, on account of their residence in the neighborhood, to be better informed of the locality, of its inhabitants, of its customs, and of the defendant himself, than would be strangers coming from a distant spot.

The expression of an opinion which disqualifies a juror, is a fixed, deliberate and determined one, which cannot be changed.

The law vests great discretion in Judges presiding over the trial of criminal cases touching the rejection or admission of jurors. It must be alegal,not an arbitrary discretion. Whenever itis exercised and objection is made, the presiding Judge should make it his duty to state all the reasons and circumstances which have induced his ruling. The latitude allowed cannot be permitted to be extended to cases in which it is not made to appear that jurors who were excluded, in the exercise of a proper discretion, would not have done impartial justice between the State and the accused.

Facts often transpire in the presence and are to the knowledge of Judges, which have inspired and necessitated their rulings, the existence of which is not established by the transcript. Proper information touching them would throw considerable light and powerfully enable the appellate court to test the correctness of such rulings; but iu the absence of such statement on the subject, they cannot be divined. '

In default of such, this Court is-bound to assume that the grounds stated were the only ones assigned, and must be governed accordingly, in some instances possibly defeating, however innocently, the ends of justice and endangering the good order and well-being of society.

It is probable that the District Judge in the present case was influenced by reasons, additional to those contained iu the bills, which induced him to reject the jurors. Ho no doubt expressed them; but whether or not there existed such reasons, they are not embodied in the bills of exceptions, when they might serviceably have been inserted in them.

Whatever the grounds incorporated ivere, we deem it, however, unnecessary to pass upon them, for that would be doing a work of supererogation, inasmuch as, even if the jurors had been improperly rejected, the prisoner could not be benefitted by the error committed, as the record does not show that he has sustained any material injury or has been deprived of any right in consequence.

There is no doubt that if the defendant had sustained any injury by the rulings of the District Judge excluding the jurors without sufficient legal cause assigned, it would be his right to demand, and the duty of this Court to accord reparation to the full length of its power.

The record in this respect is perfectly reticent. The very motion for a new trial, made by tire accused, not only does not even allege such injury, but is confined to merely charging'that the verdict is contrary to the evidence and to the law, and contains no specification whatever of grounds'. • : ■

The record does not show that the prisoner had exhausted hie ^peremptory challenges before the jury was fully made up and that he did not obtain an entire panel of Ins own choice. 1

As was substantially well said on a similar occasion, it does not follow that because the party might have been received as a juror, his rejection is error, for which the court will reverse the judgment.

• The great object of the Constitution and the law is that fin impartial jury may be obtained in every case. The rejection of the juror had no tendency to prevent the attainment of that end, for the prisoner had not exhausted his challenges before' the' jury was fully made up, and consequently he had obtained an entire panel of bis own choice.

Furthermore, in a case of this sort, no advantage could accrue to a prisoner should a new trial be awarded. The only effect of a new trial Would be, that the prisoner would be enabled to obtain an impartial jury of his own choice, and he has already had the benefit of a jury of his selection. State vs. Bunger, 14 An. 461; State vs. Eveque, O. B. 45, f. 634, N. R.; Henry vs. State, 4 Humphrey’s Tenn. p. 270. See also Carroll vs. State, 3 Ib. 315; S. P. Mimms vs. State, 16 Ohio St. 221; Burrell vs. State, 18 Tex. 713.

Under these circumstances, we do not think that the verdict and sentence should be disturbed.

Judgment affirmed.


author: . Todd, J.

text:
    No. 8839.
    S. B. & J. T. McClellan vs. F. L. Maxwell et al.
    A married woman separated in property mortgages her plantation, and dies, leaving a will and the property mortgaged to her surviving husband. The husband dies before the wife’s will is probated, leaving by will the same property to his nephew. Under an order of seizure and sale the mortgaged property Is seized, and the proceedings are conducted contradictorily with the executors of th o husband's will. The executors enjoin, and their injunction is dissolved, and the executors do not appeal, hut an appeal is afterwards taken by the legatee underthe husband’s will. Held, that such appellant cannot urge, for the first time before the appellate court, that the order of seizure issued on insufficient evidence, and that the wife's succession was not represented in the proceedings, there being no suoli issuos raised by the pleadings in the injunction suit, to which pleadings the attention of the Court must he confined.
    APPEAL from the Eighth District Court, Parish of Maclisou. Delony, J.

