author: Fenner, J. Fenner, J.

text:
    NO. 11,180.
    The State of Louisiana vs. D. S. Gaster.
    1. In Louisiana all crimes are statutory, and the determination and definition of * the acts which are punishable as crimes are purely legislative functions which can not be delegated to or exercised by the judiciary without violating Arts. 14 and 15 of the Constitution.
    2. Section 869 of the Revised Statutes, which denounces and punishes as a crime, any civil officer guilty of “ any misdemeanor in the execution of his office,” does not, on its face, define what acts shall constitute such misdemeanors, and unless there is some other law which defines them, it remits the definition thereof to judicial discretion, which is unconstitutional.
    3. The 33d section of the Act of 1805 authorized a reference to the common law of England for the definition of the particular crimes therein enumerated; but neither that nor any law of the State has authorized reference to that system in order to ascertain the definition of any other crime not therein enumerated.
    4. The omission in Sec. 976, of the Revised Statutes (which otherwise reproduces .the 33d section of 1805), of the words “ hereinbefore named ” was not intended to extend or alter the meaning thereof so as to embrace all crimes and misdemeanors, however obscure or obsolete, known to the common law of England. The omission of those words without embodying an equivalent restriction was ■only a careless oversight, which was fortunately made clear by the final Sec, ;3990, in. which the 33d section of the Act of 1805 was expressly reserved from repeal, showing, beyond controversy, the legislative intent to maintain the law just as it was established by that section and had thereafter remained.
    5. Held, therefore, that Sec. 869, Revised Statutes, which punishes “misdemean ors in office,” without defining it or referring to any other law defining it, imposes on the judiciary the legislative duty of declaring what acts constitute the crime denounced, and thus violates Arts. 14 and 15 of the Constitution.

      6. Whether logically or illogieally, the judicial exposition of the 33d section of the Act of 1805 is to the effect that the first clause of the section only adopted the common law definitions of the particular crimes named in the act; while the second clause, relating to forms of indictment, method of trial, rules of evidence and proceedings, has been held to apply to crimes and offences generally. Our original opinion has simply followed this jurisprudence on the first point and has not disturbed it on the second.
    7. The 33d section of the Act of 1805 was held not to be within the constitutional prohibition against the adoption of any foreign system or code of laws by reference, on the express grounds that this act was passed prior to the adoption of our constitutions, and that this provision should not be given a retrospective operation. If the contention of the State, that the Act of 1855 and Sec. 976, Revised Statutes, are new statutes extending the adoption of the common law beyond the 33d section and malting it applicable to all crimes, were well founded, very grave questions would arise as to their validity under the Constitution.
    8. No technical rules of precision in the definition of acts punished as crimes have been laid down. When the language used in the statute sufficiently and clearly indicates the legislative meaning and intent, these will be given liberal effect. Rut language of such wide and indefinite import as to leave absolutely uncertain what acts are within and what without the statutory prohibition can not operate as a valid criminal statute.
    APPEAL from the Criminal District Court for the Parish of Orleans. Moise, J.

      Lionel Adams, Assistant District Attorney, and M. J. Cunningham, Attorney General, for the State, Appellee.

      E. A. O’Sullivan for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

The information charges that on a certain Sunday one Emile Bauman kept his bar-room open and conducted his business in violation of the act of the General Assembly known as the Sunday law; “ and that one D. S. Gaster, late of the parish of Orleans, with force and arms, in the parish of Orleans aforesaid, and within the jurisdiction of the Criminal District Court for the parish of Orleans, being then and there a civil officer, to-wit, a member of the police force of the city of New Orleans, and required by his office and by law, with or without warrant, to arrest all persons guilty of violating any-law or ordinance for the suppression or punishment of crimes or offences, did then and there have personal knowledge, by actual view, of the commission by the said Emile Bauman of the said before described offence in manner and form as hereinbefore set out and alleged, but did then and there unlawfully neglect and refuse to arrest the said Emile Bauman, as he, the said D. S. Gaster, ought by virtue of his office, and as by law he was in duty bound, to have done; contrary to the form of the statute of the State of Louisiana in such case made and provided, and against the peace and dignity of the same.”

The prosecution is based on Sec. 869 of the Revised Statutes.

