author: Miller, J. Watkins, J.

text:
    No. 11,751.
    Antonio Monteleone vs. Royal Insurance Company of Liverpool and London.
    When proofs of loss are furnished and a negotiation follows between tbe.assured and insurer, ended by a disagreement as to the basis for the adjustment of the loss, it will be no defence to. asuit on the policy .that plans and specifications were not furnished by the insured, it being apparent that if furnished there would have been no solution of the difference and suit was inevitable. Wood on Dire Insurance, 414 et seq.

    The condemnation and prohibition of any attempt to repair a building made unsafe by injuries from Are, is within the police power of the city. City Charter 1882; Act No. 20, Secs. 7 and 8.
    When the building insured is so injured by Are as to be made insecure and a menace to life, is condemned by the proper authorities and an attempt to repair it is prohibited by them, the insured may claim a total loss, although the building when insured was not sound. Wood on Insurance, Secs. 445, 446; May on Insurance, Sec. 433; 127 Mass. 300; 19 Wall. 640; 11 Mich. 446; 54 Cal. 450; 18 S. W. Rep. 337; Am. Dig. for 1893, 2171, No. 816.
    In such case the indemnity of the insured is not useless repairs, but the value of the building.
    An insurance on front and rear building covers connecting walls. Wood on Insurance, See. 474; 2 La. 507.
    A PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Horace E. Upton, Anatole A. Ker, and L. E. Bouchereau for Plaintiff and Appellee:
    Evidence that the company’s adjuster made an offer to compromise the claim for insurance is admissible to show waiver of proof of loss. (Sup. Ot. of Pennsylvania) Dwelling House Ins. vs. Gould, 19 Atlantic Reporter, Yol. 19, pp. 793 and 795; 16 Atlantic Reporter, 22.
    Ligón et at. vs. Equitable Fire Insurance Company, Southwestern Reporter, Yol. 10, pp. 768 and 769.
    If, after the insurer has commenced to rebuild, he is interfered with by the public authorities and prevented from completing his work, or the building is ordered to be taken down as dangerous, although its dangerous character was not attributable to the fire, the loss will be his; nor will he be excused from paying the insured the entire amount of his loss, according to the agreement-to rebuild or repay. May on Insurance, Sec. 433, p. 535, and authorities cited.
    The city government has the power to cause the danger which threatens the public from unsafe walls to cease. 97 U. S. 25; 98 U. S. 659; 10 An. 227; 4 An. 477; 34 An. 496; Dillon on Municipal Corporations (3d Ed.), Sec. 141, pp. 163 and 167.

      “ Whatever.may have been the defects in said building before the • fire, the owner still enjoyed the privilege of using it as a building, and was actually engaged at the time of the fire in making improvements upon the interior, under permission from the city authorities. It would seem, therefore, that, in the opinion of the city authorities, while it was sufficiently safe before the fire to be allowed to stand and to permit of interior embellishment, it was not sufficiently safe after the fire to permit of repairs involving the taking down and reconstruction of a party wall, disintegrated by said fire.
    “It is manifest, therefore, from any view of the case, that the owner might still be occupying his building if it had not been for the fire, and that it was the fire alone which deprived him of the use of said building, and that it was either the fire alone or the fire and pre-existing defects combined, which finally deprived him of his property, and in either case the defendant is liable.
    “ For, as it has been held, it was not alone the material of which the house was built that was insured, but it was that material existing in the shape of a house, habitable, susceptible of being used and occupied as a house.” Hamburg-Bremen Fire Ins. Oo. vs. Garlington, 18 S. W. Reporter, pp. 337-888, Supreme Court of Texas, 1886; Brown vs. Royal Insurance Oo., 1 Ellis & Ellis, p. 853, Queen’s Bench (1859) ; Brady vs. N. W. Insurance Oo., 11 Michigan, pp. 445, 446 (1863).

      Farrar, Jonas & Kruttsehnitt for Defendant, Appellant,
    cite: 38 An. 1; 42 An. 49; Tiedeman on Lim. Police Power, Sec. 1229, p. 440; Sedgwick on the Measure of Damages, Vol. 2, Sec. 722.
    Argued and submitted April 10, 1895.
    Opinion handed down April 22, 1895.
    Opinion on rehearing handed down November 18, 1895.
   The opinion of the court was delivered by

Miller, J.

The plaintiff claims payment of ten thousand dollars, the amount of the policy of insurance issued by defendants on the plaintiff’s property, destroyed by fire, the peril insured against. The defence is that plans and specifications required by defendant as part of the proof of loss were not furnished, that the risks were increased after the insurance without the consent of the insured, and a denial of the damage alleged to have heen caused by the fire.

It is in proof that proofs of loss were furnished, and there were negotiations between the parties in reference to the amount the defendants should pay. The real question was, whether the payment should be an amount sufficient, the defendant claimed, to repair the building insured, and put it in the condition it was before the fire, or whether the value, as in case of total loss, as demanded by the plaintiff, should be the indemnity under the policy. The discussion ended with the denial of liability, except for repairs. In view of this discussion and efforts to adjust the loss resulting in a difference which admittea of no settlement by any papers supplementing the proofs of loss, we think the defence fails that plans and specifications were not furnished. Wood on Fire Insurance, Sec. 414 et seq.

The building, three stories, adapted for stores as well as for dwelling purposes, was partly occupied at the time of the insurance. The uses of the building were indicated by the policy describing it as occupied by stores and dwellings. When the fire occurred there were in the building a barber shop, a shoe-fitting establishment not using machinery, and portions of the premises were devoted to other shop purposes not in our view differing materially from the uses specified in the policy. In our opnion, the risks of fire were not sensibly increased by the kinds of business carried on in the building when the fire occurred, and the circumstance that an additional or increased premium of insurance was demandable, by reason of the nature of the occupancy, not of a dangerous character as it seem3 to us, does not of itself sustain the defence of increased risk. Wood, Secs. 226, 243.

The serious question in this case is as to the amount of the loss. The building was old, and the copious testimony as to its walls, flooring, joists, openings and in other respects, produces the conviction that when insured the building was not sound. It was seriously affected by the fire, both by the flames and falling debris. The party wall was so injured as to be useless; that portion dividing the yards was inclined; the wall opposite the party wall, that is, in the Cusstomhouse side was strained; and there is testimony the cross walls leaned and the joists were charred. Of course, the injuries by the fire were the more serious because of the condition of the premises before requiring, it seems, girders and other appliances to hold it together, and it is in proof that at the time of the fire necessary repairs were being made. The current of the testimony is the building was old and frail before the fire, one of the witnesses testifying it was unsafe and that it was so injured by the fire as to make it insecure, even with the repairs possible to be made. In this condition the building was condemned by the Oity Engineer, and there was a refusal on the part of the city authorities to permit any repairs. The public safety, in their opinion, required the building should be rebuilt.

In this condition of the record, it is urged on us by the defendant that the building could have been repaired so as to make it as good as before the fire, and the cost of these repairs should be the measure of the recovery. There is a mass of testimony as to the practicability of such repairs, or their efficacy, if made or attempted. There is testimony to the effect the building was injured to such an extent as to be beyond repair. On the other hand, it is testified, on behalf of defendant, that the party wall taken down and rebuilt, anchors introduced connecting the walls, strips of new flooring supplied, with other work on ceilings, cross walls, would put the building in the same condition it was before the fire. The qualification of all this kind of reparation, not to be accomplished without large expense, is that after all, as we gather from the record, the result what would be what the witnesses term a “ fire job,” sufficiently expressive, but made clearer by the testimony of defendant’s witness: that the building, with all the proposed repairs, would still be unsafe.

The police power of municipal corporations, to guard against unsafe buildings by ordering their demolition, will not be questioned. Its exercise may be erroneous and the power may be abused, but still it exists subject to judicial control. But courts should not interfere with it unless on very clear grounds. In this case there is the condemnation of this building by the City Engineer; the action of the Mayor for the enforcement of that condemnation; the prosecution of the owner, the plaintiff, for non-compliance, and finally the refusal of the city authorities to permit attempted repairs of a building deemed a menace to life. The defendants claim all this action of the authorities was illegal, and not to be considered in determining the question of'liability under the policy. Conceding the action was not conclusive, we are remitted to the issue of fact as to the condition of the building, and our conclusion from the record is, that no repairs would have furnished a safe building.

There is thus presented the question whether the indemnity to the assured for a loss by fire is to be found in the estimated cost of repairs, which, if made, would not give him a secure building, and when, too, the authorities prohibit the repairs. Can the assured be required, under the repairing clause of the policy, or under any view, to accept that species of indemnity? Are not all insurance policies, and their reservations as to repairing buildings injured by fire, subordinated to the public safety, and the police power securing the public against insecure building and dangerous constructions? Irrespective of all considerations of the public safety, is not the assured entitled, under any interpretation of the policy, to some other and better indemnity for a loss by fire than the cost by repairs on the building that can i ot be made safe by any repairs? A total loss may be claimed though the walls of a building stand, and the elements that composed it be not entirely consumed. It is the same, we think, when the insured building can not be made secure by repairs. Nor will it make any difference in such cases of constructive total loss, that the condition after the fire is due, in part, to causes existing before. Such causes are deemed the remote, not the proximate causes of the loss. The insurer taking a risk on an old, and in this instance, an insecure building, incurs the obligation to pay for a total loss if the injuries by the fire, combined with antecedent defects, make repairs impracticable. The value of the old building at the time of the ñre is the measure of the indemnity promised by the ’policy. Recognizing this measure as applicable in this case, we understand it to be not disputed, the lower court has adopted the minimum valuation of the witnesses. Wood on Fire Insurance, Secs. 445, 446; May on Insurance, Sec. 433; 18 South Western Reporter, 337; 54 Cal. 450; 127 Mass. 309; 11 Mich. 446; 19 Wall. 640; Am. Dig. 193, p. 2671, No. 316.

