author: Blanoi-iard, J.

text:
    No. 13,644.
    State of Louisiana vs. King Robinson.
    Syllabus.
    1. Tie words “unlawfully, maliciously and feloniously,” used in an indictment for wounding less than maybem, are not the equivalent of “wilfully and maliciously” employed in the statute (Act 17 of 1888) relating to that offense.
    2. “Unlawfully” and “feloniously” were not necessary to .be used, and neither supplied the place of “wilfully.” ■
    APPEAL from the Fourth Judicial District, Parish of Lincoln— Dawkins, J.

      Wfilter Guión, Attorney General, and F. F. Preaus, District Attorney, (Lewis Guión, of Counsel), for Plaintiff, Appellee.

      J. B. Holstead, for Defendant, Appellant.
   The opinion of the court was delivered by

Blanoi-iard, J.

The indictment contained two counts:—

1. It charged that the accused “did wilfully and feloniously” with a dangerous weapon — -a pistol — shoot Ernest Turner with intent then and there to kill him.

2. That at the time and place mentioned the accused “did unlawfully, maliciously and feloniously with a dangerous weapon, to-wit: a pistol, inflict a wound less than mayhem on the person of Ernest Turner.”

The finding of the jury was as follows:—

“1st. We the jurors find the accused guilty of assault with a dangerous weapon.”
“2nd. We the jurors find the accused guilty as charged.”

Motion for new trial and in arrest of judgment followed. Both were overruled and bills of exception taken.

The trial judge, giving as a reason therefor that the finding of the jury, in his view, had reference only to the second count, sentenced the accused only under that count — that is, for wounding les* than mayhem.

The sentence was twelve months’ imprisonment in the penitentiary at hard labor, and from it this appeal is prosecuted.

Ruling — The verdict as returned by the jury, submitted to a critical examination, might perhaps be found legally objectionable in several respects, as for instance, did the jury intend their finding to relate, respectively, to the first and second counts of the indictment? If so, it were better they had indicated such intention in precise language. They did not specifically mention either count, or say that their first finding1 referred to the first count; their second finding to the second count. Their “firstly” and “secondly” may have referred alone, for aught to the contrary, to the second count of the indictment, as the trial judge evidently thought. Again, it is not an impossible construction that their second finding: “we the jury find the accused guilty as charged”, may have referred to the whole indictment and not merely to its second count. To say the least of this verdict, it leaves the mat1 ter in some doubt.

But pretermitting that, and taking the judge’s view of the verdict, that it relates to the second count, it remains to be seen whether 4t can stand when tested by the terms of the indictment and the law applicable thereto.

One of the grounds set up in the motion in arrest of judgment is that the omission of the word wilfully renders the indictment invalid.

The language of the second count is, the accused did “unlawfully, maliciously and feloniously * * * inflict a wound less than mayhem”, etc.

The word “wilfully” is omitted.

Whether matter set forth in an indictment constitutes, as alleged, an offense under the law, may be inquired into on a motion in arrest of judgment.

State vs. Jackson, 43 La. Ann. 183.

While Section 794 of E. S., relating to wounding less than mayhem, does not make use of the word “wilfully”,' Act No. 17 of 1888 amends and re-enacts the section so as to include the words “wilfully and maliciously”. Thus, “whoever shall wilfully and maliciously,' with a dangerous weapon, or with intent to kill, inflict a wound less than mayhem upon another person, shall, on conviction, be imprisoned”, etc.

The words “-unlawfully” and “feloniously” used in this count were not necessary and neither takes the place of “wilfully” employed in the i tatute. Neither has the same meaning and import as “wilfully”; neither is the equivalent of “wilfully.”

In State vs. Langston, 45 La. Ann. 1182, it was held, that “wilfully” has a significance, and where used the statute as descriptive of the offense denounced, its employment in the indictment is essential.

In State vs. Jackson, 43 La. Ann. 184, it was held that the description of the offense charged in the indictment must be technically exact; and that in a prosecution for the commission of a statutory crime, the words of the statute, or others of fully equivalent import, should be employed.

In State vs. Watson, 41 La. Ann. 598, it was held that “feloniously” is not equivalent in meaning to “wilfully and maliciously”, and that in an indictment for wounding less than mayhem, to make the inflicting of the wound an offense under the statute, it must be charged to have been done wilfully and maliciously.

In State vs. Williams, 37 La. Ann. 776, it was held that an indictment which did not comply with the requirements of the statute creating oV defining the offense sought to be charged therein is fatally defective and cannot sustain a conviction. That case turned on the omission of the word “wilfully” and though “feloniously” and “malice forethought” were used, it was held insufficient since the statute used also the word “wilfully.”

“When the words ‘wilfully and maliciously’ in a statute are descriptive of the offense, an indictment which charges that the act was done ‘feloniously, unlawfully and wilfully’ will be insufficient.”

Waterman U. S. Crim. Dig., p. 343, Sec. 230.

We conclude that the omission of the word “wilfully” from the second count was fatal, and that the conviction and sentence based thereon cannot stand.

The motion in arrest of judgment should have been sustained.

Eor these reasons, it is ordered, adjudged and decreed that the verdict and sentence be reversed and annulled, and it is now adjudged and decreed that the motion in arrest of judgment be sustained, and the case remanded to the court a qua for further proceedings according to law.


source: Caselaw Access Project

author: Monroe, J.

license: Public Domain

text:
    No. 13,722.
    State of Louisiana vs. Arthur Hebert.
    Syllabus.
    1. The fact that a juror has formed and expressed an opinion, from what he has been told or has read, does not disqualify him where he states on his voir dire that he can, nevertheless, try the ease fairly and impartially, upon the evidence presented in court and upon the law as given by the judge, and that he is free from bias and prejudice.
    2. Where a motion for new trial is made, upon the ground that the District Attorney, in his argument to the jury, misstated and, by gesture, 'misrepresented the facts, as established by the evidence, and no action by the trial judge is invoked at the time, and the testimony, taken in support of the motion and on behalf of the State, (which, however, fails to show that the District Attorney referred to any facts not proved) is not embodied in, or attached to, the bill of exceptions taken to the overruling of the motion this court will not interfere.
    3. A motion in arrest of judgment, upon the ground that a material admission, was made by the defendant’s counsel, out of his presence, is properly overruled when it appears that the defendant, himself, made the same admission, as a witness on the stand.
    APPEAL from the Nineteenth Judicial District-, Parish of Iberia— Foster, J.

      Walter Guión, Attorney General, and Anthony N. Muller, District Attorney, (Lewis Guión, of counsel), for Plaintiff and Appellee.

      Todd é Davis for Defendant, Appellant.
   The opinion of the court was delivered by

Monroe, J.

Defendant having been tried for murder, was convicted of manslaughter and sentenced to imprisonment at hard labor for twenty years. He has appealed, and presents, for the consideration of this court, several bills of exception, a motion for -new trial and a motion in arrest of judgment.

1. Counsel for defendant challenged, for cause, Herman Shadel, who was called as a juror, and, his challenge having been overruled, a bill of exceptions was taken. According to what appears to be the- version of-the counsel, as given in the bill, the juror, being examined upon, his voir dire, said: “Yes, I have formed and expressed an opinion as to the guilt or innocence of the accused. I had tallied to persons about the case. I could try the case fairly without regard to what I have heard, but would likely believe what I had previously heard, if repeated by the witnesses that I believe.”