      J. (7. Seale for Plaintiffs and Appellants:

      A judgment rendered against an unrepresented dead person is null; also without citation. 29 An. 647 • 22 An. 23; 24 An. 253.
    The immediate Tights of an heir remain in abeyance until he decides whether he accepts or rejects a succession. A beneficiary heir has but a residuary interest, which can only be determined when the succession has been duly administered. 17 An, 41; C. C. 946, 1033, 1073.
    There being debts, andtbe heirs having accepted with benefit of inventory, an administration is necessary. 28 An. 859.
    A married woman over the age of twenty-one years of age may, by and with the authorization of her husband, and with the sanction of the Judge, contract debts, and to secure the same graut mortgages on her separate estate, (C. C. 126); and on presenting to a notary the certificate, it shall be his authority for drawing the act of moitgage. C. C. 128.
    Executory process cannot issue on a mortgage executed by a married woman, without authentic evidence that the debt secured enured to her separate benefit, which can only be shown by certificate of the Judge. C. C. 128; 20 An. 229; 24 An. 96.
    ' Farrar & Spencer for Defendants and Appellees :
    The executor, under the will, in possession for the heirs of the mortgaged property, is the proper person to serve notice, in foreclosing the mortgage under executory process. 20 An. 375; 1 An. 205.
    .The only difference, where a married woman is authorized by the Judge, or by her husband, from whom she is separate iu property, to give a mortgage on her property, is, that when authorized by the Judge, the burthen of proof is on her to show that the debt did not enure to her benefit; but where tile authoiity is given by the husband only, the burthen, of proof falls on the creditor, to show that the debt did enure to her benefit, ..15 An. 54, and authorities there cited.
   • The opinion of the Court was delivered by

. Todd, J.

On the 24th. of February, 1876, Mrs. Eliza Thompson, wife of Josiali Stanbrough, executed, with the authority of her husband-, ■three several promissory notes for $800 each, in, favor of the defendant, Maxwell, and to secure their payment, at the same time gave him a .special mortgage on' her Joan Plantation,” in the Parish of Madison.

After the execution of this mortgage Mrs. Stanbrough died, leaving a last will, appointing her husband, Josiali Stanbrough, executor, and ■constituting him her universal legatee. ■

■■ A short time after her death, the husband, Josiali Stanbrough, also died. He likewise left a will devising all his estate to his nephew, Jesse Josiali Stanbrough, and naming the plaintiffs the executors thereof, who qualified as such, and caused the last will of the said deceased and also of Mrs. Stanbrough to be probated.

On the, lOtli of February, 1881, the defendant, Maxwell, obtained an order of seizure and sale on the notes and mortgage of Mrs. Stanbrough above described, under which the Joan Plantation,” the mortgaged property, was seized. Notices of this order of seizure and sale were ■directed to and served on the executors of the last will of Josiah Stanbrough, the plaintiffs herein, no executors having been appointed to the will of Mrs. Stanbrough.

An injunction was taken out against this order of seizure and sale by these, executors, which, upou trial, was dissolved, the judgment being rendered on the 18th of January, 1882. An appeal was applied for and obtained from this judgment by the executors, but was not prosecuted by them.

On the 24th of November, 1882, an appeal from said judgment was applied for and granted in behalf of Jesse Josiah Staubrough, the said universal legatee of Josiah Stanbrough, then and still a minor, through his father and natural tutor, and on this appeal the case is before us.

The appellant, who, it will appear from the foregoing statement, was no party to the proceedings in the lower court, has filed in this Court an assignment of errors, suggesting substantially that the order of seizure and sale issued on insufficient evidence, touching the authority of Mrs. Stanbrough to bind herself for the debt proceeded on, and also denying that her succession was represented in the notice and proceedings under it.

In view of such assignment and suggestions it becomes necessary to state that, even admitting that these matters could be made the grounds for an injunction, and could be taken advantage of otherwise than by an appeal from the order of seizure and sale, in the determination of this case we cannot go outside of the record, and nurst confine our attention solely to the pleadings and the issues between the parties to this injunction > suit, the executors of Josiah Stanbrough on the one side, and Maxwell, the alleged creditor of Mrs. Stanbrough, on the other.

We can only review, on this appeal of a third party to the proceedings, the issues presented by the record.

These alleged irregularities, to which our attention is invited, touching the insufficiency of the evidence on which the order in question issued, is not raised by the pleadings. On the contrary, the executors of Josiah Stanbrough, the plaintiffs in the injunction, in their petition for the injunction, justified their right to resist the execution of the order of seizure and sale issued on the mortgage consented by Mrs. Stanbrough; on the claim that Josiah Stanbrough, the husband; was the heir-at-law and the universal legatee of his wife.

