author: McEnery, J.

text:
    No. 375.
    The State of Louisiana vs. H. C. Stewart.
    A jury commissioner having been sworn, and the oath having been lost, parol testimony as to the fact of the commissioner’s having taken the oath is admissible in evidence.
    The failure of the’clerk of court to record the oath can not disqualify the commissioner. The fact of qualification is the test of thecapacity of the commissioner to serve, and the failure of the clerk to reduce the oath to writing and to record the same can not defeat public justice by interimpting judicial proceedings.
    The fact whether or not an overt act of hostility of deceased against defendant has been proved, preparatory to the introduction of evidence as to communicated threats or the dangerous character of deceased, is within the discretion of the trial judge.
    Parties visiting the grand jury on business before them, when nothing is said or done in relation to defendant’s case, can not prejudice the defendant, and he has no cause of complaint.
    A person having knowledge of the commission of a crime has the right, without being summoned, to go before the grand jury and disclose his knowledge of the commission of said crime.
    A juror who on his voir dire states that he would qualify his verdict in all capital cases is an incompetent juror to serve on a jury in a case where the defendant is charged with murder.
    APPEAL from the Tenth District Court, Parish of Natchitoches. Andrews, J.

      Phanor Breazeal, District Attorney, for the State, Appellant.

      Pierson & Porter for Defendant and Appellee.
   The opinion of the court was delivered by

McEnery, J.

The defendant was indicted for murder, tried, con- ■ victed of manslaughter and sentenced to hard labor. His motion in arrest of judgment was sustained and the State appealed.

The defendant relies upon the motions to quash the iudictment, in arrest of judgment, for a new trial, and several bills of exceptions to the rulings of the trial judge in the course of the trial.

The motion to quash the indictment assigns as reasons therefor that one member of the jury commissioners had not qualified by taking the required oath, and that if the commissioner had been drawn the oath had not been reduced to writing, subscribed and recorded. Testimony was heard on the trial of the motion and bill No. 1 is reserved to the ruling of the district judge in allowing the introduction of parol testimony to show that the jury commissioners had qualified. The oath of the commissioners could not be found among the records in the clerk’s office, and it had not been recorded. The fact of the loss of the oath had been proved. The testimony shows conclusively that the commissioner had been sworn by the clerk. The clerk states that he reduced the oath to writing, and that it was signed by the commissioner.

The latter swears to the taking of the oath, but does not positively recollect having signed it.

He says: “I have no recollection of signing it, but do not dis tinctly recollect that I did not sign it.”

Act 44 of 1877 does not require that the oath shall be reduced to writing and recorded. The evidence of the selection and appointment of the commissioner's required to be entered upon the minutes of the court, and the commissioner is required to take an oath before the drawing of the jury — that is, before he enters upon the discharge of his duty.

There can be no question as to the propriety of its being reduced to writing, subscribed by the commissioner and recorded. This is the duty of the clerk and it is imperative, although not expressed in positive terms in the act. But the clerk’s omission can not work a public injury. The fact of the qualification of the commissioner is alone the test of his ability to serve. The omission of the clerk in permitting or allowing the disappearance of the record can not destroy the fact of the qualification of the commissioner.

On the proof of the loss of the oath, it was competent to prove by parol the fact of the commissioner having qualified. The trial judge very aptly says “to hold otherwise, an interregnum or suspension of power in any department of goverment could be brought about at any time by a careless custodian of public records.”

Bill of exceptions 2. Tobe Leveart was presented as a juror and was asked by the district attorney if he was opposed to capital punishment. He answered that'he had no scruples to the infliction of capital punishment; that on proper evidence he would render a verdict that would inflict the death penalty. But in answer .to questions propounded by the trial judge, who explained to him that he would have the right to qualify his verdict, he stated he “would always qualify his verdict, and would not hang any man if he could help it.” The juror was peremptory challenged by the district attorney, which was sustained by the court. The juror was not competent. Section 1000 of the Revised Statutes, which authorizes a jury in capital cases to bring in a qualified verdict, “Guilty without capital punishment,” was not enacted to satisfy the scruples of jurors in the infliction of capital punishment. It was intended, if extenuating circumstances justified it, to authorize the jury to qualify the verdict, being in this respect similar to the grade of the offence of murder in other jurisdictions, known as murder in the second degree. 11 An. 535, 685; 30 An. 367; 38 An. 480.

Bill No. 3. A witness was sworn for the defence and interrogated as to the turbulent and dangerous character of the deceased. From the statement of the trial judge it appears that no overt act had been committed by deceased against the defendant. Testimony had been introduced to show an overt act of hostility of deceased against defendant, but the trial judge believes that no such demonstration had been made. In this matter he is clothed with a sound legal discretion, and there is no reason assigned why we should disturb his ruling. State vs. Ford, 37 An. 461; State vs. Nash and Barnett, 45 An. —, recently decided.

The testimony shows that the witness only knew of the reputation of deceased for violent and turbulent disposition, which was of a dangerous character, in the State of Mississippi, and knew nothing of his reputation in Louisiana in the neighborhood in which defendant and deceased resided.

In the case of the State vs. Nash and Barnett we ruled that the reputation of the deceased in a distant community, not brought to the knowledge of the defendant, was inadmissible testimonj’’. 45 An.

Bill No. 4. The defendant, who was sworn in his own behalf, was asked why he carried the gun to the ground, and-he answered he had heard of threats of deceased against him; and at the same time other witnesses were offered to prove communicated threats of deceased against accused. This testimony was rejected by the trial judge on the ground that no overt act of hostility of deceased against accused had been shown as a necessary foundation for the receiving of evidence of communicated threats. This ruling is in line with the uniform rulings of this court. State vs. Ford, 37 An. 461; State vs. Harris, 45 An.; State vs. Nash and Barnett, 45 An.

Bill No. 5 is disposed of for the reasons assigned in reviewing bills 3 and 4.

The grand jury who returned the bill against the defendant summoned before them several parties and permitted others to visit them on business directly connected with the official duties of the grand jury. They in no way were connected or interested in defendant’s case and they were not interrogated in reference to it, and nothing was said or done by the grand jury while these parties were before them in reference to the case of defendant. The case of the defendant was in no way prejudiced against him, and it is difficult to see in what manner he was injuriously affected.

It is complained by the defendant that one S. A. Morgan, the leading State witness, went without summons or request before the grand jury and gave his own version of the case against defendant, and instituted this prosecution. The witness had the undoubted right to go before the grand jury voluntarily and' disclose his knowledge of facts in the the case. As a good citizen it was his duty to do so. No one can be excused for withholding knowledge of a crime from the public until he is summoned to give his testimony of its commission. The record does not show that there was any misconduct on the part of the grand jury. On the contrary, the trial and conviction of the defendant is an evidence that they acted with a due regard for the public safety in presenting the indicoment against him.

The defendant was arraigned and pleaded not guilty. Subsequently this plea was withdrawn, and a motion to quash the indictment was filed. The withdrawal of the plea of not guilty placed the defendant in the position as though he had never pleaded to the indictment. He was not subsequently arraigned, and he was tried and convicted without any issue between him and the State. This is fatal to the verdict. The defendant must plead personally to the indictment, and this absolute requirement must be observed and the record must show it. State vs. Hunter and Frank, 43 An. 157.

The omission to plead to the indictment was taken advantage of by the defendant in a motion in arrest of judgment. It must prevail.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    No. 377.

    State of Louisiana vs. Felix Pollet.
    A list of additional jurors drawn by the order of court by the jury commissioners to supply deficiency of regular panel, to serve on defendant’s case, must be served on him in accordance with Section 992, Revised Statutes.
    APPEAL from the Twelfth District Court, Parish of St. James. Guión, J.

      B. McCulloh for the State, Appellee.

      E. N. Pugh and Sims & Poohé for Defendant and Appellant.
   The opinion of the court was delivered by

McEnery, J.

The defendant was tried for murder, found guilty without capital punishment, and sentenced to imprisonment at hard labor for life. He appealed.

The trial judge ordered the clerk, in view of the possibility of exhausting the regular panel, to notify the jury commissioners to meet in open court and draw thirty additional jurors to pass upon defendant’s case.

The defendant complains that this list of jurors was not served on him two entire days before the trial. The list was not served on him, but a copy was served on his attorney. This was not a compliance with the law, as Sec. 992 of the Revised Statutes requires that the list be served on the defendant.

It is contended by the State that the law does not require that a list of jurors drawn under Sec. 7 of Act 44 of 1877, in anticipation of the exhaustion of the regular panel, should be served on the defend-' ant, as they are not a part of the regular venire, and are tales jurors, to be in attendance in case the panel should be exhausted.

Section 7 of said Act 44, we think, clearly distinguishes jurors drawn by the jury commissioners under the order of the court and those summoned instanter by the sheriff from among those in the court room and vicinity.

The authorities referred to by the district attorney, which dispense with the service of the list of jurors on the defendant, are in those cases where the jurors were summoned from among the bystanders by the sheriff for instant service, and when there was no time to serve the list on the defendant.

In the case of State vs. Stewart, 34 An. 1037, it was held that jurors drawn as talesmen, under Section 7 of Act 44 of 1877, although designated as such in the act, are not assimilated to talesmen drawn from among the bystanders, a list of whom can not be made and served on the accused in the time required by Section 992 of the Revised Statutes.

And it was further held that the list of tales jurors drawn in pursuance of said section of said act must be served on the defendant, in accordance with Section 992, Revised Statutes.

In that case the jurors were ordered drawn to serve generally at the term of court in all criminal eases. But we do not see in what manner the effect of the statute can be changed by ordering that the jurors serve on a particular case, as was done in the case of defendant.