The statement of the judge, which comes after the foregoing, is as follows:

“H. IT. Shadel made, on his examination as to competency as a juror, in substance, the-- statement taken down by me and since corroborated by him. That he heard from two parties, whom he did not see in court, something of the case which made an impression upon him and gave him an opinion as to the guilt or innocence of the accused, but that he felt and knew he could go on the jury and disregard what he had heard, and, in his verdict, be ‘governed solely and exclusively by the evidence heard on the trial and the law as given him by the court; that he was free of bias and prejudice, and that he knew he could try the case fairly and impartially.’ ”

The judge is at some pains to make it clear that he is giving the statement of the witness with absolute accuracy, and therefore leaves little or no margin for the consideration of matter not included by him. If we should assume, however, that the juror said that he had “formed and expressed an opinion as to the guilt or innocence of the accused”, and that he further said “I-- would likely believe what 1 had previously heard, if repeated by witnesses that I believe”, his statement that he could nevertheless go on the jury and, disregarding what he had heard, be governed solely and exclusively by the evidence on the trial and by the law, as given him by the court; that he was free from bias and prejudice, and that he felt and knew that he could try the case fairly and impartially, leaves no room to question his competency. State vs. Guidry, 28th Ann. 630; State vs. Dugay, 35 Ann. 327; State vs. Ford, 37th Ann. 443.

“ The disqualifying opinion, it is well settled, in numerous oases, must “be a fixed, absolute, positive, definite, settled, decided, unconditional “ opinion. The rule is uniformly laid down by the use of one of these “words, or words of equivalent force. A conditional, contingent, hypothetical, indeterminate, floating, indefinite, uncertain opinion, will “not do”, etc.

This language, taken from “Thompson & Merriam on Juries,” is quoted, with more to the same effect, in the opinion of this court in the case of State vs. Williams, 49th Ann. 1152. The fact that in the instant case, the juror stated that he could try the case fairly and without prejudice or bias, notwithstanding any opinion that he might have formed and expressed, showed that such opinion was not of the disqualifying kind. And his statement that he would likely believe what he had heard if repeated by a witness that he believed, if construed to mean “if repeated by a witness in whom he had confidence,” must also be considered as controlled by his final assurance that he could try the case fairly and without prejudice, the more especially as any juror, it may bo assumed, would be likely to believe the statements of a witness in whom he had confidence, whether he had previously heard such statements or not. We conclude, therefore, that the ruling complained of was correct.

2. We are of the same opinion in regard to the ruling of the judge a quo upon the challenge, for cause, of the juror A. Louviere, who had also formed and expressed an opinion, based upon conversations, but who stated that he was without bias or prejudice, and that he could try the case fairly, upon the evidence adduced in court, and the law as given by the judge.

3. Counsel for defendant moved for a new trial, upon the ground that the verdict was “contrary to the evidence,” and upon the further ground that the District Attorney in his address tot the jury, misstated, and misrepresented the testimony.

One of the counsel for the defendant and another witness appear to have been sworn in support of the averments contained in the motion, and the District Attorney'testified as a witness for the State.

Counsel for defendant do not appear to have requested the court to take any action at the time, either byway of warning the District Attorney, or of charging the jury, and the testimony above referred to is not embodied in, or attached to, the bill of exceptions, taken to the overruling of the motion for new trial, nor does the bill show that the District Attorney had referred to any fact not proven on the trial.

Under these circumstances, and in view of the wide discretion accorded to judges of the first instance in the matter of the conduct of proceedings before them, and of granting or refusing new trials, we are of opinion that the ruling complained of should remain undisturbed.

State vs. Walker, 39th Ann. 19; State vs. Duck, 35th Ann. 764; State vs. McCort, 23rd Ann. 326; State vs. Breckenridge, 33rd Ann. 310; State vs. Fulford, 33rd Ann. 679; State vs. Bird, 38th Ann. 497.

4. A motion in arrest of judgment was filed, on the ground that defendant’s counsel, when his case was called for trial, but out of presence of the defendant, admitted that the deceased had come to his death by a gunshot wound.

In overruling the motion, the judge a quo says:—

“Admission by defendant’s counsel was made when the case was called “ for trial as fixed on the docket. It was a’ voluntary admission as to a “ part (should be ‘fact’); in no way injured defendant, who, in his own “ behalf, as a witness, acknowledged the fact himself, but claimed as a “ defense, that the gunshot was accidental.”

It is evident that the defendant was not injured, and the motion in arrest of judgment was properly overruled.

Judgment afihmed.

The Chief Justice concurs in the decree.


author: Nicholls, C. J.

text:
    No. 13,743.
    W. W. Charlton vs. L. McConnell; In Re. L. McConnell Applying for Certiorari or Writ of Review to the Court of Appeals, Parish of Orleans, State of Louisiana.

      Lewis P. Bryant, for Petitioner.
   The opinion of the court was delivered by

Nicholls, C. J.

The judgment which relator seeks to have reversed was rendered by the Court of Appeals for the Parish of Orleans affirming on appeal a judgment which had been rendered in the First City Court for the Parish of Orleans against relator, defendant in a suit in that court. Under Art. 143 of the Constitution of 1898 appeals from the First City Court to the Court of Appeals for the Parish of Orleans, are tried de novo and the judges of the latter court are authorized to decide the cases immediately after trial and without written opinions.

No written opinion was given in the Court of Appeals in this case. It does not appear that the evidence in the case was either taken down in writing or was asked to be taken down, nor does it appear that relator sought to have the judge who rendered the judgment to make or file findings either of law or fact. Assuming that it would have been the duty of that judge on request to that effect to have made findings of fact and that we could have required him to do this on his refusal, we * will not exercise this right when the first attempt to have such findings made, is on application to this court for a writ of review.

Relator’s application herein is refused.


author: Breaux, J.

text:
    No. 13,412.
    William H. Hughes vs. E. A. Mattes and Old Bangor Slate Company.
    Syllabus.
    1. In an action on a note (not bearing interest), representing the purchase price of property, interest begin? to run from the maturity of the note. (C. P. 2554.)
    3. Imputation of payment remains as made between debtor and creditor, in the absence of any plea by a third person, objecting to the imputation as made.
    APPEAL from the Civil District Court, Parish of Orleans — Theard, J.

      Benjamin Bice Forman, for Plaintiff, Appellee.

      Dinhelspiel & Hart and E. A. O’Sullivan, for Old Bangor Slate Company, Defendant, Appellant.

      Walter B. Sommerville, for E. A. Mattes, Defendant, Appellant.

      J. Paris OTiildress, for J. B. Lee in his capacity of curator of Estate of Honora Lee, Interdict, Third Opponent, Appellee.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff is appellant in a separate appeal taken by him and has brought up a separate transcript.

First, he complains of the judgment in not allowing him interest as prayed for, and second, in maintaining the intervention of I. B. Lee, a lessor.

As relates to the interest, the notes did not bear interest from their dates, and they contained' no stipulation for interest. It follows that they bear only legal interest from the date of maturity of each note. The seller had granted time within which to pay the price of the slates sold to the defendant, as made evident by the notes. “When the seller has granted to the buyer a term for the payment, interest begins to run from the end of that time.” C. C. 2554. (Italics ours.)

Second, as relates to the intervention of Lee, Mattes’ lessor, the record shows that Lee, the lessor, was entitled to four months’ rent. The evidence of the lessee shows his indebtedness ,as allowed by the judgment. It was not controverted in the District Court. It is now urged in argument on appeal that Mattes’ intervenor’s lessee, and plaintiff’s debtor, continued to keep the leased premises; on which the property which plaintiff had attached and seized and on which the intervenor claimed a privilege was situated at the time of the attachment and seizure and that he continued 'to pay rent of the leased premises, simply leaving enough due on the back rent, as' he'supposed necessary to absorb the proceeds of the movable property referred to as having been attached.

Plaintiff claims that the payment that had been made from the time of the attachment, November 18th, 1896, up to the time of the trial, should be imputed to the earlier rent notes, and, therefore, for September, October, November and December, 1896, which Mattes said he still owed and the only rent that he owed to the intervenor.

The months before mentioned are the only months for which rent was allowed by the judgment of the District Court. The testimony shows that these months being the months just preceding the attachment and seizure, were not paid. Not having been paid, the rent is secured as to its payment by lessor’s privilege unless the imputation of payment heretofore made between the lessor and lessee should be changed and the amount heretofore paid imputed to the said months.