Referring, then, to the pleadings in the case, we find that the plaintiffs, as executors aforesaid, resisted the order to sell the mortgaged property on grounds substantially as follows:

1. That there were privilege and mortgage debts against both of said successions; that the succession of Josiali Stanbrough might prove insolvent, and that the time allowed for the payment of these debts had not expired.

2. That the alleged mortgage debt had been extinguished by payments in cotton and money.

3. That the debt in question was really a debt of the husband, for which Mrs. Stanbrough could not legally bind herself.

4. That the debt which formed the consideration of the notes and mortgage was prescribed when they were executed.

The answer of Maxwell, the seizing creditor, was, in effect, the general issue.

Such are, in brief, the only matters for our consideration under the pleadings. And the character of these pleadings contracts the issues still more than would appear from the above formal statement; for the plea of payment, under a well known rule, is an acknowledgment of the existence of the debt, and narrows the issue to its alleged payment. It is, in fact, nowhere alleged in the petition that there was no debt to the amount of the notes, but only that it was the debt of the husband. On the trial, however, the main effort was made to show that when the notes were given, there was no prior debt, or that the debt that they, with the accompanying mortgage, were given to secure, was not in existence at the time of their execution.

We have examined the proof in the record, and whether wo consider the grounds of the injunction at length, as set out formally in the petition, or as shortened and narrowed by the character of the pleas urged, we are satisfied that none of these grounds are sustained by the evidence or the law applicable to them. Under different pleadings the result might have been different; but as the record presents the issues, and considering the evidence as it bears upon them, we find no reason for disturbing the judgment complained of.

It is proper, however, in this connection and in conclusion to say, that w'e do not decide whether or not the order of seizure and sale issued on insufficient evidence, and whether the plaintiffs, as executors of the succession of Josiah Stanbrough, could or did legally represent the succession of Mrs. Stanbrough, or whether Josiah Stanbrough had or not accepted the succession or the universal legacy, under the last will of his x>redeceased wife, and became invested with the absolute ownershix) of her estate, including the mortgaged property before his death, and whether his executors could or not accept said succession. These are questions discussed by the counsel, but under the pleadings we are not now called on to decide any of them.

Judgment affirmed with costs.


author: Bermudez, C. J. Fenner, J.

text:
    No. 8796.
    Mrs. M. M. Calvit vs. John A. Williams, Transferree.
    A judgment-, affirmed on appeal, recognizing a homestead right under Sec. 1691 et seq. R. S., constitutes res judicata. It continues in force until set aside. As long as it remains in force the property cannot he legally seized, and the sale can be enjoined.
    Objection to the introduction of evidence under an answer to the injunction suit, averring a state of foots different from that in existence when the judgment was rendered, is well taken and the proof must be excluded.
    Damages olaimod for such seizure cannot be allowed.
    APPEAL from the Twelfth District Court, Parish of Rapides. Bar-bin, J.

      M. Byan and Jno. 0. Byan for Plaintiff and Appellee.
    - Bobert P. Hunter for Defendant and Appellant:
    A judgment deoreeing a homestead is not a final judgment* Only final judgments support the plea of res judicata• See 1 An. 92 5 3 An. 202.
    It is not transmissible to heirs. Bryant vs. Lyons, Sheriff, 29 An. 64.
    Such a judgment protects the defendant iu oxeoution only so long as he continues to own and reside on the property, to be in necessitous circumstances, and to have persons bona fide dependent upon him for support.
    If a person having such a judgment in his favor should afterwards inherit or make a fortune, would or ought that judgment to still protect the property ?
    If, having children at the time of the judgment, or other persons dependent ou the debtor for support, and tbey should all die, one ot the essential requisites to the protection of the homestead law would be wanting, and the creditor ought to be permitted to prooeed with his execution
    So if they should move off from the homestead. So, also, if the debtor ceased to reside on the homestead.
    Such judgment ouly settles the status quo for the time being; is not final, and does not support tbe plea of res judicata.

