author: Bkeaux, J.

text:
    No. 12,041.
    State ex rel. Numa Dudoussat vs. Remy Klock, Criminal Sheriff.
    If a judgment is void it may be assailed collaterally. But if the error is not of such a character as to render it absolutely void, the defendant can not be relieved on the 'writ of habeas corpus.

    The prevailing rule is that a whole sentence is not illegal and void because of an excess.
    Where the period of imprisonment is a separate portion of a sentence complete in itself, the defendant is not entitled to discharge on habeas corpus.

    The punishment was less than the minimum set down in the statute, and gave to the relator no right to his release on this writ.

      ^PPLIOATION for a Writ of Habeas Corpus.

      Ambrose Smith for Petitioner.

      M. J. Cunningham, Attorney General, Charles A. Butler, District Attorney (Lionel Adams, of Counsel J, for the State of Louisiana.
    Argued and submitted January 6, 1896.
    The opinion handed down January 11, 1896.
   The opinion of the court was delivered by

Bkeaux, J.

The court in the case of the State of Louisiana vs. Numa Dudoussat entered judgment, upon the verdict, condemning him to imprisonment in the State penitentiary, at hard labor, for three years. On appeal to this court the sentence and judgment were affirmed.

Under the statute, the penalty is imprisonment at hard labor during a period of not less than one year, and not more than five years; and a fine of not less than fifty dollars, and not more than five thousand dollars.

The complaint of the relator is that the error of the trial judge, in not having imposed a fine as part of the sentence, vitiates the proceedings of both the trial and appellate courts, and makes them void ab initio.

He prays for the writ of habeas corpus; that nullity be pronounced and that he be released from custody.

Three propositions suggest themselves for the purpose of the dis - cussion as covering the principles which concern us here.

1. That the whole sentence is not void, because of an excess; that it is invalid only as to the excess.

2. That, if the sentence is below the minimum, it is not a good ground, in se for releasing the prisoner on a habeas corpus.

8. That, if the period of imprisonment is a separate portion of the sentence, complete in itself and valid, the prisoner is not entitled to discharge on habeas corpus.

The first proposition is supported by the decision in the United States vs. Pridgeon, 145 U. S. 48-63.

In the cited case the defendant applied to be discharged from custody because the sentence imposed was beyond the power and jurisdiction of the court, and therefore void. The imposition of the sentence was in excess of what the law permits, and none the less the court held that the sentence was legal so far as the power of the court extended, and was only illegal as to the excess.

The decision received the unanimous approval of all the members of that exalted tribunal, citing approvingly a number of its own decisions as well as decisions of appellate courts of a number of States.

In another case, In re Swan, 150 U. S. 637, 653, that court held, even if the court had exceeded its authority, yet the prisoner could not be discharged on habeas corpus until he had served the sentence it was within the power of the court to impose.

The relator relies upon Ex parte Lange, 18 Wallace, U. S. 163, to which our attention was directed.

In that case it is announced that “the error of the court in imposing the two punishments mentioned in the statutes when it had only the alternative of one of them, did not make the judgment wholly void.”

The punishment under the statute was imprisonment for not more than one year or a fine of not less “than ten dollars, nor more than two hundred dollars.” The judge sentenced Lange, under the conviction, to one year’s imprisonment and to pay two hundred dollars fine. The defendant paid the fine and filed a petition praying for a writ of habeas corpus. The judgment of the court had been rendered and carried into execution, yet an attempt was made (by the court on habeas corpus) to vacate the judgment and render another for one year’s imprisonment, in compliance with the terms of the statute. The defendant had been punished. The Supreme Court applied the principle of the law, on the application for habeas corpus, that no one can be twice punished for the same crime at the same time; and announced in substance that a defendant is not entitled to a discharge where a portion of the sentence is legal, but that the court can not, even during the- term, amend a sentence which has been executed in part, without invading the right of an accused not to be t a ice vexed or punished for the same offence.

There is considerable distinction between a void judgment apparent on an application for a writ of habeas corpus and thobe judg-merits which are voidable in a direct proceeding instituted for the purpose of vacating them, setting them aside or reversing them. A void judgment is as nothing.

Upon this subject Mr. Justice Miller, speaking for the court, said: “ An imprisonment under a judgment can not be unlawful, unless the judgment is an absolute nullity; and it is not a nullity if the court has general jurisdiction of the subject, although it should be erroneous.” In re Coy, 127 U. S. 731, 757.

Here Che court had general jurisdiction of the subject.

In re Graham, 138 U. S. 461, 463, Justice Field said, in regard to a similar question (the defendant was condemned to serve in excess of the time presented) ; that the prisoner should not have been sentenced, as he was, for a time exceeding ten years. “ When the ten years have expired it is probable the court will order the prisoner’s discharge, but until then he has no right to ask the annulment of the entire judgment.”

In Ex parte Hagan, 25 Ohio, 426, 432, the Supreme Court of that State held: “ The punishment inflicted by the sentence in excess of that prescribed by the law in force was erroneous and voidable, but not absolutely void. The excess can be held void and disregarded.” People ex rel. Trainer vs. Baker, 15 N. Y. Court of Appeals.

In California a defendant had been sentenced to serve three years. The law’s limit was six months. He was discharged at the end of the six months on an application for habeas corpus. Ex parte Bulger, 60 California, 438.

In Texas it was decided: A prisoner held in custody under judicial proceedings not void can not obtain relief by habeas corpus. Texas Court of Appeals, Ex parte Boland, 11 Tex. 159.

Our immediate predecessors in State vs. Salone Branch, 34 An. 942, held, on appeal, that the whole sentence is not illegal and void because of the excess, and amended the judgment by decreeing it invalid only as to the excess, and the remaining sentence was decreed valid.

The , authorities to which we have referred heretofore relate to penalties above the maximum; the error in those cases, if not corrected, would be prejudicial.

Here the question relates to a sentence below the minimum, and the error, if not corrected, would not be prejudicial; it is .an,error really in defendant’s favor, and is not to be viewed in the same light as the former.

In Barada & Barada vs. The State, 13 Missouri, 94-96, not on application for habeas corpus, but on writ of error, the court did not annul the sentence, imposing a fine less than the minimum limit, on the ground that it was not an injury to the defendants or to their prejudice.

In Tennessee, again, on appeal in error, the court held, that a party can not assign for error that which is for his own advantage; applies as well to criminal as to civil proceedings. The complaint was that the term of confinement was less than the minimum of the statute, that instead of two years it should have been three years.

The error, it was held, was only formal. Wattingham vs. The State, 5 Sneed’s, p. 64, 68.

It will be observed that in these last cases having bearing here, the question came up on writ of error. We express no opinion, as there is no necessity, in regard to the correctness or incorrectness of thus holding at such a period of the case. We only cite them as authority in support of the position that a party on application for habeas corpus has nothing to complain of, upon the ground of deficiency in the punishment imposed.

This court sustained that view in State vs. Evans, 23 An. 525, and held that a judgment will not be reversed on appeal, though the judge a quo assessed a smaller fine on the accused than he was authorized.

The interpretation was in favor with Mr. Bishop, as we read his work on Criminal Law. Vol. I, p. 931.

Mr. Church, on habeas corpus, says: “ Where the sentence can be so divided, the invalid part may be discharged, and the prisoner ought not to be discharged in habeas corpus, until he has served out the valid portion of the sentence.” Par. 353.

The right on appeal is not limited as it is on an application for a writ of habeas corpus; the same court, without inconsistency, may, on appeal, remand a case on the ground here for further proceeding, and might decline to release a prisoner on application for a writ oi habeas corpus.

Of the many cases we have examined we have not, as we read them, found an authority sustaining the application here made. In case of a writ of error to the District Court of the United States the Circuit Court held that any variation, either in character or extent of the punishment, avoids the judgment. United States vs. Wilson, 28 F. R. 766, 768.

In habeas corpus proceedings distinction is observed. We quote from the first decision before cited — i. e., the Pridgeon case.

“In other words the sound rule is that a sentence is legal so far as it is within the provisions of law and the jurisdiction of the court over the person and the offence, and only void as to the excess, when such excess is separable and may be dealt with without disturbing the valid portion of the sentence.

“ Many well-considered authorities, in England as well as in this-country, hold that where there is jurisdiction of the person and of the offence the excess in the sentence of the court beyond the provisions of law is only voidable in proceeding upon writ of error.”' (The italics are ours.)

The court in that case cites, in support of the principle announced: Ex parte Lange, 18 Wallace, 163; Senrott’s Case, 146 Mass. 489, 493; People vs. Kelly, 97 N. Y. 212; People vs. Liscomp, 60 N. Y. 559; People vs. Jacobs, 66 N. Y. S.; Ex parte Shaw, 7 Ohio St. 81; Ex parte Van Hagan, 25 Ohio St. 426; In re Graham, 74 Wisconsin, 450; Elsner vs. Shrigley, 80 Iowa, 30; Ex parte Mex, 44 California, 579.

It was argued at the bar that under the article of the Code-of Practice relating to that writ it is a question of want of power. But may it not be suggested that the power exists to the extent that the court had jurisdiction to render the particular judgment. There-is no excess in so far as relates to the particular punishment; it is a question of irregularity in not having imposed a fine.

In two cases of this court, cited supra, the error did not vitiate the proceedings. Without overruling these decisions and disregarding the rule established by a long chain of authorities we can not release-the relator on this writ.

