text:
    No. 12,895.
    State of Louisiana vs. Paul L. Fourchy.
    Syllabus.
    (1.) An instruction given by the court in the ease oí a person charged with embezzlement that “if any part of the funds charged to have been embezzled’ has been proven to have been embezzled beyond a reasonable doubt, the jury must convict,” is not erroneous.
    Neither the commission of, nor the punishment for the crime of embezzlement, depends upon the amount or value of the thing embezzled, and the charge was authorized to be given by Section 1061 of the Revised Statutes.
    (2.) The District Attorney is not called upon to know or anticipate the special defenses which a defendant may set up. He has to await their development on the trial and repel them if he can. It does not follow because testimony offered by him for that purpose may have a tendency to incidentally strengthen the State’s own case that it is any the less rebuttal testimony.
    (3.) While a prosecuting officer has the right to press upon the jury any view of the case fairly arising from the testimony, he should not seek to have the jury accord to testimony which he himself had offered and had received for a limited, specific purpose, an effect entirely beyond that which he had declared would be its legitimate scope. His doing so, will not, however, be ground for reversal, unless the court is satisfied that defendant has been prejudiced thereby. »
    .(4.) if the court erroneously >overrules defendant’s challenges for cause, and thereafter he excludes the obnoxious jurors by peremptory challenges, he. can assign the ruling of the court for error, if it appear that before the jury was sworn his quiver of peremptory challenges was exhausted. In such case, there is room for the presumption that the ruling of the court may have resulted in leaving upon the panel one or more obnoxious jurors whom he might but for the ruling have excluded by peremptory challenge.
    ■(5.) Answers given finally by a juror on his voir Aire to questions propounded to him by the district judge differing from those first given and which had shown him utterly incompetent are entitled to little weight when they have been changed after the judge has threatened the juror with proceedings for contempt of court, because of his original answers. Such a juror should not be placed upon the panel.
    ON APPEAL from the Criminal District Court for the Parish of Orleans. Moise, J.

      Robert II. Ma/rr, District Attorney, for the State, Plaintiff and Appellee.

      Ilenriques & Bunn for Defendant and Appellant.
    Argued and submitted November 26, 1898.
    Opinion handed down February 6, 1899.
   The opinion of the court ivas delivered by

Nicholls, C. J.

The defendant was indicted for embezzlement, convicted and sentenced to imprisonment at hard labor for two years. He appealed. His grounds of complaint are embodied in six bills of exception.

The first error urged is the action of the court in refusing to maintain defendant’s challenge for cause of the eighth juror drawn from the box, one J. Barrere, thus, compelling a peremptory challenge.

The bill of exception having reference.to this matter is as follows:

“After the State and the defendant had announced to the court that they were ready to proceed with the cause, it was then ordered that the-crier of Section ‘B’ of said Criminal District Court proceed to draw a jury from the box and in open court from the panel of jurors duly impannelled for the May term of said Section ‘B’ and the said jurors-as drawn from said box and in open court were each sworn on Ms voir dire touching his qualifications as a juror in this cause, and one J. Emile Barrere was drawn as the eighth jufor from said box, was duly sworn on his voir dire, and after being examined by the Assistant District Attorney the said juror was tendered by the State to the defendant, and thereupon the defendant, by his counsel, cross-examined the-said juror, and propounded to Mm the questions which, with the answers of said juror, are annexed hereto and made a part of the bill of exceptions and are as follows, to-wit:

“J. Emile Barrere, after being examined by the State on his voir dire and tendered by the State, was then cross-examined by Mr. Henifiques, of counsel for the defendant, as follows:

“Q.- — If you were taken as a juror in this case would you require-the State to prove his guilt, or would you require the accused to prove his innocence?

“A. — Well, I would require him to prove his innocence.

“Q. — Do you mean that you would require him to prove that he was not guilty?

“A. — Yes, sir.

“Q. — Well, the law says that every man who is charged with an offense is presumed to be innocent, and the State, who brings the charge, must prove the guilt of the accused, and must prove his guilt beyond reasonable doubt.

“A. — Well, if the State proved it all right.

’ “Q. — Now, that being the law, if you were taken as a juror in this case would you require the State to prove his guilt, or would you require him to prove his innocence ?

“A. — I would have to see him prove his innocence.

“Q. — You would require Mm to prove Ms innocence?

“A. — Yes, sir, fully.

“Q. — And you know the meaning of your answers?

“A. — Yes, sir.

“Q. — Then, unless he proved his innocence to you, you would not render a verdict in his favor, would you ?

“A.- — No, sir, I could not.

“Q.~ — You could not?

“A. — No, sir.

“Q. — And this principle of law, which is law, as I have stated to you, would have no effect with you at all? You would require him to prove his innocence ?

“A. — Yes, sir.

“Challenged for cause.

“By the court.

“Q. — Would you render a verdict in this case according to the law as given you by the court, and the evidence you heard from the witnesses ?

“A. — Yes, sir.

“Q. — Because your answer just now indicated that you would not do-that?

“A. — I mean that if the evidence found him guilty I would find him guilty.

“Q. — I ask you if you were to take your oath to try this cause according to the law as given you by the court and the evidence of the witnesses given on the trial, would you do it ?

“A. — I said he would have to prove his innocence.

“Q. — Then you would not act according to law ?

“A.- — No, sir.

“Q. — I will have to send you down for contempt if you talk that way to me.

“A. — I mean to say—

“Q. — I expect you are dodging to get off this jury.

“A. — No, sir, I am not.

“Q. — I do not see how you can say you would try this case according to law and the evidence, and then say he would have to prove his innocence.

“A. — I mean to say I would do what is right to the best of my ability. I mean to say that the accused should be proved not to be guilty.

“Q. — I am telling you what the law is. The law is that the State must prove the guilt of the accused, and that he is not required to-prove his innocence. That is the law. Now, when the court gives-you that law in charge I ask you if you can render a verdict according: to that law and according to the evidence you hear on the trial of the . cause ?

“A. — Fes, sir.

'“Q. — I thought you would go according tó your opinion, and not •according to the law ?

“A. — I was ignorant of that fact.

“Q. — Now you know the jury must render a verdict according to law — that is the oath you take, can you do it?

“A. — Yes, sir, I would give the accused a fair trial.

“Q. — I am not speaking about that. I am speaking now of the law and the evidence. You understand now that you must render a verdiet under your ’oath, according to the law as given you by the court, and the evidence you hear from the witnesses. I tell you the accused is not required to prove his innocence; is not required to put a ■single witness on the stand, and if, after the evidence is all in, the State fails to prove his guilt beyond a reasonable doubt, the jury must bring a verdict of not guilty. Can you do that?

“A. — Yes, sir.

“The Oourt — I believe that the juror was under a misapprehension and that he is a competent juror.

“Mr. Henriques — I challenge him for cause.

“The Oourt — Challenge for cause is overruled.

“Mr. Henriques — I challenge him peremptorily and reserve bill to your Honor’s ruling, and make the testimony of the juror a part of this bill.”

The bill having been made these recitals proceeded further as follows :

“The juror Emile Barrere was the eighth juror tendered to defendant for acceptance or rejection; when this juror was tendered defendant had not exhausted his peremptory challenges, but before the jury ■was completed in the cause and before the last juror was sworn therein ¡the defendant had exhausted' his challenges.”

The judge’s statement added to the bill was as follows:

“Per curiam: The entire examination of the juror is not in the ■record. He had previously answered all questions of the District Attorney and counsel for the defendant, disclosing his fitness and competency and freedom from all bias or prejudice. It was only when a question of law, the rule as to the burden of proof, was put to the juror -that he answered wrong and persisted in the error after the instruction of the court, in a manner to arouse in the mind of the court a suspicion that he was deliberately attempting to evade jury duty. A further examination of the juror dispelled this suspicion, and convinced the court that the answer was more from ignorance than a desire to •evade jury duty, and this was quite natural since the question propounded was one of pure law, requiring instruction and explanation.”