We do not think that a change should now be made. The pleadings do not show that any objection was made in due form to the imputation of payment as made. Plaintiff filed no answer asking that imputation should be made as it is now argued should have been made. Moreover, the judgment in this case-was signed by the district judge on the 8th of December, 1899. Plaintiff moved for an appeal, in so far as tbe intervenor was concerned, on tbe twenty-third day of February, 1900.

The issues now raised not having been raised previously, the appellee may well have assumed that no change would be made other than such change as the pleadings suggested.

We are constrained to decline to change the imputation of payment heretofore made.

It is therefore ordered, adjudged and decreed that the judgment appealed from is affirmed at appellant’s costs.


author: Watkins, J.

text:
    No. 13,718.
    State of Louisiana vs. John Middleton.
    Syllabus.
    An objection to testimony as to the flight of the accused is not one of admissibility, as it necessarily goes to the effect, and must be decided by the jury.
    An objection that the accused was tried under the provisions of the constitution of 1898 for an offense for which he was indicted in 1896 is not good if the trial was under exactly similar provisions of the law of 1880 and 1879.
    APPEAL from the Second Judicial District, Parish of Bossier— WatTcin,s, J.

      Walter Guión, Attorney General, and T. T. Land, District Attorney, (Lewis Guión, of Counsel), for Plaintiff, Appellee.

      Smiih & Webb, for Defendant, Appellant.
   The opinion of the court was delivered by

Watkins, J.

The indictment charging that the defendant did “wilfully and feloniously shoot Henderson Green with a dangerous weapon with intent him, the said Henderson Green, then and there, to kill and slay,” etc., was found and returned into court on the 29th of January. 1896, but a trial was only had on the 23rd of October, 1900, by a jury of five, who found him guilty 'of shooting with intent to kill; and lie was sentenced to imprisonment at hard labor, and from said verdict and sentence, he has appealed.

The two questions presented for decision are ¡(1) was proof of flight on the part of the State, competent evidence of guilt; (2) was the conviction by a jury of five in 1900 valid and legal, the indictment having-been found prior to the adoption of the Constitution of 1898.

I.

From the defendant’s bill of exceptions, in relation to the testimony objected to, we gather the following facts, viz:

On the trial of the case, the State offered to show that the defendant had forfeited his bond, and become a fugitive from justice; to which the defendant objected, for the reason, that the evidence was irrelevant, flight, the act being shown to have been done in the presence of witnesses, could not be evidence of guilt, which objection was overruled; the court remarking “that the evidence was admitted to go to its effect — flight being a presumption of guilt”; to which ruling and remark the defendant excepted.

The judge states that “when the counsel for defendant objected to the State proving the flight of the defendant, he did not give as a reason that the offense was committed in the darkness of the night; but some witnesses being near, claim to have seen and recognized the accused. The defendant endeavored to show that the occurrence could not have been seen by these witnesses on account of the darkness. The court overruled the objection made by the defendant to the evidence offered by the State to prove that the defendant had fled from the State, holding and stating, in support of the ruling as a general legal proposition, that flight is a presumption of guilt. While this ruling was'made in passing on the admissibility of the evidence, which was in the presence of the jury during the trial, when the charge was given to the jury, the court stated to the jury that the Supreme Court had held in the case of State vs. Melton, 37 Ann. 77, that it was in eases 'of which there was concealment, etc., that flight was admissible to be shown, and that in cases where the crime was committed openly in the presence of witnesses, it did not raise a presumption of guilt.”

From the opinion of the court in State vs. Melton, supra, we make the subjoined extract, viz:

“Mr. Wharton lays down the rule on the subject in the following words: 'When a suspected person attempts to escape or evade a threatened prosecution, it may be argued that he does so from a consciousness of guilt, and though this'inference is, by no means, strong enough by itself to warrant a conviction, yet it may become one of a series of circumstances from which guilt may be inferred.’ Wharton’s Cr. Ev., Sec. 750.
“It is obvious that the presumption applies to cases where the crime has been secret, and the connection of the accused with it is to be established by circumstantial evidence.”

Both the general principle announced by Wharton and the deduction therefrom by the court are pertinent to the question at issue, and sustain the ruling of the trial judge.

Whether the flight of the defendant contemporaneously with the commission of the crime charged was open and notorious or stealthy and secret, seems to have been the only open question; and we think that the objection of admissibility , not well taken, but that the testimony was admissible, the weight and sufficiency of same being left to the jury under the charge of the court.

II.

On the second proposition which is raised in a motion in arrest of judgment, the contention of defendant’s counsel is that he was entitled to a trial under the provisions of the Constitution of 1879 and that the trial had and verdict rendered under the provisions of the Constitution of 1898 were not valid or jurisdictional, and were, therefore, illegal and void.

There is nothing in the record to show on what grounds the trial judge overruled the motion, but counsel states that he ruled that the defendant was entitled to a trial under the Constitution of 1879, but that under Act 35 of 1880, a jury of five could try the case. On this question the Attorney General says:

“We are not prepared to urge that Act No. 35 of 1880 is still in force, but we do hold that as the defendant could have been tried under the Constitution of 1879 by a jury of five persons, no injury has been done him by his being tried as he was, by a jury of a like number, under the express terms of Article 116 of the Constitution of 1898. Under the Constitution of 1879, the defendant did not have the right to insist absolutely on a jury of twelve persons, and could have been tried by a jury of five, under Act No. 35 of 1880. Since, therefore, he had no absolute right to be tried by a jury of twelve persons, and could have been tried by a jury of five persons, we submit that he has no cause to complain that he was tried by a jury of five, the number prescribed by the Constitution of 1898. He has suffered no injury.”

The Constitution of 1879 provided that “in cases where the penalty is not necessarily imprisonment at hard labor or death, the General Assembly may provide for the trial thereof by a jury of less than twelve in number,” etc. Const. 1879, Art. 7.

In pursuance of that provision, the Legislature passed a law authorizing trials in such cases by juries of five. Act 35 of 1880.

It seems to be both reasonable and logical that defendant’s claim lo a trial under the foregoing provisions of the Constitution of 1879 necessarily draws to it his liability to trial by a jury of five under the Act of the Legislature of 1880 putting same in force.

Eor if the Constitution of 1898 did no.t supplant the one, it certainly did not supersede the other. The two must stand or fall together.

Eor the purposes of the argument it may be conceded that the claim of the defendant is correct, but nothing is gained thereby. Eor if the provisions of the Constitution of 1879, which are relied upon, must be considered as still in force pro Jiac vice, so must the provisions of the Act of 1880. They must stand or fall together.

There is an essential difference between the instant caso and that which was presented in State ex rel. Sherburne vs. Judge, 50th Ann. 1247, in which the defendant was tried without a jury.

In State vs. Ardoin, 51st Ann. 169, it was held that the provision of Article 116 of the Constitution of 1898 “substituting the concurrence of nine of the jury for the unanimity of the jury of twelve required prior to the adoption of -that Constitution to convict for crimé, is ex post facto legislation, in so far as it applies to offenses committed prior thereto.”

But in the instant case, the trial was by five jurors just as under the Act of 1880; and, indeed, so far as the record discloses, it may well be assumed that the trial was had under the Act of 1880.

Hence there is no merit in the objection urged, and no substantial legal right of the accused has been violated.

Judgment affirmed.


author: Blanchard, J.

text:
    No. 13,648.
    State ex rel. Walter Guion, Attorney General, vs. H. F. Brunot, Judge of the Twenty-Second Judicial District, Parish of East Baton Rouge.
    Syllabus.
    1. The object of a preliminary examination is two-fold, (1) to enquire touching the commission of crime and the accused’s connection with it; (2) to perpetuate testimony.
    2. The right to a preliminary examination is not confined to the person accused; it exists in the prosecution as well.
    3. And this right of the State to demand a preliminary examination cannot be defeated by the accused waiving such examination.
    4. When the law oflieers of the State apply for such examination it is the duty of the Judge to order and hold the same, and this duty will be enforced by mandamus.