It is therefore ordered and adjudged that the present application, be denied and the proceedings for habeas corpus dismissed.


source: Caselaw Access Project

author: Breaux, J. Watkins, J.

license: Public Domain

text:
    No. 11,890.
    The State of Louisiana vs. L. O. Desforges, Thomas Haley and Peter B. Caulfield.
    In this State it is an indictable act to propose to receive a bribe by any parochial or municipal officer.
    Letters from an officer to his employer communicating facts bearing upon the issue before the court, relating to the employer’s interest, being an incident of the business and contemporaneous, are admissible as part of the res gestee.

    A contradicted witness may be corroborated (as to some matter material to the issue); although the one against whom he testified declared that in introducing contradicting evidence it was not.the-intention to impute fraud, fabrication, or in any manner to impeach him, the fact was that the repeated contradictions were of an impeaching character.
    One “ has the unquestioned right to introduce evidence in corroboration of a witness who has been impeached or contradicted

    A PPEAL from the Criminal District Court for the Parish of d- Orleans. Moise, J.

      M. J. Cunningham, Attorney General, Charles A. Butler, District Attorney, John J. Finney, Assistant District Attorney (Lionel Adams, of Counsel), for Plaintiff, Appellee.

      Evans & Dunn, James C. Walker and A. D. Henriques for Haley and Caulfield, Defendants, Appellants.
    Argued and submitted December 7, 1895.
    Opinion handed down December 16, 1895.
    Rehearing refused January 20, 1896.
   The opinion of the court was delivered by

Breaux, J.

The defendants were indicted for proposing, as councilmen, to receive a bribe. Thomas Haley and Peter B. Caul-field were tried and convicted.

During the trial the court allowed the State to introduce in evidence two letters, also permitted the State to introduce witnesses to prove the general reputation of a witness for truth and veracity'.

The witness, whose letters were introduced, was an officer of the Louisville & Nashville Railroad Company, who had sought by these letters pending negotiations to inform his employer of the conditions under which a grant or switch track privileges on the levee could be obtained by his company from the Council.

Prom one of the letters we extract:

The factions have m ade a kind of combine on our business and demand seven thousand five hundred dollars for the passage of the ordinance. I have told the members that I could not make any deal with them contrary to law and good morals, whereupon they tell me that they will withhold my ordinance until I think of it.”

The objection inter alia was that the witness’ narrative or description of what had taken place between himself and factions or parties not' named and in no manner connecting either of the witnesses was not admissible.

The defendants made a motion to quash the indictment and after conviction another in arrest of judgment on the ground that Act 59 of 1878, in so far as it relates to the crime of bribery, was repealed by Act 78 of 1890.

First in order is the bill of exceptions to the overruling of these two motions.

The act invoked by the defendant as covering the whole subject and repealing prior laws is entitled, an act ‘ to define the crime of bribery and provide penalties therefor.”

The contention is that the word “define” as used in the title means to set bounds to and mark the limit of bribery in this State; that proposing to receive a bribe falls within the common law definition of bribery; that thus limited by the title it can not be supposed that the Legislature in enacting Act 78 of 1890 intended to leave un-repealed any part of the prior enactment embracing the same subject matter.

In support of this proposition the case of James Walsh vs. The People, 65 Illinois, 58-62, is cited. The defendant, an alderman of the city of Chicago, was indicted for a proposal made by himself to receive a bribe. The ground was in defence that the statute had not created the offence, and that the act charged did not fall within any of the common law definitions of bribery.

The court decided that the act of proposing to receive a bribe is within the common law definition of bribery and announced as reason for the conclusion that the mere offer to bribe, though it may be rejected, is an offence, and the party who makes the offer is answerable to indictment and punishment; that the distinction between an offer to bribe any one and a proposal to receive a bribe is exceedingly nice; the difference wholly ideal; that in holding that the act charged was indictable the court was not drifting into judicial legislation, but merely applying old and well settled principles to a new state of facts and held as we have already stated.

If we should follow the construction announced in that decision, the Act 78 of 1890 denouncing bribery would include the offer to accept a bribe, and a prosecution for offering to receive a bribe, based on the last act, would be valid without reference to the prior statute.

But it is argued on the part of the defendants that the words or parochial and municipal officers who shall propose to receive a bribe,” contained in Sec. 3 of Act 59 of 1876, having been omitted the only inference to be drawn from such a course of legislation is that a change in the law was intended to be made.

We do not think that this would unavoidably follow; particularly if “ bribery” can be extended to include the offer to receive a bribe. In that case there would be no omission; if the word used covered both offences the same end would be accomplished by the word “bribery; ” if it be as announced in the decision just cited, a different expression for the one idea of “ bribery.”

Be this as it may, our reading has not resulted in our finding that ■che offer to receive a bribe is an offence at common law.

Sir William Blackstone, in his Commentaries on the Laws of England, referring to bribery as an offence against public justice, adverts to the important part which presents play in the social life of the East; where it is the custom never to petition any superior for justice, not excepting their kings, without a present. This, he adds, is calculated for the genius of despotic countries where the true principles of government are never understood, and it is imagined that there is no obligation from the superior to the-inferior; no relative duty from the government to the governed. His transition from the custom in the East of offering presents to the Roman law in regard to bribery is somewhat sudden, followed by an allusion to Plato, who more wisely in his ideal republic orders those who take presents for doing their duty to be punished in the severest manner,” and closes his comments upon this subject with reference to England, where the “ offence of taking bribes is punished in inferior officers with fine and imprisonm nt, and in those who offer a bribe, though not taken, the same.’

In all his comments in regard to that vice as prevailing in ancient or modern times, no mention is made of such an offence as the offering to receive a bribe, though much is written about bribery and the offer to bribe.

By an examination as thorough as we could make, we have not, in any English commentator’s work upon that subject, found any reference to the one who merely proposed to receive the bribe as an offender of the common law.

The act of actually receiving was necessary to constitute the offence. While it is clearly announced as law, that it is as much a crime to offer a bribe as to take one, it never extends to the offer to-accept a bribe; never by inference, as was inferred in the Illinois case supra.

In Louisiana^ prior to the statute of 1878, the act of offering to receive a bribe was never, in terms, denounced.

Section 61 of Act 130 of 1806 denounced bribes or reward to influence behavior in office. The last act preceding the statute of 1878 is equally as limited in its terms — i. e., Act of 1873, No. 40. The act of 1878 denounced as a separate and distinct offence “ parochial or municipal officers who shall propose to receive a bribe.

The act of 1890 is silent in regard to this offence. Whatever construction is placed upon this omission in the last act, the offence in our view is denounced.

The two enactments do not embrace the same subject, nor does the limit which the words “ to define” place upon the object of the last enactment operate by implication as a repeal of another and substantive-offence created by the prior act. Moreover, the last act is not an amendment or re-enactment of the prior law; therefore the principle of interpretation, that the parts of the former law left out are repealed, does not apply. .The repeal can not be inferred when, as in this case, the two statutes, except as relates to bribery,, can be harmonized.

The prior law, it must'be held, in so far as relates to bribery itself, is repealed; but it is not repealed in so far as relates to the offer to-receive a bribe.

“ One statute is not repugnant to another unless they relate to the same subject and are enacted for the same purpose. When there is a difference in the whole purview of two statutes apparently relating to the same subject, the former is not repealed.” Sutherland, See. 138.

The next objection was raised to the admissibility of two letters; admitted by the conrt as part of the res gestee; written by the principal witness for the prosecution to his employer; they communicated to the latter, proposals and the circumstances under which they were made; the negotiations related to a resolution in the company’s interests before the City Council and the communications bear dates contemporaneous with the offences charged. The trial judge, in support of his. ruling, stated: “ This evidence was part of the res ges-tee. Mr. Marshall was merely an employee of the Louisville & Nashville Railroad Company, and had necessarily to communicate the propositions to receive a bribe. It was the company, and not he, that had to pay the bribe if the proposal was assented to; hence it was really made to the company through him. The defendants were fully aware of this fact. Marshall told the three accused that he had no authority.to spend any money for the company’ (see his testimony,’ Question and Answer No. 83) ; on another occasion he informed Caulfield that he was still undecided as to what the company would do about the bribe” (Marshall’s testimony, Answer No. 62). The “ defendants, therefore, knew at the time that their propositions were conveyed to the headquarters of the coroporation.” *

The communications were the accompaniment of the act; “were so connected with it as to illustrate its character.” 1 Greenl. on Ev., Sec. 108; Wharton Or. Ev., Sec. 263.

Another objection, based upon grounds stated in a separate bill of exceptions, was to the admissibility of the testimony of witnesses in support of the testimony of the State’s principal witness. The grounds were that the defence had not imputed fraud or fabrication to the witness, Charles Marshall; that on the contrary the contention was that he was mistaken and had mistaken these defendants in the conversations that he had with others with whomhe had conversations.

Such were the statements to the court by counsel for defendants. None the less the testimony of ,the witnesses for the defendants sought to impeach the testimony of this witness — it could have no other effect; there was an irreconcilable conflict in the relation of facts between this witness and those for the defendants. There was direct, open contradiction in several important particulars. Mr. Rapalge (Sec. 217) says: “A party has the unquestioned right to introduce evidence in corroboration of a witness who has been impeached or contradicted. And no exception lies to “the admission of such "evidence.” A contradicted witness, in regard to facts material to the issue, may be corroborated.