It would seem that there is stronger reason for the service of the list of jurors in such case.

In the ease of State vs. Chambers, 45 An., objection was made that no list of the additional jurors, drawn in pursuance of Section 7 of Act 44 of 1877, had been served on the defendant two entire days before his trial, and that the order specified the particular ease in which they were to serve.

The judge ordered the jury commissioner to draw seventy-five additional jurors to serve on the case of defendant in that case. We held that this did not vitiate the drawing, and found that the list had been served on defendant in accordance with the law. We took occasion to say that the object of the statute, Sec. 992, R. S., in requiring a list of the jurors to be served on the defendant is that he may have an opportunity of inquiring into the character and qualifications of the jurors who are to pass on his ease, and be able to prepare with intelligence the challenges which he may wish to present.

In the case at bar the jurors were drawn for the special purpose of passing on defendant’s case, and as a fact some of them formed a part of the jury impaneled to try him. He was deprived of the-benefits of Sec. 992, R. S., and we think the trial judge erred in forcing him to trial over his objection that he had not been served with a list of jurors who were to pass on his case two entire days-before his' trial. 34 An. 1037; 45 An. 36.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled and reversed, and it is now ordered that-this case be remanded to be proceeded with according to law.


author: Breaux, J.

text:
    No. 352.
    State of Louisiana vs. R. W. Miller.
    The accused was charged with burglary armed with a dangerous weapon.
    He was found guilty of burglary without a dangerous weapon.
    The verdict finds all the circumstances which constitute the offence under Section-880 of the Revised Statutes, except that the accused was not armed with a dangerous weapon, an offence denounced under Section 851 of theRevised Statutes.
    The offences are cognate, the latter, the minor, is included within the terms of the major.
    The verdict is responsive and warrants a judgment
    APPEAL from fche Tenth District Oourt, Parish of Natchitoches. Andrews, J.

      John B. Land, District Attorney, for the State, Appellee.

      Charles V. Porter for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

Under an indictment charging the defendant with the crime of burglary, also with larceny in a single count, armed with a dangerous weapon, the defendant was tried and found guilty of burglary without a dangerous weapon.

The counsel for the accused filed a motion in arrest of judgment on the ground that the verdict is not responsive to the indictment.

The motion was overruled.

From the ruling of the district court the defendant appeals.

The verdict finds the defendant guilty of a part of the charge, but passes upon the whole by qualifying that the act was committed without a dangerous weapon.

Section 850 of the Revised Statutes denounces the breaking or entering into a dwelling house with a dangerous weapon.

The Section 851 of the Revised Statutes provides that if the accused person be not armed, he shall, on conviction, be imprisoned at hard labor not exceeding fourteen years.

The accused was found guilty of part of the charge, and virtually acquitted as to the residue.

In thus limiting their verdict it is brought within the terms of the case of the State of Louisiana vs. Jacob Morris, 27 An. 481, in which the issue decided is identical to that of the ease at bar.

In that case the prisoner was charged under Section 850, Revised Statutes, with having forcibly entered the house in question in the night time, armed with a dangerous weapon with intent to kill.

He was found guilty except that he was not armed with a dangerous weapon.

The court decided that the verdict is responsive to the indictment.

That the two sections, 850 and 851, form but one law.

That under a charge of forcibly breaking into a dwelling, armed with a dangerous weapon, with intent to kill, an accused may be found guilty of having forcibly entered the house in question without being armed with a dangerous weapon.

From the evidence it appears that the defendant has not been guilty to the extent of the charge specified.

That in finding him guilty to the extent the evidence warrants, the offence is within the terms of another statute — so decided in a previous case.

They are offences of the same generic class; the offence found is of an inferior degree to that charged in the indictment against the accused.

The verdict finds all the circumstances constituting the offence under the statutes.

The difference in the penalty of the offences under the sections in question, and the fact that they are separate statutes, does not preclude the possibility of the offences being of the same generic class. State vs. Stouderman, 6 An. 286.

The offence is of an inferior degree, and a minor offence included within the major offence.

Counsel contends that the verdict is fatally defective, not being responsive to the indictment.

It is true that the defendant is charged with a specific statutory offence, viz., the breaking and entering a certain house, at a time stated, with certain intent.

The crime as denounced is the common law crime of burglary— without a dangerous weapon.

The verdict referred to Section 851 exclusively: “Burglary without a dangerous weapon.”

Larceny is a statutory offence; a verdict of guilty of larceny would be unobjectionable. The same is true of arson and every well defined offence.

Moreover the statute itself characterizes the crime as a burglary.

The jury returned that the accused is guilty of “ such burglary ” as expressed in the statute.

The conclusion of the district judge does not disclose error.

It is therefore ordered that the judgment of the District Court be affirmed with costs.


text:
    No. 354.
    State of Louisiana vs. John Nickleson.
    An indictment for arson may charge the offence as wilfully done or maliciously done, or each of the qualifying words may be used alone.
    The entry as made, noting the presence of the accused, makes it evident that he was present during every important stage of the trial.
    It is shown that’the confession admitted in evidence was free and voluntary, and it was therefore admissible.
    Between the ages of seven and fourteen years an infant is deemed prima facie to be doU imcapax, but the maxim malitia supiplet cetalem .may apply. The legal presumption of incapacity may be rebutted by evidence of mischievous discretion.
    Expert testimony is admissible to prove capacity for commiting crime.
    APPEAL from the Fourth District Court, Parish of Jackson. Wear, J.

      John R. Land, District Attorney, for the State,^Appellee.
   The opinion of the court was delivered by

Breaux, J.

The defendant was charged with arson under Section 843 of the Revised Statutes, Was tried and found guilty.

A motion to quash the indictment was filed on the ground that the bill of indictment does not set forth as required by the statute that the act charged was wilful.

The indictment charges that the defendant “did unlawfully, maliciously and feloniously set fire and burn a certain outhouse, to-wit: a barn,” thereby complying with the statute, which declares that every person “ who shall wilfully or maliciously set fire to or burn any outhouse, stable or barn, etc., shall upon conviction suffer imprisonment at hard labor.”

The ground presumably is abandoned, for it is not argued in counsel’s brief.

The point was passed upon in the case of the State vs. Philbin, 38 An. 964, in*which it was held that the words, viz.: “ Feloniously, unlawfully and maliciously are sufficient in an indictment under Section 841 of the Revised Statutes.

The words may be conjunctively used as wilfully and maliciously, or disjunctively maliciously or wifully. The use of either of these qualifying words is a legal compliance with the statute. State vs. Price, 37 An. 218.

The points urged before this court are that there is error in that the record does not disclose the presence of the accused at the trial except after the evidence had been introduced and the argument closed.

A bill of exception was reserved to the court’s ruling in admitting, over .the defendant’s objection, the testimony of a witness to prove the confession of this defendant, a child between the age of 10 and 12 years. The grounds of objection are that the State had not laid the basis for the introduction of the confession.

The evidence of this witness was written down and annexed to the bill and is now, without objection, before the court.

A bill of exception was also reserved to the court’s ruling admitting the testimony of the witnesses to prove the intelligence and criminal capacity of the accused.

Relating to the presence of the accused during the trial.

The minutes prove that the accused was arraigned on the 20th February, 1893.

The following was entered on the minutes on the 25th August, 1893:

“Trial of case resumed; evidence closed; argument of counse heard and accused found guilty as charged, the accused and his counsel being present.”

The record affirmatively shows that he was present.

The entry is sufficient to establish that he was present at every important stage of the trial.

The special entry, it is true, should have been made noting the presence of the accused at every important stage during the trial. Such omissions of the clerk should be avoided.

But the entry as made makes it evident that the accused was present during the trial. State vs. White, 33 An. 1221; State vs. Atkins, 33 An. 1253; State vs. Price, 37 An. 215.

The admission of defendant’s confession presents the second ground of defence.

It is contended that the State did not affirmatively show that the confession was free and voluntary, and without threat, inducement or persuasion.

The witness to whom the confession was made says: “The accused made a confession to me. I did not offer him any inducement to make this confession. I did not threaten him in any manner. He made the confession free and voluntary, with his own free will. I remember the substance of all he said in that conversation, and can repeat the substance of all he said in that conversation. ”

The cross-examination which followed after the testimony in chief did not elicit any fact establishing that the, confession was not free and voluntary. There were no circumstances of duress or violence shown, nor the least menace.

The trial judge, who knew the parties, was satisfied that there had not been any undue or improper influence brought to bear.

The records do not disclose that his rulings relating to the foundation upon which the confession was admitted is erroneous.

The last ground of defence is disclosed in a bill of exceptions to the judge’s ruling in permitting witnesses to testify as to their opinion of the intelligence of the accused.

Counsel contends that the ability to commit a crime must appear from the circumstances of the particular case.

The following are the judge’s reasons narrated in the bill of exceptions : “ The inquiry as to the capacity is not limited to the facts and circumstances attending the commission of the act, but may be shown by extreme proof.”

A child under the age of twel ve years is presumed to be incapable •of crime, but the presumption may be removed by proof that he had sufficient capacity to understand the wrongfulness of his act. Rice on Ev., p. 26.

Blackstone says: “Under seven years of age, indeed, an infant can not be guilty of felony, for then a felonious discretion is almost an impossibility in nature.” He adds: “ Convictions have been had of infants between seven and fourteen.

“ But in all such cases the evidence of that malice which is to supply age ought to be strong and clear beyond all doubt and contradiction.”