    Q N APPLICATION for the Writ of Mandamus.

    Belator pro se.

    Bespondent Judge pro se.

      Thomas J. Kernan and Lindsay D. Beale for Garig et als., the Accused, also Bespondents.
   The opinion of the court was delivered by

Blanchard, J.

The question involved herein is whether or not the State is entitled to demand a preliminary examination in the case of a person accused of crime.

Or, does the law relating to preliminary .examinations operate only in favor of those accused of crime, and if an accused person in custody waives preliminary examination, is the State without right to insist upon one.

The facts of the instant case are: — certain parties in the parish of East Baton Bouge were arrested, charged with the crime of murder. They were committed to prison. They asked for no preliminary examination and were not seeking release on bail bond. The Attorney General, under the direction of the Governor, took charge of the prosecution. Deeming it to the interest of the prosecution that a preliminary examination should be held, he applied in writing to the district judge to fix a day for such examination. Whereupon, the judge directed notification to the accused and for them to show cause on a day named why the preliminary examination applied for should not be had. In response, the accused filed a plea wherein they formally waived examination and prayed that the motion of the State be denied. The judge, considering that this waiver authorized him to issue a mittimus to the sheriff to detain the parties accused in secure custody until deliverance is had by due course of law, made such an order, and then overruled the motion for the preliminary examination.

The position he took at the time, and maintains now, is that the mittimus accomplished for the State all that the most favorable result of a preliminary examination could accomplish — meaning the remanding of the accused to custody without bail. He contends that this fulfils the requirement of Section 1010 of the Bevised Statutes.

Does it?

Per contra, the contention of the relator is that the object of the examination authorized by B. S. 1010 is two-fold, (1) to ascertain whether a crime has been committed, and to discharge or commit the prisoner, in accordance with the state of facts shown by the evidence; (2) to perpetuate testimony — to reduce to writing the evidence adduced, to the end that the same may be used before the grand and petit juries in case of the death, absence, or disqualification of the witnesses, or any one of them.

He urges that the view of respondent judge limits the statute to one of subserviency to the accused; the latter may invoke it, but the State may not.

As. against this, he insists that without regard to the wishes of the accused the State has a direct interest in both the objects which a preliminary examination may subserve, and, accordingly, may invoke the aid of the statute to the end of holding such examination; that it is mandatory upon the. judge to hold and conduct the same-when applied'' for by either the prosecution or the defense.

The precise question here presented seems not heretofore to have been the subject of judicial decision.

Ruling■ — 'Section 1010 of the Revised Statutes authorizes the bringing of a person accused for crime before the district judge, and it is, by the terms of the law, made his duty to open proceedings of enquiry touching the .accusation; and to this end to examine, under oath, the witnesses produced and to reduce their depositions to writing. The accused may, if he desire, make a declaration, which, too, is required to be taken down in writing in such way as the statute directs. The testimony thus taken, both of the witnesses and the accused, is, under proper .circumstances, competent evidence before the grand and petit juries. 34 La. Ann. 1040; 37 La. Ann. 685; 46 La. Ann. 1046; State vs. Wiggins, 50 La. Ann. 330.

This “bringing of a person accused for crime before the district judge” may be done by the law officers of the State, on the one hand, or at the instance of the accused, on the other hand. When brought before him, at the one instance or the other, it is his duty to hold and conduct the preliminary examination, and, refusing, mandamus will lie to compel performance.

The application of the State, as in this instance, for preliminary examination, formally made to the judge, was a “bringing” of the person accused of crime before the judge in the sense of the statute.

The object of preliminary examination is two-fold — (1) to enquire touching the commission of crime and the accused’s connection with.'it; (2) to perpetuate testimony.

The State has an interest in both. If a crime has been committed, the facts and circumstances connected therewith should be known to the prosecuting officers, to the end that proper steps for the vindication and enforcement of the law may be taken. If the particular person accused of the crime is shown by the examination not to be the guilty one, his discharge is ordered. The State has as 'much concern and interest in the liberation of one falsely accused as it has in the apprehension and detention of one who is rightfully accused. If from the examination, the proof is evident or the presumption great that the person accused is the guilty one, his committal is ordered. If the offense is one bailable under the law, 'the amount of bail he is to give is determined. If not bailable, the accused is ordered confined.

All of'these are embraced within the scope of the first object of a, preliminary examination.

Witnesses may die, or leave the State, or become disqualified to testify. lienee, the necessity to perpetuate their testimony in form for future use, and the best and most practical way to do this is through a preliminary examination. State vs. Ozer, 5 La. Ann. 746.

This is the second object of such examination. In State ex rel. Johnson and Britton, 48 La. Ann. 1406, it was distinctly stated that the province of a preliminary examination “is to perpetuate the testimony against the accused.”

In an earlier case; State ex rel. Stevens vs. Judge, 34 La. Ann. 54, there is an obiter dictum to the effect that the sole object of a preliminary examination is to determine whether a party shall be discharged, bailed, or held in custody. But that this is not the sole object, of such examination conclusively appears from the language of the law itself.

Our conclusion is that at the time this application for the wiit of mandamus was filed, the State was entitled to the preliminary examination asked by the Attorney General. And the fact that the grand jury had had the matter of the alleged crime under investigation, but had adjourned it over, and that a new grand jury would shortly be empaneled which would be charged with the duty of further investigation, did not defeat this right of the State.

State ex rel. Matranga vs. Recorder, 42 La. Ann. 1091.

The court is .determining' the instant case on the status it held when the relator applied for the examination and it was denied, and the decree herein will relate only to its then condition.

Whether subsequent action by the grand jury may or may not have altered the situation and rendered preliminary examination improper or unnecessary, we do not undertake to say — reserving all rights in the premises to all pdf ties in interest.

• For the reasons assigned, it is ordered that a peremptory writ of mandamus do issue as prayed for by the relator.


text:
    No. 13,725.
    State ex rel. Ludham & Burnham vs. David Todd, Judge ad hoc.
    Syllabus.
    1. Justices of the Peace, after granting an appeal and receiving an appeal bond from an appellant, should issue a citation to the appellee, directing him to oppear before the appellate Court within three days after service of the citation, if he reside in the place, or allowing one day more for every ten miles between the place of renderind the judgment and that of the appellee’s residence. (C. P. 1134.)
    2. The record should be transmitted by the Justice in time to be filed, in the appellate court, not later than the time fixed for the appearance of the appellee therein, or at furthest within three judicial days thereafter. It not so filed, the appeal will be dismissed. (C. P. 1135.)
    Q N APPLICATION for Writs of Gertiorari and Prohibition.

      Andrew Thorpe and Thomas II. Thorpe, for Belators.
    Eespondent Judge pro se.

      Broussard, Dulaney & Dunbar for Mr. and Mrs. E. J. Eoss, Bespondents.
   The opinion of the court was delivered by

Nicholls, C. J.

A certified copy of the record referred to in the pleadings was, on application of relators, ordered to he sent to this court, and the respondents directed to show cause why the writ of prohibition prayed for should not issue.