After a careful examination of the law of the case we have not found any reversible error.

It is therefore adjudged and decreed that the judgment be affirmed.

ON Application nob Rehearing.

The opinion of the court was delivered by

Watkins, J.

The defendants claim a rehearing upon one ground only, to-wit:

“The petition of Thomas Haley and Peter B. Oaulfield,- defendants in this cause, with respect, ask the court for a rehearing on the ground that they are advised the court erred in holding that where there is a direct contradiction in regard to facts material to the issue, between a witness for the prosecution and witnesses for the defendants, the State may call witnesses to prove the general reputation for truth and veracity of its witness.” ■

And counsel claim that our opinion, in this respect, is at variance with the principles of the common law; and that our statute provides, amongst other things, that “ the rules of evidence * * * shall be according to the common law.” R. S., Sec. 970.

More generally speaking, counsel’s proposition is that, “ a direct contradiction ” between two witnesses, “ in regard to facts material to the issue — said witnesses having testified for different sides of the controversy — does not authorize the introduction of testimony to sustain either by proof or character; and counsel complains that, over timely objection, the prosecution was allowed to call and examine eleven witnesses, “ not to corroborate Mr. Marshall, but to sustain him by proof of'character.”

Counsel say in their brief:

“We contend that it was error to allow witnesses to be called to sustain Mr. Marshall’s general character for truth, before his general character in that, or any other respect, had in any sort been put in issue.

“ In other and plainer words, we contend that under the English common law rules of evidence a contradicted witness, in regard to facts material to the issue, can not be sustained by evidence of his general good character.”

Counsel cite, in support of their objection, the following cases, viz.: Starks vs. The People, 5 Denio (N. Y.), 108; The People vs. Hulse, 3 Hill (N. Y.), 313; Harris vs. State, 30 Ind. 131.

All other cases to which counsel make reference are civil suits, the trial of which, in different jurisdictions, mainly depend upon local statutes, and not on the common law.

Counsel have, also, brought forward extracts from several text writers, and we reproduce. them, viz.:

“ The rule governing the introduction of sustaining testimony of this kind is stated as follows in 3 Starkie, Ev., par. 1757: ‘ And in all cases where the credit of a witness has been attacked, whether by general evidence or by particular questions on cross-examination, it seems that the party who called him is at liberty to support his testimony by general evidence of good character.’

“ So, if the character of the attesting witness to a deed or will be impeached on the ground of fraud, evidence of his general good character is admissible.

“ But the mere contrariety between the testimonies of adverse witnesses, without any direct imputation of fraud on the part of either, supplies no ground for admitting general evidence as to character. To the same effect is the rule as stated by Mr. Greenleaf in his work on Evidence, Yol. 1, par. 469. * * * ‘The rule thus laid down is well supported by the citation of decided cases. * * * Butwhen the character of the testimony given by a witness is attacked only by showing its improbability, or by other testimony conflicting with the testimony of the witness, sustaining testimony cannot be admitted. If admitted when there is only a conflict in the testimony of opposing witnesses, the opposing witnesses on both sides could be supported by sustaining testimony in regard to their standing and character by reputation as witnesses, and the trial would be prolonged indefinitely.’ * * *

“Russell on Crimes, Yol. 3, 9th Ed., pp. 564, 565, says:

“ ‘A party can not bring evidence to confirm the character of a witness before the credit of that witness has been impeached, either upon cross-examination or by the testimony of other witnesses. Thus, in a case where a witness for one party asserts one thing, and a witness for the other party asserts the' contrary, and direct fraud is not imputed to either, evidence of the good character of either witness is not admissible.”

“ On page 565, 3d Vol., Russell on Or., the author says: ‘ The better opinion seems to be that such evidence is not admissible, except in cases where the counsel on the other side impute a design to misrepresent from some motive of interest or relationship,’ etc.

“ Taylor on Ev., Vol. 2, p. 1262, sayst

But mere contradiction among witnesses examined in court supplies no ground for admitting general evidence as to their character,’ ” etc. •

Counsel quotes from the ruling of the trial judge the following exception, viz.:

“ The trial judge says (R. 137) : The two defendants, Haley, and 'Caulfield, taking the stand in their own behalf, denied and contradicted the statement as to any conversations or negotiations relating to the payment of a bribe as a consideration for the passage of the ordinance, but generally admitted the meetings. This narrowed the issue before the jury to a qnestion of veracity between the parties.’ ”

In our opinion we said, that, notwithstanding the insistence of defendant’s counsel, that there had not been imputed to the State’s witness, Charles Marshall, any fraud or recent fabrication, and that their contention was that he was under misapprehension as to the defendant’s statements to him, none the less, the testimony of the witnesses for the defendants sought to impeach the testimony of this witness. It could have no other effect; there was an irreconcilable conflict in the relation of facts between this witness and those of the defendants. There was, at least, direct, open contradiction in several important particulars.”

The court did not appear to have-viewed the testimony pro and con as a “ mere contradiction among the witnesses;” on the contrary, that the witness, Marshall, affirmed certain “conversations or negotiations” between the defendants and himself relative to a proposed bribe, and the defendants denied such “conversations or negotiations” altogether and m fofo. The necessary result of this evidence was a simple question of veracity for the jury to determine. Whose testimony was more veracious and worthy of belief?

By the emphatic denials defendants had made, the credit of Marshall had been indirectly attacked. Not by simply showing its improbability by the relation of circumstances and facts at variance with his statements, but by an emphatic denial of his statements altogether.

It seems most reasonable that, in this situation, the State should be permitted to sustain her witness’ credibility. If not within the letter such testimony clearly comes within the reason and spirit of the rule announced in the authority cited supra.

Greenleaf states a qualification to the general rule in these words, viz.:

“ Where evidence of contradictory statement by a witness, or of other particular facts, is offered by way of impeaching his veracity, his general character for truth being thus in some sort put in issue, it has been deemed reasonable to admit general evidence that he is a man of strict integrity and scrupulous regard for truth.” 1 Green-leaf, Sec. 469.

That rule was cited approvingly by this court in State vs. Boyd, 38 An. 374.

Though defendants do not confess, but on the contrary disavow that such was their object in offering the testimony under consideration, yet we feel authorized to treat it as having that effect; and having that effect, general evidence of the veracity and integrity of Marshall was admissible.

State vs. Fruge, 44 An. 165, supports that view; but quite a different state of facts is presented in State vs. Cady, 46 An. 1346.

The contention insisted on is not borne out by the authorities.

Rehearing refused.


author: Millbe, J.

text:
    No. 11,972.
    State ex rel. Sheriff et al. vs. Western Union Telegraph Company.
    unless within some exception of the law, a foreign corporation can be sned only at its domicile, declared in accordance with the Constitution and laws; suits for licenses, claimed by the State or parish, are not within any such exception. Constitution, Art. 236; Act No. 149 of 1894; Act No. 150 of 1890, Sec. 7,
    APPEAL from the Tenth Judicial District Court for the Parish of Natchitoches. Andrews, J.

      James M. Tucker for Plaintiff, Appellant.

      Denegre & Denegre and Pierson & Porter for Defendant, Appellee.
    Submitted on briefs December 20, 1895.
    Opinion handed down January 6, 1896.
   The opinion of the court was delivered by

Millbe, J.

The defendant, sued in the'Tenth Judicial District, for the parish of Natchitoches, for State and parish licenses, excepts to the jurisdiction, and from the judgment sustaining the exceptions, this appeal is prosecuted.

The defendant is a corporation created by the laws of New York. The Constitution requires all foreign corporations doing business in this State to have agents on whom process in suits against the corporation may be served. The Act of 1890, No. 149, passed in pursuance of this requirement of the organic law, provides that such corporations shall file declarations in the office of the Secretary of State of their domicile and the names of their agents. The omission to file this declaration, the act declares, shall subject the corporations to suits in any parish where the cause of action arises. Constitution, Art. 236, Act No. 149 of 1890. The proviso in the seventh section of the license act, No. 150 of 1890, is that such agent shall be “accredited” as competent to represent the corporation “for all purposes of its business, licenses, taxation and service of process.” There is the provision in the Revised Statutes that suits for trespass may be brought against corporations in the parish where the damage is done. We are not aware of any other legislation on the subject, and we have not been furnished with any brief on the part of the State.

It is our conclusion that the defendant, having declared its domicile as required by the Constitution and laws, can be sued for the cause stated in the petition only, át its declared domicile.

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


author: Miller, J.

text:
    No. 11,922.
    Frederick Poland vs. Mrs. Anna Dreyfous, Widow of Bernard Fellman.
    Courts take notice of the streets and of the names and locations of the suburbs from time to time brought within the city limits. 1 Greenleaf on Evidence, Sec. G.
    An assessment of street lots by the boundaries derived from the act by which the property was conveyed, though giving the changed names by which two of the boundaries were known at the date of the assessment, and stating the numbers of the lots as they are given in the act, held sufficient to support a tax sale, although the depths of the lots are not correctly stated. Cooley on Taxation, Chapter 12; 99 U. S. 443; 20 An. 324.
    A PPEAL from the Civil District Court for the Parish of Orleans. King, J.

      W. 8. Parkerson and John Watt for Pláintiff, Appellee.

      Dart & Kernan iov Defendant, Appellant.
    Argued and submitted December 5, 1895.
    Opinion handed down January 6, 1896.
   The opinion of the court was delivered by

Miller, J.