    So long as the same state of faots exist, the judgment is good. A change in the facts alters the status of the parties.
    In the present case, when the judgment set up as res judicata was obtained, in 1874, the plaintiff had a son and daughter living with her. Now, the son has moved away, is marriod, and is supporting himself and family by teaching sohool; and the daughter has also’ maniod, and has a husband able aud willing to support her.
    “Pleas, like res judicata, precluding an examination of the merits, caunot be aided by inference, but must be established beyond all question. The legal presumption attaching to such an estoppel is of too grave a character to be recognized as resulting from any litigation in which its essential characteristics are not free from all doubt.” Clay vs. Creditors, 9 M. 521; Fink vs. Martin, 5 An. 103.
    The plea of res judicata is stHcti juris, and in case of doubt is to be interpreted against the party pleading it. 3 An. 530; 4 An. 451; 7 An. 665 ; 18 L. 212.
    The homestead law is in derogation of common right, and is to ho strictly construed. 21 An. 686; 32 An. 444, 805, 979 ; 33 An. 240 ; 28 An. 667.
    Section 1691, Revised Statutes, which provides for a homestead in favor of the debtor having a family, or mother, or father, or persons “dependent on him for support,” means persons dependent for actual and necessary support, and not persons able to earn a living. A debtor supporting persons of the latter class is not entitled to the exemption of the homestead. Widow Lenfroy Decuir vs. E. G-. Benker, 33 An. 320.
    Query.—Do not all homestead exemptions have to be recorded, since the adoption of the Constitution of 1879?
    This controversy, in other respects, is to be settled by the Homestead Act of 1865.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an injunction to arrest the sale of certain property seized by the defendant, claiming to be the transferree of a judgment creditor of the plaintiff. The plaintiff alleges that the land was finally adjudicated by this Court to be her homestead, under Sec. 1691 et seq. of the R. S., she having children dependent upon her for support and, as such, that the property is exempt and beyond the reach of her creditors. She claims further, three hundred dollars as damages.

The answer admits the judgment, but avers that the plaintiff, at the time of seizure herein, had no one dependent upon her for assistance ; her son having left the place, and being a teacher, earning amply to provide for his necessities; her daughter having also moved from the place and married a man of means, who is able and bound to support her.

There was judgment for the plaintiff with an allowance of $150 as damages against the defendant, who has appealed.

On the trial the plaintiff introduced in evidence the proceedings in. which the judgment invoked by her was rendered, and the execution and seizure under it. The defendant, on the other hand, offered testimony to show himself a judgment creditor and to establish that the circumstances or state of things in existence at the time the right to a homestead was judicially recognized, had changed in this: that the son and daughter, who were dependent upon the plaintiff when the judgment was rendered, had ceased to be so.

To the admission of such proof the plaintiff objected, on the grounds that the judgment constituted res judieata and is a complete bar and estoppel to any inquiry or contestation over the matters of fact and law decided and determined. The court having overruled the objection and admitted the evidence, the plaintiff took a bill.

The objection was well founded. There can be no doubt that the judgment relied upon by the plaintiff is a final and sovereign judgment, which constitutes res judicata, and which cannot be attacked collaterally. Every matter adjudicated has become a part of the record which imports absolute verity. So long as the judgment remains in force, it is evidence of the right of plaintiff to the thing adjudged, and no legal seizure of the property can be made. Thompson on Homesteads, pp. 715, 716.

Indeed, if such were not the case, those whom the law intended to protect from necessity and want would be constantly exposed to molestation on the part of their creditors, and, though necessitous, they would be constrained to appeal to the courts, employ counsel, incur liability for costs, in order to claim protection against unauthorized invasion of the immunity accorded them.

The protection, instead of proving a shield, would, in the end, prove a delusion and a mockery, if not a curse.

It is a judgment which the court, by reason of its vantinving jurisdiction over the subject matter, can revoke on a proper showing and thus render inoperative. No reservation of power to that effect was necessary in the original decree. It exists and can be exercised, as a matter of course. 15 Ohio St. 427; McNeil vs. McNeil, Ohio, January, 1883.

It appears that the District Judge did not consider that the evidence adduced showed a change of circumstanoesiu plaintiff’s condition, and he rendered judgment in her favor,

We alindo to this merely in explanation of our decree, which does not pass upon 'the averments of the answer, which did not assail the judgment and ask its dissolution and avoidance. The only issue in the case was the validity of the seizure. We hold that, as long as the judgment stands, no seizure can bo effected.

In relation to the claim in damages we do not think that the plaintiff is entitled to recover any. She has brought the suit for the protection of her rights, The fact that it is instituted in the form of an injunction proceeding does not enhance the merits of her demand. The law does not contémplalo that such damages ns are claimed should be paid by a party cast. We find no precedent for such a prayer in a case like this and do not feel authorized to establish one. It would seem that the plaintiff should remain satisfied with a judicial recognition of the immunity which she has asserted.