Brown’s Legal Maxim announces that malice supply the want of mature years, that between the ages of seven and fourteen years an infant is deemed prima facie to be'doli ineapax, but that the ordinary legal presumption may be rebutted by strong and pregnant evidence of mischievous discretion, for the capacity of doing ill or contracting guilt is not so much increased by years and days as by the strength of the delinquent’s understanding and judgment.

Archbold’s Criminal P. and P., pp. 11 and 12, announces the same rule.

“No act done by any person over seven and under fourteen years •of age is a crime, unless it be shown affirmatively that such person had sufficient capacity to know that the act was wrong.” Stephen Dig., Arts. 25, 26.

The question does not relate to the competency of the witnesses in matter of opinion evidence.

The records do not disclose the character of the evidence sought.

The question and the objection are general in term.

Opinion is competent evidence upon the subject of age in the absence of positive testimony upon the subject.

The opinion of witnesses may be heard in many respects to establish sufficient capacity to know that the act was wrong.

The rule under which opinion evidence is admitted as to sanity or insanity applies in proving the responsibility vel non of infants.

The forms of law have been complied with and the trial regularly conducted.

The jury must have been satisfied that the defendant, at the time “ that he committed the offence, knew it was wrong, and was aware •of his legal responsibility for the commission of the crime — the legal presumption of his innocence on account of his tender years no longer exists.” Willet vs. Com., 13 Bush, 230.

These are issues which must be considered settled after a verdict has been rendered in due form.

The tender years of the defendant, should his conduct yield to good influence, will doubtless recommend him to another authority.

To this tribunal is left the painful duty of affirming the judgment appealed from.


author: Parlange, J.

text:
    No. 356.
    The State of Louisiana vs. Ed. Foster.
    In capital cases, where the jurors have separated and the sheriff, or his deputy has failed to properly keep them in charge, abuse and misconduct will be presumed and the verdict will be set aside.
    APPEAL from the Sixth District Court, Parish of West Carroll. Ellis, J.

      John R. Land, District Attorney, for the State* Appellee.
   The opinion of the court was delivered by

Parlange, J.

The defendant having been indicted for murder, was tried, found guilty of manslaughter and sentenced to imprisonment in the State penitentiary for a term of twenty years. He has appealed. He relies, for the reversal of the judgment against him, upon three bills of exception. The gravest complaint which he makes is as to the refusal of the judge a quo to grant him a new trial. The morion for a new trial alleges, among other matters, that the jurors separated while they were deliberating; that they drank a large quantity of whiskey; that one or more of the jurors were under the influence of liquor, and that while they were deliberating they were boisterous and noisy, so much so that on one of the two nights during which they were deliberating, their noise prevented the inhabitants of the town from sleeping. The motion for a new trial sets out at length and in detail the alleged misconduct.

From the testimony of the deputy sheriff who was in charge of the jury, it clearly appears that the jurors separated. After they had entered upon their deliberations the deputy sheriff took them to his house, which is about three hundred yards from the court house. The ten white jurors were placed in one of the rooms in the house and the two colored jurors were placed in the kitchen, at a distance of about thirty-five feet from the room in which the white jurors were. After the jurors had retired for the night the deputy sheriff left the room in which the white jurors were, and he occupied another adjoining room. There was no officer with the white jurors during that night, nor was there any with the colored jurors. The doors of the rooms were not locked. The jurors might have left their rooms without the knowledge of the deputy sheriff. There is a back door to the room in which the colored jurors slept, and they might have gone out of their room without the knowledge of the deputy sheriff.

These facts are clearly established. There was no attempt to disprove them. The deputy sheriff admits them.

It is well established that in capital cases the jury can not be permitted to separate. 4 An. 434; 5 An. 398; 11 An. 282; 12 An. 710; 21 An. 321.

In capital cases, upon a separation of the jurors, misconduct and abuse will be presumed. 8 R. 554; 21 An. 321; 23 An. 213; 41 An. 691; 43 An. 828.

In State vs. Warren, 43 An. 828, this court held that in a capital case a separation of the jury, part of the jurors remaining without a deputy in charge, while the others are led out of the building, is fatal to the prosecution.

The defendant is so manifestly entitled to relief because of the separation of the jurors and by reason of the failure of the deputy sheriff to properly remain in charge of them, that we consider it unnecessary to pass upon the other questions presented.

It is therefore ordered that the verdict of the jury be set aside and the judgment appealed from annulled, avoided and reversed; that the defendant be detained in custody, subject to the orders of the Sixth Judicial District Court for the Parish of West Carroll, to await further prosecution or proceedings according to law.


author: Parlangb, J.

text:
    No. 358.
    State of Louisiana vs. William Langford.
    A witness having stated that “she does not know what would be the consequence, nor how she would be punished, if she testified falsely;” and the judge having certified that “from the manner of the witness on the stand and her answers to questions, she exhibited as much intelligence as ordinary persons of her class,” Held: That the witness is “a person of proper understanding” under Act 29 of 1886, and that her statement does not show that she is ignorant of the nature of an oath.

      1. A person to whom complaint has been made by the victim of a rape, or of an attempt to ravish, can not be permitted to repeat at the trial all the details of the outrage as reported to the witness; but can only testify to the fact of the complaint having been made and to the condition of the victim when malting the complaint. As part of the res gestas such statements are admissible and defendant may bring them out on cross-examination. They may also be given to corroborate the testimony of the prosecutrix, but only when her testimony has first been impeached.
    3. Where the defendant was being tried for an assault with intent to ravish, and the deputy sheriff in charge of the jury, on being informed that the jury stood 11 to 1, said to the juror opposed in opinion to the other jurors: “ Why, John! Plain case,” Held: That the verdict of “guilty” brought in by the jury was vitiated by the misconduct of the deputy sheriff.
    4. Where an information for assault with intent to ravish, charges that the defendant “ with force and arms, unlawfully did make an assault upon A B, with intent her the said A B then violently and against her will feloniously to ravish and carnally know,” the information is sufficient.
    APPEAL from the Fourth District Court, Parish of Grant. Wear, J.

      John B, Land, District Attorney, for the State, Appellee.

      W. O. Roberts for Defendant and Appellant.
   The opinion of the court was delivered by

Parlangb, J.

The defendant has been found guilty by a jury of an assault with intent to ravish and he has been sentenced to imprisonment in the State penitentiary for a term of eighteen months. He has appealed, and he relies upon four bills of exception to reverse the judgment of the lower court.

By his first bill of exception he contends that the prosecutrix “was not a competent witness.” The only ground for this contention is that on cross-examination, she stated that “ she did not know the consequence, nor how she would be punished in case she testified falsely.”

The judge a quo, in overruling the objection to the competency of the witness, stated that “ from the manner of the witness on the stand and her answers to questions, she exhibited as much intelligence as ordinary persons of her class.”

We understand the defendant’s counsel to contend in his brief that the statement of the prosecutrix proves her to be a person who does not understand the nature of an oath. This contention is without force. There is nothing in the record to support it. The prosecutrix may well have meant that she was ignorant of the instrumentalities by which the criminal law would punish her if she committed perjury, and that she did not know what the legal penalty would be. This would neither prove her to lack “proper understanding” within the meaning of Act 29 of 1886, nor to be ignorant of the nature of an oath. We are fortified in reaching this conclusion by the statement of the judge a quo who heard and saw the witness and to whom a large discretion is left in the matter.

The judge refers evidently to the intelligence and mental capacity of the witness, and he did not consider the statement as relating to her ability to comprehend the nature of an oath. Competency is the rule, ineompetency the exception. The burden is on the defendant to show the witness incompetent. He has failed to do so. If his intention was to show that the prosecutrix did not understand the nature of an oath, he could easily have addressed her such questions as would have made the scope of his inquiry clear to her and would have elicited from her such an answer as would have shown plainly whether she had or had not the proper understanding of the nature of an oath.

The second bill of exception reserves the objection of defendant to the admission of the testimony of a witness who was offered by the State to prove the statements made to him by the prosecutrix as to the crime for which the defendant was being tried.

In the case of State vs. Charles Robertson, 38 An., page 618, this court held that a person to whom complaint has been made by the victim of a rape, when placed on the witness stand, can not be permitted to repeat all the details of the outrage and the name of the ravisher, as reported to the witness, but can only testify as to the fact of the complaint having been made and as to the condition of the victim when making the complaint. Bishop in his treatise on Oriminal Procedure states that this is the English and the more common American practice. To the same effect is Greenleaf on Evidence. When the statements are part of the res pesias, they are excepted from the operation of the rule just stated, and they may also be drawn out by the' defendant on cross-examination. They may be admitted to corroborate the testimony of the prosecutrix, but only when her testimony has been impeached. When they are offered by the State, in making out the ease against the accused and before the testimony of the prosecutrix has been impeached, they will be rejected, as was done in the ease of State vs. Charles Robertson just quoted.

In the instant case, the State offered the testimony without limitation. The testimony appears to have been offered while the State was making out the case against the accused and before the defence had opened.

The judge a quo states that the evidence was admissible in corroboration of the testimony of the prosecutrix and that he limited it to that purpose. The statements could not have been admitted in corroboration, unless the testimony of the prosecutrix had first been impeached, of 'which there is no proof or indication in the record.

On the contrary, it appears that the statements with all their details went to the jury before the defence opened. This was error.

The third bill of exception concerns the refusal of the judge a quo to grant the defendant a new trial for which the latter had moved on the ground that the verdict was contrary to the law and the evidence, and that “the jury while considering the verdict herein were improperly and unduly influenced by the deputy in charge thereof, who stated to them ‘ that it was. a plain case or straight case,’ and further stated and exclaimed: ‘ Why, John!’ one or more times when informed that one John Wilson was holding them. That by said conduct the said John Wilson was influenced and the verdict rendered by said jury vitiated.”