This order issued on allegations that relators were plaintiffs in the First Justice’s Court of the parish of Iberia, in the suit entitled Ludham & Burnham vs. Mrs. E. J. Boss and Husband; that said suit was filed on the sixth day of July, 1899, and was upon a claim for seventy-one dollars and seventy-one cents for work done and material supplied for the repair of a building; that on the 22nd of July, 1899, an answer was filed by defendants; on January 2nd, 1900, judgment was entered for plaintiffs for seventy-one dollars and seventy-one cents, with recognition of privilege for work done and material supplied; January 6th, 1900, notices of.judgment were served on the defendants; January llth, 1900, a fieri facias was issued and the property seized under the writ was sold by the constable; September 15th, 1900, defendants moved for a devolutive appeal and an order was given granting the appeal, returnable to the Nineteenth Judicial District Court, Iberia parish, “at its regular session”; September 25th, 1900, an appeal bond was filed; September 2'Tth, 1900, citations of appeal were issued and served on relators commanding them to appear in the District Court and answer the appeal, “within three days after the convening of said court at its next regular term, to begin on the first day of October, 1900”; October 23rd, 1900, the transcript of appeal was filed in the District Court; same day Honorable T. D. Foster, District Judge, recused himself and appointed David Todd, Esq., judge ad hoc, who qualified as such; same day, on motion of appellants, the case was set for trial for the 20th of November, 1900, with reservation to appellees of the right to file any preliminary pleas prior to November 10th, 1900; October 30th, 1900, appellees filed ay motion to dismiss the appeal upon the grounds: First, that the transcript was filed too late, and second, that appellants had acquiesced in the judgment; November 2nd, 1900, the judge ad hoc overruled the motion to dismiss the appeal.

That the appellants did not apply for or obtain an extension of the time in which to file the said transcript beyond the day fixed in the order and citation of appeal; that the regular term of said District Court occurring after the granting of said appeal began on the 24th day of September; that twenty-two days elapsed between the date on which the citation of appeal commanded the appellees to appear in said court and answer thereto and the date on which said transcript was filed in said court, and during said time no extension of time was applied for or obtained for the filing of said transcript.

That by the failure of the appellants to file, the transcript of appeal within three days after the beginning of the term of court, on September 24th, 1900, or at most, within three days after the first day of October, 1900, the date of the term fixed in the citations of appeal, the appeal was abandoned and the judgment became final, and that the District Court was without jurisdiction to proceed further in said cause.

That the said David Todd, Esq., judge ad hoc, and the said Mrs. Ross

and Husband, defendants in said judgment, are about to proceed and will proceed illegally and to the prejudice and injury to the rights of relators to try said appeal unless restrained and prevented by the order and inhibition of this honorable court, that said proceedings will bo nullities, and for such illegal action relators are without remedy by appeal.

In the answer to the rule the judge averred that the record sent up showed that after the judgment in the 'Justice of the Peace Court against the defendants in the suit aforesaid (on January 2nd, 1900), that an appeal was taken to the District Court on the 15 th September, 1900. Bond was furnished on the 25th of the same month and there was citation of appeal served on appellees on the 2'Tth of September, 1900.

The appeal was filed in the District Court on the 23rd of October, •1900. Eespondent was then appointed judge ad hoc to try the case, as the presiding judge had recused himself.

There was a motion to dismiss the appeal made by the appellees on the ground that the same had not' been filed in time in the upper court’. This motion was overruled by respondent.

In thus ruling respondent claims to have exercised a discretion vested in the court by the law governing return of appeals from the Justice of the Peace Courts.

The only law directory to Justices of the Peace in the matter of returning appeals declares “The Justices of the Peace shall also transmit without delay to the office of the appellate court an exact copy, certified by him,” etc. C. P. 1135.

Eespondent, in the exercise of a reasonable discretion decided to entertain the appeal, and overruled the motion to dismiss. There was no other authority in law for the guidance of the court, and the appeal appearing to have been sent up and filed in the appellate court within a month from the date of the citation of appeal, the delay of the Justice of the Peace in transmitting the appeal did not appear worthy of notice.

Eespondent further answering adopts the answer and argument of his co-respondents, and avers that the'application for a'writ of prohibition in the matter should be refused.

In view' of the premises respondent' prays that the application and petition of relator be refused and denied, and for general relief.

Opinion.

Relators who were plaintiffs in the snit of Ludhanr& Burnham vs. Mrs. R. J. Ross and R. J. Ross, Husband, No. 3000 on the docket of the First Justice’s Court of the Parish of Iberia, Sixth ward, obtained a judgment therein against the defendants on the 2nd day of January, 1900.

On the 15th of September, 1900, defendants were granted an order for a devolutive appeal on their furnishing bond “returnable to the Nineteenth Judicial District Court of the Parish of Iberia, at its next regular session; notice and citation of appeal to be served accordingly.”

Bond was furnished on the 25th of September, 1900. On that day notice issued, directed to relators to the effect that the defendants had that day taken an appeal from the judgment of the 2nd January, 1900, “returnable to the Nineteenth Judicial Court for the Parish of Iberia”, at its next term to be held on the 1st day of October, 1900, and citing them to appear before that court holding sessions at New Iberia, “within three days from the convening of said court at its next regular term, to begin on the 1st day of October, 1900, allowing one day extra for every ten miles distance from their residence to the court house in New Iberia”.

This notice and citation were served on the 28th day of September, 1900.

The record or transcript was filed in the District Court on the 23d of October, 1900.

On October 30th, relators moved to dismiss the appeal on the grounds stated in their petition. This motion being overruled the present application was made.

• The Code of Practice, Article 1129, declares in all cases brought before a Justice of the Peace in which an appeal is allowed to either party, an appeal is allowed on a verbal application therefor.

Article 1131 requires the appellant to furnish bond in appellee’s favor.

Article 1134 directs that the “Justice of the Peace, after receiving the appeal and security of the appellant as provided, shall issue a citation to the appellee directing him to appear before the appellate court within three days after service of said citation by the constable, if ho reside in the place, or allowing one day more for every ten miles between the place of rendering the judgment and that of the appellee’s residence”.

Article 1135 orders the Justice of the Peace “to transmit without delay to the office of the appellate court an exact copy certified by him, and also of the judgment, together with the statement of facts prepared by him, or agreed on by the parties, and of the citation which he has caused to issue to the appellee”.

■ The record shows the terms of the District Court for the Parish of Iberia to be:

“Beginning on Monday the 241h of September, and ending on the 31st of October, 1900.

“Beginning on first Monday in December, 1900, and ending on the 28th day thereof.

“Beginning on the first Monday in April, 1901, and ending on the 31st day thereof.”

It is certified that the District Court opened on the 24th day of ,-Sepr tember, 1900, then adjourned to the 1st day of October, 1900, when it held daily sessions, until the 3rd day of November, 1900.

The judge ad hoc was of opinion that no particular time was fixed by the law, in cases of appeals from Justice Courts, for filing the record or transcript from the court below; that the Article of the Code directed simply that it should be “transmitted without delay”, which he construed to mean within a reasonable time. In this particular instance the filing of the record on the 23rd of October, 1900, was deemed by him not to be too long.

We can not concur in this view. We think the filing of the transcript in the appellate court should not be later than the date fixed for the appearance of the. appellee in the appellate court, at furthest within three judicial days thereafter. There is no specific declaration in Article 1135 O. P. to this effect, but in the absence of such declaration, we are authorized to have recourse io other Articles of the Code on the same subject matter.

An appellee cited into court for a particular time can not be expected to remain before the appellate court for an indefinite time to bide the pleasure or convenience of the appellant. Should there be any good reason for extending the time for filing the transcript, there would be no trouble in obtaining an extension on a proper showing. The rules of practice on this subject should be fixed and uniform throughout the State, and the rights of appellees in different parishes not left to be

tested by the views of different judges as to what constitutes “a reasonable time.”

The views we here express carry with them as a logical consequence that upon failure of the appellant to file the transcript in the proper time, the appellee is entitled to have the appeal dismissed. Dwight vs. McMillan, 4 Annual, 320; McDonogh vs. DeGruys, 10 Annual, 75; Moriere vs. Robinson, 20 Annual, 229; Hudson vs. Sheriff, 47 Annual, 1534; Mutual Loan & Building Association vs. First African Baptisl Church, 48 Annual, 1459; Coudroy vs. Pecot, 51 Annual, 495; Cockerham vs. Bosley, 52 Annual, 65; State of Louisiana vs. Louisiana Debenture Co., 52 Annual, 551; Moss vs. Reims, 52 Annual, 567; Gigaud vs. City of New Orleans, 52 Annual, 1259; LeBlanc vs. Lemaire, 52 Annual, 1635.