Second Bill.

Defendant’s second bill of exception was reserved to the action of the District Court in respect to a witness named Mirabel LeBlanc. The bill recites that after the defendant had gone to trial upon a plea of “Not Guilty,” the District Attorney, in support of the prosecution, placed two witnesses, first Emile J. LeBlanc and next Charles J. Theard, upon the stand, and after said witnesses had been examined in chief and cross-examined by the defence, the case closed. That thereafter the defendant, in his own behalf, placed the witness Mandeville, on the stand, and subsequently testified himself and then announced that he rested his case; that this witness, Mirabel LeBlanc, was then sworn as in rebuttal by the State, and he was asked ‘Whether he knew of any business transaction between his son, Emile J. LeBlanc (the party ’ whose money was alleged to have been embezzled), and defendant. That the defendant objected that in so doing the District Attorney was not proceeding regularly; that he could not divide up his case; that he should have put the accused in possession of all the evidence he had so as to let him know what he would be called upon to defend. ’That he could not put in evidence in rebuttal that which might be evidence in chief. That thereupon the court stated that the question was put in the way to show it was rebuttal; that defendant’s counsel replied “that the question was not shaped properly.” Whereupon the court permitted the District Attorney to ask the witness “if he remembered that transaction between his son and Mr. Fourchy.” That thereupon the defendant submitted to the court “that the evidence sought to be elicited from the witness was not rebuttal testimony.” That the District Attorney replied “that the defence set up here was that it was a loan.” That the court then asked, “what does the State propose to prove by this witness ?” and the District Attorney replied, '“to prove that it was not a loan.”

That the witness thereupon answered the question propounded to him, and defendant reserved a bill- to the question and to the answer thereto, and to the court’s question to the District Attorney. That all this took place in presence of the jury. Defendant’s objection to the question propounded by the court to the District Attorney was that the witness had not testified; that the matter submitted to the court was whether the question propounded to the witness by the District Attorney was a legitimate one or not; that the court’s question and the District Attorney’s answer might have had a tendency to influence the jury and prejudice the case of the defendant.

The court’s statement on this point is that the objection urged by the defense was that the question asked was not shaped so as to obtain evidence in rebuttal; that it would open some new question. The court -assumed the first question objected to was propounded merely as preliminary, to lead the witness to the particular facts to be ascertained as evidence in rebuttal.

The question by the court to the prosecuting officer was for the purpose of determining whether or not the facts sought to be proved were really evidence in rebuttal. To determine this, the court had either to hear the evidence of the witness or by the more convenient method to secure the information from the District Attorney. The other objections urged by defendant in the bill were that the question propounded did not seek to rebut any evidence ofEered in behalf of defendant, that if the object of the inquiry or question propounded to the witness was to contradict the defendant, who was the only witness that- had testified in his own behalf, then the proper foundation should have been laid by interrogating him as to the time, place and circumstances connected with the alleged conversation or satement that is now attempted to be disproved by this witness.

In respect to the other objections the court stated: “The defendant' swore as a witness in his own behalf, that the money received from LeBlane was a personal loan to himself, without security, and not for investment in mortgage paper. He swore he never used the word' mortgage. In his testimony the following questions were asked and' answered by him as follows:

Q. — Did you get that money from him, stating that you intended to' invest it in mortgage paper ?

A. — I never told him anything of the kind, never told him a word of' mortgage paper. It was a loan to me. Ue pretended to have confidence in me and he made that offer.

Q. — At the time you received this money from Mr. LeBlanc, what was the understanding between you and him about this money?

A. — It was a loan to me.

Q. — Did you at any time tell Mr. LeBlanc or offer him a mortgage on the Sazarac or Absinth House?

A. — Never did in the world; dont know anything about the title to-either party. I don’t know absolutely what the gentleman referred to. At that time I used to own a property on the Bayou.

Q. — Did you say anything to him about a loan on a piece of property in the neighborhood of your’s, worth three thousand dollars ?

A.- — Never in the world.

Q.- — At the time you received this money from Mr. LeBlanc what was the understanding?

A. — About the money?

Q. — Yes.

A. — That the money was to be returned to him in one year.

Q. — Who was it loaned to ?

A. — It was loaned to me.

Q. — To you personally?

A.' — Yes, sir.

Q. — At the time you got this money was anything said about the' money being invested in mortgage paper ?

A. — Not a word, sir, not a particle of it, sir.”

Mr. Mirabel LeBlanc’s testimony, as far as it goes, tends to rebut these statements. It was too insignificant to have been offered in chief and was properly offered in rebuttal. To show this the entire testimony taken on the trial is made part of this bill.

Third Bill.

In defendant’s third bill of. exceptions he complains of the District Attorney’s making use in his opening argument before the jury, of the expression that “honest men do not be indicted by the Grand Jury.” The bill recites that as soon as these words were uttered counsel for defendant requested the court to have said words so uttered stricken out; that before the court ruled on the question, the District Attorney, addressing the court, said: “I refer, if your Honor please, to the-facts as I find tliem now,” and the court, in presence of jury, then, and in answer to the objection made by counsel for defendant, said:

“The court declines to interfere in this matter on the ground that the argument of the District Attorney does not refer to the question of the guilt or innocence of the accused, but refers to the question of his veracity.”

In reference to this matter the court states that the stenographer’s official report of what transpired, was made part of the bill. That all of Mr. Finney’s argument was not taken down; that when a single isolated sentence, standing alone, was urged as an objection, and the court did not have the benefit of the shading, tonings and modifications which preceded the remark, it presented a more formidable showing. That at the time the statement was made, Mr. Finney was arguing defendant’s credibility as a witness, his remarks were temperate and free from invective or vituperation. The statement made was an inference drawn from facts in the record, the defendant having admitted that he was five times indicted for embezzlement, and the eases were still pending against him in the Criminal District Court. His counsel offered and introduced one of these in evidence. These various indictments were offered for the purpose of impeaching defendant’s credibility as a witness. Mr. Finney’s argument was specially directed to that end. The court charged the jury as follows upon the subject:

“If any evidence has been offered in this case tending to show that the defendant has been charged with any other crime, such evidence has been offered for the purpose of impeaching his credibility as a witness, and the jury should confine it to that purpose. No man should be convicted of one crime because he is charged with another. You are therefore instructed that if evidence of this character has been introduced it must be considered only in connection with the veracity of the witness and must not affect .his guilt or innocence.”

Mr. Finney did not, at that time, refer to the guilt or innocence of the prisoner; his remarks when taken with all that was said, did not mean that indictments by Grand Juries were evidence of guilt, but that persons so indicted continually could not be honest in their statements. A general and argumentative proposition may be put in the form stated, precisely ás a man may argue interrogatively without intending that he should be answered. Upon this view the court did not think it improper to argue dishonesty in speech from a given state of facts iii the record. The ruling- of the court was made in the presence of the jury and fairly indicated to them the interpretation to be placed upon the statements; that the argument was directed against defendant’s veracity and not to his guilt. But to show that they were further safeguard from any prejudicial or unfavorable interpretation from the objectionable remark as to indictments, if improper, which is not conceded, the court charged the jury: “The jury are instructed by the court that the indictment in this case is a mere accusation or charge against the defendant, is not of itself any evidence of defendant’s guilt and no juror should permit himself to be to any extent influenced against the defendant because of its having been returned to the jury as a true bill.”

Mr. Finney ceased after objection and proceeded to argue on a different subject. I do not think defendant was prejudiced in the least.

Fourth Bill.

' In defendant’s fourth bill he complains of that portion of the charge of the court in which it instructed the jury that “if any part of the funds charged to have been embezzled have been proven to have been embezzled beyond a reasonable doubt, the jury should convict.”

The court cites as authority for the charge Section 1061 of the Revised Statutes.

Fifth Bill.