The testimony adduced on the hearing of the motion for a new trial was reduced to writing, and the defendant having duly excepted to the overruling of the motion and having annexed said testimony to his bill, the same is before us for review. There were several objections made to testimony offered on the hearing of the motion for a new trial, but it is unnecessary for us to pass upon them, as we can reach a conclusion on this point by considering only the testimony admitted without objection.

We are satisfied from the evidence that the deputy sheriff in charge of the jury went into the jury room after the jury had been deliberating for some time, and on his inquiring whether the jury had agreed he was informed that the jury stood eleven to one, and that John Wilson was the one juror opposing the views of the other eleven jurors. The deputy sheriff then exclaimed and said to John Wilson: “Why, John! Plain case,” or words of a similar import. Subsequently the jury agreed and brought into court a verdict against the defendant.

While bearing in mind the decisions of this court, which declare that great weight is given to the rulings of trial judges in refusing new trials, and while also bearing in mind the decisions which differentiate between misconduct which vitiates a verdict and misconduct which does not, we hold, in the instant case, that it was error to refuse a new trial. The question goes beyond the scope of mere legal formalities. It is a matter of substance which affects the rights of the defendant to a fair and impartial trial. It would be difficult to state a case of unlawful communication with the jury by the officer in charge of the jury, if á deputy sheriff can be permitted to exclaim reprovingly to a juror for not agreeing to the verdict which the deputy sheriff conceives should be returned, and if that officer can state to the juror that the ease is plain. See Proffatt on Jury Trials, Sec. 391.

In the case of State vs. Dallas, 35 An. 900, this court reversed the sentence in a criminal case because one of the deputy sheriffs in charge of the jury stated to one of the jurors that he had heard that the defendant had been sentenced to the penitentiary. In that case the court used the following language:

“ The conduct of the deputy sheriff is in the highest degree unbecoming and reprehensible and places him in the attitude of an officer who deliberately impedes the administration of justice, which it was his bounden duty to promote, and wilfully clogs the execution of the laws which he has sworn to support. * * * A sheriff or any of his deputies having charge of a jury in a criminal case has the right of speaking to the jurors for the purpose of inquiring into and ascertaining their wants, or of conveying necessary messages from them. Such conversations, when not referring to the case, or to the accused on trial, will not vitiate the proceedings.”

We are clear that the misconduct of the deputy sheriff who was in charge of the jury in this case caused serious injury to the defendant, and that his motion for a new trial should have been granted.

The fourth bill of exception contains the defendant’s reservation as to the action of the judge a quo in overruling the motion in arrest of judgment by which the defendant urged that the information is defective in that it fails to charge that he did “feloniously ” make the assault charged; and also in that it fails to charge that he made the assault “forcibly” or “violently.”

The information charges that the defendant with force and arms unlawfully did make an assault upon the prosecutrix, with intent her the said prosecutrix then violently and against her will feloniously to ravish and carnally know. The information is sufficient. State vs. Bradford, 38 An. 921; State vs. Sonnier, 38 An. 962; 2 Bishop, Cr. Pro., Sec. 81.

Therefore, for the reasons stated in sustaining defendant’s objections, as set forth in his second and third bills of exception, it is ordered that the verdict of the jury be set aside and that the judgment appealed from be annulled, avoided and reversed; that the defendant be detained in custody subject to the orders of the Fourth Judicial District Court for the parish of Grant, to await further prosecution or proceedings according to law.


text:
    No. 384.
    The State of Louisiana vs. Zachariah Langston.
    Under See. 792 R. S., which denounces the offences of assaulting another by wilfully shooting at him, an indictment is fatally defective which charges that “A B did wilfully malrean assault upon C D by shooting at him.” The characterization of the assault is essential, and the indictment should follow the statute.
    APPEAL from the Fifth District Court, Parish of Morehouse. Richardson, J.

      J. P. Madison, District Attorney, for the State, Appellee.
   The opinion of the court was delivered by

Parlange, J.

The defendant was charged with an assault upon one Richard Berry by shooting at said Berry. The defendant was tried by a jury, found guilty and sentenced to imprisonment in the State penitentiary for a term of six months. He has appealed, and he relies, for the reversal of the verdict and sentence, upon the error which he urges to have been committed by the trial judge in overruling his motion for a new trial.

The reasons for which the new trial was asked are:

1. “That the defendant is indicted under Sec. 792 of the Revised Statutes of the State of Louisiana, for ‘ assault by wilfully shooting at,’ and that the indictment charges him with wilfully and feloniously making an assault upon one Richard Berry, by shooting at said Berry, and that the omission of the word ‘ wilfully’ as qualifying the ‘ shooting act’ renders the indictment invalid and fatally defective.” * *

2. “That the offence charged is a statutory one, and the offence should be set forth in the language of the statute, which is not done in this indictment, and that the offence charged is not denounced as a crime by the statutes of the State of Louisiana.”

The indictment purports to have been drawn under Sec. 792 of the Revised Statutes, which section makes it penal to “assault another by wilfully shooting at him.”

The question is whether under such a statute an indictment is good which charges that a defendant “did wilfully make an assault upon another by shooting at him.”

The words “ wilful,” “wilfully,” have a significance. The word “ wilfully ” is not to be treated as surplusage or as being immaterial in the statute under consideration. On the contrary, it is essential to the description of one of the offences denounced in Sec. 792 Revised Statutes. That statute provides punishment for any one who commits a particularized assault, to-wit: An assault by wilfully shooting at another. It is perfectly clear that under Sec. 792 Revised Statutes, a person could not be punished for commuting an assault by a “ shooting at¡” which would not be “ wilfully ” done within the intendment of that statute, and therefore the indictment must charge the “ shooting at ” to be “ wilfully ” done.

The defendant in the Brady case, 39 An. 687, was prosecuted under Section 792 Revised' Statutes, and on a charge identical with the one in this case. In the Brady case the indictment charged both the assault and the “shooting at” to be wilfully committed. This court said:

“Now, as the indictment propounds the charge-of a felonious, malicious and wilful assault by wilfully shooting at,’ it is clear that it does contain a charge of an offence known to our laws, since the same is specially denounced in the statute under discussion. And as the language used in the indictment is already redundant by the qualifications of the assault, which were not necessary under the terms of the statute,” etc.

This language shows that the views herein expressed are in conformity with the opinion in the Brady case.

The indictment in this case is fatally defective.

It is therefore ordered that the verdict of the jury and the judgment of the court appealed from be annulled, avoided and reversed; and that the defendant be detained in custody subject to the orders of the Fifth Judicial District Court for the parish of Morehouse, to await further prosecution or proceedings according to law.


author: Nicholls, C. J.

text:
    No. 361.
    Charles J. Randall vs. W. E. Hamilton.
    1. Plaintiff, in an action for damages for a libel, lias the right to specifically affirm in his pleadings, and on a trial, to prove the non-existence of the conditions upon which would be dependent a right of exemption from liability, grounded on the fact that the matters complained of were charged in a judicial proceeding; he can not be cut off from establishing his allegations to that effect by an exception of no cause of action.
    2. The fact that matter defamatory and libelous in its character was charged in the petition of a plaintiff against a defendant does not of itself carry absolute exemption from liability for damages claimed by reason of said defamatory and libelous charges. Other facts must concur to bring about that result.
    8. There is a great difference between an absolute exemption from liability for damages for acts done m the course of judicial proceed'ngs under agiven state of facts proven, and an absolute exemption from liability to a suit for the purpose of testing whether such a state of facts exists as would convey with it such protection from damages, and between the situation of parties at the end of a lawsuit after evidence adduced and that of parties at its beginningstanding on pleadings.
    APPEAL from the First District Court, Parish of Caddo. Taylor, J.

      Leonard & Thatcher, M. 8. Jones and Alexander & Blanchard for Plaintiffs and Appellants.

      Wise & Herndon for Defendant and Appellee.
   The opinion of the court was delivered by

Nicholls, C. J.

The defendant in this case having filed an exception of no canse of action to plaintiff’s demand, the allegations of the petition will have to be given in full.

Plaintiff avers that on or about June 22, 1892, William E. Hamilton, through his attorney, instituted in the District Court for Caddo -a suit entitled “The Shreveport Electric Railway and Motive Power Company vs. The City of Shreveport et al.,” by filing a petition verified by his oath made and subscribed to before Cal. D. Hicks, notary public of said parish, on June 21, 1892, whereon he obtained from the Hon. S. L. Taylor, judge of said court, on June 22, 1892, a writ of injunction. That in said petition and affidavit, said Hamilton represented himself to be the president of a pretended corporation, •styled in said petition The Shreveport Electric Railway and Motive Power Company, and therein falsely described as a corporation duly chartered, organized and existing under the laws of the State of Louisiana.