In the case at bar, neither the order nor notice of appeal nor the citation strictly followed the law, but giving the appellants the benefit of the greatest limit under either one or the other, they were in default. If the result of such default was legally to make the judgment appealed from become final, the appellate court was without power or authority to change that result.

We are of the opinion that in this case the appeal lapsed for want of timely presentation and that the motion to dismiss the appeal should not have been overruled, but should have been sustained.

For the reasons assigned: It is ordered, adjudged, and decreed that the action of the judge ad hoc in overruling relator’s motion to dismiss the appeal referred to in relator’s application herein, and in sustaining said appeal be, and the same is hereby set aside as null and void, and in violation of relator’s already acquired rights in the premises.

It is further ordered that no further proceedings be taken in the matter of said appeal, other than to dismiss the same, and the judge below is hereby ordered to dismiss said appeal.


text:
    No. 13,667.
    State of Louisiana vs. Alex Gee.
    Syllabus.
    1. The rule is very well settled that all evidence needful to a decision should be brought up by bill of exceptions to the ruling or direction of the presiding judge during the trial of a cause.
    2. The court, nonetheless, in view of the importance of defendant’s cause, reviewed the lower court’s order setting aside the motion to quash, and finds in this action no ground upon which to disturb the verdict.

      (a) There was no irregularity prejudicial to the defendant in the drawing of the Grand Jury.
    APPEAL from the Sixth Judicial District, Parish of Morehouse— Hall, J.

      Walter Guión, Attorney General, and J. P. Madison, District Attorney, (Lewis Guión, of counsel), for Plaintiff, Appellee.

      Levy & Todd for Defendant, Appellant.
   The opinion of the court was delivered by

Breaux, J.

The defendant appeals from a verdict and sentence condemning' him to serve at hard labor in the penitentiary for the term of two years.

' An indictment was presented against him on the 11th day of September, 1900, charging him with killing and murdering Henry Williams on the first day of August, 1899.

In due time, before assignment, the defendant presented and had a motion to quash filed, setting out that the grand jury that found the indictment against him was not a legal grand jury, for the reason that the names of the grand jurors were not advertised as required.

On the trial of this motion, an admission was made and incorporated in the note of evidence, showing that W. H. Baker, whose name was drawn as a grand juror was not advertised with the names of the other members of the grand jury. It further appears from this admission, that Baker did not serve as a grand juror; that he was excused by the court previous to the empanelling of the grand jury on account of illness.

It is made to appear by the minutes, that this motion was taken up for trial, tried and overruled; and to this ruling of the court, the defendant excepted and reserved a bill of exceptions. There is no bill of exceptions before us forming part of the transcript. In our view, the court’s action in overruling the motion to quash, is not brought up in the manner required. The evidence on which the motion is grounded is not regularly on appeal for review, as it is not incorporated in a bill of exceptions as required. State vs. White, 37 Ann. 172.

The case being of great importance to the defendant, we, nonetheless, gave our best attention to the point raised in his behalf on the motion to quash the indictment. We have not found that the court’s ruling, in refusing to sustain the motion to quash, was prejudicial to the accused.

By the terms of the Jury Act of 1898, the grand jury is empaneled from twenty names. The twelve names constituting the body by which the defendant was indicted, had all been regularly drawn and advertised. The fact that the name of one of the remaining eight was not advertised was not, in any manner, prejudicial to the cause of -the defendant. He, this intended grand juror, was not, after he had been excused, even one of the remaining eight originally drawn and forming the grand jury list from which to draw the grand jury of twelve.

The judge of the District Court unquestionably had the authority to excuse for cause one of the number of the original grand jury list from service. It happened that the juror’s name had not been advertised, although his name had been regularly drawn to serve. His discharge, for good cause, was more than sufficient to put an end to every possible objection. The accused cannot complain. A presumption of correctness attaches in the process of procuring a grand jury, and continues until error is shown. As far as the record discloses, he had a legal trial. It only remains for us to affirm the verdict, judgment and sentence.

For the reasons assigned, the verdict, sentence and judgment appealed from are affirmed.


text:
    No. 13,625.
    State of Louisiana vs. G. E. Ferguson, et als.
    Syllabus.
    1. The “object” of a law is the aim or purpose of the enactment.
    2. The “subject” of a law is the matter’to which it relates and with which it deals.
    3. An act of the General Assembly must be restricted to one object and this must be expressed in its title.
    4. Where the title of an act actually indicates, and the act itself actually embraces two distinct objects, the whole of the act is void as contravening the constitutional inhibition.
    5. This necessarily results from the manifest impossibility of choosing between the two, and holding the act valid as to one and void as to the other.
    APPEAL from the Twefth Judicial District, Parish of Vernon— Lee, J.

      Walter Guión> Attorney General, and Amos L. Ponder, District Attorney, (Lewis Guión, of Counsel,) for Plaintiff, Appellant.

      James B. Monk, (JJoTbert & Barret and W. O. Perry, of Counsel), for Defendants, Appellees.
   The opinion of the court was delivered by

Blanchard, J.

Defendants were indicted for unlawfully issuing-tickets and cheeks redeemable only in goods and merchandise at their place of business, and not redeemable in United States currency.

They were, respectively, general manager and check clerk of the Nona Mills Company, Limited, a corpoiration organized under the Igws of the State.

The statute upon which the indictment in predicated is Act No. 71 of 1894, the title of which is:— .

“To encourage the freedom of trade and to forbid the issuance by merchants or corporations of tickets redeemable only In goods at their own place of business.”

The first section of the act declares: — ■

“That hereafter it shall be unlawful for any person, corporation or firm in this State to issue tickets or checks redeemable only in goods at their own place of business. But all such tickets shall be redeemable in United States currency, and any contract or agreement to take and receive such tickets redeemable only in goods shall be null as against public policy.”

The second section declares:—

“That any person, or officers o#f any corporation or firm issuing such tickets shall be guilty of a misdemeanor, punishable by fine not more than one hundred nor less than twenty-five dollars, or imprisonment at not. more than six months and not less than one month, one-half of said fine to go to the benefit of the informer.”

The accused.appeared by counsel and moved to quash the indictment on the ground of the unconstitutionality of the act.

They averred its unconstitutionality in these particulars, to-wit: — -

1. That the title of the act expresses and sets forth two or more separate and distinct objects; that the object of the act is not set forth in its title; and that the subject of the second section of the act is not. mentioned or referred to at all in its title. Ill these respects if is claimed the act violates Article 29 of the Constitution of 1879 and Article 31 of the Constitution of 1898.

2. That the act is an attempt to regulate labor and trade, and in this respect violates Article 46 of the Constitution of 1879 and Article 48 of the present Constitution.

3. That the act restrains and abridges the freedom of contract, denies the equal protection of the laws to the persons aimed at, and thus deprives the citizen of his liberty and property without due process of law. In these respects it is asserted it violates Article 2 of the ■Constitution of 1898 and the Fourteenth Amendment to the Constitution of the United States.

The judge a quo held the motion to quash good, sustained the plea of unconstitutionality and set aside the indictment.

The State prosecutes this appeal.

Article 29 of, the Constitution of 1879 and Article 31 of the present Constitution are identical. The language is:—

“Every law enacted by the General Assembly shall embrace but one object and that shall be expressed in the title.”

The “object” of a law is the aim or purpose of the enactment. Board of Medical Examiners vs. Fowler, 50 Ann. 1367.

The “subject” of a law is the matter to' which it relates and with which it deals, lb j People vs. Lawrence, 36 Barb. 192.

The General Assembly, in 1894, fools cognizance of the practice which had grown up, of merchants and corporations issuing tickets or checks redeemable only in merchandise at their place of business. It was considered to be against public policy to permit this, and so Act No. 11 of 1894 was enacted.

The subject-matter, then, with which this law deals is: — tickets redeemable only in goods at the place of business of merchants and corporations making use of same, and the practice of issuing such tickets indulged in by merchants and corporations.