Defendant complains in his fifth bill of exceptions to the refusal of the District Court ;to give the following special charge, which he requested should be given to the jury: “The presumption of innocence is a presumption of law established in favor of all accused. It is evidence introduced by the law in his behalf. It is one of the instruments of proof going to bring- about the proof from which reasonable doubt arises.”

The court states as its reasons for not giving the special charge that it was coveted by the general charge it had given to the jury.

Sixth Bill.

In his sixth bill defendant complains of the action of the court in overruling his motion for a new trial.

Iii defendant’s motion for a new trial lie urged that the verdict returned was contrary to law and the evidence, and assigned as errors • committed to his prejudice, the matters and things set forth in his •various bills of exception.

In his fourth ground for a new trial, referring to the overruling of his challenge for cause of the_juror Barrere, he avferred that the court’s ruling compelled him to exhaust his peremptory challenges; that it worked great injury to him and deprived him of a right he was vested with to his great injury.”

Opinion.

The instruction given by the court to the jury, that “if any iiart of ■the funds charged to have been embezzled has been proven to have •been'embezzled beyond a reasonable doubt the jury should convict,” was not erroneous.

Neither the commission of nor the punishment for the crime of “embezzlement” depends upon the value or amount of the thing embezzled. (State vs. Thomas, 26th Ann. 328.) The charge was made with reference to a verdict of guilty as responsive to the charge “actually made” of embezzlement, not a possible verdict of guilty as for ’“larceny” under the indictment.

Section 1061 of the Revised Statutes declares that the allegations •of the indictment, as far as regards the description of the property, shall “in case of embezzlement, be sustained by proof that the offender embezzled any piece of coin or bank note, or any portion of the value thereof.”

We see no force in the objections urged in defendant’s second bill of exceptions, touching the testimony of the witness Mirabel LeBlanc, which was permitted to be introduced over appellant’s contention that it was testimony not in icbuttal, but in chief, and which should hava been brought out by examination of the witness before thr ^tate had closed its case on its original direct evidence, nor do we see any force in the complaint made of the question asked by the judge of the District Attorney as to what “was intended to be proved by the witness,” and of the answer given to that question, “that the defence set up here was that it was a loan,” (the transaction between defendant and Emile J. LeBlanc) and “the object of the testimony was to prove that it was not a loan.”

We have several times had occasion to say that where one of the parties to a suit offers testimony apparently irrelevant, or testimony ■which is admissible only for certain purposes, or under certain contingencies, it is his duty, when tendering the testimony, to announce the object and purpose had in view, so as to enable the court to determine primarily whether it would be admissible at all, and next to enable it in its subsequent supervision of the case and in its charge to the jury to see that proper limitations should be observed as to the scope and effect of the testimony.

It would have been right and proper for the District Attorney, without question from the court, to have made the same announcement as that which he did when questioned. When objection was made by the defendant to the line of examination to which he surmised the witness would be subjected, it was necessary for the court, for the proper determination of the force of the objection, to know what the exact situation was, and would be.

In State vs. Bartley, 34th Ann. 147, a question having arisen as to the introduction in evidence of a confession proposed to be offered against the defendant, it was complained that the witnesses touching the character of the confession, were examined before the jury, and that the ruling of the court as to the admissibility of the confession required his passing on a question of fact' and the credibility of witnesses in presence of the jury to the prejudice of the accused.

In reference to the matter, we said: “The record does not show that the witnesses testified touching the confession in the presence of the jury, and if they did, as the judge was bound to decide the question of the admissibility of the confession, of a question depending solely on the character of the confession, whether voluntary or not, we cannot well see how the effect of that ruling on the jury, though it might have been incidentally on a question of fact pertaining to the main issue, or on the credibility of witnesses, was to be avoided.”

We ourselves do not see how the question asked by the court could possibly have prejudiced the defendant. What was said was said in the presence of the jury, but not for the jury, or to affect its action in any way. (42 Pac. 960.)

In State vs. Spencer, 45th Ann. 1; State vs. Boswell, 45th Ann. 1188, and State vs. Pruett, 49th Ann. 299, we had occasion to refer at some length to the character of rebutting evidence and rebutting testimony in connection with charges made that testimony which properly should have been introduced by the State, in making out its case by examination of the State’s witnesses in opening its ease, had been held in reserve to be improperly used on a false claim that the testimony was rebutting evidence. There can be no doubt that it is the duty of the District Attorney, in the interest of fairness to an accused, in the absence of special reasons controlling his course in that respect, to place at once upon the stand all the witnesses upon whom he relies to> establish defendant’s guilt, but it frequently happens (as we said in State vs. Spencer, 45th Ann. 1) that such departure from the general, rule has to be made from motives entirely foreign from any desire to obtain a conviction through finessing as to order of proof. It also not infrequently happens that counsel of accused erroneously conclude that evidence offered and received as rebuttal is not such in law and fact, because it may have a tendency to confirm and corroborate the witnesses of the State who had been first introduced for the purpose of establishing guilt of the accused. In State vs. Boswell, 45th Ann. 1158, we said: “The fact that after the defendant had closed his case, the State recalled some of its witnesses, and interrogated them as to matters which might have been relevantly and properly introduced originally as part of the State’s evidence i'n chief, does not necessarily affix to that testimony the character of new and direct criminative evidence in chief.”

In State vs. Pruett, 49th Ann. 299, we quoted from Rice on Evidence, and the authorities cited by him, a sentence in which rebutting eviéencc js referred to as meaning “not merely evidence which contradicts the witnesses on the opposite side, but evidence in denial of some affirmative fact which the answering party is endeavoring to prove.”

The District Attorney in criminal eases has done his duty when he has offered all the evidence in his power and under his control which is necessary if not explained or disproved to establish the guilt of the accused. The plea of “not guilty” opens wide the door to defenses of all kinds. The prosecuting officer in most instances is ignorant of the peculiar lines or special grounds of defense which will be set up. He is not bound to know or to anticipate them, but is authorized to await their development on the trial and to disprove them if he can. It does not follow that because in the counter attack matters may become necessary to be shown by way of breaking down the defendant’s case as set up by him which have a tendency incidentally to strengthen the State’s own case, that the testimony is any the less rebuttal testimony.

It may be that an accused may limit his defense so closely to successful proof that a particular fact had occurred at a particular time- and place mentioned, as to limit the prosecution in reply to disproof-of the testimony going to show that that particular fact had happened-at that particular time and place. Such seem to have been the facts • of one of the cases cited by counsel of defendant. The range and-scope of the State’s testimony in rebuttal depends so much upon the-range and scope of that offered by the defendant, that it would be impossible to lay down any fixed rule in advance by which to be guided in particular .cases.

We think the question asked of Mirabel LeBlanc and the answer given by him, though apparently of little importance in the case, were none the less fairly in rebuttal of defendant’s own account of matters as they transpired.

Defendant complains that the District Attorney in his opening address to the jury made use of the expression that “honest men do not be indicted by the Grand Jury.”

In State vs. Johnson, 48th Ann. 90, we said that the prosecuting-officer had the right to press upon the jury any view of the case arising out of the evidence; adding that to justify the court in setting aside the verdict of a jury on the ground of improper remarks of 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. That 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 the prosecuting- officer 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 not due to their guilt, but to improper conduct on the part of counsel for the State. That matters of that kind could,- as a general rule, be 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.

In the case at bar the prosecution had been permitted, without objection, to introduce in evidence another indictment which had been returned against the defendant for embezzlement, but expressly limited as to its purpose and proposed effect to an attack upon the credibility of the accused, who had taken the stand in his own behalf. Whether it would have been admissible for that purpose had objection been made, we need not now consider, as the defendant acquiesced in and consented to its use for that particular purpose and he can scarcely complain that the District Attorney and the court should have taken the same view of the matter which he did himself. If in rptsbit of fact the jury had drawn from the fact of the finding against . the ,-aiccused of the indictment which had been so placed before them . a presumption of guilt by considering it as criminative evidence . before it and not merely as “impeaching” evidence, it would have been ■ clearly at fault, and the District Attorney would have been clearly -.wrong had he attempted to fix and impress upon them that they were ‘.asutfihorxzed to do so.