The defendant contends against any liability for injury to the wall between the yard and the adjacent premises. The insurance was on the main and rear buildings. We are not furnished with any authority excluding under such a policy injury to the connecting or yard walls. It would seem that a policy on buildings front and rear should be deemed to include appurtenances as walls. Wood on Fire Insurance, Sec. 474; Workman vs. Insurance Company, 2 La. 507. There is no issue made in the discussion as to the value of the debris of the old building used, as we infer, by the insured, and though the insured is held for a total loss. We have been called on to deal only with two standards of liability, that of repairs, which we can not adopt, and that of valuation of the insured building, as to which there seems to be no dispute. The insured suggests that there should be, in any event, an allowance for one half of the value of the party wall, not insured. We understand his right against the adjacent proprietor for that half would pass by subrogation. 2 Wood, Sec. 500. Still there is no objection to make the reservation of the right.

It is therefore ordered, adjudged and decreed that, reserving the defendant’s right to claim of the owner of the property adjacent to the premises insured the amount he may owe for the party wall, the judgment of the lower court be affirmed.

On Rehearing.

Watkins, J.

The following are' the grounds of de'endant’s motion, viz.:

1. That there is error in the said opinion, in so far as it holds that there was a constructive total loss of the buildings described in plaintiff’s petition as the consequence of fire; that the fact and truth was and is, that any loss suffered by plaintiff in the premises, and due to fire, can easily be differentiated and separated from the loss due to the general bad condition of his buildings; to their age, consequent infirmities and defects, and to the consequent necessity, as found by the court, of tearing down the same after the fire alleged to have been the cause of all the loss suffered by plaintiff.

2. That there is error in the opinion of the court in that it finds that the lower court adopted the minimum valuation of witnesses as to the value of the premises described in plaintiff’s petition, whereas in truth and in fact both the lower court and this court adopt the maximum valuation, and that the finding of the court as to the measure of damages is erroneous, even if defendant and appellant is to be held liable for the value, at the time of the fire, of all the buildings and constructions described in plaintiff’s petition.

3. That there is error in said opinion in holding that the defendant and appellant should be mulcted in the value of one-half of the party wall, which did not belong to the plaintiff at all, and for which, as appears from the record, he has already instituted suit against third persons.

4. That there is error in the opinion of the court in so far as it holds the insurance company liable for the value of the yard wall, the value whereof is expressly excluded from consideraron under the terms of the policy sued on.

1. Was there “ a constructive total loss of the buildings described in plaintiff’s petition as the consequence of the fire?”

Is there error in our opinion in this respect?

Defendant’s counsel put their proposition thus:

“ Upon the first point then we respectfully submit that the court should, as the first element in deciding upon the amount of plaintiff’s recovery, fix upon the value of the property forming the subject-matter of the total loss which, if you assume the whole of the front building to be lost, wifi be somewhere between three thousand dollars and five thousand three hundred and thirty-three dollars and thirty-three and one-third cents. And taking those figures as a starting point, then deductions or additions should be made according to the views of the court upon the following propositions:

“ The burden of proof was upon plaintiff, and he has failed by a fair prepondi ranee of proof to show that the loss is as high as the second-named figures. To give him the average of the two, or four thousand one hundred and sixty-six dollars and two-third cents, is more than fair. To give him three thousand dollars seems to us the necessary result of the present state of the record.” Brief, p. 4.

Consulting plaintiff’s petition, we find the following allegations, viz.:

“That your petitioner is the bona fide and legal holder of fire policy No. 4,368,896, issued by the (defendant) company for ten thousand dollars, upon the buildings and improvements on the property situated at the corner of Royal and Customhouse streets.

í¡: ¡{t % * * * *

Said buildings and improvements being designated in said policy as consisting of a three-story brick slated building, and rear building attached.”

The petition further represents “ that, on the 28th of October, 1891, * * * a fire occurred in the premises immediately adjoining your petitioner’s above described property, and was communicated to the said buildings and improvements, covered by said policy, and that the effect of the said fire was such that the said buildings and improvements, covered by said policy, were greatly injured and damaged thereby; and the loss by said fire to your petitioner was practically a loss and entire destruction of the property insured aforesaid; and your petitioner is entitled to recover on the said policy for the total loss of the property insured."

Therefore, plaintiff’s claim is the total loss of all the buildings insured, and Ms averment is that the loss by said fire was practically a loss and entire destruction of the property insured; ” that is to say there was a constructive total loss of all the property insured.

In our opinion we say:

“ The serious question in this case is as to the amount of the loss. The building was old, and the copious testimony as to its walls, flooring, joists, openings, and in other respects, produces the conviction that the building when insured was not sound.

“ It was seriously affected by the fire, both by the flames and the falling walls.

The party wall was so injured as to be useless; that portion dividing the yards was inclined; the wall opposite the party wall— that is, on the Customhouse (street) side — was strained; and there is testimony (that) the cross wall leaned and (that) the joists were charred.

“ Of course, the injuries by the fire were the more serious because of the condition of the premises, requiring, it seems, girders and other appliances to hold it together; and it is in proof that, at the time of the fire, necessary repairs were being made. The current of the testimony is (that) the building was old and frail before the fire — one of the witnesses testifying that it was unsafe, and that it was so injured by the Are as to make it insecure, even with the repairs to be made.

In this condition the building was condemned by the City Engineer, and there was a refusal on the part of the city authorities to. permit any repairs. The public safety, in their opinion, required the building should be rebuilt.”

After thoroughly reviewing the evidence applicable to the situation just described, the opinion says:

“ Conceding the action was not conclusive, we are remitted' to the issue of fact as to the condition of the building, and our conclusion from the record is that no repairs would have furnished a safe building.”

Again, the opinion says:

“ A total loss may be claimed though the walls of a building stand, and the elements that composed it be not entirely consumed. It is the same, we think, when the insured building can not be made secure by repairs. Nor will it make any difference in such cases of constructively total loss that the condition after the fire is due, in part, to causes existing before. Such cases are deemed the remote and not the proximate causes of the loss.

“The insurer taking a risk on an old and, in this instance, an insecure building, incurs the obligation to pay for a total loss, if the injuries by the fire, combined with antecedent defects, make repairs impracticable.”

We have made these lengthy extracts from the opinion as the best means of showing there was a constructive total loss of all the buildings which were covered by the policy.

Neither the statement of the opinion nor the legal principles announced as controlling it, are called in question by counsel for the insurance company, nor is the summary of the proof afforded by the record disputed.

It is our conclusion that there was a constructive total loss of the-building described in plaintiff’s petition.

II.

Is there error in the opinion in stating that the court adopted the minimum valuation of witnesses as to the worth of the building insured?

On this question the opinion says:

“ The value of the old building at the time of the fire is the measure of indemnity promised by the policy. Recognizing this measure as applicable to this case, we understand it to be not disputed (that) the lower court has adopted the minimum valuation of the witnesses.”

The plaintiff sued for ten thousand dollars, the full amount of the policy, and the District Court gave him judgment for eight thousand dollars only; and our opinion and decree affirm that judgment.

At the date of the issuance of the policy — September 20, 1891— the- building insured was estimated to be worth ten thousand dollars, the amount of the defendant’s risk; and the loss by fire occurred on the 28th of October, 1891 — a few days over one month intervening between those dates.

Under this estimation of the value of the property the defendant accepted premiums from the plaintiff and undertook the risk; and under this claim of deficiency in value this court has diminished the plaintiff’s recovery by two thousand dollars.

There is in defendant’s answer no charge of either concealment or fraud on the part of plaintiff in procuring the insurance at ten thousand dollars of valuation.

On the question of .actual value of the property, one witness — a dealer in real estate, and well acquainted with the property — said that in 1890 it was worth twelve thousand dollars or fifteen thousand dollars.

The plaintiff, as witness, says it was worth twelve thousand dollars or fourteen thousand dollars.

A contractor states that a duplicate of the building destroyed would cost nineteen thousand nine hundred and fifty dollars.

Another builder and architect placed its value at twelve thousand dollars. He says he considers the value of the old building, at the time he examined it, something like eight thousand dollars.

Another witness, this last one for defendant, states that it would have cost ten thousand dollars to replace the burnt buildings.

In our opinion, we regard this testimony as perfectly conclusive to the effect that the District Judge adopted the lowest valuation and not the maximum valuation, as charged.

III.

With regard to the allowance for the party wall being reduced one-half, we think the defendant’s claim is groundless, because we have already held that defendant is liable to the plaintiff for a constructive total loss, and he can not be reimbursed for a total loss if one-half of the value of the party wall is deducted from his claim and he be relegated to an action against his co-proprietor for reparation of his loss on that behalf.