All will agree as to this — State and defense alike.

But, when it comes to the object of the act, a divergence of view appears.

The State’s position is that its. only object is to forbid the issuance of tickets which come under the ban of the act, and that the purpose of this is to encourage freedom of trade.

The position of the defense is the act discloses several distinct objects, among them one to forbid the issuance of tickets and checks, such as those described; another, to make such tickets, if issued, redeemable in United States currency; a third, to declare against public policy and void all contracts or agreements to issue aud receive-tickets or checks redeemable only in goods at the place of business of the persons, corporations or firms issuing the same.

On this branch of the case, the conclusion we have reached is that the title to this act actually indicates, and the act itself actually embraces, two or more distinct objects.

Thus, the title declares the law to be “an act to encourage the freedom of trade and to forbid the issuance by merchants or corporations of tickets redeemable only in goods at their place of business.”

Now, when we examine the body of the act we find the first part of the first section to forbid issuance of tickets redeemable only in goods by declaring 'the same to be unlawful, and we find all of the second section to be devoted to making this declaration effective by prescribing penalties against those who issue tickets redeemable only in goods.

So, here is one complete object of the law mentioned in the title and carried out in the body of the act.

Then we find, in the concluding part of the first section of the act, that which evidently was intended to foster the freedom of trade by declaring that any contract or agreement to take and receive tickets redeemable only in goods shall be-null as against public policy, and that all “such-’* tickets (meaning■ tickets issued redeemable only.in goods) shall be redeemable in United Stales currency.

So, here is another complete object of the law indicated in the title and carried out in the body of the act.

To forbid the issuance of the tickets described in the law, is one purpose and aim of the statute; to make all such tickets that may be issued anyhow — notwithstanding the law — redeemable in United States currency, is another purpose and aim of the statute.

The title of the act is not “to encourage the freedom of trade” ly forbidding the issuance of tickets, etc.; but “to encourage the freedom of trade and to forbid the issuance of tickets, etc.” See Moore vs. Police Jury, 32 La. Ann. 1015.

Therefore, the words “to encourage the freedom of trade” must relate to something in the body of the act other than that which prohibits the issuing of tickets “redeemable only in goods.”

The clauses in the body of the act relating to the latter are covered by that portion of the title which follow the words “to encourage the freedom of trade.”

Now, that “something” in the body of the act (other than prohibiting the issuance of tickets) to which the words “to encourage the freedom of trade” must necessarily apply is the part declaring null as against public policy any contract or agreement to take and receive tickets “redeemable only in goods” and decreeing that all “such” tickets shall be redeemable in current money.

Whether the clause that “all such tickets shall be redeemable in United States currency,” is an enforceable provision of the law is foreign to this discussion and to the determination of the question here at issue.

It is enough to know that it is one of the declared objects of the act, indicated by the title and set forth in the body of the law.

We are constrained to hold, therefore, that the act is obnoxious to the constitutional mandate that every law enacted should embrace but one object and that must be expressed in its title.

Moore vs. Police Jury, 32 La. Ann. 1015; State vs. Harrison. 11 La. Ann.. 722.

It is true, the courts (our own included) and the text writers have long since settled that where a part of a statute is constitutional and a part unconstitutional, it is permissible to separate the good from the bad, the “chaff from the wheat,” the constitutional from the unconstitutional, and uphold and enforce the valid portion (if complete in itself, independent of that which is rejected and capable of being executed) while declaring void the invalid portion.

And if this were an act whose title expressed only one object while the body of the act set fdith two objects — where the act is merely broader than its title — it would be incumbent on the court to restrict its declaration of the nullity of the law to that object of the act, that part of the law, not indicated in the title'. “But,” says Judge Cooley in his work on Constitutional Limitations, p. 180 (* 148), “if the title to the act actually indicates, and the act itself actually embraces, two distinct objects, when the Constitution says it should embrace but one, the whole act must be treated as void, from the manifest impossibility in the court choosing between the two, and holding the act void as to one and valid as to the other.”

This doctrine was expressly sustained in 32 La. Ann. 1015, and 11 La. Ann. 122, cited supra.

Another objection urged against the constitutionality of the act under consideration is that its title limits the operation of the law to “merchants or corporations,” by naming only such, while the body of the act broadens it so as to embrace “any person, corporation or firm,” and declares amenable to the penalties of the act “any person, or •officers of any corporation or firm.”

There can be no doubt that the title of the act governs in this respect and the law, on this ground, is unconstitutional as to ail persons hot embraced within the designation of “merchants or corporations.” State ex rel. Lewis vs. Judge, 44 La. Ann. 90.

The title of an act defines its scope; it can contain no valid provision beyond the range of the object there stated.

Sutherland on Statutory Construction, Section 102.

Another objection urged is that the title of the acts forbids the issuance only of tickets, while the body of the law makes unlawful the issuance of tickets or checks.

There is little or no force in this contention. “Tickets” may well cover- and include “cheeks.” They mean, as here used, the same thing. A check is a “ticket” in the sense of the statute.

Another objection is that the second section of the act makes the issuance of tickets in violation of the act a misdemeanor and prescribes penalties therefor, while the title of the act is altogether silent as to the penal character of the law.

The contention is that to read the title of the act one would not assume it to be a criminal statute, since the title gives no indication that a new crime was being created.

There is- cited, with some force and appositeness, in support of this, State vs. Baum, 33 La. Ann. 981. We prefer, however, to rest our conclusion as to the uneonstitutionality of the statute on other grounds.

And we also reserve opinion on other questions raised by the defense in the case, other objections hurled at the constitutionality of the act.

Eor the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be affirmed.

The Chief Justice and Breaux, J., concur in the decree.


author: Niciiolls, O. J.

text:
    No. 13,670.
    State of Louisiana vs. William Logan et als.
    Syllabus.
    1. Act No. 63 of 1884, is not violative of Article 31 of the Constitution of 1898, which is identical with Article 29 of 1879. Its constitutionality tested by the provisions of the latter article, was sustained in State vs. Rushing, 49th Ann. 1532.
    2. A verdict and judgment of conviction in a criminal case,' based upon an indictment on which are not endorsed the words “A true bill,” followed by the signature of the foreman of the Grand Jury evidencing a finding of the Grand Jury to that effect, cannot be sustained, since there is not a valid indictment; especially is this true in the absence of a minute entry disclosing that the indictment was read in open court in the presence of the Grand Jury.
    APPEAL from the Third Judicial District, Parish of Claiborne — - Edwards, J.

      Walter Guión, Attorney General, and J. C. Theus, District Attorney, (J. E. Moore and Lewis Guión, of Counsel), for Plaintiff, Appellee.

      Richardson & Richardson, for Defendants, Appellants.
   The opinion of the court was delivered by

Niciiolls, O. J.

The grand jury of the parish of Claiborne found, three different indictments against Willie Logan, Thomas Holly, and Lee Slaten. In the first of these indictments (No. 1258), they were charged with having on the 1st of October, 1900, feloniously, wilfully, maliciously and falsely accused Berry Mpnk of the crime of operating an illicit distillery and threatened the said Berry Monk with arrest, criminal prosecution, and public scandal, with the intent to extort money and a horse and cow from him.

In the second (No. 1263) they were charged with having on the 3rd of October, 1900, feloniously, falsely, maliciously and wilfully accused G. I. Easberry, of operating an illicit and unlawful distillery and threatening fo prosecute and kill him, with intent to extort money, goods, and chattels from him.

In the third (No. 1264), they were charged with having on the 3rd of October, 1900, feloniously, falsely and wilfully accused John Eichardson, of being connected with an illicit distillery and threatening to cause him to be prosecuted and subject him to public scandal, with the intent to extort money, goods and chattels from him, and his father, Joseph Eichardson.

These various acts were each charged to have been contrary to the form of the statute of the State of Louisiana, in such case made and provided.

The three cases were consolidated for the purpose of trial and were tried together.