“ Sec. 869. If any judge, justice of the peace, sheriff or any other civil officer shall be guilty of any misdemeanor in the execution of either of their respective offices, he shall on conviction suffer fine or imprisonment, or both, at the discretion of the court.”

The defendant made a motion to quash the information on the following grounds:

“1. That he is not a civil officer as alleged in the said information herein filed.
“2. That, as charged, he is a member of the police force of the city of New Orleans, appointed under the law by the Police Board of said city, not holding any commission from the State Executive, and not elected by the people.
“3. That this prosecution is not based on any statute of the State of Louisiana.
“4. That if said information is based on See. 869 of the Revised Statutes, then and in that case, said statute is null and void and contrary to the Oonstitution of the State of Louisiana, in this, that the said statute neither specifies or defines any crime known to the laws of the State.
“That in no part of the statutes of Louisiana, or elsewhere, is misdemeanor defined; that though misdemeanor may be a crime, it simply designates a class of crimes, varying according to statute, and depending on the penalty inflicted.”

The motion to quash was overruled, to which defendant reserved his bill of exceptions.

The defendant, biaving waived trial by jury and elected to be tried by the court, was, on the 13th of January, 1893, tried in due form, the facts in the case having been admitted without proof. The court, considering the law and the evidence, returned a verdict of “guilty.”

Amongst the admissions of fact we find the following, in substance:

■ That in failing to arrest Bauman without a warrant defendant acted under orders of the mayor of New Orleans. That it was not the intention of defendant to violate the law, but that he was carrying out, as he thought lawfully, the orders of his superior officers.” That in accordance with previous instructions received he promptly reported Emile Bauman to the district attorney’s office as a violator of the Sunday law, with names of witnesses,, and that the district attorney entered a prosecution against said Bauman for the offence referred to, which is stdl pending undetermined before the court.

The most important question in the case — and it is one of transcendent importance — is whether the Sec. 869 of the Revised Statutes is a valid statute.

It would hardly be claimed that a statute denouncing a crime and imposing penalties therefor without, in any manner, defining the nature of the offence, or of the acts which constitute it, would be consistent with either the letter or the spirit of the Constitution. Article 8 of our Constitution requires that in all criminal prosecutions the accused shall enjoy the right to be informed of the nature and cause of the accusation.” It is but a self-evident extension of the same principle that, before being subjected to criminal penalties for his acts, the citizen should be clearly informed by the law that such acts are denounced by the law as crimes.

Moreover, Articles 14 and 15 of the Constitution divide the powers of government between three departments — executive, legislative and judicial, and provide thatno one of these departments shall exercise power properly belonging to one of the others.”

All crimes in Louisiana are statutory, and there can be no crime which is not defined and denounced by statute. The determination and definition of acts which are punishable as crimes are purely legislative functions, which can not be delegated to or exercised by the judiciary.

The statute denounces as a crime on the part of civil officers, “ any misdemeanor in the execution of their respective offices.” It does not, on its face, undertake to define, in any manner, what acts are misdemeanors in office, and unless there is some other law which furnishes such definition, there is no other source to which we may look for it except to the discretion of the judiciary, which, in each case brought before it, will be vested with determining whether or not the particular acts charged, ranging from the most trivial to the most serious derelictions, from the most malicious infractions of duty to the most innocent errors of judgment, shall or shall not be punished as crime. This would operate a delegation to the judiciary of powers purely legislative, in flagrant violation of the constitutional prohibition.

We are far from attributing to the learned counsel of the State any denial of these self-evident principles. He would be'promptto concede them. But his contention is that there is a law of the State which does define the term “misdemeanor in the execution of an office,” and the acts which constitute it, and he refers to the following section of the Revised Statutes:

“ Sec. 976. All crimes, offences and misdemeanors shall be taken, intended and construed according to and in conformity with the common law of England; and the forms of indictment (divested, however, of unnecessary prolixity), the method of trial, rules of evidence, and all other proceedings whatsoever, in the prosecution of crimes, offences and misdemeanors, changing what ought to be changed, shall be according to the common law, unless otherwise provided.”

And he contends that, as to this crime, the law refers us to the common law of England, where the acts constituting it are explicitly defined.