Our opinion says: “.The insurer suggests that there should be, in any event, an allowance for one-half of the value of the party wall not insured. We understand (that) its right against the adjacent proprietor for that half would pass by subrogation.” 2 Woods, ■Sec. 500.

“ Still, there is no objection to (making) the reservation of that right.”

We see nothing in defendant’s brief to shake our conclusions on this subject.

If the defendant be responsible under his contract to repair and make good to plaintiff a constructive total loss, it must pay for the party wall, otherwise the remuneration would prove inadequate for the purpose of rebuilding, and the complete measure of its engagement would be unfulfilled.

The remaining question is, whether there is error in our opinion in holding the defendant for the value of the yard wall; that is, the wall which separated the yard of the plaintiff from that of the adjoining yard.

In our opinion we say:

“The defendant contends against any liability for injury to the wall between the yard and the adjacent premises.

“The insurance was on the main and rear buildings. We are not furnished with any authority excluding under such a policy injury to the connecting yard walls.

“ It would seem that a policy on buildings, front and rear, should be deemed to include appurtenances as walls.” Wood on Fire Insurance, Sec. 474; Workman vs. Insurance Company, 2 La. 507.

Having gone over this case again very thoroughly, we are fully convinced that our opinion and decree are correct and must remain undisturbed.

It is therefore ordered and decreed that our original judgment and decree remain undisturbed.


source: Caselaw Access Project

author: McEnery, J.

license: Public Domain

text:
    No. 11,966.
    State of Louisiana vs. Dick Vickers.
    It is a general rule that a party can not impeach the testimony of his own witness.
    When a party is bona fide surprised at the unexpected testimony of his witness, he may be permitted to interrogate as to previous declarations made by him inconsistent with his testimony, the object being to prove the witness’ recollection, and to lead him, if mistaken, to review what he has said.
    If the sole effect of such interrogation is to discredit the witness, apart from statutory regulations, such evidence is not admissible. But if the purpose be to show that the witness is in error, it is admissible.
    Though the answer of the witness may involve him in contradictions, calculated to impair his credibility, that is not a sufficient reason for excluding the inquiry, as proof by other witnesses that his statements are incorrect would have the same effect.

      When a witness for the State, on the trial states an important and material fact on cross-examination which he failed to state as a witness on a former trial, this omission of the fact from his former statement can not be used as a means of impeaching his testimony directly by the State.
    The State can not impeach its own witness by asking irrelevant questions, the object of which is to discredit his testimony.
    It is too late on a motion for a new trial to urge objection to the judge’s charge, when no instructions on that point were asked and no exception made.
    APPEAL from the Ninth Judicial District Court for the Parish of De Soto. Hall, J.

      M. J. Cunningham, Attorney General, and J. B. Lee, District Attorney, for Plaintiff, Appellee.

      John C. Pugh, Goss & Parsons, for Defendant, Appellant.
    Argued and submitted November 23, 1895.
    Opinion handed down December 2, 1895.
   The opinion of the court was delivered by

McEnery, J.

Under an indictment for the murder of L. S. Ohovose, who was killed by defendant in a difficulty with other parties, the defendant was convicted of manslaughter. He appealed.

The first point made by defendant is, that the State can not discredit its own witness.

A State witness, when cross-examined by the defendant, stated “ that his brother had a pistol and handed it to him during the difficulty.” On re-examination the District Attorney asked the witness if he had testified on the former trial “ that his brother had a pistol and handed it to him during the difficulty.”

The prosecution contends that the State was taken by surprise by the answer of the witness to the cross-interrogatories, and “ it had the right to contradict him and to destroy the testimony of the witness.”

This last statement in quotation marks is found in the brief of the District Attorney, and is too broad and can not be sustained. Apart from statutory regulations, such evidence is not admissible. 56 New York, 385; 29 Cal. 384; State vs. Schonhausen, 26 An. 421; State vs. Thomas, 28 An. 827.

The record shows that the trial judge permitted the question to be answered, for the sole purpose of discrediting the witness. On this point the record discloses the following statement by the judge: “ As to the question asked W. A. Pearce, the State claimed surprise at the testimony of Peace, and the court believed the claim of surprise well founded; * * * as to the question asked Robert Pearce, the court did not understand that the only object of the question was to impeach and discredit the witness, although it was admissible for that purpose on the same ground of surprise at his testimony about the pistol, although he was not sworn at the former trial.”

Prom the bills, we understand that the testimony of both witnesses, W. A. Pearce and Robert Pearce,, was to a fact not disclosed on the former trial, and at the Coroner’s inquest. W. A. Pearce was a witness at the inquest and on the trial; Robert Pearce did not testify on either of these occasions. With reference to the question propounded to the first witness, its object was to discredit his testimony.

It is a general rule that a party can not impeach the testimony of his own witness. 26 An. 421; 28 An. 827.

The exception is that he is sometimes permitted, in cases of hardship, when the testimony of the witness is unexpectedly unfavorable, to contradict him by other evidence to the issue in the case. 1 Stark Ev. 147; 1 Greenleaf Ev., pars. 442, 443; 3d Rice on Evidence, p. 373; State vs. Simon, 37 An. 569.

And where a party is bona fide surprised at the unexpected testimony of his witness he may be permitted to interrogate as to previous declarations made by him inconsistent with his testimony, the object being to prove the witness’ recollection and to lead him, if mistaken, to revise what he has said. 1 Wharton’s Evidence, par. 549; 3 Rice’s Evidence, par. 237.

But this proceeding is quite different from impeaching his credibility directly for the sole purpose of destroying, as claimed by the prosecution, his whole testimony. Generally, where proof is to be offered that a witness has said or done something inconsistent with his .testimony, a foundation must be first laid and an opportunity for explanation offered by asking the. witness whether he has not said or done what it is proposed to prove, specifying the particulars of tim'e, place and person. 1 Greenleaf’s Evidence, 463; 16 How. 38; 76 Penn. 83.

The same course is pursued when allowed by statute with a witness, on his examination in chief, if the judge is of the opinion that he is hostile to the party by whom he was called. If the sole effect is to discredit the witness, apart from statutory regulations, such evidence is not admissible. But if the purpose be to show the witness in error it is admissible. Bullard vs. Pearsall, 53 N. Y. 230.

In the ease just cited we think the law is correctly stated as follows: “This course of examination may result in satisfying the witness that he has fallen into error and that his original statements were correct, and it is calculated to elicit the truth. It is also proper for the purpose of showing the circumstances which induced the. party to call him. Though the answer of the witness may involve him in contradictions calculated to impair his credibility, that is not a sufficient reason for excluding the inquiry. Proof by other witnesses that his statements are incorrect would have the same effect, yet the admissibility of such proof can not be questioned. It is only evidence offered for the purpose of impeaching the credibility of the witness, which is inadmissible when offered by the party calling him. Inquiries calculated to elicit the facts, or to show to the witness that he is mistaken and to induce him to correct his evidence, should not be excluded simply because they may result unfavorably to his credibility.”

The witness, W. A. Pearce, was a State witness, and on two occasions failed to state that his brother had handed him a pistol. On the second trial the fact as stated by him was disclosed on cross-examination by defendant’s counsel. It was a statement unfavorable to the prosecution and we infer from the briefs material and important to the defendant in' his plea of self-defence. The witness’ testimony was inconsistent with his prior testimony, in which he suppressed, if the statement be true, an important and material fact. In reference to inconsistent statements, Mr. Rice, in his work on Evidence, Vol. 3, paragraph 236, says: “The party producing a witness is not allowed to impeach his credit by evidence of bad reputation, except when he is compelled to produce him by rea-on of the nature of .the evidence sought, but he may contradict him by other-evidence, and he may also ask him whether he has not made at other times, statements inconsistent with his •present testimony. Under all rules of reason he is not allowed to contradict his witness upon any particular or material fact.” This has reference to the material fact as bearing on the credibility of the witness. The law is thus stated by Greenleaf: “ You may cross-examine your own witness if he testify contrary to what you had a right to expect as to what he had stated in regard to the matter on former occasions, either in court or otherwise, and thus refresh the memory of the witness and give him full opportunity to set the matter right if he will; and, at all events, to set yourself right before the jury. But you can not do this for the mere purpose of discrediting the witness, nor can you be allowed to prove the contradictory statements of the witness upon other occasions, but must be restricted to proving the facts otherwise by other evidence.”

And in the case of Coulter vs. American Merchants United Express Co., 56 N. Y. 585, it was held that a party may contradict his own witness as to a fact material to the case, although the effect of the proof may be to discredit him, but he can not impeach him, although subsequently called as a witness for the adverse party, either by general evidence, or by proof of contradictory statements out of court.”

The witness was presented by the prosecution as worthy of credit, and he could not be impeached, either by general evidence or by proof of contradictory statements, in or out of court. He could have been contradicted as to a fact material to the case, although the effect of the proof may have discredited him, but the party calling him could not have adduced such contradiction when it is only material, as it bore upon his credibility. In the instant case the prosecution might have shown by other testimony that no pistol was handed to the witness by his brother, but he was not at liberty to prove that on a former trial the witness had omitted this fact from his testimony, as the fact of the omission went direct to the witness’ credibility. The prosecution, although taken by surprise, so far as the witness was concerned, was limited to the interrogation heretofore alluded to, and the giving the witness the opportunity of explaining the inconsistency in his testimony.