A prosecuting officer has the right to press upon the jury any view of the case fairly arising out of the testimony, but he should not seek to have the jury accord to evidence which he himself has offered for a specific, limited purpose, and which he doubtless may have succeeded in having received in evidence without objection precisely because of .that announcement as to its purpose and object, an effect entirely beyond that which he had himself declared would be its legitimate scope. 'While it would not be safe practice to tie the prosecuting officer down to an absolutely correct appreciation of the exact scope of the evidence in a case, he should certainly know that testimony introduced for a -special purpose could not properly be made to extend beyond the same. We are informed by the court that the expression complained of was •made use of by the District Attorney in arguing as to the “credibility” -of the accused and not as to his “guilt,” and that had his whole argument been brought up in the record that fact would have been ap■parent. The District Attorney was unfortunate in the use of the word “honest” if he intended to convey the idea of “untruthfulness,” ■for the inference naturally drawn by an ordinary jury from the fact fhat a second indictment for embezzlement had been found against •the same party would be, not that the party was unworthy of belief as a witness, but that he was a dishonest man, and the use by the District Attorney of the word “honest,” in connection with that matter was calculated to fix and confirm such an inference or presumption.

The District Judge in his charge finally placed the subject properly before the jury, but we think he should have at once interfered when ■objection was made and explained clearly to the jury what the legal situation was.

'In State vs. Johnson from which we have quoted, we said: “The District Judge in this case 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.” The same remarks are applicable to the case at bar, but we reach the conclusion in the present case that defendant’s complaint was not of sufficient gravity to justify a reversal, with very considerable hesitation.

The last complaint of defendant to which we direct our attention is that in respect to the action of the District Court in overruling his ■challenge for cause of the juror Barrere, resulting in his having to challenge him peremptorily.

Coupled with the bill of exception reserved by appellant on this subject it was alleged in his motion for a new trial which the court overruled (to which ruling he also excepted) that before the jury was sworn he exhausted his peremptory challenges, and that by the course pursued by the court he had been injured and prejudiced. The Attorney General contends that the question involved in these bills should not be considered by this court for the reason that the juror Barrere did not sit upon the trial, and that there was no affirmative showing through testimony that any other objectionable juror had ■done so, or that defendant had suffered injury by the court’s action. 'That appellant should affirmatively show injury as well as error.

He cites in support of that position State vs. Garig, 43rd Ann. 365. State vs. Creech, 38th Ann. 480, and State vs. Tibbs, 48th Ann. 1278

An examination of the case of State vs. Tibbs will show that it was ■ decided adversely to the accused, for the reason that he had not, with .any reasonable certainty, shown in his bill of exceptions, upon what legal grounds he had objected to the juror Bernard, nor disclosed the facts upon which the court based its ruling in accepting him. The juror was not objected to for reasons affecting his personal competency, but for some supposed defect in his name. We stated explicitly that we could not grant appellant relief for the reason “that we could not deal with bills of exception” by reaching objections by inference. The reliance of the accused on appeal was in establishing that the court’s ruling’in accepting Bernard was legally wrong and no question of injury “either legal or actual” as resulting therefrom was pressed. The court in its opinion after passing upon the case, alluded incidentally to that fact, but based no action whateyer upon it. It referred to a similar condition of affairs as having been alluded to by the court in State vs. Creech, 38th Ann. 480.

Uy reference to the opinion in State vs. Creech it will be seen that the court there said: “That it had not been suggested that at the stage of the proceedings when the challenge for cause was overruled, nor even during the whole trial, that the accused had exhausted his peremptory challenges.”

The case was decided upon the absence not only of any showing, but even of any suggestion that the accused had exhausted his peremptory' challenges. It is obvious, therefore, that the question we are considering now was not before the court.

The court refused relief in State vs. Garig for the reason that defendant’s peremptory challenges had not been exhausted, holding that where several defendants jointly indicted were on trial the peremptory challenges of all of the defendants must have been exhausted before a ruling of the District Court erroneously accepting a juror and forcing defendant to exercise one of his peremptory challenges could be assigned as reversible error. In Thompson on Trials, Vol. 1, Sec. 35, this author says: “If the court erroneously overrules a challenge-for cause, and thereafter the challenging party excludes the obnoxious juror by a peremptory challenge, he cannot assign the ruling of the court for error unless it appear that before the jury was sworn his quiver of peremptory challenges was exhausted, in which casé there is room for the inference that the erroneous ruling of the court may have resulted in leaving upon the panel other obnoxious jurors whom the party might, but for the ruling, have excluded by peremptory challenge. Some courts therefore hold that it is enough in such a-juncture to show that his peremptory challenges were exhausted before the jury was sworn.”

As courts holding this position the author cites McGowan vs. State, 9 Yerg. (Tenn.) 184; Burwell vs. State, 18 Texas, 713; Johnson vs. State, 27 Texas, 764; Bowman vs. State, 41 Texas, 471; Lester vs. State, 2 Texas App. 432, 443; Carroll vs. State, 3 Hump. (Tenn.) 315; Robinson vs. Randall, 82 Ill., 521; People vs. Gaunt, 23d Cal. 156; People vs. Gatewood, 20th Cal. 146; Wiley vs. Keokuk, 6 Kan. 94; People vs. McGungill, 41 Cal. 429; Morton vs. State, 1st Kansas 468; Stout vs. Hyatt, 13 Kansas 232; State vs. McQuaige, 5 So. Car. 429; Tuttle vs. State, 6th Texas App. 556; Ogle vs. State, 33 Miss. 383; Brown vs. State, 57 Miss. 424; Mimms vs. State, 16 Ohio St. 221; Erwin vs. State, 29th Ohio St. 186; State vs. Bunger, 14th La. Ann. 461; State vs. Caulfield, 23rd La. Ann. 148; State vs. Lartigue, 29 La. Ann. 642, 646; State vs. Hoyt, 47 Conn. 518.

The author adds that “other States take what seems to be the better view that it must also appear not only that his peremptory challenges were exhausted, but that some objectionable person cook his place on the jury who would have otherwise been excluded by a peremptory challenge.”

When the trial court in a criminal case-by overruling a challenge for cause to a juror forces the prisoner at the bar to exercise one of his peremptory challenges and when subsequently before the jury is sworn the accused has been obliged to exhaust all of his peremptory challenges, we think the accused on appeal has disclosed good ground for the reversal of the verdict against him by showing error in the ruling of the court, without the necessity of his affirmatively showing resulting injury from the court’s action by the forcing upon the jury of a juror obnoxious to the accused. Defendant under the provisions of an express statute of the State (Section 997 of the Revised Statutes) had the privilege and right conferred upon him of peremptorily challenging, without showing cause, twelve jurors.

The right to twelve peremptory challenges so conferred is an absolute one. The deprivation of the exercise of that right carries with it per se, as it does, in every other case, where the exercise of an absolute statute right has been refused or made unavailable, the nullity of the proceeding in which the refusal has taken place. It is not a question of injury at all further than the injury itself of denying the right. The denial of the right is itself the injury. If further and subsequent injury were deemed to be necessary to enter as a factor in the case such injury would, juris et de jure, be presumed. The proposition here announced is, we think, so elementary as to need no special citation of authority to support it. We applied it in State vs. Pruett, 49th Ann. 290, where we said: “The express statutory right granted to a defendant by the act can not be denied because the exercise of it might be barren of results,” stating that neither the District nor the Supreme Court w'as permitted io speculate upon the subject. See also State vs. Jones, 46th Ann. 1399; 55 N. W 99; 30 N. W. 397; 75 N. W. 650.