This section is the reproduction of the 33d section of the Act of 1805, with the simple omission of the words “ hereinbefore named ” after the words “Crimes, offences and misdemeanors.”

That act, which is the foundation of our penal system, fully defined as well as punishfid numerous offences, but in the case of many familiar crimes, such as murder, rape, arson, robbery, burglary, forgery and the like, it simply described them by name without further definition, and in this 33d section it supplied this deficiency by providing that the crimes, etc., “ hereinbefore named” shall be “ taken, intended and construed according to the common law of England,” meaning thereby to adopt the definition of the acts constituting those particular crimes which prevailed in the English law of that date.

It is a significant fact that by a subsequent act of the same year, supplementary to the above, the same provision was extended to “all other crimes, offences and misdemeanors.” See Sec. 3 of Act of July S', 1805.

But, evidently appreciating the consequences of such an extension, in the following year this latter section was repealed. See Act. of May 2, 1806.

This left the 33d section of the original act of 1805 alone in force,, and confined the legislative adoption of the common law definitions of crimes to the particular crimes therein enumerated. State vs. Smith, 30 An. 845.

When that great jurist, Edward Livingston, was appointed by the Legislature to prepare a criminal code for this State, in presenting the same to the General Assembly he accompanied it with an elaborate-report in which he reviewed the defects of the existing system, and expounded the philosophy of the reform proposed. No feature of the-old system was more severely criticised than the 33d section of the Act. of 1805, and while clearly showing that it applied only to the particular crimes designated in that act, he denounced it, even as thus confined, as wrong in principle and unjust in operation, because instead of advising the citizen plainly and.unequivocally of the nature of the particular acts denounced and • punished, it referred him for-their ascertainment to a complicated system of foreign law, with which he was unfamiliar, and whose provisions were to him a mystery.

Thus he says: “Theft, burglary, murder and other crimes are made punishable. But if we want to know what theft, murder or any other crime on that list is; if we wish to know what means we may use to prevent either of those crimes; how the offender is to be arrested, how confined, how bailed, how tried; what evidence can be admitted; what is required for conviction — for all these and for a, hundred other questions equally important, -we are referred to the Oommon Law of England; that is to say, what' one of its greatest, panegyrists styles ‘the unwritten or common law,’ consisting of‘general customs’ and of certain particular laws which, by custom, are adopted and used by certain particular courts’ — the whole resting, as we see,-on custom; and when we come to inquire how these customs, are to be known, the same author gives the answer, ‘by the judges,’' Who, he says, are the ‘depositaries of the laws, the living oracles, who must decide in all cases of doubt,’ ” etc. We need not quote-further from this fierce arraignment of this statute. Livingston’s. Code, p. 7 et seq.

Mr. Livingston’s code was not adopted, and the 33d section, as confined to the particular crimes therein enumerated, remained the law of the State, and, it must be said, has not produced the evil effects contemplated by its gloomy vaticinations.

But when it is claimed that the Sec. 976 of the Revised Statutes, by simply omitting the words “ hereinbefore named,” has extended the provisions of the 33d section so as to cover every crime or misdemeanor known to the common law of England, however obscure and even obsolete, and thus to authorize the Legislature to denounce any such crime by simply naming it, without definition of the acts constituting it, we encounter a contention of such gravity that it demands most serious consideration.

It would be difficult to believe that the compilers of our Revised Statutes, or the Legislature, in adopting them, ever contemplated so serious a change in our law. The insertion of Sec. 976 was, without doubt, intended as a mere reproduction of the 33d section of the act of 1805, and the omission of the words “ hereinbefore named,” without embodying any equivalent restriction, was a mere act of carelessness, without reflection on the serious consequences, now claimed as resulting therefrom. Fortunately the Revised Statutes themselves furnish such conclusive proof in support of this interpretation that we are relieved of all difficulty in applying it. This is found in the final Sec. 3990 of the Revised Statutes, as follows: “ That all laws or parts of laws contrary to or in conflict with the provisions of this act, and all laws or parts of laws on the same subject matter, except what is contained in the Revised Civil Code of Practice, be and the same are hereby repealed, except the thirty-third section of an act entitled 1 An act for the punishment of crimes and misdemeanors,’ approved May 4, 1805, etc.