The question was asked the witness Robert Pearce, sworn on behalf of the prosecution by the District Attorney, if he had not gone to Texas a short time prior to the last term of court, how much money he had, and from whom he obtained it. The question was allowed to be answered. Although the answer of the witness dissipated, to some extent at least, the effect which the question intended to produce, yet it was improper: Its sole purpose was to discredit the witness, as it was irrevelant and could have no effect.

For the reasons stated, in reviewing the questions asked the witness W. A. Pearce, this evidence was equally inadmissible.

The trial judge refused to permit certain threats of the Pearces to go to the jury. His reasons, appended to the bill, are sufficient to justify his ruling. He says: The above statement of the evidence on the trial only purports to be a part of the testimony, and is, in' fact, only a part of it, except the testimony of Robert Pearce, which was written down in full. The prisoner’s testimony is quoted substantially fight, except that he said that the gun might have fired accidentally, or something to that effect. W. A. Hick’s testimony should be thatW. A. Pearce replied to Vickers’ denial, ‘ Well, if you did, I wanted to be ready, or wanted you to let me know, so that I could be ready,’ or that he was ready, or words to that effect.

The evidence showed that the difficulty arose between Vickers and W. A. Pearce in the presence of Robert Pearce, and that his name was not mentioned, and that the alleged conspiracy between old man Pearce and Robert occurred after W. A. Pearce had left the house that morning, and that W. A. Pearce was unarmed and said nothing about it if it existed, and that the old man Pearce did not arrive on the scene until after all was over and the parties had scattered.- Under these circumstances I did not see how the-threats made by old man Pearce were admissible in justification of the shooting at W. A. Pearce, his son, when the old man was not present.”

We need add nothing to this statement, as it shows that if any threats were made, they were the threats of old man Pearce, who was not engaged in the difficulty, and that if there was a conspiracy among them' to take the life of Vickers no threats had been communicated to him. Even communicated threats will not justify an assault upon another unless the party making them attempts to carry them into execution by a hostile demonstration.

A motion for a new trial was filed and overruled. It embodies the matter reserved in the bills of exception, and further alleges thát the judge had not charged the jury as to the legal effect of the accidental discharge of the prisoner’s gun, and that one of the-jurors who tried the case was disqualified, as he had formed and ex-pressed an opinion as to the guilt of the defendant prior to the trial¿ As to the accidental discharge of the gun and its legal effect, no instructions were asked for on this point, although the written charge of the judge had been submitted to the attorneys of the defendant.

It is unnecessary to pass upon the question raised as to the qualification of the juror or the exception of the judge’s refusal to give the special charge as to a reasonable doubt.

The judgment appealed from is annulled, avoided and reversed, and it is now ordered that this case be remanded to be proceeded with according to law.


author: Breaux, J.

text:
    No. 11,899.
    Succession of Michael T. Mulledy.
    Congress appropriated five thousand dollars to the heirs and legal representatives of one of the victims of the Ford Theatre disaster.
    It does not go to the administrator, as assets of his succession, and is not imputable to the payment of his debts.
    The government having thoughtproper to make a grant of an amount to the heirs of one of the victims, they receive it as a gift, a bounty.
    APPEAL from the Oivil District Court for the parish of Orleans. Bightor, J.

      Louque & Pomes for Opponent, and James Timony for Administrator, Appellees.

      W. 8. Benediet for Opponent, Appellant.
    Argued and submitted November 23, 1895.
    Opinion handed down December 2, 1895.
    On Motion to Dismiss.
   The opinion of the court was delivered by

Breaux, J.

The late Michael T. Muliedy, domiciled in New Orleans, was a victim of the Ford Theatre disaster in Washington.

Congress appropriated five thousand dollars to his heirs and legal representatives. His sister, Kate Muliedy, obtained letters of administration of the succession; an inventory was taken, upon which this amount, the only asset he. left, was carried.

In her account of administration she credits herself with one-half of the amount and her brother the other as the next of kin.

Maurice Hart, one of the creditors of the late Michael T. Mulledy, opposed the proposed distribution on the ground that the fund was the property of the deceased and liable to seizure for his debts.

This opposition was dismissed.

From the judgment of dismissal he appeals.

There was another opposition filed in the lower court by the heirs of a sister, deceased, of the late Michael T. Mulledy, claiming one-third of the amount to be distributed. They recovered judgment for the amount of one-third of the five thousand dollars.

Before this court the appellee moves to dismiss the appeal on the ground that the court is without jurisdiction ratione materise — the amount of appellant’s claim being eight hundred and one dollars with interest.

The Constitution vests this court with jurisdiction of all eases in which the amount to be distributed exceeds two thousand dollars.

Ordinarily, the opposition will prevent a distribution of an amount sufficient to pay the judgment in case of judgment for the opponent, and no more need be withheld for the purpose.

Here the whole amount is involved. If opponent’s claim be allowed it will necessarily change the title, the amount carried in the account of the administratrix will have to be settled as an asset of the succession and will not be subject to the claim of the next of kin in their own right.

It is manifest that the controversy involves the whole amount- to be distributed and not merely the claim of the opponent.

Where an opposition affects the whole amount and gives good cause to withhold the distribution of amount exceeding two thousand dollars this court has jurisdiction.

On the Merits.

The appellant urges that the fund having been inventoried as the property of the succession of Mulledy, and notice of the filing of her account as administratrix having been given to the creditors of his succession, she is as. an heir concluded and can not claim the amount in her own right to the exclusion of the succession of her late brother, Michael T. Mulledy.

There was nothing in these proceedings which operated as a divestiture of title. In her account she and her co-heir claimed the property. Previously there was no abandonment of any right.

The donation was to the heirs and not to the succession of the deceased. It was an act of generosity over which the government had absolute control.

A} similar question was decided in Emerson’s Heirs vs. Hall, 14 La, 1. This court, on the ground that the ancestor had rendered meritorious services to the government, held that he held an equitable claim, and that the appropriation made was liable for the debts of the deceased.

This case was taken by writ of error to the Supreme Court of the United States, and the judgment of this court was reversed.

With great clearness it was said in that case: Had Emerson become insolvent and made an assignment, would this claim, if it may be called a claim, have passed to his assignees? We think clearly it would not. Under such an assignment what could have passed? The claim is a nonentity. Neither in law or in equity has it any existence. * * * It is true remuneration can not be recovered against the government by action at law. A claim having no foundation in law, but depending entirely upon the generosity of the government, constitutes no basis for the action. It can not be assigned.

$ $ $ $ $ * * jjs

“In the present case the government might have directed the money to be paid to the creditors of Emerson, or to any part of his heirs. Being the donor, it could, in the exercise of its discretion, make such distribution or application of its bounty as circumstances might require.”

Here, as in the case which we quote, the money was to be paid to the legal representative.

The interpretation given by the court of lase resort to a statute of the United States, in a well reasoned case in reversing a decision of this court, is authoritative.

The judgment is therefore affirmed.


text:
    No. 11,863.
    Herman Roehl vs. T. C. Porteous.
    One of the obligors having promised the mortgagee that he would pay the amount of their indebtedness in the event of the sale of the property mortgaged, whatever the property would bring, he is not concluded so as to prevent him from recovering one-half of the difference between the purchase price and the amount of the indebtedness, the proof being that, in promising to .pay, he stipulated in good faith for the proceeds of the sale of the property to be credited on their indebtedness, and that after that credit he would pay the remainder of the obligation to the mortgagee.
    Plaintiff having alleged that a sale had been made, and that half the difference was due him between the purchase price and the amount of the indebtedness of himself and his co-obligor (it being a joint venture), judgment must be sus - pended until proof is made of the price at which thedand was sold. Although plaintiff is subrogated, he can not recover one-half of the difference (one-lialf balance of indebtedness) without establishing what that difference is, and he can not recover the entire claim on an allegation that one-half the difference of the price and the indebtedness is due him.
    Be having undertaken to give his co-obligor, in solido, credit for his interest in the-land sold, it must be a credit based on a valid sale proved.
    If the court were to pronounce judgment for the difference claimed it would have to assume that a legal sale was made as alleged.
    The laws of a sister State must be proved as facts, and the foreclosure of a mortgage legal under the laws of the sifais of the realty.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Buck, Walshe & Buck for Plaintiff, Appellant.

      •Omer Villeré for Defendant, Appellee.
    Argued and submitted November 18, 1895.
    Opinion handed down December 2, 1895.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff and the defendant bought land in Alabama from the Elyton Land Company, a corporation incorporated under the laws of the State of Alabama. The purchase price was ten thousand dollars; each paid one thousand dollars cash and gave notes for the credit portion. Two years and two months after this sale had been made, the capital and interest on the credit portion of the purchase price amounted to nine thousand three hundred dollars. The old notes were canceled and a deed was made to Porr teous and Roehl by the company. The latter executed their notes for the amount due by them, payable in eight annual instalments, with semi-annual inierest coupons. This amount Roehl. the plaintiff, claims to have paid, and this suit is brought by him against the defendant to recover from him the sum of three thousand one hundred and fifty-six dollars and twenty-two cents, with interest, being, he alleges, the defendant’s share or a portion of a loss made by them “ in a joint real estate speculation.”