The practical result of this action can be illustrated by supposing that when the twelfth juror was tendered the accused for acceptance or rejection he had, at that time, only utilized ten of his peremptory challenges. This-would leave him with two challenges under his control. The twelfth juror, being, we assume, obnoxious, he would peremptorily challenge him, leaving him one peremptory challenge ta use against the party tendered in place of the twelfth juror who had been challenged. This challenge he could exercise without any right on the part of the prosecution to' know on what ground the thirteenth man was rejected.

How would the case stand if, when the twelfth juror was tendered* the accused had exhausted eleven peremptory challenges? This juror being obnoxious he could as before reject hitn, using his twelfth challenge for that purpose, but what would be the situation when the person tendered to replace the person so rejected was offered? No matter how obnoxious he might be, the accused would be forced to accept him unless he could successfully show legal cause for exclusion.

It will be seen at once that the accused would have been placed at a disadvantage by having no peremptory challenge under his control. Now if these eleven peremptory challenges had been -all used by the accused of his own free will and accord, the situation, though distressing, would be none the less perfectly legal, for he .would have-availed himself to the full extent of his. legal right of twelve challenges, but this would not be the case if one of the eleven had been forced from him by an erroneous ruling on the part of the court. That erroneous ruling would not have the effect of impairing his-right to have tiad the twelfth juror who was actually and uliimately placed upon the jury, rejected without question from the court. The ruling would have left that right intact, but illegally controlled' through an error. “íhe act of the court” cannot be made to injure the accused and force him into a position different from that he was entitled to hold. The accused was entitled to have had the thirteenth man tendered rejected without question and that right he has never lost; he had it all through the trial and he has it on appeal.

He was not called upon when he hád, in point of fact, though not of law, exhausted his twelve challenges, to disclose that the last juror tendered was “obnoxious to him,” and thus incur his ill will. In view of the action of the trial court which was presumably correct* his mouth was closed, and he' was forced to accept the situation until relieved on appeal by a declaration of the error of the court below. That error, it is our duty to announce, and by announcing it, to replace matters in the position they would have been had the error not been committed.

Jt is said that the law having granted to the accused twelve peremptory challenges, the moment a single one of these twelve was improperly taken from him by forcing him to exercise it in respect to A particular juror whom he was entitled to have had rejected for cause, his statutory right of having twelve challenges would be at that very moment invaded, as much invaded as if the whole twelve had been withdrawn from him erroneously. That it would have been then and there demonstrated that thereafter he could only have eleven such challenges left.

That if the mere invasion of a statutory right of the accused would-per se entitle him to claim reversible error, then an error in overruling the challenge of one single juror for cause would entitle him tcirelief independently ■ of the fact that he should in fact have exhausted the other eleven challenges and that this result would be in the face of an unbroken line of decisions to the contrary. The error of the court in overruling a challenge for cause is not, per se, cause for reversal. Whether or not it so operates depends upon the facts of the case as they develop upon the trial of the cause and upon the course adopted by the accused. Should the accused fail to exercise his peremptory challenges entirely, or only exercise them partially, it is obvious that he could not urge that he had been deprived of a privilege which he had not exercised at all or had only partially exercised. The invasion of his statutory right only takes place at the point when the right of peremptory challenge is denied or becomes inoperative, and when it is shown by the facts of the case that he had been unable to utilize and exercise freely and without hindrance (when he had attempted to do so) his right of twelve peremptory challenges. When he had failed entirely to exercise his peremptory challenges or had only done so partially, the question of injury would not be left as a matter in doubt or of presumption, but absence of injury would have-been affirmatively shown on the face of the record.

Courts of justice have no right to refuse or to make unavailable, rights or privileges conferred upon parties by the legislature. They can no more do this by erroneous action, than by direct arbitrary action. The right of peremptory challenge was conferred for the-express purpose of enabling parties accused of crime to reject from the jury, persons whom they had reason to distrust for secret, undisclosed grounds, not sufficient to be made available as causes for legal •challenge. Prisoners are not called on to state why or wherefore they reject, nor are they called on to incur the ill will of jurors when powerless to challenge them peremptorily by disclosing to the court that any particular juror or jurors actually serving on the jury was “obnoxious” to them. The jury sitting' upon the trial may be “legal”’ jurors by the application of legal tests and yet very obnoxious jurors for secret and undisclosed reasons. Accused are entitled to twelve peremptory challenges to be.freely exercised without compulsion in .any case from the court. The court cannot, by an erroneous ruling, force the exercise of a peremptory challenge when the accused is entitled, on legal grounds, to a rejection of the particular juror objected to. If in the formation of the jury the prisoner has exhausted the twelve challenges, but one has been used substantially under legal ■duress, he is, in law, to be held as having really been given the privileges of only eleven peremptory challenges and his statutory right has been invaded.

Wé think appellant entitled to have us examine the District Court’s action in respect to the juror Barrere in order to determine whether by reason of that action defendant was forced to exercise improperly and unnecessarily one of his peremptory challenges. The ■consideration of that subject in this case has given us very great •concern. Was the ruling of the District Judge.that Barrere was a legal juror, a person proper and fit to sit upon the trial of defendant’s ■ case, a correct ruling?

The first matter attracting attention is the fact that the questions •and answers given by Barrere during the first part of his examination» ■are not before us. The only questions and answers taken in writing and transmitted in the record are those taken down during the examination by the defendant and the later examination by the court. The entire examination should have been taken down and forwarded. As matters stand we do not know with any precision or certainty what the juror had answered before he was questioned by the defense and the court. The judge signed the bill with the declaration that •■“he had previously answered all questions of the District Attorney -and counsel for defendant disclosing his fitness and competency from ^all bias or prejudice.” The particular questions and answers upon which this conclusion of the judge rested are not recited. The judge states that at one time the answers of the juror upon the question of law touching the burden of proof aroused his suspicions that he was ■deliberately attempting to evade jury duty, but that a further examination had convinced him that the error was more from ignorance than a desire to evade jury duty, and that his answers were quite natural since the question propounded was one of pure law requiring instruction and explanation. That it was only when a question of law was asked him as to the rule of the burden of proof that he answered wrong, and for a time after the instruction of the court, persisted in the error.

In the present condition of things we are bound to assume that the juror, during the first part of his examination, had stated in answer to questions propounded to him that he was free from bias and prejudice and had formed .and expressed no opinion in reference to the matter before the court, and we must examine his answers to the later questions from the standpoint of his having originally made answers which would have shown him a competent juror. The first question (as shown in the transcript) which was propounded to him by defendant’s counsel was as to the course he would individually pursue if Taken as a juror. The question was whether, “if he was taken as a juror he would require the State to prove defendant’s guiif, or he would require the accused to prove his innocence.” ITis reply was: “that lie would require him to prove his innocence.” He was then asked: “Do you mean that you would require him to prove that he was not guilty?” and his repby was, “Yes, sir.”

If these questions and answers had followed a prior declaration by the juror that he had formed or expressed an opinion in tlíe case, we scarcely think the court, in view of his persistence in adhering to the answers (the nature and force of which he said he understood fully) after his attention had been specially called to what the law was upon the subject, and of his only changing front (even then not fully and satisfactorily) after he had been threatened with contempt proceedings by the court, would have felt itself justified in holding Barrero to have been a competent juror. The ultimate answers given as they were in the face of threatened contempt proceedings, would have been entitled to little or no weight. We have, however, to consider the conclusions of the District Court from the precise circumstances under which that court was called upon to reach them. We have to consider, therefore, matters from a standpoint considerably different from that which we have just referred to. The question is, was Barrera from the view of his fitness and competency as exhibited by his answers, taken in their entirety, a juror such as could with proper regard to a fair and impartial trial, have been forced upon the defendant as a juryman in spite of the latter’s objection that he was not.