Thé plaintiff sues for property inherited from his mother. The defendant claims under an adjudication to her husband under the act of the Legislature No. 82 of 1884. The appeal is by the defendant from the judgment in plaintiff’s favor.

The character of the action has been much discussed, the plaintiff urging that he sues for slander of title, and that defendant having answered, setting up title, assumed the burden of plaintiff in the pet-itory action.- The defendant insists the action is petitory on the part of plaintiff, who must make out his case, that is, can recover only on the strength of his title. The petition avers ownership; that defendant claims under a tax title alleged to be void, because the property was not on the assessment rolls; that the rolls contained no description of the property, and that defendant claiming to have acquired it under the Act No. 82 of 1884, never paid the taxes accrued since 1880, requisite to maintain title under that act. The prayer is for judgment decreeing the erasure of the inscription of the tax title and for recognition of the plaintiff’s ownership. The answer maintains the validity of the tax title, alleges the payment of the taxes accrued since 1880, pleads the prescription of three and five years, and prays for judgment dismissing plaintiff’s demand.

The suit for slander of title is brought by a party in possession and seeks to maintain it. The title and possession are averred and the slander is alleged. The relief sought is that the defendant be ordered to bring suit to establish his pretensions; pay damages for the slander, and that the plaintiff be quieted in his possession. Possession is the issue made by plaintiff, but if the defendant, instead of admitting the slander and his readiness to bring the suit, or denying the slander, chooses to assert his title, he changes the action into the petitory suit and takes on himself the burden of plaintiff in such suit. Thus defined in our jurisprudence, we should have some difficulty' in holding the suit in this case, one for slander of title. Livingston vs. Herman, 9 An. 712; Packwood vs. Dorsey, 4 An. 90; Dalton vs. Wickliffe, 35 An. 356; Remick vs. Lang, 47 An. 914. The character of the action here is not, however, of importance under the view we take of defendant’s title.

The property in controversy is ten lots of ground acquired by plaintiff’s mother, Susan Poland, in 1837, described as bearing the numbers 100 to 110, each measuring thirty feet on State street by depths ranging from one hundred and twenty-six to one hundred and thirty-one feet, omitting inches, and the deed of 1837 refers to the property as part of that bounded by the Burthe property on one side, and on the other by that of Hurst. The deed and plan in evidence show that the lots are on the upper side of State street, with Burthe’s property in the rear. The adjudication, the basis of defendant’s title, was to pay the taxes of 1875, 1876, 1877 and 1878. The plaintiff produced in evidence extracts from the delinquent rolls for those years, and on the assumption that the extracts show the assessments, strenuously contests their sufficiency. But delinquent rolls are designed to show unpaid taxes, and are not the assessment rolls. Revised Statutes, Secs. 3305, 3307; Act No. 42 of 1871, Secs. 66, 67, 68; Act No. 17 of 1875. On the other hand the defendant filed a document, certified by the city comptroller, in whose office one of the copies of the assessment rolls is required to be deposited, purporting to show the assessments in question. This paper, accompanied by the proof that the original assessment rolls were not to be found in the auditor’s office, was offered and received without objection to show the assessments. We think it must have effect. It appears that for 1875 and 1878 the assessments are headed on the rolls: Upper side State street, St. Charles and Burtheville; under the headings numbers of lots and measurements there are the numbers 101-110, each 80 feet by 170, and in the appropriate columns are carried out the assessed valuations on which the taxes are based. These assessments are in the full name of plaintiff’s mother, living at the time, and for years after.' The plan under which she bought shows the lots part of many others extending on the upp -r side of State street, toward the swamp, with no intersecting streets. The court takes notice of the streets of the city, and of the location and names-of the suburbs, brought from time to time within the city limits, and in the appreciation of these assessments we have been aided by the-plan. The assessments give the frontage on the upper side State street as one boundary, Burtheville as the other, which in the lapse of years became the designation of Burthe’s property, and St. Charles street, formerly Náyades. The plaintiff’s deed gives the frontage on the upper side State street and Burthe’s property, and the assessments state the numbers of the lots precisely as given in the deed. There is a discrepancy in the depths of the ■ lots 126 to-131 appearing in the deed and 170 feet in the assessments. But with this variance in the depths, the boundaries, the numbers of the lots and the name of the owner are given in the assessments. It is not material to consider the asséssments for 1876 and 1877, as a valid assessment for any one of the years will support a tax sale, if good in other respects.

The law requires the assessments should describe the property with reasonable certainty, so as to furnish the basis for subsequent conveyances, and sufficient to apprise the owner it is his property that-is assessed and proposed to be sold if the taxes aie not paid. Cooley on Taxation, Chapter 12; Keely vs. Sanders, 99 U. S. 443. Our courts have enforced this rule and refused sanction to assessments-giving no boundaries, or confusing or inconsistent lines, or in other-particulars so deficient as not to locate the property or convey notice to the owner. Wills & Rawlins vs. Caspar Auch, 8 An. 19; Wilson vs. Marshall, 10 An. 327; Dodeman vs. Barrow, 11 An. 87; Augusti vs. Heirs of Lawless et al., 45 An. 1370. Land and Improvement Co. vs. Succession of Fasnacht, 47 An. 1297. It would be, we think, too great a strain on reason and on law to hold a discrepancy in the depths of these lots, as given in the deed and in the assessment, sufficient to avoid the tax sale, if, in other respects, the assessments are adequate. In the deed by which the plaintiff acquired the property, the numbers of the lots, their frontage on the upper side of State street, Burthe’s property in the rear, Nayades street on one side, and none on the other for the reason there were no intersecting streets beyond, were deemed the essentials of the description with the designation of the locality to be found in the first part of the deed. In all these particulars there is substantial conformity in the assessments: St. Charles street takes the place of Nayades, Burthe’s property is substituted by Burtheville, there is the same frontage of thirty feet on the upper side of State street, and the numbers by which plaintiff’s mother bought, all appear in the assessments. In our view, the owner, knowing he owned the ten lots numbered 101-110, each fronting thirty feet on the upper side of State street, with St. Charles on one side toward the river, and Burtheville, in the rear of State street, could not have been misled as to the property intended by an assessment praetiealiy conforming, in all material respects, with her own Jdeed and against her as the owner. No remissness in looking after payment of one’s taxes will supply a proper assessment for the basis of title, but the fact that plaintiffs sue as heirs of an owner who for years paid no taxes on the property, is suggestive that her indifference in this respect, and not any want of notice by the assessments, was the reason why the tax sale was permitted to occur. We think the assessments for 1876 and 1878 afford the basis to maintain the tax sale.

This view renders unnecessary any discussion of the pleas of prescription of the defendant. We understand it is conceded defendant paid the taxes necessary to complete the tax title. . In plaintiff’s brief there is the statement no notice of the tax sale was received by plaintiff. But the sale for these taxes accrued prior to the Constitution of 1879, was made under the authority of the ordinance in the ■Constitution for the relief of delinquent taxpayers, and the Act. No. 82 of 1884. The form of notice under the ordinance was left to the •Legislature, and the act did not require personal notice. The deed is -.prima facie proof of legal requisites, and the absence of personal notice would not impeach it. See ordinance in the Constitution; Act No. 82 of 1884, Sec. 5; in the matter of Orloff Lake, 40 An. 142; Henderson vs. Ellerman, 47 An. 311; Dibble vs. Leppert, 47 An. 798. The controlling question is the sufficiency of the' assessments, and on that issue we think the tax sale passed the title.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, and it is now ordered, adjudged and decreed that plaintiff’s suit be dismissed, and that he pay costs.


author: Nicholls, C. J.

text:
    No. 12,014.
    State of Louisiana vs. Ike Johnson and Anderson Butler.
    As a matter of law, the prosecuting officer has the right to press upon the jury any view of the ease arising out of the evidence — the Supreme Court is bound to credit jurors with common intelligence, conscientiousness and sense of duty. To justify setting aside a verdict of a jury, approved by the trial judge, on the ground of intemperate or improper remarks made by a District ■ Attorney, this court would have to be thoroughly convinced that the jury was influenced by such remarks, and as well, that the remarks contributed to the verdict found.
    APPEAL from the Tenth Judicial District Court for the Parish of Rapides. Andrews, J.

      M. J. Cunningham, Attorney General, and Phanor Breazeale, District Attorney, for Plaintiff, Appellee.

      E. L. Daigre, for Defendant, Appellant.
    Submitted on briefs December 21, 1895.
    Opinion handed down January 6, 1896.
   The opinion of the court was delivered by

Nicholls, C. J.

The defendants indicted for larceny were convicted and sentenced to the penitentiary for six months. On the appeal, which they have taken from this verdict and sentence, they call our attention to two bills of exception in the record.

The first bill recites that “ on the trial of the case, during the concluding argument of the District Attorney, he used the following language, or its equivalent, to the jury: ‘ Gentlemen of the jury, if you find the accused not guilty you will clear the negroes, but you will convict Mr. Henderson of dirty, stinking, slimy perjury;’ ” Mr. Henderson being a white man and the only witness for the prosecution.

To which statement counsel for the accused objected, and requested the judge not to consider it, which objection was overruled by the judge for the following reasons: “ The judge made no-ruling in this matter, and no request was made of him. After the District Attorney had concluded his argument, the offensive statement having been made at or near the close thereof, the counsel for defence notified the District Attorney that he would reserve a bill to the statement complained of, whereupon the court notified counsel that if he desired to reserve a bill of exception, he had better give the court an opportunity of ruling. The counsel then said he desired to reserve a bill, but made no request of the court for interference whatever.