The plaintiff and defendant defaulted on some of these notes.

The deed in question signed by Porteous and Roehl was in the common law form, obligating themselves to pay the balance of the purchase price. The deed recites that in case of default as to any part of the price, the mortgagee would have the right to sue for the entire purchase price; after giving notice for thirty days by advertisement, of the time, place and terms of the sale, to sell the property at puhlic outcry; execute title and apply the proceeds of the sale to the payment of the indebtedness and costs. The deed also recites:

“Such foreclosure, sale and conveyance may be made by the president or vice president of the Elyton Land Company or any person authorized by writing.”

A bond executed by this company bears the date of this act of mortgage.

The recitals of the bond identify the mortgage and the notes as part of the sale and show that a sale was made of the property to the plaintiff and the defendant, “to have and to hold to the said T. C. Porteous and Herman Roehl.”

The following is another of the declarations of the bond (the makers of the notes, plaintiff and defendant, were, under the laws of Alabama, jointly and severally bound) :

“And the Elyton Land Company, for the consideration aforesaid, hereby covenants and agrees that it is seized of an indefeasible estate in fee simple in and to the premises aforesaid; that it has a good right to sell and convey the same; that the same are free from encumbrances, and that it will warrant the title.”

The plaintiff, concerned about this indebtedness to the land company, called upon the defendant on the subject. The latter’s advice was to let the property be sold, as under the laws of Alabama they would have two years after the sale within which to redeem.

An advice, it seems, that the plaintiff was not willing to follow.

The property was, plaintiff says, offered for sale. On the day of sale he was in Birmingham, Ala., and bid upon the property. It was on his bid, he alleges, adjudicated to him for six thousand dollars, and that he paid that amount and the remainder due by them on their notes. That the property was cried out and adjudicated to him by the vice president of the company, by whom alone the deed executed is signed.

This deed was admitted in evidence over the objections of the defendants.

During the trial several bills of exceptions were reserved.

The first bill shows that the counsel for defendant objected to the deed of mortgage of 17th day of January, 1889, upon the ground that “it purported to be a deed of sale of real estate ” to the defendant, by whom it was not signed, and in consequence inadmissible. The second bill of exception was reserved to the court’s action in admitting the deed of sale signed by the vice president of the land company, vendor, to the plaintiff, vendee.

The grounds are that it is not supported by the required formalities. Copies of the Alabama statutes, relating to contracts in writing assignable by endorsement, were admitted in evidence. They are evidence of the “ effect of transfer on note given for the purchase money of lands and joint promises in writing, how construed.” They relate exclusively to bills and notes.

Judgment was pronounced for the defendant, rejecting plaintiff’s demand.

The plaintiff appeals.

Although the defendant mortgagor did not sign the deed of mortgage, having signed the notes secured by the mortgage, and obligated himself as one of the makers of the notes, with special reference to the mortgage by which they are secured as to their payment, he was without ground to urge that he was not a party to the mortgage.

In support of the second bill the defendant by counsel urges that in order to give effect to the last deed (the deed of sale to the plaintiff) , it was necessary to prove that the alleged vice president of the company had authority to sign the deed and that it was necessary to show that a notice of demand and notice of seizure and sale were duly served upon the mortgagors, and that the sale was advertised as required.

The plain facts are that it is not shown that the property was advertised for sale and that any of the required notices were given; there is not of record any authentic evidence of the proceedings of foreclosure. It may be that some of the formalities of foreclosure-are legal under the laws of Alabama, such as the offering of the-property for sale by public auction by the vice president of the land company, the dispensing of all notices save the advertisement.

They are indispensable to a foreclosure of mortgage under the laws of this State. In the absence of all proof regarding the foreclosure of mortgages, it must be presumed that the laws of Alabama are similar in pari material to the laws of this State.

“ The statutes of sister States are to be proved as facts, and no-judicial notice can be taken of them, whether they be public or private.” Sedgwick ou the Interpretation of Laws, 2d Ed., p. 299.

Without legal proof of the laws in point of a common law State, it would be extremely difficult to hold under Louisiana laws that a common law mortgage has been duly foreclosed, in compliance with her laws.

The forms and conditions of the act are entirely different, and the steps to be followed in the foreclosure.

None the less, we must take notice of the fact under the evidence that plaintiff is the holder of the notes signed by him and the defendant as makers, and that the former is subrogated to the rights of the land company. At this point of the case there is very little difference, if any, between the plaintiff and the defendant, in so far as relates to the transfer of the land company’s right. But the plaintiff urges that he acquired them for six thousand dollars, value of the property they bought in joint speculation, that he paid the remainder of their indebtedness in order to obtain his discharge and to hold the defendant for the amount of his indebtedness. The defendant, on the contrary, argues that the amount paid for the land in question was nine thousand three hundred dollars, and that he in consequence does not owe any difference, as there is none between the purchase price of the land and the amount of the indebtedness.

The facts as we interpret them do not sustain the defendant upon this point. The plaintiff is the only witness. His utterances as a witness, it may be, were not always clear. There was no attempt at evasion, and, taken asa whole, it is manifest that he did not buy the property in question for the balance due on the purchase price. He emphatically denied having made any such purchase. We do not discover that in his transaction with the Land Company he has con-eluded himself from claiming the difference between the purchase price and the total indebtedness, after a sale will have been shown, as alleged.

Although the fact is not shown with legal certainty, we are led to infer that the price was six thousand dollars, and not nine thousand three hundred dollars as it is urged by the defendant.

In the present condition of the case we do not think he can be charged with either amount. The venture was joint. They were to look to the proceeds of the sale. If the plaintiff has bought the property, it is subordinate to the original agreement that the venture should be joint. The obligation depends upon a future event, the sale of the land.

“ It is not shown that any of the lands acquired by the parties under their agreement were ever sold.” Breaux vs. Lauve, 24 An. 179, 181.

We the, more readily adopt this view for the reason that it seems the property has been sold, and now it is only a question of settlement and payment of the difference between the price of the sale and the indebtedness (if a legal sale has been made).

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed.

It is further ordered, adjudged and decreed that the case be remanded to the District Court, to be tried in accordance with the views herein expressed.

That the costs be paid by the one finally cast in the suit.


author: Watkins, J.

text:
    No. 11,952.
    The State of Louisiana vs. Thomas Henry and George Corbes.
    An information which charges the defendant with having robbed a' other of a designated sum of lawful money, the enrreucy of the United States, charges a statutory offence •within the intendment of the Revised Statutes, Sec. 810, and the consequence is, that it, being in the "words of the statute, or those certain and equivalent having been employed, is valid and sufficient.
    APPEAL from the Twenty-first Judicial District Court for the Parish of St. Charles. Rost, J.

      M. J. Cunningham, Attorney General, and Prentice E. Edrington, District Attorney, for Plaintiff, Appellee.

      Hiddleston Kenner for Thomas Henry, Defendant, Appellant.
    Submitted on briefs November 23, 1895.
    Opinion handed down December 2, 1895.
   The opinion of the court was delivered by

Watkins, J.

The defendant, Thomas Henry, was found guilty of the crime of robbery, and from a sentence of three years at hard labor in the State penitentiary has appealed, relying upon a single bill of exception reserved to the ruling of the court overruling his motion in arrest of judgment.

His contention is, that robbery is not a crime which is defined in the criminal statutes of the State; and that, being a common law crime, the English common law must be resorted to for a definition of it. And that it is elementary that indictments for robbery must set out specifically all the essential elements of the crime of robbery at common law; and that the indictment against the accused is wholly inadequate and insufficient for that purpose. That to merely charge that the defendant has committed a robbery is not adequate or sufficient in law.

The grounds of defendant’s motion are as follows, viz.:

“Now, under the common law, seven distinct ingredients are necessary and essential to constitute the crime of robbery, viz.:

“1. Ownership, or right of possession, of the property in the person alleged to have been robbed.

“2. That the property alleged to have been carried away must be personal property.

“ 3. That the property carried away must be certain.

“4. Force or fear must be used in taking away the property.

“5. The taking away must be against the will and without the consent of the possessor.

“6. That the thing stolen must be on the person or in the immediate presence of the possessor.

“ 7. that the taking away must be with an intent to steal.” (Brief p. 2.)

Counsel's statement predicated upon these propositions is as follows, viz.:

“It is hardly necessary to argue in support of this position. It is apparent that the ownership or right of possession must be in the party robbed, otherwise a person might be convicted of robbery if he took stolen property from a robber. It is also apparent that a person claiming property as his, and taking it from another, might be guilty of assault and battery but not of robbery.

“ It must be personal property, because no one can steal a tract of land or a house. It must be described with certainty, because the accused is entitled to know this in order to make a defence. Force or fear is one of the most important and absolute essential ingredients of robbery, because it forms the distinction between this crime and larceny. The taking away must naturally be against the will of the owner. The thing stolen must be on the person or in the presence of the owner; this forms another important distinction between the crime of robbery and larceny. And, lastly, the taking away must be with the intent to steal, for it is plain that it is possible for a person to forcibly and against the will take something without any intent to steal. Thus a man in a quarrel might take a pistol or other weapon from his assailant, or seeing another about to destroy goods belonging to him, might interfere and take away the goods.”