Counsel of accused argues this bill as if the juror had declared that he would require the accused to prove his innocence because of the fact that this particular defendant was on trial, or by reason of some fact or facts connected with this special case. Argument from this standpoint we do not think warranted. What we understand the juror to have said was that he would require any party who stood charged by indictment with crime to prove his innocence. He evidently was in accord with the District Attorney in the statement made by him in his argument that “honest men are not indicted for crime.” Had he been actually placed on the jury there is no doubt but that this statement of the District Attorney would have powerfully influenced him, for it would have been in the direct line of his announced idea on that subject. His views in respect to that particular matter were expressed in no uncertain form; his answers were reiterated after defendant’s counsel had explicitly explained to him the law, and his answers were accompanied by the declaration that he had fully understood the import of what he said. He adhered to them even after the court itself had undertaken to examine him and until he was forced from his position by a threat of being dealt with as for contempt, and he then receded reluctantly and not fully.

The judge, after going so far as to threaten the juror with being dealt with as for contempt, finally accepted him as competent, with the statement that he believed he acted from ignorance and under misapprehension rather than intentionally and from design. The situation after this was such as, in our opinion, forced the defendant, in self-defence, to challenge the juror. He could not with any safety to himself, permit a person to participate in his trial as a juror who-had been accepted under such conditions.

We do not think that the court should ever place upon the jury a person whose answers to questions propounded to him on his voir dire, either as to questions of law or fact, had been such as to call for a threat from it that he would be dealt with as for contempt by reason of them. A change of view or opinion announced after such a threat is bound to carry with it a doubt as to its sincerity and a question as to whether it was not the result of coercion. A verdict rendered by a jury of whom such a juryman was one could not but be received with more or less distrust as to its impartiality and correctness.

There is no necessity and no propriety in accepting such a juror. It is not only necessary that an accused person should be found guilty,, but that he should be so adjudged by a tribunal with no suspicion attached to it as to its absolute fairness.

It is much better that the defendant, even if guilty, should be afforded a new trial, than that the verdict and Sentence against him should stand, with a doubt attached to the conviction that the State in procuring it, had not afforded to the accused all the legal and constitutional privileges to which he was entitled. We are of the opinion that the court erred in overruling the challenge to the juror Barrere, thereby forcing the accused to exhaust his peremptory challenges before completion of the jury.

For the reasons assigned: It is hereby ordered, adjudged and decreed, that the verdict of the jury be set aside and the judgment thereon rendered, be annulled, avoided and reversed, and the case remanded for further proceedings according to law.

Mr. Justice Miller. I concur on the ground the juror should have-been excluded.

Mr. Justice Blanchard dissents.


source: Caselaw Access Project

author: Nioi-iolls, C. J. Nici-iolls, C. J.

license: Public Domain

text:
    No. 12,800.
    The Gulf States Land and Improvement Company vs. Widow V. Wade.
    Syllabus.
    1st. A person cannot canse certain property to be seized and sold as tbe property of bis debtor, receive tbe price of adjudication from 'tbe adjudicatee, deal repeatedly with him afterwards as owner, and afterwards, proceed' against him by petitory action to recover tbe same property as being himself tbe owner under a claim of an ownership antedating the sale. This rule applies to tbe State in the enforcement of its taxes as well as to a private individual.
    2nd. The provisions of Section 2519 of the Revised Statutes “prohibiting notañes front executing- acts of transfer of real estate unless the State, parish and municipal taxes due on the same be first paid, to be shown by tax collector’s receipt or certificate to that purpose,” do not have the effect of cutting off from parties claiming rights under an act executed in violation of that prohibition from introducing a copy of the act in evidence. The act, if otherwise regular, should be admitted, leaving its effect to be determined afterwards.
    ON APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Charles F. Claiborne for Plaintiff in Suit, Defendant in Injunction, Appellant.

      A. B. Philips for Defendant in Suit, Plaintiff in Injunction, Appellee.
    Argued and submitted November 7, 1898.
    Opinion handed down November 21, 1898.
    Rehearing refused, reasons assigned, February 6, 1899.
   The opinion of the court was delivered by

Nioi-iolls, C. J.

Plaintiff alleging that he had bought certain described property from D. Nogrotto, Jr.; that the latter had acquired the said property from the State of Louisiana at. an adjudication of the same to him by the State tax collector acting in the matter of said adjudication under the provisions of Act No. 80 of 1888, in order to pay the taxes of 1881 and 1882 due on said property; that the State of Louisiana itself had had said property adjudicated to it in enforcement of the tax of 1881, as would appear by Act of January 17th, 1885, by act before Spearing, notary, and for the tax of 1882, as would appear by act before the same notary, of February 4th, 1885, (the said taxes of 1881 end 1882 having been assessed against said property in the name of Sarah Jane Dunbar), prayed for and obtained from the Civil District Court, a writ directed to the sheriff of the parish of Orleans commanding him to place it in possession of said property after three days’ notice to Widow Virginia Wade, the occupant of the property.

Execution of said writ was stayed by a writ of injunction from the •said court at the instance of Mrs. Virginia Wade. In her petition for injunction she referred to the allegations of the petition upon which the writ of possession had issued and averred that the sale upon which the plaintiff declared, was absolutely null and void; that it conveyed nothing to the- purchaser thereat, for that said property was assessed for the years 1881 and 1882 in the name of Sarah J. Dunbar, and that, at that date she was not living.

That on the 1st day of October, 1887, tlie State sold this property to Richard C. Wade, deceased husband of petitioner, and that he and his heirs had paid the taxes ever since. That no notice was ever served upon petitioner of any sale or intended sale on the part of the State to the plaintiff, or its vendor.

That the sale in 1887 to petitioner’s husband cancelled all previous taxes due 1 o it.

That petitioner and her husband have been in undisturbed possession for more than ten years prior to the asserted claim of plaintiff;, that the taxes of 1881 and 1882 were and are prescribed.

Plaintiff in injunction, by supplemental petition, averred that when the assessments for the years 1881 and 1882, in the name of Sarah J. Dunbar were made, she was dead. That the sale to Negrotto, Jr., vas null and void, for that at the time of the same, Sarah J. Dunbar had long been dead, and her succession was never opened, and no notice to her was or could be given of said contemplated sale. That she (plaintiff) had had possession continuously of this property under title translative of property for more than ten years previous to the institution of these proceedings and plaintiff’s demand is barred by the prescription of five and ten years.

The Gulf Improvement Company denied all and singular the allegations of-the petition for injunction and averred that it disclosed no cause of action. It prayed in the event that its title be annulled it have judgment in its favor for fifty and 27-100 dollars, with ten per cent, interest from June 20th, 1889, until paid, for the further sum of me hundred and twenty-three 67-100 dollars, with ten per cent, interest from date of payment until paid, and for the further sum of five 60-100 dollars, with two per cent, per month interest from payment until paid, alleging that it had paid fifty 27-100 dollars as the price cf the sale to him, and had paid the city the taxes for the years 1885 to 1891, both inclusive, and the State the tax of 1891 the sum of five 60-100 dollars, to whose rights it was subrogated.

The District Court rendered judgment in favor of the plaintiff in injunction, Mrs. Virginia Wade, and against the defendant in injunction, the Gulf States Land & Improvement Company, perpetuating the preliminary injunction, and enjoining- the defendant in injunction and the sheriff from further proceeding- in the seizure, and from disturbing the said plaintiff, Widow Virginia Wade, in her possession of the property described in the suit (describing it). It further decreed that the title set up by the Gulf States Improvement Company be annulled. It further decreed that the Gulf States Improvement Company have judgment against Mrs. Virginia Wade for the sum of one hundred and seventy-three 94-100 dollars, with ten per cent, interest upon fifty 27-100 dollars thereof from June, 1889, until paid, and with ten per cent, per annum interest upon one hundred and twenty-three 67-100 dollars thereof from the date the portions thereof were paid to the city of New Orleans for the city taxes for the years 1885 to 1891 inclusive, and for the further sum of five ■60-100 dollars for State tax of 1891, and for forty-eight dollars for city taxes of 1894, 1896 and 1897, with interest as above.