The jury returned a verdict of guilty as charged against the three-parties accused in suit 1258; also against the three parties accused in suit No. 1263, and against Lee Slaten and Willie Logan accused in suit No. 1264.

The court in suit No. 1258 sentenced each of the parties charged in. the indictment therein, to be confined at hard labor in the penitentiary for a year, and to pay a fine of fifty dollars and costs. In suit No. 1263 it pronounced a similar sentence against each of the parties charged, in the indictment therein. In suit No. 1264 it pronounced a similar sentence against Willie Logan and Lee Slaten.

The parties convicted and sentenced have appealed.

Prior to trial defendant moved to quash the different indictments on the ground that Act 63 of 1884, under which they were found, was unconstitutional as being violative of Article 31 of the Constitution of 1898. The motion was overruled and defendants excepted.

Defendants filed a motion in arrest of judgment on the following grounds:

1st. That the Act No. 63 of 1884 is in contravention of Article 31, Constitution of 1898, and, therefore, unconstitutional.

2nd. That there has been no legal indictment found against them by the grand jury; that the law requires an indictment by the grand jury to be endorsed “A True Bill”, and signed by the foreman of the grand jury in his official capacity. The indictments under which the accused were tried not being endorsed “A True Bill” and words to that effect, and signed by the foreman in his official capacity, there was no attestation of the official action of the grand jury, and no evidence of any action on the charges and findings of the bill, therefore the same was illegal.

3rd. That said indictment is illegal, for the reason that there is no charge set forth in the body of the indictments.

“a”. The statutes set forth that any one who accuses another of a crime, 'or threatens with arrest, or criminal prosecution and public scandal, and with intent, etc., is declared a crime, etc. In this State there is no crime of illicit distillery, and there can be no arrest and criminal prosecution for anything that is not declared to be a crime by the statutes of this State, and to accuse a party of something that is not a crime is not a public scandal.

“b”. The statutes require that the object or intent be to obtain some valuable thing and in order to make its accusation a crime something of value should be demanded; an allegation of an intent to extort money without giving any amount or sum of current money of the United States, or of an intent to extort a horse, a cow, or goods and chattels, without a value has been alleged, is bad, and in neither of the indictments above stated, under which defendants were tried and convicted, is there such an allegation, therefore there is no crime alleged or charged against them.

Opinion.

The motion to quash the indictments upon the ground that Act No. 63 of 1884, on which they were based, was violative of Article 31 of the Constitution of 1898, was properly overruled. Article 31 of the Constitution of 1898 is identical with Article 29 of the Constitution of 1879, and this court in State vs. Eushing, 49th Ann. 1532, sustained the constitutionality of the Act as against a claim that it was violative of the last mentioned article.'

The difficulty in the way of sustaining the verdicts and judgments in these appealed cases is found in the position taken by appellants in their motion in arrest that none of the indictments were endorsed as being “'true bills” and signed by the foreman of the grand jury.

The endorsements on the indictments were as follows:

No. 1258. State of Louisiana vs. Willie Logan, et als. Ari Noland, Foreman Grand Jury. Filed, October 2, 1900. (Signed) Drew Ferguson, C. D. C.

No. 1263. State of Louisiana vs. Willie Logan, et als. Ari Noland, Foreman Grand Jury. Filed October 4, 1900. (Signed) Drew Ferguson. C. D. C.

No. 1264. State of Louisiana vs. Willie Logan et als. Ari Noland, Foreman Grand Jury. Filed October 4th, 1900. C. D. C.

The minutes of the court of October 2, 1900, and October 4, 1900, so far as these cases were concerned were as follows:

“Tuesday morning, October 2nd, 1900, court met pursuant to adjournment, same officers present:
“The grand jury came into open court and after all answering to their names returned into open court one bill of indictment, and agreed that it should be changed as to manner of form, but as to nature of substance should remain unchanged. Bill by the court ordered filed, numbered and bond fixed as indicated, back of bill.”
“1258. State of Louisiana vs. -. Blackmail. A true bill. Signed, Ari Noland, Foreman Grand Jury. Bond fixed at $500. Sheriff to take and approve the same, which is as follows:”

After this follows the indictment in this particular case, signed by the District Attorney of the Third Judicial District, Louisiana.

“Thursday morning, October 4, 1900. Court met pursuant to adjournment — same officers present:
"Grand jury came into open court and after all answering to their names returned into open court the following six bills of indictment, and agreed that they should be changed as to form, but as to manner of substance, remain unchanged. Court ordered the bills to be filed and numbered and bonds fixed as indicated by the court on back of bills. Sheriff or deputy to take and approve the same. ■
“No. 1263. State vs.--. Blackmail. A true bill. (Signed) Ari Noland, Foreman Grand Jury.
“No. 1264. State vs. -. Blackmail. A true bill. (Signed) Ari Noland, Foreman Grand Jury.”

It will be perceived that there is a variance between the endorsements on the back of the indictments and the statement of the district clerk in his minutes, as to what those endorsements were.

An erroneous statement by the clerk, as to what appears on the indictments, yields, of course, to the actual facts of the case. The words “a true bill” are not found on any of these indictments. It will be noted that the minutes do not recite that either the indictments or the endorsemens thereon were read in open’ court in presence of the jury.

The Attorney General maintains that the appearance of the words “A True Bill” upon them was not sacramental; that the essential- fact) is that the instruments were actually returned into open court by the grand jury as true bills of indictments upon the charges therein contained; that the minutes of the court are evidence and sufficient evidence of that fact. He claims that the correctness of this proposition is supported by a number of decisions of the higest courts of other States, and that the decision of this court in Stfete vs. Morrison, 30th Ann. 817, to the contrary, has been overruled.

He refers us to Archibald on Oriminal Pra. & Pl., Sec. 98; State vs. Magrath., 44 N. J. L. (V. v), 227, and Am. and English Ency. of Law, (1st Ed.), Vol. 10, verbo Indictment, pages 470, 508, 510 and 511-21 Cal, 368. White vs. Com. 29 Gratt. 824 — Bishop Criminal Practice, Sec. 700.

He further argues that the objection that the indictments are not endorsed “A True Bill” comes too late in a motion in awest, after the indictment has been pleaded to and a conviction has followed, even when required by directory statute, and cites’ as sustaining him the American and English Encyclopedia of Law on the pages stated. 29 Gratt (Va.), 824, and State vs. Mortons, 14 Mo. 94.

We do not find that State vs. Morrison, 30th Ann. 817, was overruled by State vs. Mason, 32nd Ann. 1018, in respect to the proposition we are now considering. The bill of indictment in the Mason case was endorsed “A True Bill,” and signed by the foreman of the grand jury; therefore, no question was raised as to what the law was touching the necessity of those words being endorsed upon it. The question submitted and decided was as to whether the indictment had been, or had not been presented by the grand jury in open court, and whether the endorsement upon the bill should specify the offense charged in the indictment.

We are of the opinion that the conclusion reached and announced in State vs. Morrison was correct and should be adhered to. We see no reason to depart from it. It is directly supported by State vs. Howell, 3rd Ann. 50, and State vs. Duncan, 8th R. 562. See, also, Laurent vs. State, 1 Kansas, 313.

The district clerk makes a minute of what occurs in open court and does not certify as to what was done in the grand jury room. The grand jury certify their own acts through their foreman in respect to the finding of indictments. Their action in this matter is certified to through an endorsement in writing on the back thereof, by the words “A True Bill”, followed by the official signature of the foreman’ of the grand jury. Without such an endorsement we cannot say that there were any indictments found in these eases. This view carries with it a non-concurrence by the court in the position taken on behalf of the State that the defendants could not urge this particular objection, after verdict and in arrest of judgment.

The objection was well grounded.

For the reasons assigned, it is ordered, adjudged and decreed that the verdicts of the jury and the judgments of the court appealed from herein, be, and the same are hereby annulled, avoided and reversed, and that defendants be discharged from custody.