This significant exception demonstrates so conclusively the solicitous purpose of the Legislature to maintain our law on this particular subject just as it was established by that 33d section that we "think it admits of no serious controversy.

We therefore conclude that, so far as definitious of crimes are concerned, the authority for reference to the English law conferred by the 33d section remains, as it has always been, confined to the particular crimes enumerated in the act of 1805. State vs. Smith, ■30 An. 846.

The crime of “misdemeanor in the execution of an office” is not, ■directly or indirectly, referred to in the act of 1805, and, therefore, so far as its definition is concerned, we do not find it in the statute, and are referred to no law' or body of laws where such definition may be found. Who, then, is to determine what particular acts constituted a criminal “misdemeanor in the execution of an office?” We can discover no authority to which we may look except to the judges, who are left at liberty to select such guides as they choose, and decide according to their discretion.

It chances that this particular statute attracted the special attention of Mr. Livingston, and his remarks upon it elucidate the position so aptly that we reproduce them:

“By the act of June 7, 1806, any judge, justice of the peace, sheriff or other civil officer who shall be guilty of . any misdemeanor in the execution of their respective offices, shall suffer fine and imprisonment or both, etc. Now, without repeating the argument formerly used, that the reference to the law of England does not extend to offences under this law, let us ask, what is a misdemeanor? Christian, in his notes to Blackstone, says: ‘ In the English law, misdemeanor is generally used in contradistinction to felony, and misdemeanors comprehend all indictable offences which do not amount to felony. ’ But, by our law, there can be no indictable offence but those created by statute; but every statute that has created an offence with us has also prescribed the punishment. What, therefore, has this law to operate upon? Nothing, if it relate orly to offences that were indictable before; but if it mean something else, and is intended to create a new offence, that offence ought to have been defined, or else the court have not only the judicial task of apportioning within the prescribed limits what shall be the punishment, but also the legislative duty of declaring what acts shall be misdemeanors. We have not even the resource of a reference to the English law, for the statute which creates the offence was passed since the year 1805, and contains no reference toLthat law; and if we had, the matter would not much be mended, as we have seen in former parts of this report. When a word is use in legislation that is neither technical nor explained in the law, it must, of course, be understood according to the signification it has in common parlance; but there can be no technical meaning affixed to this word, because there is no body of laws to which we are or can be referred for its explanation. We have no common law, and the statute refers to none, therefore it must have the same meaning here that it would in common conversation. What is that? Both etymology and usage give the answer; any misconduct whatever. A misdemeanor in office, then, is any demeanor that is-contrary to official duty. Our present law, therefore, is infinitely more strict than that which is offered as a substitute; without defining any particular misconduct by a sweeping clause, it makes the minutest inattention punishable by fine, imprisonment, loss of office,, and incapacity ever to hold one.”

We are bound to hold that the statute which punishes “ misdemeanor in office ” without defining it, and imposes on judges, as Mr. Livingston says, “not only the judicial task of apportioning what shall be the punishment, but also the legislative duty of declaring what acts shall be misdemeanors,” violates the Constitution of the-State, and can, therefore, furnish no foundation for this prosecution.

The statute seems always to have been treated as a dead letter» for, so far as we are aware, no prosecution under it has ever before been instituted, and but for the erroneous supposition that Sec. 976 of the Revised Statutes had vitalized it by authorizing a reference to the common law for its definition, it is probable the learned district attorney would not have resurrected it.

The above question was so overshadowed in importance and so completely decides the case that we need not determine other doubtful questions which would have requiredjdecision if a different conclusion had been reached. But we may suggest at least two other serious difficulties which the State would have encountered, viz.:

1. Whether the term “misdemeanor in the execution of an office” describes any particular crime known to the common law of England. That law denounced acts of malfeasance and nonfeasance in office as indictable offences and assigned them to the class of crimes known as misdemeanors, though, perhaps, some of such acts may, for aught we know, have been felonies. But the crime was the malfeasance or nonfeasance, or misconduct, and the term misdemeanor only designated the class of crimes to which they belonged.