That in said petition, among others, the following allegations are made, viz.:

11 That said pretended company had been granted and vested with ■certain rights, privileges and franchises by an ordinance of the council of the city of Shreveport of July 28, 1891, and that such rights, privileges and franchises were held by ana vested in said company.
“ That in the exercise of such rights, said Hamilton, as president of •said company, employed a gang of laborers, and was with them engaged in constructing a railroad along Southern Avenue in said city, on June 20, 1892, when the police officers of said city, acting under the authority of the mayor and council of said city, arrested him and said laborers, and forcibly prevented them from continuing such work.
“ That said policemen, mayor and council, in their interference with the rights vested in said company by said ordinance, claim that said ordinance and all rights thereby vested were repealed by said council at its session on June 9, 1892.
“That such pretended repealing ordinance is an attempt to divest vested rights and is illegal, null and void. That Herman Herold, Oharles J. Randall, W. D. Scholfield, John C. Wimbish and Henry H. Youree, members of the council of said city, entered into a conspiracy with certain persons connected with and interested in the “ City Railroad Company,” a rival corporation, to pass said pretended repealing ordinance; that said conspiracy was conceived and executed solely in the interest of said City Railroad Company and its owners, and without any regard to the rights of said Hamilton’s-company or of the public.
“ That such conspiracy so concocted was kept a profound secret-from the mayor and from the remaining members of the City Council and from the public, and maintaining inviolably the injunction of secrecy imposed on them by said parties, whose interests alone they were to subserve. The said members of said council refused to-entertain a motion to postpone for investigation, made by a member not a party to said conspiracy, and-refused to hear the opinion or-follow the advice of the city attorney, .because they had aready taken the advice of the retained counsel of said City Railroad Company.
“ That said conspiracy and all the acts in pursuance thereof onthepart of the aforesaid members of the City Council were illegal,, wrongful, tortious, and a fraud on the rights of said Hamilton’s company.” All of which foregoing fully appeared from a certified copy of said petition annexed and made part hereof.

That said suit was dismissed by judgment of the District Court forCaddo on exceptions of defendants thereto, for reasons assigned in said judgment, which said exceptions and judgment therein are-made part hereof by reference.

That he is now and was at the date of the adoption of the ordinance of July 28, 1891, purporting and intending to grant certain, franchises fully set forth in the petition of said W. E. Hamilton in said suit, and that he voted as a member of the City Council against said ordinance; that he is now and was a member of the City Council on June 9, 1892, and as such voted for the ordinance adopted and. enacted on said date by said council repealing the ordinance granting certain rights to ‘1 The Shreveport Electric Railway and Motive-Power Company,” and that it was his right and his duty so to vote-for the reasons (among others) assigned by the Caddo District Court in the opinion and judgment dismissing said suit, No. 4001.

That the charges made against him and his fellow members of said council in the petition in said suit No. 4001, and verified by the oath-of said W. B. Hamilton, and the allegations of said petition with regard to himself and his fellow members, in so far as they affect the petitioner, are false, libelous, and slanderous, and calculated to injure and destroy the character and reputation of petitioner as a private citizen and public official, and his credit and repute as a business man, and that said charges and allegations constitute a charge of felony, and a criminal and infamous offence under the laws of the State of Louisiana; and that said W. E. Hamilton well knew when he published-said charges and verified them by his oath, that same were false,, libelous, and slanderous, and same were maliciously made and with, full advice. That said charges and allegations were so made and published by said W. E. Hamilton without cause, wantonly, maliciously, and with intent to injure petitioner; and that said charges as made and-published in said petition the said Hamilton has verbally reiterated, made and published at various and divers times before and after-the institution of said suit No. 4001, to citizens of Shreveport and to-others, with design to injure petitioner and destroy his character and credit. That the said petition of the said Hamilton in said suit No. 4001 shows on its face no cause of action against petitioner and the-other members of the Common Council named therein; and that he and said other members were made defendants in said suit wantonly, maliciously, and for the corrupc purposes of influencing thereby the-official action of petitioner and said other members in the interest of said Hamilton and a certain corporation, to-wit, “The Shreveport. Railway and Land Improvement Company,” wherein said Hamilton is a large stockholder, together with his father-in-law, Edward Jacobs, his brother-in-law, Walter B. Jacobs, and wherein said W. E. Hamilton, Edward Jacobs and W. B. Jacobs, and the First National Bank of Shreveport (whereof said E. Jacobs is president, said W. E. Hamilton is vice president, and said W. B. Jacobs is cashier), are large stockholders, and are otherwise largely interested, it being the purpose and intention of said Hamilton to destroy the-value and force the sale to said “Shreveport Railway and Land Improvement Company” of the property and franchise of the “Shreveport City Railway Company,” a rival corporation.

That since the judgment of the Caddo District Court dismissing-said suit No. 4001 the road and franchise of said City Railroad Company have been purchased by the Shreveport Railway and Land Improvement Company, or by the parties principally interested therein. That if it be true, as alleged in the said petition of said Hamilton, that the ordinance of June 23, 1891, therein set forth, vested rights and privileges in the “ Shreveport Electric Railway and Motive Power Co.,” then the repealing clause of - June 9, 1892, was unconstitutional, null and void, and such rights and privileges were-not thereby in any manner impaired or effected, and if said company held no vested rights under said ordinances of July 23, 1891, then said company has no rights nor cause of action as set forth in petition in said suit No. 4001. That under either supposition he and his fellow members of the City Council could not properly be made parties defendant to said suit No. 4001.

That there was no occasion to make him and his fellow members parties defendant in said suit or to make the charges therein made . against ihem; that the allegations and charges made in said petition and affidavit against him and his fellow members of the City Council were not pertinent to the issue or in any manner necessary for the protection of the rights therein alleged to exist. That said suit No. •4001 is not, and never has been, a real suit; that same was and is the fraudulent simulation of a suit; that there was no party plaintiff thereto, and that the pretended corporation styled therein “ The Shreveport Electric Railway and Motive Power Company” has no •existence, and has never existed, all of which said Wm. E. Hamilton well knew at the time he made said false, malicious and slanderous charges against petitioner and his said fellow members. That his reputation was in all respects good prior to the said charges aforesaid, falsely, wantonly and maliciously made and published by •said W. E. Hamilton; that the said charges so made and published have injured his reputation, have been detrimental to his standing •and social position in the community where he lives and elsewhere, have had a tendency to degrade him with his fellow men, have impaired his credit and injured his business, which is that of a cotton buyer and factor, and caused same to materially decline to his great financial loss; have subjected him to mortification and insult and have outraged his feelings to an extent which can not be sufficiently measured by money, but at least to the extent of §15,000; that he was entitled to exemplary and punitive damages Against said Hamilton to the amount of at least $10,000. That he was compelled to employ counsel to defend him in said suit No. 4001 at an expense to him of $150, for which amount, also, he should have judgment against said Hamilton. He prayed that Hamilton be •cited and that he have judgment against him for $25,140, interest and costs.

The District Oourt held that the exception of “ no cause of action ” was well taken, and dismissed the suit.

Plaintiff has appealed.

In his reasons for judgfnent the district judge said: “ There can be no doubt that the averments of the petition in Suit No. 4001 are libelous in their character. To charge a public official with having been a party to a fraudulent conspiracy, and to have been influenced in his official conduct by corrupt motives, is certainly a defamation likely to cause a breach of the peace and great injury to the sufferer. Such a charge, if published in a newspaper, would undoubtedly be actionable in damages if it were shown to be false and malicious.

“ But defendant contends that this charge was .made in the course' of judicial proceedings in good faith; that it arose upon a proper occasion and was pertinent to the issue, and is therefore protected as a privileged communication.”

“Under the Common Law'of England no action lies against an attorney or litigant for defamatory words spoken or written in a pleading in judicial proceedings, even though they were unnnecessary to support the case of the client and were uttered or published without any justification or excuse, and from personal ill will toward the party defamed arising from some previously existing cause, and are irrelevant to every question of fact in issue before the court. It seems, then, that under the English law the mere fact that the defamatory language was used in a judicial proceeding is an absolute protection, regardless of all other considerations.”

“Plaintiff’s counsel contends that this law has never been adopted in Louisiana; that privileged communications in judicial proceedings are unknown to our law, and that Art. 2315 of the Civil Code furnishes the true and only rule for determining the right of action in all cases — libel and slander included — where damages are claimed for torts, even though the defamatory -matter be published in a judicial proceeding. Many authorities are cited to support the-position, notably that of Miller vs. Holstein, 16 La. 389.

“ I have examined these proceedings and they undoubtedly show that the English law of absolute protection does not prevail here, and that the foundation and measure of liability for a libel uttered in a judicial proceeding are found in Article 2315 of the Code. But I do not understand them as holding that no sort of privileged communications is known to our law.”

The learned judge then proceeded to cite and quote a number of decisions in which the defendants in suits brought against them for damages had been protected from liability by reason of the acts ■complained haying occurred in the course of judicial proceedings, and from those decisions he reached the conclusion that in some cases an .absolute exemption from liability existed and that the present case was one of that character.

There is a great difference between an absolute exemption from liability for damages under a given state of facts proven and an absolute exemption from liability to a suit for the purpose of testing whether such a state of facts exists as would convey with it such protection from damages. There is a great difference between the situation of parties at the end of a lawsuit, and after evidence adduced, and that of parties at the beginning of a lawsuit standing on pleadings. There can be no doubt that the fact that an act complained of occurred in judicial proceedings may have a great bearing and influence upon both the burden and sufficiency of proof and the final result on a question of a liability to damages for that act. ■Such a fact being shown with its attendant circumstances may sometimes afford partial protection — sometimes afford absolute protection, but it may also frequently intensify and aggravate a wrong.

The determination of such questions depends almost necessarily upon facts resting still in pais, which can only be positively and finally ascertained through the instrumentality of a suit. Whilst it may be true, that given a particular state of facts, legal protection from liability would follow as a matter of law, it is none the less true, that the facts themselves on which exemption is based are open to inquiry and to judicial scrutiny. Any other doctrine would •convert the courts of the country into instrumentalities for injustice and into engines of oppression.