It is, therefore, ordered and decreed that the judgment appealed from be amended, by eliminating therefrom the damages allowed, and that thus amended it be affirmed at plaintiff’s costs, appellant to pay costs of the lower court.

Fenner, J., dissents.

Manning, J., recuses himself; having been of counsel.

Dissenting Opinion.

Fenner, J.

Under the plain terms of the Homestead Act of 1865, the right to exemption depends upon three conditions, which must coexist at the moment when the exemption is claimed, viz:

1. The property must be occupied as a residence.”

2. The debtor must have a family, or mother, or father, or person or persons dependent on him for support.”

3. The property must “not exceed in value Mo thousand dollars.” Rev. Statutes, Sec. 1091. .

The law provides for, and requires no form of proceeding for setting aside and establishing a homestead. It establishes a simple right to claim exemption from seizure and sale, precarious in its nature, and dependent upon the continued co-existence of the conditions stated.

Property occupied as a residence to-day, may cease to be so occupied to-morrow. Property worth only $2,000 at one time, may, at a future date", become worth $10,000, in which case, under the terms of the law, to the extent of the excess, it would be subject to seizure and sale. The debtor who may, at one time, have had persons legally dependent on him for support, may, in the future, cease to have any such dependents.

When such changes occur, the exemption which formerly existed necessarily ceases.

The creditor, whose hand was stayed by the law as long as the exemption existed, is freed the moment that it ceases.

Those principles, self-evident as they seem to me, have been recognized in numerous decisions in our sister States. Revalk vs. Kraemer, 8 Cal. 66; Himmelman vs. Schmidt, 23 Cal. 117; Reinbach vs. Walker, 27 Ill. 393; Brown vs. Keller, 32 Ill. 151; Caheen vs. Mulligan, 37 Ill. 230; Brown vs. Martin, 4 Bush. (Ky.) 47; Austin vs. Stanley, 46 N. H. 43; Hoyt vs, Howe, 3 Wis. 752; Matter of Phelan, 16 Wis. 79; Parker vs. King, 16 Wis. 223.

They do not And express denial in the opinion rendered by the majority of the Court. The decree against the right of the seizing creditor is based upon the effect of a prior adjudication.

What is this adjudication 1

In 1872, eleven years ago, the present creditor issued execution against Mrs. Calvit on the same, judgment, under which the property now involved, being the only property then or now owned by the judgment debtor, was seized,

Mrs. Calvit presented a petition for injunction, alleging that the property was exempt under the homestead law, and setting forth the existence of the conditions entitling her to the said exemption, amongst others, that “ she had persons dependent upon her for support."

The evidence established the then existence of those conditions, including the dependency of an unmarried daughter and a son in infirm health, who resided with her and were supported by her.

An injunction was issued prohibiting the defendants from doing that which was threatened, viz: selling under the execution; which injune- , tion, after trial, was, by final judgment, perpetuated.

After waiting eleven years, discovering that Mrs, Calvit had no longer any persons dependent on her for support, within the meaning of the law. and had thus lost her right to the exemption, the judgment creditor issued a new execution, under which the property was again seized.

Mrs. Calvit presents a new petition for injunction, in which she alleges that the former judgment was res adjudieata, and operated as a perpetual prohibition of the judgment creditor from seizing her property.

The judgment creditor answered, admitting the prior judgment establishing the homestead rights of Mrs. Calvit as existing at that time, but averring that the son and daughter, who were then dependent upon her, were no longer so, but that the son had married and moved away; that the daughter had also married and that her husband possessed means ample for her support; and that Mrs. Calvit had now no person dependent upon her for support.

The evidence taken in the court » qua clearly establishes these facts, and it seems clear to me that the debtor had no right of exemption under the law.

I cannot understand the necessity of requiring the creditor to attack and set aside the former judgment, nor the possibility of his doing so.

The judgment was correct, and its correctness is not questioned by the creditor. It simply decided that the conditions entitling Mrs. Calvit to the homestead exemption existed at that time, and enjoined the sale of her property under the fi. fa. then issued in violation of that right.

The issue presented in the present case is a totally different one, viz: whether the conditions entitling her to exemption exist to-day. The cause of action being thus entirely different, res judicata has no application.

The majority opinion does not indicate in what manner, or for what cause, or with what possible effect, the creditor could attack or set aside the former judgment, the correctness of which nobody questions, and which, indeed, has been long since fully executed by the expiring of the writ under which, and of the delays within which the sale thereby enjoined could possibly have been made.