“ To which ruling counsel for defence excepts and reserves this, his bill for signature of the judge.”

The second bill is to the refusal of the judge to give, at the request of defendant’s counsel, the following special charges to the jury:

1. If you find that the State has but one witness who swears to-the guilt of the accused, and the accused by his own testimony contradicted the State witness, and swears to their innocence, in such case the facts are uncertain and leaves their guilt in doubt.

2. Pacts are doubtful in criminal cases where there are only two-witnesses, one for the State and one for the accused. The one for the State swearing to the existence of a fact, and the witness for the-accused to its non-existence, leaves the facts uncertain and doubtful.

The judge assigned as his reason for refusing to give these special charges that to have done so would have been equivalent to commenting upon the facts, which was prohibited by law.”

Not only did the reason assigned by the judge justify his refusal,, -but the propositions contained in the charges were -not correct expositions of law. The facts in a-criminal case are not necessarily uncertain, nor the guilt of the accused necessarily left in doubt,-because-a single witness testifies to the guilt of the accused, and the accused by his own testimony contradicts the State’s witness and swears to his innocence.

In reference to the remark stated to have been made by the District Attorney in his argument, counsel say: “As a general rule, counsel in argument must confine themselves to the facts brought out in evidence, but when counsel grossly abuses his privilege to the manifest prejudice of the accused, it is the duty of the judge of his own motion to stop him; and if he fails to do so and the impropriety is gross it is a good ground for a new trial,” citing in support of this proposition Am. and Eng. Encyclopedia of Law, 4 Vol., p. 875; State vs. Underwood (N. C., p. 50) and other authorities cited; Perkins vs. Grey, 55 Miss. 153; Cariariath vs. State, 63 Miss. 505.

He further says that the remark was a direct, illegal and effective appeal to the feelings and prejudices of the jury without facts or law to support its utterance.

In his brief counsel quotes the District Attorney’s remark as being, “ Gentlemen of the jury, if you find the accused not guilty you will clear the negroes, but you will convict Mr. Henderson of dirty, stinking, slimy perjury. Mr. Henderson being a white man and the only witness for the State.’1'’ The record does not bear out this statement. In the bill of exceptions, as copied in the transcript, the words which we have just italicized are not inserted as part of the District Attorney’s statements, but seem to be a statement of a fact made by counsel who drew the bill. If we leave out of the District Attorney’s remark the words “negroes,” we see no legal'ground of complaint against it, however objectionable it might be in some other respects. If in point of fact the condition of the evidence was such in the opinion of the law officer that Henderson’s testimony would necessarily lead to a conviction of the accused, unless he were guily of perjury in making his statement, we think he could legitimately so argue to the jury. The prosecuting officer has the right to press upon the jury any view of the case arising out of the evidence. The position of the District Attorney in respect to the matter differs essentially from that of the judge.

The real ground of complaint to the remark was, we presume, in the use of the word “negroes.” We can not attach to the use of that word the great effect and significance which counsel does. We . know nothing of the evidence in the case, and nothing as to how the jury was composed, whether white or mixed. We are bound, besides, to credit jurors with common intelligence and common conscientiousness and sense of duty.

If the accused were in fact negroes, the jury were as well aware of that fact as the District Attorney was, and if they were men of such character as to be influenced by the considerations which counsel suggests, the remark of the District Attorney with the word “negroes” left out (which remark we have just said he could, considered as a matter of law, have legitimately used), would have produced, in our opinion, as prejudicial an effect as if it had been inserted. But counsel brings this matter before us in a very questionable form. He heard the remark, which he now complains of, made to the jury without any attempt on his part to obtain relief of any kind from the judge. He asked nothing at the court’s hands, either in the way of direct rebuke at once to the District Attorney, or warning by the judge in his charge, but contented himself with informing the District Attorney that he intended taking a bill of exception, and in answer to the judge’s suggestion that he call on the court for some action before taking a bill, with declaring that he desired to reserve a bill.

We imagine the theory upon which he pursued this course was that he considered the remark per se so injurious and prejudicial as no^ to be susceptible of correction at all, and the judge’s conduct in not, of his own motion, rebuking the attorney, and alluding to the matter in his charge, so positive a violation of his duty, that therefore the acts themselves were properly the subject at once of a direct bill.

Defendant applied for a new trial, but made no allusion in his motion to any injury received by him from the course of the District Attorney and judge. To justify this court in setting aside the verdict of a jury approved by the trial judge, on the ground of improper remarks made by a District Attorney, it would have to be very thoroughly convinced that the jury was influenced by such remarks, and that they contributed to the verdict found. Were it to pursue any other course the energies of counsel of accused parties would be constantly directed to finding and seizing upon flaws in the arguments of prosecuting officers, and pressing upon an appellate court, which neither saw nor heard the District Attorney, nor saw the jury he addressed, nor was informed as to the testimony in the case, that the conviction of their clients was due not to their guilt, but entirely to improper conduct on the part of counsel for the State.

We think that matters of that kind can, as a general rule, he safely left to the supervision and control of the District Judge, a sworn officer of the law, standing -utterly impartial between the accused and the State. The District Judge in this ease saw the jury, heard what the District Attorney said and listened to all the evidence adduced. If he thought that the verdict was not just, but based upon prejudice resulting from anything said by the District Attorney, we would be slow to believe that he would have overruled a motion for a new trial, or let the verdict stand.

In State vs. Duck, 35 An. 764, this court said: “Accused charged error in the refusal of the District Court to stop the District Attorney in the course of the latter’s argument at the request of counsel, charging that the District Attorney was making an improper and unfair argument to the jury, There is no force in. this complaint. This court can not, and will not, interfere with District Judges in the manner of controlling their courts, or of enforcing rulés of propriety and decorum on the officers of the court.”

In State vs. Mack, 45 An. 1155, it said, alluding to a complaint made by the accused of a remark by the District Attorney to the jury: “The bill of exception states that the accused excepted to it, and that the court did not charge the jury to disregard the statement. There was no demand made on the judge to stop the argument, or to charge the jury to disregard the statement, and no refusal on his part to comply with any request made on him in respect to it. Had the accused desired any action on the part of the judge, he should have asked it.”

We have no reason to believe that the conviction of the defendants was due to the remark complained of.

The judgment of the District Oourt, herein appealed from, is hereby affirmed. . .


author: Breaux, J.

text:
    No. 12,055.
    State of Louisiana ex rel. Jacob Mahler and Joseph Stechelin vs. The Judge of the Twenty-first Judicial District Court for the Parish of Jefferson.
    The right in matter of jurisdiction of one charged -with a crime is not as restricted on application for habeas corpus as it is on appeal.

      Habeas corpus may issue although the fine, exceeding three hundred dollars, has not heen actually imposed; it being a possibility under the law, and that possibility being the test of jurisdiction as relates to that writ.
    This court is competent to issue the writ of habeas corpus in any case that might be brought up on appeal. The fine imposed or the imprisonment fixes the right of appeal velnon. All persons before conviction shall be bailable save those charged with crimes especialiy excepted.
    APPLICATION for Writs oE Habeas Corpus, Certiorari, Mandamus and Prohibition.

      Titos. F. Maher for Relators.

      A. E. Billings for Respondents.
    Argued and submitted January 21, 1896.
    Opinion handed down January 22, 1896.
   The opinion of the court was delivered by

Breaux, J.

The relators apply for writs of habeas corpus and certiorari. The charge against them is assault and battery. They assert that they applied to be admitted to bail; the judge refused to issue an order admitting them to bail.

The sheriff makes the usual return in such cases. • The judge in réspect to the habeas corpus, in answer to the rule nisi, states that under the provisions of Arts. 86 and 109 of the Constitution he had jurisdiction of the case.

In matter of the certiorari he answered that the original record is before this court in compliance with the order.

He states further that the person charged to have been assaulted, he is informed by a physician’s certificate, is confined to his bed; is suffering greatly and is in great danger of losing his life from in.-ternal injuries caused by the blows received; that his patient (the physician certifies) had improved, but was not yet out of danger.

The judge adds to his return that he is justified in-refusing bail to relators until advised by the attending physician of the physical condition of the person assaulted; that when advised that he is out of danger he will release the relators upon bond.

After an affidavit had been made against the relators the judge committed them to the District Oourt to remain in custody until delivered by due process of law or otherwise discharged.

The following is the law of the case: “The punishment of the offence is fine or imprisonment, or both, at the discretion of the court.

A fine left to the discretion of the court can not exceed one thousand dollars, and the punishment can not exceed two (2) years. This court has appellate jurisdiction in all criminal cases whenever the punishment of death, or imprisonment at hard labor, may be inflicted, or a fine exceeding three hundred dollars is actually imposed; and, lastly, the judge of a District Court may act as a committing magistrate.

As relates to jurisdiction, this court, or any member of the court, is competent to issue the writ of habeas corpus, in any case that might be brought up here on appeal. The State ex rel. Daniel vs. Rose, 29 An. 756-759.