Nothing in the Guar denial case, which was one tried on its merits -and which turned upon the burden of proof, is out of line with the views herein expressed. In that case this court, speaking of privileged communications, said: “In privileged communications the party is protected from the infliction of damages unless the occasion •was used as a means of inflicting a wilful and malicious injury upon the plaintiff,” and referring to protection resulting from judicial pro•ceedings, deelai’ed it “extended to those who were in the honest pursuit of private right.” It was never once intimated that the courts of our State were places from which, as from places of secure .refuge,|they could with impunity perpetrate wrong. 42 An. 955.

We have examined plaintiff’s p'eadings very carefully. They are both full and precise. If in their consideration we strike out and eliminate the question of “privilege” it must be conceded plaintiff’s petition discloses a cause of action.

If we replace that question we find that plaintiff has specifically affirmed the non-existence of the conditions upon which the right of exemption is dependent. He has a right to go to trial upon that issue as one of fact to be ascertained by evidence. For the reasons herein assigned, it is ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, the case reinstated, and it remanded for further proceedings according to law.


author: Nicholls, O. J.

text:
    No. 363.
    H. H. Youree vs. W. E. Hamilton.
    Same syllabus as in Case No. 361.
    APPEAL from the First District Court, Parish of Caddo. Taylor, J.

      Leonard & Thatcher, M. 8 Jones and Alexander & Blanchard for Plaintiffs and Appellants.

      Wise & Herndon for Defendant and Appellee.
   The opinion of the court was delivered by

Nicholls, O. J.

The pleadings and issues in this case are similar to those in Randall vs. Hamilton, decided this day.

For the reasons therein assigned, it is ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, the case reinstated and remanded for further proceedings according to law.


text:
    No. 378.
    J. C. Wimbish vs. W. E. Hamilton.
    Same syllabus as m Case No. 361.
    APPEAL from the First District Court, Parish of Caddo. Taylor, J.

      Leonard & Thatcher, M. S .Jones and Alexander & Blanchard, for Plaintiffs and Appellants.

      Wise & Herndon for Defendant and Appellee.
   The opinion of nhe coart was delivered by

Nicholls, O. J.

The pleadings and issues in this case are similar to those in Randall vs. Hamilton, this day decided.

For the reasons therein assigned, it is ordered, adjudged and decreed that the judgment appealed from be annuiled, avoided and reversed, the case reinstated and remanded for further proceedings according to law.


text:
    No. 382.
    State of Louisiana vs. John Kennon.
    1. On cross-examination of an accused, upon matters not legitimately to be asked in rebuttal, but which it is claimed might properly be asked by way o£ impeachment or attack upon the credibility of the witness, prosecuting attorneys should announce the object and purpose of their questions, and oiler to restrict the effect of the testimony.
    2. Not only error but injury must be alleged and shown to justify the reversal of a judgment.
    APPEAL from the Second District Court, Parish of Webster. Watkins, J.

      John R. Land, District Attorney, for the State, Appellee.
   The opinion of the court was delivered by

Nicholls, C. J.

The appellant was sentenced to hard labor in the penitentiary for the period of seven years, having been convicted of manslaughter under an indictment for murder.

Two bills of exception are in the record and relied apon and urged as grounds of reversal.

The second is to the overruling by the District Court of a motion for a new trial. The first to the action of the court in permitting the district attorney on cross-examination of the accused, when on the stand as a witness in his own behalf, to ask certain questions over defendant’s objections.

The motion for a new trial was asked upon the grounds:

1. That the verdict of the jury was contrary to the law and the evidence.

2. That there was no proof adduced. on the trial that the crime alleged was committed in the parish of Webster, or that it was committed within twelve months of the finding of the bill of indictment.

3. The discovery since the trial of testimony to prove that the deceased had, a few hours prior to the killing, threatened to kill the accused.

On the trial of this motion the defendant was permitted by the judge to introduce (and have reduced to writing) testimony to establish his allegation that no evidence had been adduced by the State to prove the facts mentioned in his second ground.

On the overruling of this motion a bill of exception was reserved, to which was annexed as part thereof the evidence taken on the trial.

The district judge held that the verdict was sustained by the law and the evidence, and that the testimony claimed to have been newly discovered was merely cumulative; that uncontradicted evidence of the same character had been introduced on the trial, which had caused the verdict to be for manslaughter instead of murder.

The reasons stated by the court justify his rulings. We take occasion to say that it was totally useless to have annexed and brought up the testimony taken for the purpose of establishing that there was no evidence on the trial that the crime was committed in the parish of Webster, or that it had been committed withiu twelve months of the finding of the bill of indictment.

The point at issue was one of fact, with which this court is powerless to deal.

The first bill is as follows:

“On the trial of the cause A. J. Murff, district attorney, offered to prove by the defendant, who had been sworn as a witness for the defence, that he had, immediate’y after the killing, fled the State, and gone to Arkansas and changed his name, and was a fugitive from justice till arrested by the sheriff of Webster parish, whereupon, the defendant objected on the ground that the State had closed its case without intrroducing any evidence of flight. That the defendant as a witness in his own behalf had testified to nothing on this point, nor any of his witnesses; that no answer to the question could possibly be in rebuttal of anything proved by the defendant in his direct examination, and it was new matter and an effort on the part of the State to cross-examine the witness on matter not stated in his direct examination.”. ,
“The objection was overruled by the court,” as it was the question on cross-examination of the accused on direct examination ■on the witnese stand, and as he stated he had only gone a “little way up the road after he shot deceased,” indicating that he had not fled, and that there was no objection stated at the time to the question as to changing his name.
“The counsel for the defendant thereupon reserved this bill of exception to the ruling of the court, which bill, upon being submitted to opposite counsel and found correct, was duly granted and signed in open court.”

In State vs. Underwood, we held that an accused in a criminal cause who avails himself under Act No. 29 of 1886 of the privilege of testifying is subjected to cross-examination by the State, but that this examination extends only to matters concerning which the witness has given testimony. “That the same statute which withdrew from him disqualification as a witness and subjected him to cross-examination expressly placed, a limit to this examination which the State is not permitted to transcend.” The object and purpose of this limitation was to guard and secure defendant’s constitutional right of not being forced to give evidence against himself.

Taking the bill in the record as a whole, looking at all its recitals, we are of the opinion that the question propounded to the witness by the district attorney, viewed from the standpoint of simple rebuttal testimony or cross-examination, should not have been permitted to be asked. We do not think a simple statement from the accused that after the killing he walked a short distance up the road justified the State in attempting, through the testimony of the accused, to establish that he had immediately after the killing fled from the State and was a fugitive from justice until arrested by the sheriff in Arkansas and brought back.

The cross-examination was sought to be made to take a much wider range than the statement of the accused warranted. We think that the court, in a matter so closely connected with defendant’s constitutional rights, should confine the State to cross-examination •upon the matters testified to and not allow it to extend to inquiries to things touching which the district attorney only from what he might deem “indications” should inferentially conclude the accused intended, by pure implication, to te stify. In the case at bar we neither think the accused intended to convey to the jury from what he said that he had not fled (for up to the time he made the statement he does not appear to have been charged with having done so), nor do we think that the jury could or would have connected that statement one way or the other with a question of flight. We are •of the opinion that for the purposes of cross-examination in rebuttal •the question was improper.

The district attorney claims, however, that, admitting this to be rtrue, the State was authorized on cross-examination to attack or Impeach the credibility of the witness and that the question of flight might relevantly and legitimately be considered for that purpose. In propounding the question the district attorney did not announce that it was aske'd for the purpose indicated, nor did he offer to limit its effect. The offer was made generally. The conclusions we have reached upon the bill of exceptions reserved make it unnecessary for us to pass upon the question. We think it proper to say that on cross-examination of an accused upon matters not legitimately to be asked in rebuttal, but which it is claimed might properly be asked by way of impeachment or attack upon the credibility •of the witness, the district attorney should announce the object and purposes of his questions and offer to restrict the effect of the testimony. The accused, the court below and this court would be en.abled in that way to deal with certainty upon the legal questions involved.

An examination of the bill of exceptions which was reserved has brought us to the conclusion that we can afford the appellant no ■relief under it. The bill states that the district attorney was permitted over the objections of the accused to ask him a certain question, but it goes no further. Whether the question was asked or not; whether, if asked, the accused refused to answer it or not; what he answered, if he did answer it, are not stated. It may well be that the accused answered the question saying he had never been a .fugitive from justice, and may have so stated perfectly consistently with the truth. In other words, even though the question may ■improperly have been permitted to be asked, the permission to ask may have resulted in no injury. Not only error, but injury must be alleged and shown to justify the reversal of a judgment.

Appellant has alleged error, but has not alleged or shown injury. Eor the reasons assigned it is hereby ordered that the judgment appealed from be and the same is hereby affirmed.


text:
    No. 379.
    The Florsheim Bros. Dry Goods Co., Limited, vs. Joe Williams.
    1. The right oí a defendant to appeal from a judgment which has been rendered and signed against him is not impaired by the fact that without warrant of law the court, on motion of plaintiff, had the judgment set aside and the case reinstated on the docket.
    2. The court, on appeal from the judgment rendered, having found it based on insufficient evidence, reversed it, but remanded the case for further proceedings. The plaintiff having, after having had the first judgment set aside and the case reinstated on the docket, caused it to be assigned for trial, tried and a second judgment rendered in his favor against defendant without any notice to defendant of these after proceedings, the second judgment is annulled, avoided and reversed.
    APPEAL from the Ninth District Court, Parish of DeSoto. Ball, J.

      Goss & Parsons for Plaintiff and Appellee.