But we must look into the information and see what its averments are and whether they are amenable to the charges preferred against it.

They are as follows, viz.:

“ That one Thomas Henry, and one George Oorbes, * * * on or about the 13th day of July, 1895, with force and arms, in the parish afoaesaid, then and there b ing, did unlawfully, wilfully, feloniously and v olently seize, rob, take and carry away from the person of Allen McCoy, the sum of eight dollars and ninety cents, in money of the legal currency of the United States, contrary to the form of the statute of the State of Louisiana in such case made and provi ed,” etc.

Our statute says:

“Whoever shall commit the crime of robbery, shall, on conviction,” etc. Rev. Stat., Sec. 809.

But the next succeeding section is more comprehensive, for it says:

“The robbery or larceny of bank notes, obligations, or bills obligatory, or bills of exchange, promissory notes for the payment of any specific property, paper bills of credit, certificates granted by or under the authority of this State, or of the United States, or any of them, shall be punished in the same manner as the robbery of goods and chattels.” Rev. Stat., See. 810.

The information charging defendant with the robbery of money, legal currency of the United States, the crime must be interpreted in the light of the latter section, the former having more direct applicability to “ the robbery of goods and chattels.”

Taken in this light, the crime charged must be considered rather as a statutory than a common law crime; and, the information tested, and its validity determined by the rules of construction applicable thereto, seems to be legal and sufficient,

This court has frequently held that indictments for offences created by statute should be charged in the words of the statute, or in words conveying the same meaning, and sufficiently definite as to bring the accused within its operation, so that he can not be misled as to the charge he is to answer. State vs. Stiles, 5 An. 324; State vs. Benjamin, 7 An. 47; State vs. Murphy, 43 Ark. 178.

In State vs. Cason, 20 An. 48, the defendant was charged with having stolen “ lawful money of the United States” under Revised Statutes, Sec. 810, above quoted, and the court said:

“ The defendant is accused of a statutory offence; in such case the indictment should describe the crime in the words of the statute, or in words certain and equivalent, going to show that the offence has been committed, and is punishable under the law.”

The court then added:

“No such effects or notes as ‘ greenbacks ’ are known in law; but treasury notes of the United States are recognized by the laws of Congress. ’ ’

The information brings the crime of robbery that it charges against the defendant, Henry, strictly within the statute and that decision.

In State vs. Carro, 26 An. 377, the court held to be sufficient, an indictment which charged that defendant “ did feloniously and violently seize, take and carry away the sum of one hundred dollars in paper currency of the United States of America.”

The court said that it was “a substantial compliance with the statute.” Rev. Stat., Sec. 1061.

And that statute declares that “in every indictment in which it shall be necessary to make an averment as to any money or any bank note, it shall be sufficient to describe such money or bank note as money without specifying any particular coin or bank note,” etc. Rev. Stat., Sec. 1061.

In State vs. Schonhausen, 26 An. 421, the court said:

“The charge of the indictment is the felonious and violent taking -of the sum of seventeen hundred and forty-four dollars in paper money of the United States of America. This comes within the law. Rev. Stat., See. 810.” State vs. Robinson, 29 An. 364.

The information affirms that the defendant, Henry, did take and carry away from the person of Allen McCoy the sum of eight dollars and ninety cents;” that certainly charges McCoy’s rightful possession of the money and answers defendant’s first objection as to possession.

It also answers his second objection with regard to the property having been personal. It also answers the third objection as to the property carried away being certain.

The information affirms that the defendant “did unlawfully, wilfully, feloniously and violently seize, rob, take and carry away from the person of Allen McCoy,” etc., and Wharton says that “while there must be a felonious taking of property from the presence of another, either by actual or by constructive force * * * yet, if

force be used, fear is not an essential ingredient.” Whar. Crim. Law, Sec. 850.

This is a complete answer to defendant’s fourth objection.

That author further says:

“ As a rule, robbery must be against the will; at the same time, ns in the parallel case of rape, against the will, if there be force, is to be treated as convertible with without consent,’ ” etc. Ibid., Sec. 855.

That is an answer to defendant’s fifth objection.

The indictment charges that defendant “ did seize, rob, take and ■carry away from the person,” etc., and this answers defendant’s sixth objection.

With regard to the intent, the information charges that the defendant did “unlawfully, wilfully, feloniously and violently seize, rob, take and carry away,” etc.’; and Wharton says, that “the goods, also, must appear to have been taken animo furandi, as in eases of larceny, though this is to be judged of from circum.stances.” Ibid., Sec. 848.

This answers defendant’s seventh and last objection.

A careful scrutiny of the information and a comparison of it with the law has satisfied us that the defendant’s objections are not well fou ded.

Judgment affirmed.


text:
    No. 11,913.
    State of Louisiana ex rel R. F. Hogsett, Sr., vs. J. H. Patin, Justice of the Peace.
    A justice of the peace who is, by a party litigant in his court, recused on the charge of having a personal and pecuniary interest in the suit, is incompetent to mate any order except one of recusation, and assignment to some other justice of the peace in the vicinage, having concurrent jurisdiction.
    ^PPLICATION for a Writ of Prohibition.

      Foster & Broussard for Relator.

      William John McCall for Respondent.
    Submitted on briefs November 9, 1895.
    Opinion handed down December 2, 1895.
    Application por a Writ op Prohibition.
   The opinion of the court was delivered by

Watkins, J.

Relator, as defendant in the suit of J. E. McDonald against him in the court of the respondent, complains that he tendered a plea of recusation of the respondent in writing, in limine, and prayed that he enter an .order recusing himself, and referring the aforesaid plea, for trial and determination, to some justice or judge of concurrent jurisdiction; but that, on the contrary, the respcndent at once illegally and wrongfully passed upon and decided said motion and illegally overruled it, refused to make the reference to another judge of concurrent jurisdiction, and refused to recuse himself.

Relator shows that under the law the respondent had no legal right to pass upon and decide the grounds of recusation stated in said motion, but was compelled to grant the order prayed for and refer said motion for trial to the nearest justice of the peace having jurisdiction.

Relator shows that the four suits which have been brought against him are for one dollar each, and that the suits have been filed in this manner for the sole purpose of making unnecessary costs.

That he has no right of appeal, and that he apprehends that the illegal acts of the respondent taking unwarranted jurisdiction in those cases will cause him irreparable injury. That in refusing to grant his motion to assign the question of his recusation to another judge or justice of concurrent jurisdiction, for trial, and assuming jurisdiction, and proceeding to the trial of said four causes, the respondent exceeded the bounds of his jurisdiction and authority.

That he is entitled to a writ of prohibition to prevent his further proceedings in said suits.

The respondent returns, that he has jurisdiction of the question in dispute, and that the averment of the relator’s petition to the effect, that “ he is in any manner interested, financially or otherwise, in the result of said causes is absolutely false and unfounded in fact.”

He further returns that the motion to recuse him was, upon its face, frivolous, and was intended to procure d lay.

The record of those suits discloses that relator’s motion to recuse the respondent, avers that he has an interest, personal and official, in the matter herein involved, and that that interest is connected with the interest of plaintiff, in that he has an understanding and agreement with the plaintiff, or promise from him to receive from him a certain percentage on the amount of plaintiff’s claim sued on and collected.”

And it further alleges that respondent “ has been consulted and advised with by the plaintiff regarding this claim,” etc.

It further shows that this motion was filed in the respondent’s court on the 18th of October, 1895, and on the 23d of same month and year that the respondent gave to the attorneys of relator the following notice, viz.:

“John E. McDonald vs. “R. F. Hogsett. }Nos. 335, 336, 337, 338.

To R. F. Hogsett, Sr., Greeting (T. D. Foster and R. F. Broussard, Attorneys) :

“ Take notice that in the above entitled and numbered causes, that the motion filed by you has been overruled, for the reason that the averments therein contained have no existence in fact or form, nor do they contain any element of truth in their construction.

“ Given under my hand officially this the 23d day of October, 1895.

“ J. H. Patín, J. P.»

Liberally construed, respondent’s representations are, that the charges are untrue in point of fact, and that is the purport of his return.

Accepting this statement of the respondent, as true in fact, does that put the matter in any more favorable light?

The motion does charge, in express terms, that the respondent had and has a personal interest in the claims in suit in the cases before his court. That that interest is connected with that of the plaintiff. That there exists an understanding and agreement between the respondent and the plaintiff therein, to the effect that the former is to receive a percentage of the claims in the event of their collection.

These charges are plain, direct and unequivocal. If true, certainly the respondent ought not to sit in judgment on those cases..

In our opinion he ought not to have attempted to have thus summarily brushed the charges aside and proceeded with their trial.

From the notice given to relator’s counsel it appears that he not only tried the application to recuse him as judge and dismissed it, but that he evidently proceeded very summarily in the premises, acted without any evidence and ex parte.

The law provides that a judge may be recused by reason of “his being interested in the cause and for other just causes,” etc. O. P. .'337, 338.

And the Code instances the case of “ his having been employed <or consulted as advocate in the ease.” Id. No. 2.

It further declares that “when the judge is personally interested in the suit,” he shall call on some other judge “to try the case.” C. P. 342.