In addition to the authorities sustaining the interpretation, the article of the Constitution is clear; the writ shall issue at the instance of all persons in actual custody in cases where this court may have appellate jurisdiction. The provision conferring the authority to issue the writ is not as restricted as is the article relating to appeals. Under the former, the writ shall issue when the appeal is possible; under the latter (the article in regard to appeals), this court ha,s jurisdiction when a fine is actually imposed. In the one there must be a fine actually imposed exceeding three hundred dollars; in the other, the possibility of inflicting such a fine is the test of jurisdiction. To “the great and efficacious writ (habeas corpus), in all manner of illegal confinement,” a larger jurisdiction is given than the jurisdiction on appeal.

This was the reasoning which prompted the court in the exercise of jurisdiction in the case of State ex rel. Chandler vs. Judge, 45 An. 696.

It applies here.

Having reached this conclusion in regard to the jurisdiction of this court in cases of habeas corpus, it devolves uponus to decide whether the defendants are entitled to bail.

The laws of Louisiana contain a provision which seems to be a summary of the common law upon the subject. All persons shall be bailable by sufficient sureties, unless for capital offence, where the proof is evident, and the presumption great.

The offence charged in the warrant is not within the exception. It seems that no preliminary examination has been held. We infer from the oral argument that there was no disposition on the part of the judge to refuse the examination, and no inclination on the part of the relators to waive the examination.

But be this as it may: “The magistrate may make reasonable continuance of the hearing, and, in the intervals, bail or commit the prisoner. In the cases that are bailable the accused has a right to be admitted to bail.” 1 Bishop Orim. Pro.

It is not our purpose to discountenance any future action, if necessary, owing to the condition of the person charged to have been assaulted.

Upon that subject we quote the language of our immediate predecessors in a similar case:

“It is to be understood that nothing in this opinion must be construed as forestalling the subsequent action of any competent authority to find or prefer a charge of greater gravity against this relator. Our action is based exclusively on the nature of the sole charge now pending against him, and under which he is entitled to bail.” State ex rel. Condon vs. Sheriff, 36 An. 856.

It is therefore ordered, adjudged and decreed that the writ of habeas corpus applied for be made peremptory, and that the respondent judge release the prisoners on bonds, with sufficient securities, in such sum as he may fix, conditioned for their appearance befbre competent authority to answer to the charge preferred against them.

Mr. Justice Miller concurs in the decree.


text:
    No. 12,054.
    State of Louisiana ex rel. James Whitesides et als. vs. Judge of the Twenty-first Judicial District.
    Tile question arising in regard to the allleged violation of a prior bond in another criminal ease can more properly be determined in a separate suit, after the District Judge Trill have passed upon the issue.
    APPLICATION for Writs of Habeas Corpus, Certiorari, Mandamus and Prohibition.

      Thomas F. Maher for Relators.

      A. E. Billings for Respondents.
    Argued and submitted January 21, 1896.
    Opinion banded down January 22, 1896.
   The opinion of the court was delivered by

Breaux, J.

The facts in this case are similar in every' respect to those in case just decided, numbered 12,066, ante, p. 92; except that in the case now before us for our examination and decision the judge of the District Court in his return stated that he refused to release James Whitesides, one of the number against whom affidavits were made, for the additional reason that the relator, Whitesides, stands indicted before his court for arson, a capital offence; that his case could not be tried at the last term of his court and was continued to its next jury term; that he admitted the relator to bail for his appearance for trial at the next term. A condition of the bond was that he should keep the peace of the State in the meantime; that being satisfied that relator has committed a breach of the peace and broken the condition of the bond, he refused him bail until he could be further advised, and that after due consideration he may consider it his duty *o revoke the order admitting him to bail upon the charge of arson and remand him to the custody of the sheriff on that charge.

Our conclusion in this case is the same as in the case just decided as relates to the charge of assault and battery.

The additional reasons are excepted and are not considered by us. It is a separate and independent issue with which we do not deal in this ease. We desire to respect the expressed intention of the judge to give further consideration to the additional question he states.

It is therefore ordered, adjudged and decreed, in so far as relates to the charge of assault and battery, the writ of habeas corpus applied for be made peremptory, and that the respondent judge release the prisoners on bonds with sufficient securities in such sum as he may fix, conditioned for their appearance before competent authority to answer to the charge preferred against them.

Mr. Justice Miller concurs in this decree.


author: Milleb,, J.

text:
    No. 11,965.
    George W. Sentell et. als. vs. Police Jury of the Parish of Avoyelles.
    The petition of taxpayers charging substantially that the proposed tax in aid of a railroad -was defeated at the election held to authorize the tax; that votes cast against the tax were not counted; that the promulgated result was not in accordance with the facts, but is based upon the illegal rejection by the returning officer of such votes against the tax, and praying that the promulgation of such result be adjudged void, and the returns of the returning officer be set aside with the prayer for general relief, will be deemed a petition of taxpayers, authorized by law, contesting such elections. Constitution, Art. 242; Act No. 106 of 1892.
    The taxpayers, plaintiffs in such suit, contesting the election, may join the demands that the election be set aside and that the ordinance of the police jury be annulled — levying the tax — for if the tax is defeated, there is no warrant for the tax. Ibid.

    Our jurisprudence affirms the jurisdiction of the courts in a class of cases without reference to the money demand of the litigant, and this case falls within that class. 19 La. 567; 45 An. 637, 681; 46 An. 278; Constitution, Art. 11.
    In the suit of the taxpayers contesting the election to authorize a tax under Art. 242 of the Constitution, the amount in dispute is the tax on the property of the parish; an amount undoubtedly sufficient to give jurisdiction to the District Court, as well as this court on appeal, and the suit substantially involving the legality of the tax, this court on that ground besides, has jurisdiction of the appeal. 39 An. 107; 45 An, 682; 43 An. 95; 45 An. 681; Constitution, Arts. 11 and 81; 36 An. 328, 812; 39 An. 946; 37 An. 507.
    Taxpayers, non-residents and residents in the parish,may join in such suit. Constitution, Art. 242; Act No. 35 of 1886, Sec. 5; 39 An. 107; Cooley on Taxation, - 765; 101 IT. S. 601.

      In a petition to contest an election to authorize a tax the prayer that the returns be set aside, the promulgated result be decreed a nullity, that the returning officer be directed to make a correct compilation of votes, and that the ordinance levying the tax based on such return be decreed a nullity, all tend to the same relief and are not cumulative of distinct demands.
    Such suit is required to be directed -against the police jury, and the allegation that the returning officer rejected or changed returns of commissioners, in violation of law, furnishesno ground for the exception on non-joinder, because the returning officer is not made a defendant. Act No. 106'of 1892.
    PPEAL from the Tenth Judicial District for the Parish of Avoyelles. Coco, J.

      A. B. Irion for Plaintiffs, Appellants.

      William II. Peterman, A. J. Laf argue and Clegg & Quintero for Defendant, Appellee.
    Argued and submitted December 19, 1895.
    Opinion handed down January 6, 1896.
   The opinion of the court was delivered by

Milleb,, J.

The plaintiffs, alleged to be taxpayers of the parish of Avoyelles, brought this suit against the Police Jury of the parish, to set aside the election returns of the votes cast on the question of levying a five mills tax in aid of a projected railroad, the petition praying also for the annulment of the ordinance of the jury imposing the tax. The allegations are in substance that the tax was defeated by a majority of the votes; that the returns were changed, and that the promulgation of the result was not in accordance with the votes cast. - The defendants excepted that the District Court had no jurisdiction, because there was no pecuniary amount involved; on che ground also there was a misjoinder of parties plaintiffs and defendants; on the further ground of an improper cumulation of demands, and an additional ground of no cause of action. The lower court sustained the exceptions, and plaintiffs appeal.

There is a motion to dismiss this appeal on the ground that there is no amount in controversy. If the Constitution in defining the jurisdiction of this court is to be Interpreted as excluding all controversies, in which the appellant does not assert a pecuniary demand of the amount stated in the Constitution, the result would be to deny judicial cognizance of a large class of suits involving rights o* the highest importance, though not in the form of money demands. Under the Constitution of 1812, the jurisdiction of the Supreme Court was declared to extend to all civil cases in which the amount in dispute exceeded three hundred dollars. In respect to this question our present Constitution is not different, except as to the appealable amount, from that of 1812. The construction of the judicial power has, at all times, been adverse to confining the jurisdiction of this court to mere money demands of litigants of the amount fixed by the Constitution. Rowley vs. Rowley, 19 La. 558; State vs. City, 41 An. 159; State ex rel. Denis vs. Mayor, 43 An. 95; State ex rel. Custodian Notarial Records vs. Theard, 45 An. 681; Sheriff vs. President Police Jury, 46 An. 278. The argument in support of this motion supposes the jurisdiction depends on the amount of the tax each of the taxpayers has to pay. Their suit puts at issue the tax of five mills on the entire taxable property of the parish. In view of our jurisprudence, we would find it difficult to adopt the narrow test of jurisdiction urged in support of the motion. But there is another view. If the votes .cast defeated the tax, the ordinance imposing it is illegal. The tax depends on the vote. The petition avers the requisite vote in number and amount of property was not obtained, but on the contrary the tax was defeated. With the prayer that the returns be set aside, there is also the demand that the ordinance imposing the tax be annulled. In this view the suit involves the legality of the tax, dependent as it is on the vote, and that question gives this court jurisdiction. Constitution, Art. 81; McGuire vs. Vogh, 36 An. 812; Adler, Goldman & Co. vs. Board of Assessors, 37 An. 507.

The motion to dismiss is therefore overruled.