      J. P. Pierson and Ohas W. Elam for Defendant and Appellant.
   The opinion of the court was delivered by

Nicholls, O. J.

On February 9, 1892, the plaintiff filed a petition against the defendant, alleging that he was indebted to it in the sum of |2855.30, with legal interest thereon from judicial demand, for goods and merchandise sold him, as would be duly shown on the trial, and prayed for judgment against him for that amount.

On the 2d of March defendant filed an answer pleading the general issue.

On the 13th of April court adjourned to the nest term in course, and on the 1st of August met at its regular session.

On the 22d of that month this case was taken np for trial and evidence adduced, and on the next day, the 23d of August, the court rendered judgment in favor of plaintiff against defendant as prayed for, signing it the same day. On the 26th of August, 1892, the court adjourned to the next regular term (November 14), on which day it again convened.

On the minutes of the 14th November the minutes show the following entry:

Judicial District Court, Parish of DeSoto.
The Florsheim Bros. Dry Goods Co., Limited, versus Joe Williams.

In the above numbered and entitled suit_ comes the plaintiff by counsel in open court, and moves the court in this case to set aside the judgment, rendered therein at the term of the court holden in the month of August, 1892, and refix the case for trial on the ground that said judgment was rendered contrary to law and without sufficient evidence.

On the 16th the court acted on this motion, set aside the judgment, reinstated the case and fixed it for trial for the 19th, on which day it was taken up, evidence adduced and judgment rendered and signed a second time in favor of plaintiff against the defendant, as prayed for in the petition.

On the 2d of December, 1892, the court adjourned to its next regular term.

On the 3d day of May, 1893; the defendant obtained two orders for devolutive appeals — one from the judgment first rendered, on August —, 1892, the other from the second judgment, rendered the 19th of November, 1893, which two appeals he . perfected by citing plaintiff and giving bond.

Both judgments bear the same title and the same number on the docket of the DeSoto court, and two transcripts, both also having the same title and number, have been filed in this court under a single number.

From the record it appears that the only evidence adduced on the first trial was an instrument in the following words:

Statement.
Shreveport, La., February 8, 1892.
Mr. Joe. Williams
To the Florsheim Bros. Dry Goods Co., Limited.
January 28. To statement rendered....................................$3,049 03 Angust26. To cash.................................................................. 17 40 — $3,066 43 Cr. March 18. By pro. 10 B. C.................................................... 312 19 June 15. By pro. 4 B. C...................................................... 120 45— 432 64 $2,633 78-Interest to date............................................................................................ 221 60 Amount due us............................................................................................ $2,855 39
State oe Louisiana, 1 Parish of Caddo., j
Personally appeared before me, the undersigned authority, Henry Florsheim, president of the Florsheim Brothers Dry Goods Co., Limited, who deposes and says upon his oath that the above account of Florsheim Brothers Dry Goods Co., Limited, against Joe. Williams for the sum of $2855.39 is juso, correct, due and unpaid, and that all credits, offsets and payments known to affiant have been allowed.
Henry Florsheim.
Sworn to and subscribed before me this 29th day of February, 1892.
Lewis E. Carter, Notary Public.

This case is in a very anomalous condition. It seems that the plaintiff, after he had obtained a judgment against the defendant, and after the term of court at which it was rendered had closed, became apprehensive that it contained an inherent and radical weakness, of which the defendant could at his leisure avail himself. Not, wishing that this situation of affairs should longer continue, he, of his own motion, had the judgment set aside by the court, the case reinstated as an open one upon the docket, and proceeded without notice of any kind to the defendant in any of these after proceedings, to take a new judgment. He ignored the fact that the former judgment had, at the moment he moved to set it aside, become a finality so far as its revision through the instrumentality of a new trial was concerned, and doubtless proceeded upon the theory that Art. 540 of the Oode of Practice, which declares that a judgment once rendered becomes the property of him in whose favor it has been rendered, and that the judge can not alter the same except in the mode provided by law, was not applicable to the party obtaining the judgment, but had reference solely to an alteration to the prejudice of the judgment creditor. That quoad the defendant the judgment evidenced an obligation and not a right, and that the judgment obtained being the property of the plaintiff he was at liberty to relinquish the benefit of it and replace matters in the situaion in which they were before it was obtained. That the defendant had no possible ground of complaint, but that he was really a gainer by the change. It is very true that the judgment obtained was the property of the plaintiff, and that to a certain extent he had control over it, but the law did not give him control to such an extent as to injuriously affect the rights of others. It was for the defendant, and not for the plaintiff, to decide whether an alteration in the judgment as originally rendered would be disadvantageous to him or not. Though not the owner in one sense of the judgment, the defendant had certain rights springing from and resting on the judgment from which the plaintiff could not cut him off, one of which was the right of appeal, the ex parte setting aside of the judgment to the contrary, notwithstanding.

Of this right he has availed himself, and he is properly before us an appellant from the first judgment.

He claims that that judgment was rendered upon insufficient evidence ; that at the time the ease was tried it did not stand on default, but upon issue joined on an answer pleading the general denial; that the amount involved being over $500, plaintiff’s demand had to be proved by one credible witness and corroborating circumstances (0. O. 2277). That whilst “ a corroborating circumstance” would have been found in the fact of a judgment by default had defendant permitted the case to stand in that way — that “corroborating fact” was doné away with by the filing of the answer, and matters had to be determined as to the sufficiency of the evidence by the general rule.

He further claims that Act. No. 31 of 1890 applies only to cases standing on default where it was anticipated that the affidavit to the correctness of the open account sued upon would be strengthened and supplemented by the tacit admission arising from the default itself.

In support of the correctness of these views, plaintiff presses upon us the judicial admission made by the plaintiff himself in asking for the setting aside of the judgment, that it was contrary to law and rendered upon insufficient evidence. As we have before us the record in which this statement was made, that fact has necessarily come to our knowledge, but not to our knowledge in such a way that on the present inquiry it can be utilized for plaintiff’s benefit. In appealing from the first judgment plaintiff restricted matters to those occurring up to the judgment; he cannot pass beyond that point so far as the first judgment is concerned. That judgment was obtained, as we have said, solely on the strength of the affidavit of the president of the plaintiff corporation; it was not as absolute, direct and positive as it should have been in its terms.

The amount involved was over $500, and the case was not standing on default. We think the defendant, under the circumstances, was entitled to exact stronger evidence. We are of the opinion that the judgment itself should be reversed, but the reversal of the judgment will not carry with it the dismissal of plaintiff’s demand. For the reasons herein assigned, it is ordered, adjudged and decreed that the judgment rendered by the District Court for the parish of DeSoto on the 23d day of August, 1892, in favor of the plaintiff against the defendant and appealed from herein, be annulled, avoided and reversed, the case reinstated and remanded for further proceedings according to law.


text:
    No. 379
    The Florsheim Bros. Dry Goods Co., Limited, vs. Joe Williams.
    APPEAL from the Ninth District Court, Parish of DeSoto. Sail, J.

      Goss & Parsons for Plaintiff and Appellee.

      J. F. Pierson and Chas. W. Flam for Defendant and Appellant.
   The opinion of the court was delivered by

Nicholls, O. J.

This case is supplemental to thatin the matter of the same parties which we have just decided, and for the facts involved we refer to the statement made therein.

After the plaintiff had obtained judgment in that case against the defendant, and after the term of court at which it had closed and the delays for á new trial had expired, plaintiff, upon an ex parte motion to that effect, caused the judgment to be set aside, the case to be reinstated as an open one, and proceeded without notice of any kind to the defendant in any of these after proceedings to take judgment against him. The defendant has appealed from this last judgment.

The proceedings taken by the plaintiff after the rendition of the first judgment and the adjournment of the court were unwarranted in law, and the judgment based upon them is null and void and should be so declared.

It is therefore ordered, adjudged and decreed that the judgment appealed from, being that rendered by the Ninth Judicial District Court for the parish of DeSoto in the matter of the above entitled suit (in favor of plaintiff and against defendant), on the 19th day of November, 1892, be and the same is hereby annulled, avoided and reversed.


author: McEnbry, J.

text:
    No. 362.
    A. M. and E. L. Odom vs. St. Louis Southwestern Railroad Company.
    A passenger on a railroad train, when it stops at the station where he is to get off, and where he attempts to do so and is on the steps of the car, and the train moves ahead when he is in this situation, he is compelled to adopt a perilous alternative, to run the risk of being thrown from the train when its speed is accelerated, or to leave the train with less speed. In trying to escape imminent danger brought about by defendant’s negligence, he is not guilty of contributory negligence, and the defendant corporation is responsible for its negligence.
    APPEAL from the Second District Court, Parish of Bossier. Watkins, J.

      A. J. Murff and J. A. Snyder for Plaintiffs and Appellees. 76

      Alexander & Blanchard and S. H. West for Defendant and Appellant:
    1. A claim for damages for an injury done to a married woman, living under tlie regime of tlie community, is an asset of the community, in which suit must be brought in the husband’s name. 43 An. 1202; 42 An. 990; 38 An. 185; 35 An. 157; 12 An 832
    And in such a case the wife is not a competent witness. 42 An. 990.
    2. In an action for damages for personal injuries, where the plaintiff has, by his own imprudence, or negligence, contributed to his own injury, he can not recover, even though defendant be in fault. 18 La. 839; 9 An. 441; 28 An. 320; 30' An. 15; 31 An. 490; 32 An. 615; 33 An. 154; 34 An. 1086 ; 39 An. 796 ; 41 An. 795 ; 42 An. 990; 43 An. 804; 44 An. 280.
    3. The rule is well settled in this State, that where a person, in order to avoid being carried beyond his destination, jumps from a train while it is in motion, and sustains an injury, he can not recover. Damont vs. Carrollton R. R. Co., 9 An. 441: Walter vs. V., S. &P R. R Co , 41 An. 795; Olivier vs. u & N. R. R. Co., 43 An. 804. Also original opinion of this court in Fournet vs. Morgan R. R. Co , 2 Southern Reporter, 541.
    4. The court has the right to appoint medical experts and to fix their compensation. Such fee, or compensation, should be taxed as costs to be paid by the-party oast. O. P. 441, 442,462, 552; Acts of 1884, No. 19, page 25; 33 An. 1356.
   The opinion of the court was delivered by

McEnbry, J.