2. Whether, under the admissions in the case, the act charged, when done by a subordinate in obedience to the orders of his superior officer, would have been an indictable offence at common law, and whether the principle that the command of a superior is no defence for committing a crime, would apply to mere acts of official administration such as are here involved.

But it is unnecessary to enter on these questions.

It is, therefore, adjudged and decreed that the judgment and sentence appealed from be annulled and reversed; that the motion to quash the information filed herein be sustained and the defendant discharged.

On Application nob Rehearing.

Fenner, J.

The suggestion that the original opinion herein rules, in any manner, as to the effect to be given to the second clause of See. 976 of the' Revised Statutes and of the 33d section of the Act of 1805 relating to “ the forms of indictment, the method of trial, the rules of evidence, and other proceedings,” etc., in criminal prosecutions, and declaring that they “shall be according to the common law, unless otherwise provided,” is entirely unfounded.

It must be conceded that the jurisprudence of the State has always extended the provisions of this second clause to other crimes besides those named in the Act of 1805, and however illogical it may be (in view of the word “said” in the 33d section), we have no disposition to change a rule so deeply interwoven into our criminal system. But with reference to the first clause of the 33d section, the jurisprudence is precisely opposite. In the case of State vs. Smith, 30 An. 846, this court distinctly held as follows: “ The general criminal statute enacted in 1805 did not adopt, as a portion of our law, all the crimes and misdemeanors known to the common law at that date. It merely adopted the common law definitions of those offences declared to be crimes by that act, and incorporated, as a part of our system, the common law mode of prosecution as to forms of indictment, method of trial, rules of evidence and all other common law proceedings in criminal cases.”

The same ruling was repeated in State vs. Depass, 31 An. 487. We take the foregoing to be a correct statement of the judicial exposition of the meaning and effect of the 33d section of the Act of 1805, and we have simply adhered to it.

Our conviction remains unaltered and very decided that neither the act of Í805, nor Sec. 976 of the Revised Statutes made or intended any change in the law of the State as thus established under the 33d section of the act of 1805, as to which it does seem to us that the care taken in both acts expressly to reserve that section from repeal removes all possible doubt. Indeed, were it otherwise, and should it be held that these later statutes were designed to go beyound the act of 1805 and to extend the adoption of the common law system as applicable to all criminal offences, grave doubts would arise as to their constitutionality under Art. 31 of our present Oonstitution: “The General Assembly shall never adopt any system or code of laws by general reference to such system or code of laws, but in all cases shall recite at length the several provisions of the laws it mas7 enact.”

This provision has been embodied in all our Constitutions.

The 33d section of the Act of 1805 was held to be exempt from the operation of this prohibition only because it was adopted prior to the first Oonstitution of 1812, and because this court declined to give a retrospective operation to this constitutional provision. State vs. Lacombe, 12 An. 195.

This accounts for the wise solicitude of the Legislature, in the later statutes referred to, to keep the 33d section in force and to preserve it from repeal, and warns us against the attempt now made to convert these later acts into new and different statutes which would have no claim to exemption from submission to the constitutional test.

In conclusion, we may say that we have not laid down any technical rules of precision in the definition of the acts constituting penal offences. When the language used in criminal statutes has any clear and definite meaning indicating the particular kind of acts which are made punishable, we should give liberal effect to the legislative intent. But when, as in this case, the language employed is of such vague and indefinite import that it might embrace many acts which could not possibly have any criminal character, and leaves the discrimination between these and others to arbitrary judicial discretion, we are bound to hold the statute to be violative of constitutional rules referred to in our original opinion.

Rehearing refused.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 11,234.
    The State of Louisiana vs. Benjamin Fricker.
    1. The English statutes on the subject, followed generally by the statutes of the American States, do not denounce embezzlement as a distinct and independent crime eo nomine, but make it a statutory larceny, and it is, therefore, well held that an indictment or information under such statutes must allege the ownership of the thing embezzled and contain the other ayerments essential in larceny.

      2. Tile Louisiana statute differs in this respect, and contains no language referring embezzlement to the class of larcenies, but denounces it as a substantive and independent crime eo nomine, and there is no reason for applying the foreign rule requiring the averments essential in larceny.
    3. The statute describes the acts constituting the crime with such precision and certainty as fully to inform the defendant of tile nature of the charge, and an information following the words of the statute is sufficient.
    APPEAL from fehe Criminal District Court, Parish of Orleans. Moise, J.