As the matter is left under the present decision, any other creditor of Mrs. Calvit could, under the evidence produced in this record, seize and sell this property. The hands of this judgment creditor alone are tied—tied, too, forever; because, if his right to proceed depends upe n his successfully attacking and setting aside, or vacating, or in any manner disturbing the former judgment, the condition precedent is an impossible one, besides being superfluous.

There exist no legal grounds upon which that judgment can be disturbed.

I, therefore, dissent.


text:
    No. 8808.
    The State of Louisiana vs. Razis Dugay.
    Juror who states, on his voir dire, that he has formed and expressed an opinion as to the guilt or innocence of the accused, which opinion was based on statements made by witnesses in the case, but that this opinion would yield to sworn evidence, and would have no influence on him in the jury box and that he was free of bias or prejudice against or in favor of the accused, whom he would try impartial!}', is a competent juror.
    APPEAL from the Nineteenth District Court, Parish of St. Mary. Goode, J.

      J. 0. Fgan, Attorney General, for the State, Appellee.
    D. Oaffery, M. J. Foster and F. Sigur for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

Appealing from a sentence of death, the accused submits to our" consideration two bills of exceptions charging the following errors:

1. That the District Judge erred in maintaining the competency of a juror who stated, on his voir dire, that he had heard the facts of this shooting from an eye witness; that after hearing this statement from an eye witness, he remarked that he supposed the accused would go up,” “ and this remark was predicated upon the statement of the said witness, and that as a juror he would require additional evidence to change his opinion.”

The bill informs us that on being further interrogated the juror stated: “that the opinion or impression which he had formed would have no effect upon him as a juror, but would yield to the evidence given in court under oath, and that he would disregard what he had heard outside of court;” * * “ and should the State fail to prove up the case or not introduce any evidence, his verdict would be for the prisoner.”

2. The second bill charges error in accepting as competent a juror who had stated, in his examination by counsel for the accused, that he had heard a good deal of this case; that he had formed an opinion as to the guilt or innocence of the accused; that his opinion was fixed; that it would require evidence to change his opinion ; that he would not go upon the jury with his mind free from what he had heard.”

Being further examined by the District Attorney, the juror explained as follows : “that he had neither bias or prejudice, like or dislike for or against the accused; that if sworn, lie would go into the jury box and render a verdict according to the law and the evidence given on the trial, regardless of what he had heard.”

We think that both of these jurors were unquestionably competent. No rational being, hearing or reading an account of a startling crime, can abstain from forming an opinion or impression touching the guilt or innocence of the party charged with the commission of tho deed.

But such an opinion or impression lurking in the bosom of a sensible man who states that, when sworn to decide upon the fate of the party accused, he would hush the voice of such an impression, and would be guided in his conclusions by the sworn evidence adduced and by the law of the case, does not in the least disqualify such a man as a juror in the case. A mind free of bias or prejudice, disposed impartially to hear the evidence, and to impartially try the accused, are the essential qualifications required of a juror by the law.

, This question touching the rule for testing the qualification or competency of jurors, in reference to their impartiality, and freedom from a fixed and unmoved preconceived opinion, has been the subject of frequent investigation by this Court, and may be now considered as finally and firmly settled in our jurisprudence, in accordance with the; views herein expressed.

Our last researches on this point were suggested in the case of State vs. de Ranee, 34 An. p. 186, in which we took occasion to make a. thorough review of previous opinions on this subject, and in which we reaffirmed the rule sanctioned in numerous cases, under which jurors who had formed and expressed opinions as to the guilt or innocence of the accused; but who asserted that they felt able to do impartial justice according to the law and to the evidence in the case, were, ruled to be competent jurors. We now distinctly and emphatically reiterate that this is the correct rule, with the reasonable hope that it will be clearly understood by the profession.

• See bases of: State vs. Bunger, 14 An. 462; State vs. Ward, 14 An. 693; State vs. Schnapper and Malone, 22 An. 43; State vs. Lartigue, 29 An. 642; State vs. Desmouchet, 32 An. 1241; State vs. Johnson, 33 An. 890; State vs. Hornsby, 33 An. 1110.

Erom the record it appears that the accused has had the valuable assistance of able and distinguished counsel, whose zeal and ability have shielded him from injustice, and that he has had a fair and impartial trial, and hence, we are powerless to avert his doom.

Judgment affirmed.