The plaintiff sued the defendant company for $5000' damages for personal injuries to his wife, alleged to have been received at Mitchell’s Mill, in Bossier parish, on July 4, 1892.

The petition alleges that the plaintiff “had alighted from the car, and Mrs. Odom, his said wife, was in the act of alighting therefrom; that when she had reached about the second or third step of defendant company’s ear, the said train, under the control and management of said company’s regular employés, gave a sudden and violent jerk and began to move off; that owing to said sudden jerk,. Emma L. Odom, one of your petitioners, with her infant child, whom she carried in her arms, were violently thrown from said car, her clothing was disarranged, her person exposed, and her body considerably bruised; that she received from said fall a hurt on her thigh which lasted for several days and gave her much pain; that in addition to this she received serious internal injuries from said fall, from the effects of which she has not fully recovered, and from, which she suffers and may suffer for an indefinite time; that the shock to her nervous system, resulting from the dangers to which her infant child and herself were exposed, was of such extent as to-render her unconscious for a few moments and to greatly impair her-health.”

The defendant’s answer is a general denial, and an averment of contributory negligence on the part of plaintiff.

The case was tried by a jury, and a verdict and judgment was rendered in favor of the plaintiff for $1000.

It is now well settled that contributory negligence on the part of' the plaintiff is a bar to a recovery, although the defendant be in fault. 18 L. 339; 9 An. 441; 28 An. 320; 30 An. 15; 31 An.' 490; 32' An. 615; 33 An. 154; 34 An. 1086; 39 An. 796; 41 An. 795; 42 An. 990; 43 An. 804; 44 An. 280.

And it is equally well established that when a passenger on a railroad train, in order to avoid being carried beyond his destination,, jumps from a moving train and sustains an injury, he can not recover. 9 An. 441; 41 An. 795; 43 An. 804.

It is therefore important to ascertain whether or not Mrs. Odom contributed to her own injury, and whether she voluntarily jumped from the train while in motion in order to avoid being taken beyond her destination.

It is alleged that she was on the steps of the car in the act of leaving the car, when it moved ahead in its regular course and she was-thrown from the car.

It is immaterial whether she jumped off or was thrown off if she was in the act of leaving the car when it had stopped, and the-train moved ahead when she was in the act of getting off.

Some of the witnesses place her on the platform of the car, and testify that she jumped or stepped from the car platform to the-small platform at Mitchell’s Mills, which is a flag station. Others place her on the steps, and say that as she was in the act of getting off she was thrown to the ground by the movement of the train. On. this part the evidence is conflicting and seemingly irreconcilable. We-are therefore disposed to apply the rule so often announced by us, that-on questions of fact, when the evidence is conflicting and the witnesses of credibility, and the testimony almost equally balanced, we will, not disturb the verdict of the jury. In this case this rule can be applied with propriety, for without calling to our aid extraneous circumstances and physical facts it would be the exercise of intuitive-tact and wisdom to unthread the mass of tangled testimony in the record. There is no evidence that Odom and his wife unnecessarily delayed their efforts to leave the train. They had to go some-•distance where they could conveniently get to the platform at the depot. The train had signaled for a stop, and when it slowed up they moved forward to get off.

This fact is established, and also the fact that Odom got off the train when it had stopped, and had placed his bundles and turned round •to assist his wife. Here the conflict of testimony begins, plaintiff’s witness placing Mrs. Odom on the steps of the car, and defendant’s witnesses on the platform of the car, from which, while the car was in motion, she stepped to the depot platform, two steps, and went beyond it to the ground.

Odom says as he turned to assist his wife from the train it moved ■off, separating him from her, and she was carried to the end of the platform, thrown from the steps against the side of the car and to the ground. We think his testimony is corroborated as to his wife •being on the step of the car when it moved off. Sentell, defendant’s witness places her ten feet beyond the north end of the platform on the ground when he saw her. All the witnesses place her north of the platform. This platform facing north and south, and the car being parallel with it, it is difficult to understand how she stepped to the platform and was thrown this distance to the north of it. Defendant’s witnesses were not, we think, in a position to see any movement ■of Mrs. Odom, and when they testify they saw her on the platform they may have spoken the truth and at the instant thereafter she may have descended to the step. The witness of defendant nearest to her, in immediate proximity to her, and on whose testimony defendant places great reliance, is confused in his testimony, and makes two opposite and distinct statements in the direct and cross-examination.

We are of the opinion that the jury were correct in finding the ■defendant corporation negligent in moving its train when Mrs. Odom was on the car step in the act of leaving the train. She was placed in a situation by the company where she had no time for deliberation and had to choose between two modes of escape, both of which were dangerous. Error in judgment on the part of plaintiff in trying to escape imminent danger brought about by defendant’s negligence does not constitute contributory negligence, even though the accident might not have happened had the act not been done. 37 An. 705.

She was on the steps of the car by defendant’s invitation to her to leave the train. In this situation, with an infant in her arms, the perilous alternative was presented to her, to remain there and run-the risk of being thrown from the train when it accelerated its-speed, or to step from the train before it increased its motion. It would have been dangerous for her to attempt to reach the platform of the car with the infant in her arms. Under these circumstances-we are inclined to the opinion that she chose the less dangerous mode of escape. The defendant corporation is responsible for the consequences of placing of Mrs. Odom in this situation.

The evidence fails to sustain the allegations in plaintiff’s petition as to the personal injury of his wife. The evidence is unsatisfactory,, and at the time of the injury there was no examination made by the family physician to ascertain the condition of Mrs. Odom, owing to-her modesty rather, we think, than from any desire to deceive. The examination was therefore superficial, and the family physician only visited her once. Medical experts were appointed by the court to make a personal examination of Mrs. Odom. No objection was-made to this unusual application for medical experts to examine the person of the plaintiff. We will not therefore comment upon it* Objection was made and a bill was reserved to taxing the expense of the expert examination as costs to the defendant. It will not be necessary to discuss this, as the defendant will have to pay the costs. The expert testimony, as it was not objected to by defendant, may be referred to. It shows that there is “no evidence of disease existing that could not reasonably be assigned to other causes.” ' One of these experts is the physician who first visited Mrs. Odom. Mrs* Odom was undoubtedly injured, however, to some extent.

The judgment appealed from will be amended, and the damages fixed at $500.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended by reducing the damages to the sum of $500, and in other respects it be affirmed, the plaintiff and appellee to pay costs of appeal.

On Application nor Rehearing.

Without granting a rehearing in this case, we will add to the decree that the plaintiff and appellee pay costs of appeal, although this is unnecessary, as the costs followed the judgment. The amendment to the judgment necessarily cast the cost of appeal on the appellee.

Rehearing refused.


text:
    No. 353.
    The State ex rel. Abe Kirsch vs. Judge of First District Court, Parish of Caddo.
    The Court of Appeals, in aid of its appellate jurisdiction, has the exclusive power to issue a writ of prohibition to the District Court, which is proceeding to try a case on the docket of the Court of Appeals, and of which its jurisdiction has not been divested.
    On the relator failing to get relief in that court it will be timely to invoke the supervisory jurisdiction of this court.
    ^PPLIOATIONfor writ of Prohibition.

      Land & Land for the Relator.

      Bell & Randolph for the Respondent.
   The opinion of the court was delivered by

McEnery, J.

This is an application for a writ of prohibition.

It is alleged in relator’s application that on an appeal to the Court •of Appeals from the First Judicial District Court a judgment was rendered against him overruling his exception to the jurisdiction of the District Court and remanding the case; that said court, after the rendering of said judgment to continue its term, was adjourned from day to day by one of the judges of said court, the other being absent, and that no application for a rehearing, to which he was entitled, was filed in said court, and that said judgment had not «become final, because three judicial days did not intervene between the date of the judgment and the final adjournment of the court; that the First Judicial District Court assumed jurisdiction of the case .and was proceeding to try the same, and that he had filed an exception to the jurisdiction of said court, as the case was still on the •docket of the Court of Appeals, as the District Court could have no jurisdiction of said case until the judgment overruling the exception and remanding the case became final.

Taking this statement as correot, it is evident that this court, at this stage of the proceedings, has no jurisdiction to grant the relief prayed for. The relator has not exhausted his remedy in the lower jurisdiction by an application to the Court of Appeals for a writ of prohibition. Art. 104 of the Constitution vests the judges of the Court of Appeals with jurisdiction to issue writs of mandamus, prohibition and certiorari in aid of their appellate jurisdiction. This. case falls under the provisions of this article, and the judges of the ■ Court of Appeals had the undoubted power exclusively to issue the writ in aid of their appellate jurisdiction. Failing to obtain relief from that court, it will then be timely to invoke the supervisory jurisdiction of this court, if the facts warrant it.

It is therefore ordered that the rule granted herein be discharged, and the relief prayed for be denied at the cost of plaintiff in interest — the relator.