      M. J. Gunningham, Attorney General, and Lionel Adams, Assistant District Attorney, for the State, Appellee.

      A. D. Henriques for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

The defendant was tried and convicted, on an information, of the crime of embezzlement under the following statute, omitting words not pertinent:

“Any agent * * * who shall wrongfully use, dispose of, conceal or otherwise embezzle any money, * * * which he shall have received * * * for his principal, * * * or by virtue of his * * * trust or employment, or which shall have been entrusted to his care, keeping or possession by another, or by his principal, * * * upon conviction thereof, or of having been an accessory thereto, before or after the fact, shall suffer imprisonment at hard labor not exceeding seven years.” Act 31 of 1888, amending Sec. 905, Revised Statutes.

The information charged the offence as follows:

That the defendant, “ being then agent to Louis Dumser, did by virtue of such employment, then and whilst he was so employed as aforesaid, receive and take into his possession certain money, to-wit: the sum of $3.60, for and in the name and on the account of the said Louis Dumser, his principal as aforesaid, and did then fraudulently and feloniously wrongfully use, dispose of, conceal and otherwise embezzle the said money; contrary to the form of the statute of the State of Louisiana in such ease made and provided, and against the pea.ee and dignity of the same.”

After conviction the defendant filed a motion in [arrest of judgment on the following grounds:

“ That the information herein is deficient in matters of substance, ■and does not allege the ownership of the money claimed to have beeu ■embezzled.
“That the information is fatally defective in not alleging the ownership of the money claimed to have been embezzled with the ;same accuracy and after the same rules as in an information for larceny.”

The motion in arrest was overruled, the defendant was sentenced ■and prosecutes the present appeal, which presents no other question than this motion.

His learned counsel quotes numerous and incontestable authorities from courts and text writers, holding that, under the English and American statutes generally, it is essential to the validity of ■ an in•dictment or information for embezzlement that it should allege the •ownership of the money or thing embezzled, with the same certainty .and precision as is required in an indictment for larceny.

The English statutes on this subject, 39 George III, 7 and 8 George IV, and 24 and 25 Victoria, all declare, after defining the acts constituting embezzlement, that the person guilty of such acts “ shall be deemed to have feloniously stolen the same from his master or employer,” etc.; and we have the authority of Mr. Bishop for saying that “this is the more common form of the enactment, not only in England, but in this country generally.” 2 Bish. Cr. L., Sec. 327.

This special clause of the statutes has been the basis of all the ■adjudications requiring indictments based thereon to contain the material averments necessary in larceny.

In the leading case of Rex vs. McGregor, reported in 2 Leach’s ■Crown Oases, p. 932, -we find reproduced the arguments of counsel, which turned wholly on the question whether the statute constituted the facts making up embezzlement into a distinct felony eo nomine, or only refers those facts to a class of felonies, the properties of which are known to the common law as larceny. The judges, speaking through Mr. Baron Thompson, gave the following opinion:

“The objection in this case, on the part of the prisoner, was that ■as the statute 39 Geo. Ill c. 85 has not made the species of embezzlement therein mentioned eo nomine a distinct and substantive felony, but only had enacted that the property received into the possession of the servant, and feloniously converted by him, shall be ■considered as having been by such conversion feloniously taken irom the possession of the master, the offence still continues a common law larceny, and consequently, that an indictment framed upon this statute must contain all the requisites of an indictment for larceny at common law. And, as in the present indictment, the money alleged to have been stolen is not expressly averred to have been the money of any person whatever, a majority of the judges are of opinion that the objection is well founded, and consequently that the judgment in this case must be arrested.”

The inference is irresistible that, but for the clause referred to, the conclusion would have been different, and an indictment setting forth the facts in the language of the statute would have been sufficient.