It further expressly provides with regard to justices of the peace that in case he be'challenged for any cause “ he shall send the cause to be tried by the justice of the peace living nearest to the domicile or usual place of residence of the defendant.” O. P. 1072.

A judge can not determine a plea of recusation, however unfounded it may be.

In State ex rel. Segura vs. Judge, 37 An. 253, this court said:

“ The complaint is that after the plea of recusation was filed, the judge refused to refer the trial thereof to another judge acting in his place; that he passed upon and overruled it; that he ought not to have tried the same, and that he is incompetent to sit on the merits of the case.”

The court then very correctly observes that “it may well be, as respondent claims, that the relator has no just foundation to recuse him and that the plea has no merit; but if such indeed be the case, it is not for him to say so.

“His duty was on the filing of the recusation to have recused himself, to have called in another judge to try the plea, and eventually the case, and to have abstained from exercising jurisdiction over the matter pertaining to the case until the plea had been ■effectually overruled.”.

In Hunter vs. Blackman, Manning’s Unreported Oases, 427, our immediate predecessors said “ that a recused judge is incompetent to make any order except one of recusation.” See, also, to the same effect, State ex rel. Tyrrell vs. Judge, 33 An. 1293; State ex rel. President, etc., vs. Bishop, 36 An. 160; State ex rel. Trimble vs. Judge, 38 An. 247; State ex rel. Nolan vs. Judge, 39 An. 995; State ex rel. Fontelieu vs. Judge, 37 An. 394.

Counsel for the respondent refers us to the case of State ex rel. Mexican International Improvement Company, 41 An. 567, as announcing a different principle; but it presents a wholly different question. For it appears that the presiding judge, ex proprio motu, recused himself on the ground of relationship and the cause was at once reallotted to another judge.

He also refers to the ease of State vs. Chantlain, 42 An. 719, but that decision, whilst quoting with approval the principles governing the 33 An. 1293, 37 An. 253, 38 An. 247, 39 An. 995, proceeds thus:

“ But these decisions do not refer to motions which upon their face, and admitting all their allegations to be true, afford no legal ground for recusation.”

After referring to the provisions of the Code of Practice applicable, the court say:

“ The motion made by the defendant sets forth no one of these causes. It was frivolous on its face, made on the eve of trial, and •could have no purpose or effect but to create delay.”

No such state of facts exists in this ease. The relator is entitled to relief.

It is therefore ordered that the preliminary writ of prohibition be perpetuated and made absolute and peremptory, at respondent’s cost.


text:
    No. 11,892.
    State of Louisiana vs. Frank Lundie and Frank Riggs.
    The legality of a tax is contested when it is alleged that there is no law under which the license or tax can be imuosed.
    Evidence admitted without objection cured the vagueness and insufficiency of the answer.
    Shows and exhibitions, free of any charge or contribution of any hind, do not owe licenses.
    The outside free shows, such as “ Punch and Judy,” “ Balloon Ascensions” and “ Processions,” to attract the crowd to the performance, where an entrance fee is charged, are included within the license of the latter.
    A PPEAL from the Third Justice’s Court for the Parish of St. Tammany. Jack Strain, J.

      M. J. Cunningham, Attorney General, and Clay Elliott for Plaintiffs, Appellees.

      George E. Williams for Defendants, Appellants.
    Submitted on briefs November 18, 1895.
    Opinion handed down December 2, 1895.
   The opinion of the court was delivered by

Breaux, J.

The defendants were sued to compel them to pay a license of fifty dollars for carrying on and conducting a Punch and Judy” and “ Magic Lantern ” show and performance.

Prom a judgment condemning each defendant to pay a license of thirty dollars, they appeal.

The record presents the question whether the tax collecting authorities can collect a license from shows and exhibitions given free of charge. The answer of the defendant is a general denial, and they specially “ deny the legality of the tax, and they aver that there is no law which requires them to pay a license in this State.”

To this, objection is urged by plaintiffs on the grounds:

1. That the pleadings are too loose and general to serve as a basis of defence.

2. That the allegations denying that there is a law which requires them to pay a license to the State is a special defence to which the defendants’ case must be confined.

Evidence admitted without objection proves that they did not charge any admission fee and thereby this evidence supplies the insufficiency of allegation of the answer. In consequence under the plea of the illegality of the demand, the issue is properly before us for decision, whether considered under the plea of general denial or under the special defence that there is no law requiring them to pay a license.

The legality is contested when it is claimed there is no law authorizing the tax, or that the statute authorizing it is invalid, or that it has been imposed in violation of a valid law. Gillis vs. Clayton, 33 An. 285; Adler, Goldman & Co. vs. Board of Assessors, 37 An. 507, 508.

It being a fact shown without objection, that they do not charge or receive contributions; theycan not be held for a license. There must be some feature of business about the performance in order that the State may be entitled to a license.

As the case comes to us there is absolutely no charge of any kind made and no contribution solicited or expected.

Other shows and performances it seems, draw the crowd by means of free shows. The law does not, as we read, contemplate that the free exhibition also shoald pay a license.

It is therefore ordered adjudged and decreed, that the judgment appealed from be avoided, annulled and reversed, and that plaintiff’s demand be rejected.


author: Miller, J.

text:
    No. 11,895.
    State of Louisiana vs. Henry Thompson.
    The court again affirms that juries may convict on the testimony not corroborated of the accomplice if they believe his testimony. 1 Greenleaf, Secs. 372-379; 1 Archbold, p. 502; 25 An. 522; 33 An. 158; Constitution, Art. 168.
    The decisions in the Callahan and Bucloussat cases do not trench on previous decisions in reference to accomplices. One of these decisions holds that if corroboration of the accomplice is attempted, it must be by that species of confirmatory testimony the law exacts in such eases; the other holds that this court will not set aside a verdict on the ground that illegal testimony was admitted to sustain that oí the accomplice when it was an issue of fact with which this court can not deal, whether or not the witness was a feigned accomplice or an accomplice at all. il An., pp. Hi, 997; Constitution, Art. 81, limiting the jurisdiction of this court in criminal cases.
    APPEAL from the Third Judicial District Court for the Parish of Claiborne. Barksdale, J.

      M. J. Cunningham, Attorney General, and James D. Everett, District Attorney, for Plaintiff, Appellee.

      E. H. McClendon for Defendant, Appellant.
    Submitted on briefs November 9, 1895.
    Opinion handed down December 2, 1895.
   The opinion of the court was delivered by

Miller, J.

From a sentence for arson defendant appeals.

The judge refused to instruct the jury that the defendant could not be convicted on the testimony alone of an accomplice not corroborated, and this refusal is the subject of the bills of exceptions.

The particeps criminis is not on that account an incompetent witness. Competency exists until conviction and sentence. Hence, it is settled that the accomplice may be used as a witness by the State. In this case the defendant alone was indicted, and even when the participant is jointly indicted with the other, the prosecution as to the accomplice may be withdrawn to use him as a witness. 1 Greenleaf, Secs. 372, 379; 1 Archbold, 502; State vs. Prudhomme, 25 An. 522; State vs. Russell, 33 An. 135. The testimony of the accomplice being admissible, it has been held by the courts of other States, and in Louisiana, that the conviction could be had on the testimony alone of the accomplice, without corroboration, if the jury believed his testimony. This conclusion was reached by our courts more readily, perhaps, because our law makes the jury judges of the facts. Const., Art. 168; R. S. S. 991.

It is claimed in argument here, that our courts have gone too far in holding that juries may convict on the unaided testimony of an accomplice. While the text writers recognize the infirmity of that species of testimony and commend the caution which judges have enjoined on juries with reference to such testimony, still it is the current of authority that the jury may act on the testimony of the accomplice only, and convict. 1 Greenleaf, Sec. 380; 1 Archbold, p. 502; Wharton’s Criminal Evidence, Sec. 441. With us the charge of the judge is restricted to giving the jury the law applicable to the case, leaving to them the determination of the weight due to the testimony. The direction given by judges in other States not to convict on the testimony of an accomplice would be to trench on the functions of the jury here. Constitution, Art. 168; R. S., Sec. 991. We think, therefore, that the decisions of our courts on this subject have very respectable support in the text-books and jurisprudence of other States, and are in harmony with our Oonstitution and laws.

It is urged on us that the decisions in the Callahan and Dudoussat cases, 47 An. 444 and 997 respectively, are in conflict with previous decisions. Neither of those decisions exhibit any such conflict. The question, in the first case, so far as connected with the present contention, was not whether corroboration of an accomplice was requisite, but the character of confirmatory testimony if attempted to be offered. The court held that the supposed testimony, tendered as corroboration, was illegal, and on that ground set aside the verdict. In the Dudoussat case it was held that the testimony admissible to confirm the ordinary witness could not be deemed illegal on the assumption it was to support an accomplice, when the issue of fact before the jury was whether the witness was a feigned accomplice or an accomplice at all, an issue with which this court could not deal. Neither decision expressed or implied that the accomplice must be corroborated.

Our jurisprudence on this subject, we think, must be deemed settled, and sustains the refusal to charge as requested, and that given. State vs. Prudhomme, 25 An. 522; State vs. Russell, 33 An. 135.

It is therefore ordered, adjudged and decreed that the sentence of the lower court be affirmed, with costs.