The Gulf States Improvement Company moved for a new trial, alleging that there was an error in the calculation in the judgment rendered in omitting to reimburse to it the State tax of 1891, five 60-100 ■dollars, the city tax of 1894, sixteen dollars, the city tax of 1896, sixteen dollars, the city tax of 1897, sixteen dollars, and that said judgment in other respects was contrary to law. This motion being overruled, the company appealed.

On November 16th, 1880, Mrs. Sarah Jane Dunbar, a resident of the State of New York, by public act before An dry, notary, made a donation to Mrs. Sophia Dunbar, widow of Richard Wade, of the usufruct ■during the life of the donee, of a certain lot of ground fronting on Erato street, in the square bounded by Erato, Clio, Liberty and Franklin streets, the donation being on the condition that Mrs. Wade ■should keep the property in good repair and pay the annual taxes upon it. The donee took possession of the property donated.

It is admitted that Mrs. Dunbar’s succession was opened in Nev* York in 1884.

We find in the record two acts of adjudication and transfer of this property by the State Tax Collector to the State of Louisiana. The first of these acts was by notarial act before Spearing, notary, of date of the 17th of January, 1885, in which it is recited that (acting under Act No. 77 of 1880) he had on the 14th day of June, 1884, adjudicated the same to the State in enforcement of the taxes assessed on said property in the name of Sarah Jane Dunbar due on the same for the .year 1881.

That the total amount for which the same was adjudicated to the State, including taxes of 1881, interest on same to date of adjudication, costs, fees, commission, advertisement, etc., was seventeen 44-100 dollars.

The second act was by notarial act, bearing date 4th of February, 1885, before the same notary, in which it is recited that the State Tax Collector, acting under Act No. 96 of 1882, had in enforcement of the taxes on this property for the year 1882, assessed in the name of Sarah Jane Dunbar, adjudicated the same to the State on the 22nd day of November, 1884. That the total amount for which the property was adjudicated, including the taxes of 1882, interest on same to date of adjudication, costs, commissions, advertisement, etc., was fourteen 04-100 dollars.

On the 1st day of October, 1887, by act before Spearing, notary, the State Tax Collector executed a deed of adjudication and transfer of this same property to R. C. Wade. The act recited that said property was so adjudicated on the 14th May, 1887, in the enforcement by him, under Act No. 98, of 1886, of the taxes for the year 1886, in the name of Widow Sophia Wade (usufruct).

That the property was adjudicated to R. C. Wade, he being the last and highest bidder, for the sum of sixteen 88-100 dollars, the same being the total amount of State taxes due on said property for the year 3886, interest, commission, etc. The State Tax Collector acknowledged to have received payment of the price of adjudication. In the act the purchaser assumed and promised to pay all taxes with interest and costs thereon due, by or on account of said properly still remaining unpaid, whether State, city or otherwise.

The adjudicatee took possession of the property, and he, his widow and heirs, have been in possession thereof for about twelve years.

On the 15th of October, 1891, by act before Wolfson, notary, the State Tax Collector executed a deed of adjudication of this same property to D. Negrotto, Jr. The act recited that the tax collector made said adjudication under the provisions of Act No. 80 of 1888.

The act recited that within two months after the expiration of the year in which the property could be redeemed the tax collector had made out a complete list of all immovable property bid in for and adjudicated to the State for taxes for the year 1880, and subsequent years as shown by the records in the conveyance office, or in the office of the recorder of mortgages, which had not been otherwise disposed of by the State, and not redeemed within the time prescribed, by law. That he had transmitted this list to the auditor for comparison with the record of the property adjudicated to the State on file in his office, and said list had been .returned to him, the collector, approved; that he had thereupon proceeded to advertise for sale all property appearing upon said list which had been theretofore bid in for and adjudicated to the State for the unpaid taxes of 1880 and subsequent years, which had not been redeemed within the time prescribed by law. That the property was advertised by a condensed description, containing the name of the party in whose name the property was adjudicated to the State, or only the name of the party who claimed to be the owner thereof, and the year for which adjudicated, and the amount of adjudication. That having complied with all the requirements of the law he had offered all these properties, among which was this particular property, for sale, and had adjudicated this property on the 20th of June, 1889, to D. Negrotto, Jr., he being the last and highest bidder, for the sum of forty-two 21-100 dollars, the said price hid and paid for said property being in full and final payment of all State taxes for the years 1881 and 1882, for which the property was adjudicated to the State together with all costs thereon due and exigible at the time the property was adjudicated to the State, the purchaser taking the property subject to all subsequent taxes, State, parish and municipal. The tax collector acknowledged to have received forty-two 21-100 dollars from D. Negrotto and proceeded in the name of the State to transfer the property to him, “giving him an absolute and perfect title without any claim thereto by any former owner and free from all mortgages, liens, privileges and encumbrances whatsoever, except all unpaid municipal taxes and all State, parish and municipal taxes which had become due and exigible subsequent to the adjudication of the property to the State.

The purchaser declared in the act that he assumed and promised to pay all the State and municipal taxes on said property, which had become due and exigible subsequent to the date of the adjudication.

The act recited that under the terms and provisions of Act No. 80 of 1888, the property was advertised and offered for sale as stated, to enforce the provisions of said act, and for cash, payable in current money of the United States at the time of adjudication for an amount not less than the total amount for which the property was adjudicated to the State, together with twenty per cent, thereon, and all costs of enforcing said Act No. 80 of 1880, which were as follows:

Dollars. Cents. Dollars. Cents.

Total amount of adjudication to the State.................$42.27

Twenty per cent, thereon..................................

Costs and advertising.....................................

In the body of the act it was declared that the property transferred was the same property acquired by Sarah J. Dunbar from P. H. Keenan, and the same property acquired by the State under Acts Nos. 77 of 1880 and No. 96 of 1882, as would appear by acts of sale of June 14th, 1884, and November 22nd, 1884, and January 17th, 1885, and February 24th, 1885.

In the record is a receipt bearing date, New Orleans, June 28th, 1887, signed by D. Negrotto, Jr., in which he declared that he had received from R. 0. Wade twenty-five dollars on account of forty-one 88-100 dollars, and the balance of sixteen -88-100 dollars to be paid by the said Wade, on or before the 28th of September, 1887, in consideration of which he would then transfer, sell and assign unto the said Wade all his right, title and interest in and to one lot of ground and improvements in the First district of this city, in the square No. 324,. bounded by Franklin, Liberty, Clio and Erato streets, being the same-property acquired at State Tax Collector’s sale, May 14th, 1887. Signed. D. Negrotto, Jr. Balance due, sixteen 88-100 dollars.

No explanation is given of this receipt, but it will be seen that the - sum of sixteen 88-100 dollars is the-same amount which is mentioned, in the act of transfer of October, 1st, 1887, from the State to R. C. Wade, as being the price of the adjudication of this property to R. C. Wade and therein acknowledged to have been received by the tax collector from R. C. Wade.

The probability is that Negrotto was the actual adjudicatee of the property at the sale of the 14th of May, 1887, but in consideration of the payment to him of twenty-five dollars, and the payment by Wade of the price of adjudication, sixteen 88-100 dollars, Negrotto permitted the transfer to be made by the tax collector directly to Wade.

The special feature of this case is that the State, after having caused the property to be adjudicated to itself on January 17, 1885,- ..and February 4th, 1885, for the taxes of 1881 and 1882, assessed in the . name of Sarah Jane Dunbar, subsequently ignored the adjudications to itself and the title acquired thereunder, and proceeded as a creditor . or quasi creditor against this same properety for the taxes of 1886 as assessed in the name of Sophia Wade, and sold this property to a third person, R. 0. Wade, who, under the title so conveyed, took possession of the property, and has held it ever since.

The evidence of this fact is shown by a copy of the act of transfer -. to R. 0. Wade, annexed to a bill of exceptions reserved by plaintiff in . injunction to the refusal of the District Court to allow said act to be •.introduced on objection made that the act did not show on its face a recital that all the taxes then due on the property had been paid as required by section 12.