One of the exceptions, denies the jurisdiction of' the District Court because, as it is charged, no pecuniary amount is involved. It is a suit of taxpayers of the parish seeking relief against a tax alleged to have been illegally imposed. There is no averment of the tax of each of the taxpayers, and the absence of this averment is the basis of the exception. The right of the taxpayer to contest elections under Art. 242 of the Constitution to authorize increased taxation is derived from the Act No. 106 of 1892. “Any party in interest” may contest. The object of such contest is to avert taxa-tionj and taxpayers are naturally parties in interest. When such suit is brought the amount in dispute is the proposed tax on the property of the parish, and not the amount of the tax of the plaintiff. In view of the allegation in the petition that votes were rejected representing over two hundred thousand dollars of property, it is not susceptible of controversy that a five-mill tax on the property of the parish afforded the basis for the jurisdiction of the lower court. In this view there was the pecuniary test, if none other, to give jurisdiction. Handy vs. New Orleans, 39 An. 107; State vs. City, 41 An. 159; State ex rel. Denis vs. Mayor, 43 An. 95; State ex rel. Custodian Notarial Records vs. Theard, 45 An. 631; Sheriff vs. President Police Jury, 46 An. 278.

The exception of misjoinder is based on the fact that some of the plaintiffs are residents of Avoyelles and others reside in Orleans and St. Landry. . All are alleged to be taxpayers. There are two articles of the Constitution in reference to elections for determining [the increase of taxation. One of these articles applies, we think, to taxation for purposes of local government and confines the right of voting to resident taxpayers. Art. 209. It was so construed in a case of a tax for a court house and in-another concerning a tax for a local railroad. Duperier vs. Viator, 35 An. 958; McKenzie vs. Tax Collector, 39 An. 946. The other article, 242, deals with elections for railway enterprises, and in our view entitles taxpayers to vote. The act carrying into effect this last article provides for the votes of mow-resident taxpayers. We think that taxpayers, whether resident or mom-resident, were properly joined as plaintiffs.

The exception of non-joinder of defendants refers to the allegation in the petition that the returns made by J. A. Tassin were changed in violation of law. This allegation might have been omitted without detracting from the cause of action. The prayer is that the returns be decreed a nullity, and he be decreed to compile the votes as cast. He is not made a defendant, and the prayer for a compilation of returns, abandoned, as we are informed in the brief, was not essential to the relief. There is, in our opinion, no basis for the exception on this ground.

It is also excepted there is an improper cumulation of demands. In our opinion the prayer that the election returns be set aside, and for the avoidance of the result of the election, may well be joined. If the returns are set aside the avoidance of the election is the sequel. If the election is set aside, the annulment of the ordinance follows. All these demands concur to the same end. As to the prayer for the compiling of the votes, that becomes useless if the relief in other respects is granted.

It is claimed, too, the petition shows no cause of action. But it avers substantially that the tax was defeated by the rejection of legal votes. The theory of the exception seems to be that nonresident taxpayers were not entitled to vote, a proposition already sufficiently discussed.

We think the exception should have been overruled, and defendants ordered to answer.

It is therefore ordered and decreed that the judgment of the lower court be avoided and reversed at defendants’ costs.


author: McEnery, J.

text:
    No. 11,914.
    John W. Johnson vs. A. A. Dean et als.
    The ruling of the District Judge declining to grant a continuance when associate counsel is present, on account of the absence of leading counsel engaged in professional business elsewhere, will not be disturbed.
    APPEAL from the Fourth Judicial District Oourt for the Parish of Grant. Wear, J.

      John Clegg and John Daspit for Plaintiff, Appellant.

      W. C. Roberts and Leonard & Randolph for Defendants, Appellees.
    Argued and submitted December 17, 1895.
    Opinion handed down January 6, 1896.
   The opinion of the court was delivered by

McEnery, J.

In this case copies of the petition and citation were served on the defendant 25th April, 1895. The answer of defendant was filed May 27, 1895, and on this day the case was fixed for trial on June 1. One of the associate counsel moved for a continuance on account of the allegations in defendants’ answer, which, as he alleged, required time to consider, in order to prepare for the trial of the cause. And for the additional reason that plaintiff was not present, or represented, when the case was fixed.

The motion was overruled.

The case was reassigned for June 3. On this day the associate counsel moved, again, or a continuance, assigning as a reason therefor, the absence of the leading counsel in the case. At the same time an affidavit of one of the leading counsel was filed, which recited that the notice of the fixing of the ease reached the absen* counsel on May 29, and that by reason of their presence being required in other courts of the State, their employment and engagement in said courts having been made prior to the fixing of the case for trial, that it was impossible for either of the leading counsel to-be present on the day fixed for the trial.

This motion was overruled, and the trial oí the ease ordered to be proceeded with. Plaintiff filed a bill of exceptions to the ruling, and declined to participate in the trial. There was judgment of dismissal as in case of wow-suit.

No legal showing was made for a continuance, and we can not disturb the judgment. No statement was made that the counsel were absent because of physical disability.

It has been repeatedly held that a continuance will not be granted-on account of the absence of counsel engaged in professional business elsewhere. Cameron vs. Lane, 36 An. 716; Kohn vs. Short, 18 An. 291; Brown’s Executor vs. Faulk’s Administrator, 12 La. 599.

In cases of continuance the judge is vested with large discretion, and we will not disturb his ruling, unless it is manifestly a gross abuse of the discretion with which he is vested.

In this case an associate counsel was present, and we presume the. case could have been tried without manifest injury to plaintiff. Evidently this was the opinion of the District Judge, and as his ruling was based on several decisions of this court, we will affirm it.

Judgment affirm'd.


author: MoEnhbv, J. Breaux, J.

text:
    No. 11,880.
    State of Louisiana vs. Jean Monceaux.
    If the record fails to show that the defendant was present during the trial, the record may he amended so as to supply the omission.
    Evidence which is irrelevant and admitted without objection, can not be corroborated by the testimony of another witness when objected to.

      APPEAL from the Eleventh Judicial District Court for the Parish . of Acadia.. Perrault, J. ■

      M. J. Cunningham, Attorney General, and E. B. Dubmsson, District Atcorney, for Plaintiff, Appellee.

      E. P. Veazie and Charles W. Duray for Defendant, Appellant.
    Submitted on briefs, on original hearing, November 9, 1895.
    Submitted on briefs, on rehearing, January 11, 1896.
    Opinion handed down November 18, 1895.
    Opinion on rehearing handed down January 20, 1896.
   The opinion of the courc was delivered by-

MoEnhbv, J.

The defendant was indicted for shooting with intent to murder while lying in wait, convicted of shooting with intent to murder and sentenced to hard labor for twenty years. He appealed from the judgment and sentence.

There is only one bill of exception in the record.

It recites that while the defendant was on the stand in his own behalf, he stated that parties in the interest of the prosecution were “forging evidence against him,” and gave as an instance, that one Benoit, a friend of the prosecution, had come to the jail where he was confined, and declared to him that he would make the state witness Homere Monceaux swear to whatever he chose against him. This testimony went to the jury without objection; but the District Attorney put at issue the truth of this statement and rigidly cross-examined the defendant. In the course of the cross-examination it was shown that Benjamin Rodrigues was present and heard this declaration made by Benoit.' The defendant’s counsel then announced that for the sole purpose of supporting the testimony of the accused upon this point, which had been impeached by the cross-examination, he would place upon the stand Benjamin Rodrigues. The jury retired, and Rodrigues was called and swore to the fact stated by the defendant. The counsel for defendant then proposed to put the testimony of Rodrigues before the jury. This was refused by the court for the reason.that “ if an irrelevant or inadmissible fact happens to go to the jury without objection by the testimony of one witness, said fact should not be allowed to be proved by another witness, when objected to, simply because the first witness happened to be impeached by cross-examination.”

It does not appear from the bill that the credit of the witness for truth and veracity was impugned; but that he was cross-examined as to a fact stated by him, which was irrelevant and collateral to the issue. The only object of calling Rodrigues as a witness was to show that the accused had stated truthfully this fact. It was immaterial testimony and could have no bearing on the case, and there was no reason why, in this respect, the defendant should be corroborated.

Had the bill shown that Homere Monceaux had been sworn as- a witness, and that Benoit had taken an active part in the prosecution, or in any way influenced the testimony of Monceaux, the testimony of the defendant when considered in relation to these facts might have been considered material and important and the testimony of the rejected witness would be permitted to go to the jury. The absence of any such statement in the bill and the ruling of the District Judge are conclusive to our minds that no such state of facts existed, and that the declaration of Benoit was an idle threat, which was not attempted to be carried into execution.

Judgment affirmed.

ON REHEARING.

The opinion of the court was delivered by

Breaux, J.

A rehearing was granted in this case. To the Attorney General, when the rehearing was granted, was allowed the right to apply for the necessary process to correct the record in accordance with the facts.

It was assigned as error that the record did not show that the prisoner was present when the jury was sworn and empaneled. Availing himself of the authority granted by the court to correct the record, the Attorney General obtained a supplemental transcript from the clerk of the District Court and had it filed as part of the transcript on appeal.

It is now made manifest that the defendant was personally present at all the periods of the prosecution requiring him to be personally present — i. e., he was present in open court with his counsel at the arraignment, the empaneling and swearing of the jury and throughout the trial.

There is no possible ground upon which to sustain the writ of error. No other defence was urged on appeal.