Breaux, J., concurs in the decree.


text:
    No. 11,894.
    State of Louisiana ex rel. Louis Romero vs. Hon. A. C. Allen, Judge of the Seventeenth Judicial District Court, Parish of Vermilion.
    The court again affirms that applications for writs of prohibition and certiorari under Art. 90 of the Constitution will not be entertained, unless the appropriate method to obtain relief is first resorted to in the lower court.
    APPLICATION for Writs of Certiorari, Prohibition and Habeas Corpus.

      L. L. Bourges for Relator.
    Submitted on briefs November 4, 1895.
    Opinion handed down November 18, 1895.
    Rehearing refused December 17, 1895.
    Application por Writs op Certiorari and Prohibition.
   The opinion of the court was delivered by

Miller, J.

The relator, sentenced by the lower court to pay a fine for refusing to work on the public roads, or be imprisoned for thirty days, complains that the sentence is in excess of the jurisdiction of the court; that he has no remedy by appeal, and asks relief at our hands by the issue of writs of prohibition and certiorari.

The proceedings against the relator, resulting in the sentence, were under the act of the Legislature No. 112 of 1880, amending the section of the Revised Statutes relative to public roads. The act provides that for the failure to work on the roads when required, as prescribed in the act, the penalty incurred shall be a fine, and in default of payment, imprisonment not exceeding five days. The sentence was undoubtedly, in excess of the power of the court to impose, but the judge, in his return, states the sentence as pronounced was in accordance with the law, but was erroneously entered on the minutes. Of course, we are restricted to the record in our examination of the case. However, the record shows no attempt in the lower court to correct the error in the sentence. If the excess of the punishment over that allowed by the statute had of been brought to the notice of the court, we can not doubt the error would have been corrected. We think this a proper case to apply the rule that on these applications the relief will be refused unless the opportunity is afforded the lower court to correct the error, the basis of complaint. In this case we are bound to presume an application to correct the minutes so as to show the proper sentence would have accomplished the object of the application to us. The State ex rel. J. L. Smith vs. The Judge of the Eighteenth District Court, parish of St. Tammany, 38 An. 920; State ex rel. J. A. Shakespeare, Mayor, vs. Judge Civil District Court, Division " E,” 40 An. 607.

It is therefore ordered, adjudged and decreed that the relator’s petition be dismissed at his costs.


text:
    No. 11,882.
    The State of Louisiana ex rel. Rosetta Gravel Paving and Improvement Company vs. The Judges of the Civil District Court of the Parish of Orleans.
    When several suits, identical In every respect, are filed for the purpose of obtaining the allotment of one to a certain Division of the Civil District Court, Parish of Orleans, the first assignment of one trill carry the others to the same Division, as there is but one case in fact and in law.
    y^PPLICATION for Writs of Mandamus and Prohibition.

      Branch K. Miller for Relator.
    Submitted on briefs November 9, 1895.
    Opinion handed down November 18, 1895.
    Rehearing refused December 16, 1895.
    On Application for Writs of Mandamus and Prohibition.
   The opinion of the court was delivered by

McEnery, J.

The relator filed in the Civil District Court, parish of Orleans, five suits against the New Orleans Traction Company, Limited, for the sum of one hundred and twenty thousand two hundred and thirty-five dollars and thirteen cents, each of said suits being based on the identical cause of action, and each but a duplicate of the other. The object and purpose, as the relator declares, in filing these suits was to obtain the chance of having his cause allotted to a division of said court, then open and transacting business. If one of the cases had been allotted to this division it was relator’s intention to discontinue the other cases.

The presiding judge of the division ordered the clerk to make one allotment of the five cases, and that to the division of the court to which the first of the cases was assigned.

The relator now proceeds by way of mandamus to compel an assignment or allotment among the judges of the Civil District Court of the other four cases filed by the relator.

The answer of the respondent judge gives his reasons for the order issued by him. They are conclusive and admit of no controversy. -

It is not necessary to say what was the intention of the framers of the Constitution in enacting Article 130. It is enough to say that it provides that cases filed in the Civil District Court shall be equally allotted and assigned among the judges of said courts in accordance with rules of court to be adopted for that purpose.

There was, in fact, but one cause of action filed by the relator, and when it was assigned, under the rules of the court, this finally determined to what division it should go for trial. The other suits, duplicates of the one assigned, necessarily followed the one assigned, as they were identical with it.

The proceedings adopted by relator would be the means, if permitted, to defeat the intent of the article of the Constitution for an equal distribution of cases, for there would be the same case, the identical cause of action, the same plaintiff and defendant, before each division of the court.

The relief prayed for is denied and the rule granted herein discharged at relator’s costs.


author: Nicholls, C. J.

text:
    No. 11,881.
    State of Louisiana ex rel. John T. Shaw vs. Hon. T. C. W. Ellis, Judge of the Civil District Court for the Parish of Orleans, Division “A.”
    The allegation in the petition of a'relator praying for relief through a writ of prohibition, that he has no remedy in the premises otherwise than through the special relief asked, is a mere conclusion of law, carrying with it no force, in the absence of a statement of facts going to show the correctness of .that conclusion.
    Prohibition is not a proper remedy where relief can be reached through appeal or injunction.

      y^PPLICATION for a Writ of Prohibition.

      Dinkelspiel & Hart for Relator.

      Felix J. Dreyfous and Solomon Wolff for Respondent.
    Submitted on briefs November 4, 1895.
    Opinion handed down November 18, 1895.
    Rehearing refused December 16, 1895.
    On July 18, 1895, a petition and notice of demand were served on relator, in the case of George Montgomery vs. John T. Shaw, No. 46,475, Division “A,” of the docket of the Civil District Court for the parish of Orleans, being a proceeding by executory process. Upon said petition was endorsed an order for executory process, and was signed by T. O. W. Ellis, Judge of the Civil District Court for the parish of Orleans, presiding in Division “A.”
    It is contended that said order was improvidently and improperly signed by said judge, for the reason that on July 3, 1895, he had adjourned his court without day, and departed from the parish of Orleans, and was only temporarily in the parish on July 18, 1895, when said order was signed by him. That said order was not signed at the court house, and was signed by the said judge while he was temporarily in the city of New Orleans, and not in the city for the purpose of holding court or exercising judicial functions.
    The judge of Division “ A ” made return that on July 5, 1895, he adjourned Division “A” of the Civil District Court sine die. That under the act of 1892, regulating the terms of said court, Divisions “ B ” and “ C ” remained open, the judge of Division “ O ” to act for Division “ A;” that he left the city of New Orleans and returned on a visit, and not for duty, on July 18, and did not reopen Division “A” until September, when he began his vacation term, serving until October 20. That on July 18, the clerk’s deputy brought him a petition for executory process in Montgomery vs. Shaw, with the statement that the judge of Division “ C,” doubting his power, had refused to sign the order after the allotment of the case to Division, “ A.” That thereunder he signed the order, adding to his name the word “judge.” That the words “ of the Civil District Court for the parish of Orleans, presiding in Division 1 A,’ ” alleged and referred to by the relator, had doubtless been stamped for use in anticipation that the judge of Division “ C ” would sign the order; that he was sure he did not add those words; that if he was in error, then the fact was that he was not then presiding, as his foregoing statements would show. The judge submitted that he had the power to sign said order for executory process, either in court or at chambers, under Sec. 1906 of the Revised Statutes. That the Act of 1892 regulating the terms of the Civil District Court would be unconstitutional, should it he construed to suspend his power as judge, when by its terms his division should be in vacation. That by that act two divisions were,to be open and three divisions were to be closed. That if the judges present and acting could not sign orders such as that in question it would result that three-fifths of the business of the court must be in suspense and stagnant until the regular November term should open. That this could not be, as the Constitution requires that all courts should be open (Art. XI). He submitted that the Civil District Court for the parish of Orleans, with its one clerk’s office, was a single court — i. e., one jurisdiction, though having five judges to transact its business, and that any judge present can in the absence of another judge act or grant orders in place of said absent judge, in order to move the powers of the court and to prevent stagnation of its business, provided that he grant only preliminary interlocutory or conservatory orders, leaving all issues raised and to be raised for final hearing and decision when the judge should again return to duty. He submitted that while he was absent from Division “A,” and out the parish of Orleans, the judge of Division “ C,” then present (or the judge of Division “B”), could have signed said order for executory process, andt hat when he returned to said parish, though not to hold a session of court, he had equal power to sign it, and in support of his position he referred the court to the cases of Folger vs. Roos, 40 An. 602, and Rousseau vs. Estate of Bourgeois, 28 An. 186.
   The opinion of the court was delivered by

Nicholls, C. J.

The relator has filed no bi’ief in this matter, and has obviously abandoned his application. It is without merit. He made no attempt in the lower court to obtain relief from the order of which he complains. His allegation that he has no relief in the premises except through a writ of prohibition to be issued from this court is a mere conclusion of law, carrying with it no force whatever, in the absence of a statement of facts which would go to support the correctness of that statement. There is nothing going to show that relator has no other relief in the premises than through a writ of prohibition from this court.

We see no reason why he should not have appealed suspensively from the order, or taken an injunction against the execution of the same.

The restraining order hereinbefore granted is hereby set aside, and the writ of prohibition applied for is denied, with costs upon the relator.