We think the act should have been permitted to be introduced in evidence, leaving its effect to be ascertained afterwards. It was unquestionably true that it was under the adjudication so made, whether rightly or wrongly made, that R. 0. Wade took and has ever since held possession of the property, and that the act evidences correctly the facts stated therein. If the facts stated left the adjudication (without effect to convey title, still it left defendant’s subsequent pos•session to rest on color of title, and that he was permitted to show by .and through the act. As the basis or commencement of defendant’s .claim she was authorized to show it and have it passed on.

The question is whether the State having caused this property to be 'transferred to a third person, a vendee, by proceedings directed by itself against this property as a creditor for taxes assessed in 1886 not in the name of Sarah J. Dunbar, but of Sophia Wade, could, after permitting the vendee to take possession under his title-to pay taxes on it for several years under this title, suddenly, without notice to the vendee of the existence of'prior taxes or any demand upon him, or ■notice of intended sale, have the property advertised and sold, not for any taxes due by the vendee, R. C. Wade, or Sophia Wade, but by ■Sarah J. Dunbar, as far hack as 1881 and 1882, the payment of which very taxes the State had enforced by sale and adjudication made to itself a number of years before. It will be perceived that the transfer •to R. 0. Wade was made through proceedings as a creditor acting as against a third person’s property, while the transfer by it to Negrotto was in the capacity of an owner selling property belonging to it to •.recoup itself for a payment of the taxes in lieu of which it had been iorced to take the property. If the State had sold this property to R. C. Wade in 1887, acting avowedly in so doing as an owner, as it did -subsequently in attempting to sell to Negrotto, the position of affairs would be very different from that which is presented now.

R. 0. Wade took possession of the property “under color of title” at least, through proceedings inaugurated by the State itself substantially against a declared debtor to the State. It has been held in undisturbed possession ever since until disturbed by a party .claiming ' “ownership” of the same under an “ownership” thereof by the State, .at the time of the sale to R. 0. Wade.

This particular proceeding was initiated by a demand for “possession” of the property, but the action is clearly a “petitory” one, direct- . ed against the party in-possession. The petition of the Gulf States .Improvement Company contains none of the allegations essential to a “possessory” action. Plaintiff demands possession based upon an as-serted title. The title is based upon an extra judicial proceeding to which the defendant was in no way privy, and she cannot be deprived . of her rights by summary proceedings for mere possession. The plaintiff, like any other plaintiff in a petitory action, must rely upon ■the strength of his own title, not upon that of the weakness of his -adversary.

We do not think that the title he advances can stand, based as that title is, upon an assertion of ownership of the same property in the State on the 20th of June, 1889. We do not think the State can .'legally disregard its own proceedings in 1887. It is true the State • cannot be called directly into a suit in warranty, but where it ha3 ■undertaken to transfer or convey to a third person, rights inconsist- • ent with, and clashing with rights already conveyed through its own instrumentality and action to another and this transferree attempts, by petitory action, to enforce these rights so attempted to be conveyed, he can be successfully held in check through the maxims ■ “Quem de evictione tenet actio ” and “Nemo plus juris.”

A person is not permitted to seize certain property as belonging to his debtor, sell it to a third person, receive from the purchaser the price of adjudication, deal with him afterwards repeatedly as owner, and then afterwards, either personally, or through some one holding under him, bring a petitory action to recover the property on the : ground that at the time of the seizure and sale, the property already belonged to him, and all this without any attempt to bring about a restitutio in integrum.

There are two facts to be additionally noted in connection with what we have said. The first is that the Act of 1886, under which the property was sold to R. C. Wade, did not call for the assumption by the purchaser of antecedent taxes, as does the Act of 1888. Payment of price of adjudication conveyed title. The second is, that the Act of 1888, .under which this property was attempted to be sold to Ne-grotto, after Wade had acquired title.in 1887, limits the sales to be made under it to properties which had been ádjudicated to the State,, and not disposed of by it. This property had unquestionably been disposed of by the State when attempted to be sold, as owner, in 1891,. not disposed of, it is true, as owner, but as a creditor. The mere method of disposition did not take the property out from its position of non-liability to sale under the provision of the Act of 1888.

We think the judgment correct, and it is hereby affirmed.

On Application por Rehearing.

Nici-iolls, C. J.

When the State has become the adjudicatee of property sold at tax sale, it is not obliged to take immediate possession, but may permit the original owner, or others to hold possession of it. If the former owner does not redeem it, the State may (under legal authority) sell this property as any other owner could do, on such-' terms and conditions as it sees fit. The Act of 1888 authorizes it to-sell at auction the properties held by it as adjudicatee upon the condition that the purchaser shall pay all taxes, State, parish and municipal, existing on them at the time of the sale of the same, and making the vesting of title in the purchaser conditioned upon the fact of payment. Sales of this kind are sometimes spoken of as “tax sales but the term is misapplied. A tax sale is a sale made of property proceeded against by the State as belonging to some one other than, itself, in enforcement of taxes due by that property and its owners. The sales in question, though they may result in placing in the treasury an amount equal to the amount of taxes which would have been on it, had the property belonged to some one else, are not made in the enforcement of taxes, for there are in reality no taxes upon it, as the property of the State itself is not taxed. The declaration in the advertisement of sale that the purchaser should pay all the taxes upon it,. at the time of the sale, is nothing more than a declaration as to the amount the property must bring at the sale, and the character of the sale is not other or different than it would have been, had the tax collector made a calculation of the amount of these taxes and omitting all reference to taxes had declared that the purchaser should pay that particular amount as a condition to obtaining title.

Had the State, being as it was, the adjudicatee of this property through the sales made in enforcement of the taxes of 1880 and 1881, as the property of Mrs. Sarah Dunbar, sold the property, as owner, to R. C. Wade, and had he failed to make payment as required by the terms and conditions of the sale at which he purchased, and had the ■State then, as being owner of the same, sold the property to Negrotto, we would have had before us a case identical with that of Martinez, reported in 42 An. 677, and Remick vs. Lang, reported in 47 An. 914, and our decision would have been controlled by the principles announced in these cases, but the State did nothing of the kind.

Instead of selling the property, as being the owner thereof, it proceeded as a quasi creditor against it as being the property of Sophia Wade and as owing, under her ownership, the taxes of 1886, and caused the property to be adjudicated to R. 0. Wade, a third party, so far as the record shows. It gave a deed of the property to R. 0. Wade, who went into possession as owner under this title, and has (himself and his heirs), held possession ever since, paying taxes which the State received.

This title has never been set aside or attacked, nor has it been shifted back from Wade to the State by any proceedings whatever. After vesting title in Wade, under proceedings thus taken out by itself, the State, ignoring this title, undertook to sell the property as if these proceedings had never taken place and as if it had been continuously the owner of the property to Negrotto who, thereupon, instituted this petitory action against Wade. Wade met the attack by setting up and showing the fact that he held the title to this property under proceedings which the State (Negrotto’s own vendor) had itself instituted and carried on as a quasi creditor against it as the property ■of Sophia Wade, and which proceedings culminated in a sale at which he had bought, and he contended that this title, antedating that of Negrotto, effectually disposed of any title subsequently attempted to be made by the State to its prejudice under a claim of ownership as ■existing at the date of his purchase.

In our original-opinion we held this contention to be well founded,, and rejected plaintiff’s demand. We were of the opinion that the situation was that of a person who, having a claim against (B), should cause certain property to be seized as belonging to him, and having caused it to be adjudicated to (0) should, thereafter, sell the same-property to (D) under the pretence that at the time of the adjudication to (C) it was itself the owner thereof, and (D) should bring apetitory action for the property under a title so conveyed to him. We held that the seizing creditor himself would be estopped from claiming ownership adversely to (“C”) under such circumstances; that his action would be repelled by his own obligations as a warrantor, and that the same estoppel which would bar any claim on his part would, bar any claim of a person holding under him. We see no-reason to doubt the correctness of that conclusion.