It is ordered and adjudged that the sentence and judgment are affirmed.


author: McENERY, J.

text:
    No. 11,888.
    State of Louisiana vs. E. Allgeyer & Co.
    Act No. 66 of 1894 does not violate the provisions of the State and Federal Constitutions.
    It is within the power of the State to forbid a citizen of the State doing any act in the State which violates the laws of the State.
    If a party while in the State takes out an open policy in a marine insurance company domiciled out of the State and which has not complied with the laws of the State for doing business within its territory, covering property situated within the State, he is liable to the penalty imposed by Act 66 of 1894.
    The mailing of a letter or telegraphing a communication by which instantly each shipment of goods is insured and'the risk attached is doing an act in this State to effect insurance and comes within the act forbidden by the statute.
    APPEAL from the Civil District Court for the Parish of Orleans. Theard, J.

      M. J. Cunningham, Attorney General, and E. H, MeCaleb, Jr., of Oonnsel for Plaintiff, Appellant,
    cite: 18 Gratt (Va.), 767; 69 Fed. R. 458; 139 Pa. Stat. 609; 106 Ill. 11; 143 U. S. 449; 49 Fed. R. 861;. 155 U. S. 648.

      Branch K. Miller for Defendants, Appellees;
    125 Mass. 374 ; 7 Bis sell C. O. 315.
    Argued and submitted on briefs November 21, 1895.
    Opinion handed down December 16, 1895.
    Rehearing refused January 20, 1896.
   The opinion of the court was delivered by

McENERY, J.

This is a suit under Act 66 of 1894, for the benefit of' the Charity Hospitals of New Orleans and Shreveport, to compel the-defendants to pay the sum of three thousand dollars for effecting for themselves insurance in a foreign company, which had no authorized agent in this State. The answer of the defendant substantially sets out as defences that the open policy and the special insurances of shipments under the same are all New York contracts, and that the contract is beyond the jurisdiction of this court; there being no part of the contract which is to be performed elsewhere than in New York, and that no authority can be exercised upon persons, acts or contracts which are beyond the limits of the State, and the exercise of such authority would be extra-territorial; that the act is in violation of the Federal Constitution, as it is an interference with commerce, and it deprives the defendants of the equal protection of the laws, and that the act also violates the Constitution of the State of Louisiana, for the reasons last assigned.

Act 66 of 1894' is as follows:

“That any person, firm or corporation who shall fill' up, sign or issue in this State any certificate of insurance under an open marine policy, or who, in any manner whatever, does any act in this State to effect for himself or for. another, insurance on property, then in this State, in any marine insurance company which has not complied,, in all respects, with the laws of this State, shall be subject to a fine-of one thousand dollars’ for each offence, which shall be sued for in any competent court, by the Attorney General, for the use and benefit of the Charity Hospitals in New Orleans and Shreveport.”

The insurance was taken out on an open policy in the Atlantic Mutual Insurance Company — on account of defendants — and to cover cotton in bales, purchased and shipped by them, on which drafts are drawn for the purchase, upon whom it may concern. The company is domiciled in New York, and is engaged in the business of marine insurance. It has appointed no agent in the State of Louisiana, and has not complied with the conditions prescribed by the laws of the State for conducting its business within the same. It is admitted that the defendants, on Octooer 23, 1894, insured in said open policy one hundréd bales of cotton, by mail communication,, and that at the time of the mailing of the communication, the cotton was situated within the limits of the State. When the communication was posted, it had the effect, .if the shipment was in accordance with the stipulations of the open policy, of insuring the cotton from that time.

As this case is the sequel of the case of State vs. Williams, 46 An. 922, we refer to that case for a full statement of the character of the transaction between defendants and the company, and for the interpretation and construction placed upon the contract. It is sufficient to say, here, that in that case, we held that an open policy of insurance in which an aggregate amount is expressed, there are as many contracts of insurance as there are endorsements on the policy of separate shipments of goods. The open policy in this case is conceded to be a New York contract. Hence, the special insurance effected on the cotton complained of here was a New York contract. The insurance company has been doing business in effecting insurance on cotton in this State, and this is not an isolated instance. Whether the mode adopted by the company was designed to evade the laws of the State, it is immaterial to determine. The effect of the contract has been to evade the laws of Louisiana, and Act 66 of 1894 was doubtless intended to prevent just such contracts as the defendants entered into with the Atlantic Mutual Insurance Company.

There can be no doubt of the correctness of the proposition that the right to prohibit foreign corporations from doing business in the State without complying with Art. 286 of the Constitution, carries with it the right to enforce the prohibition by appropriate legislation. State vs. Williams, 46 An. 922; Hooper vs. People of State of California, 155 U. S. 648, and cases cited.

We will here remark that this case effectually disposes of defendants’ contention as to the unconstitutionality of the act as an interference with commerce between the States, and as being in violation of the 14th Amendment to the Constitution of the United States.

As the act is in the enforcement of Art. 236 of the Constitution of the State, we do not see wherein it violates that instrument.

The question presented is the simple proposition, whether under the act, a party, while in the State, can insure property in Louisiana in a foreign insurance company, which has not complied with the laws of the State, under an open policy, the special contract or insurance and the open policy being contracts entered into beyond the limits of the State.

The power to forbid foreign insurance companies from doing business until they comply with prescribed conditions within the State necessarily carries with it the right to enforce this power by appropriate legislation. The State, therefore, has the right to prohibit its citizens from taking out an open policy, covering special contracts of insurance in a foreign insurance company, which has not complied with its laws. State vs. Williams, 46 An. 922; Frisbie vs. United States, 157 U. S. 165.

This legal proposition is fully stated in the case cited, and is elabcrately argued and sustained in the case of Hooper vs. The People of California.

We are not dealing with the contract. If it be legal in New York, it is valid elsewhere. We are concerned only with the fact of its having been entered into by a citizen of Louisiana while within her limits, affecting property within her territorial limits. It is the act of the party, and not the contract, which we are to consider. The defendants who made the contract did so while they were in the State, and it had reference to property located within the State. Such a contract is in violation of the laws of the State, and the defendants who made it were within the jurisdiction of the State, and must be necessarily subject to the penalty, unless there is some inhibition in the Federal or State Constitutions, or that it violates one of those inalienable rights relating to persons and property that are inherent, although not expressed in the organic law. It does not forbid the carrying on by the insurance company of its legalized business within the State. It is a means of preventing its doing so without subscribing to certain conditions which are recognized §,s legitimate and proper. It does not destroy the constitutional right of the citizens of New York to do business within the State of Louisiana, or'of the citizens of Louisiana from insuring property. It says to the citizens of New York engaged in insurance business, that they must, like its own citizens, pay a license, and have an authorized agent in the State as prerequisite to their doing said business within its State, and it says to its own citizens, you shall not make a contract, while in the State, with any foreign insurance company which has not complied with the laws. You shall not, in this manner, contravene the public policy of the State in aiding and assisting in the violation of the laws of the State. The sovereignty of the State would be a mockery if it had not the power to compel.its citizens to r.espect its .laws. ^

In the case of Commonwealth vs. Biddle, 139 Pa. 605, it was held, beyond the limitations imposed by the Constitution, the power of the Legislature to declare any acts done within the territory of the State, unlawful or criminal, can not be questioned; and all considerations of wisdom or policy, of hardship, of difficulty, or even impossibility of general enforcement, must be addressed to the law-making branch of the government. We entertain, therefore, no doubt of the power of the Legislature to make the insurance of his property in an unauthorized foreign company, by an owner, criminal, if done in this State.”

The defendants, while in. the State, undoubtedly, insured their property located in the State, in a foreign insurance company, under an open policy.

The instant the letter or communication was mailed, or telegraphed, the property was insured. The act of insurance was done within the State, and the offence denounced by the statute was complete.

In the case referred to of Hooper vs. People of State of California, the court reviewed a statute of California similar, in some respects, to the one now under consideration. The California statute says: “ Every person who, in this State, procures, or agrees to procure, any insurance for a resident of this State, from any insurance company not incorporated under the laws of this State, unless such company, or its agent, has filed the bond required by the laws of this State relative to insurance, is guilty of a misdemeanor.”

p. D. Mott, a resident of California, applied to one Hooper for insurance on a vessel. Hooper was the agent of foreign insurance brokers, domiciled in New York. The insurance was placed by the foreign brokers. Hooper forwarded to his principals a telegram, as follows: “ Alliance, four thousand dollars, done in American form.”' The brokers forwarded to Hooper a policy in the China Mutual Insurance Company, insuring four thousand dollars on the steamer Alliance. Mott was prosecuted and convicted under the statute. The Supreme Court of the United States affirmed the conviction. In this ease all the objections of defendants to the Louisiana statute have been met.

There is in the statute an apparent interference with the liberty of defendants in restricting their rights to place insurance on property of their own, whenever, and in what company they desired. But in exercising this liberty they would interfere with the policy of the State, in forbidding insurance companies, which had not complied with the laws of the State, from doing business within its limits. Individual liberty of action must give way to the greater right of the collective people -in the assertion of a well defined policy, designed and intended for the general welfare.

One offience only, under the statute, has been proved.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the plaintiff, for the use of and benefit of the Charity Hospitals of New Orleans and Shreveport, da have and recover judgment against the defendants for one thousand dollars, with five per cent, interest from judicial demand, the defendants to pay all costs.