This is rendered more clear by the fact that one section of the statute 7 and 8 Geo. IV, Sec. 49, in defining embezzlement by bankers, omits this clause, and enacts that if any money, etc., shall be entrusted to any banker, etc., with any direction in writing to apply said money or any part thereof, or etc., for any purpose specified in such direction, and he shall, in violation of good faith, and contrary to the purpose so specified, in anywise convert to his own use or benefit such money, etc., every such offender shall be guilty of a misdemeanor,” etc. Here was a case in which the facts charged made up a substantial offence and were not declared to be a larceny; and when we refer to the form of indictment under this section prescribed by Mr. Archbold, we find it contains no allegation of ownership of the money converted and no other averments appropriate to larceny. 2 Arch. Or. Pr. and Pl. (7th Ed.), p. 584; 2 Bish. Crim. Proc., Secs. 338, 339.

The rule formulated in Rex vs. McGregor has been followed ever since by English and American courts as applied [to statutes which •characterize the acts of embezzlement asa“ felonous stealing,” but ■even as thus applied, it has not escaped criticism.

Mr. Bishop denounces it as a blunder, unsound in reason, though he concedes that it is settled, and must be followed in applying similar statutes. 2 Bish. Cr. Proc., Secs. 318, 319, 320.

But he warns the pleader than decisions on the law applicable to •embezzlement are not to be relied on without first seeing whether the statute on which it is rendered is, in its terms, the same with the •one of his own State.” Sec. 326.

Referring now to our own statute, we discover that it contains no words equivalent or similar to those of the English and American statutes. The offence therein defined is not made, in any sense, a mere statutory larceny, but is denounced as a substantive and independent crime.

None of the reasons on which the authorities above referred to rest have the slightest application.

This court has already defined the crime of embezzlement as constituted by our statute, and we have not held it to be a “ statutory larceny ” or embodied in it any of the elements óf larceny. On the contrary, we said: “Embezzlement means to appropriate to one’s own use property or money entrusted to him by his employer.” We further said of the information maintained in that case, “ the information follows the statute, employing its identical words; ” and on reference to the information maintained on this ground, we find it precisely similar to the one now before us, containing no allegation of ownership and no other averment appropriate to larceny. State vs. Wolff, 34 An. 1153.

We consider this a perfect precedent for sustaining the information in the present ease.

But it is claimed that we have held differently in the later case of State vs. Roubles, 43 An. 200. In that case a reference to the decision shows that we were dealing with an information which lacked in several clear statutory requirements. It did not set forth any fiduciary relation in which the defendant was acting, and as we said in the opinion, “it is njt alleged to whom the draft belonged, nor for whose account is was collected.” Nothing in the opinion indicates that if it had contained thej latter ^essential averment, the information on that point would not have been maintained. Loose expressions wrenched from the context can not be given that effect.

The instant information is complete in its compliance with every statutory requirement. It follows, the words of the statute, and those words describe the acts constituting the offence with such pre - cisión and certainty as to fully inform the defendant as to the nature of the charge against which he is to prepare his defence and to furnish him a complete plea of autrefois acquit or convict in bar of another indictment.

This is sufficient under all authorities. 5 An. 340; 6 An. 179; Id. 227; 7 An. 47; 13 An. 243; 37 An. 215; Id. 219; 38 An. 202; Id. 964; 2 Gray, 356; 119 Mass. 300; Wharb. Cr. P. and P., Sec. 158; State vs. Boasso, 38 An. 202; 13 An. 243; 8 Blackf. 212; 2 Ia. 162; 13 Miss. 13; 12 Miss. 268; 5 Blackf. 548; 3 Strobh. 269; 6 Miss. 147; 2 Ala. 26; 1 Nott Me. 91; 3 Penn. 142; 23 McCown 52; 16 Miss. 448; 20 Pick. 356; 3 Brad. 596; 6 Gray 664; 3 Biackf. 307; 1 Bayley 144; 1 Bish. Cr. Proc., Sec. 611; Whart. Cr. P. & P., Sec. 166; Starkie C. P. 73; 1 Bish. Cr. Proc., Sec. 325; 92 U. S. 542; 9 An. 106; Id. 210; 11 An. 648; 25 An. 387; 27 An. 360; 38 An. 144; Id. 202.

The judge a quo did not err in overruling the motion in arrest.

Judgment affirmed.


author: McEnery, J.

text:
    No. 11,255.
    The State of Louisiana vs. Randell Anderson and Allen Blackstone.
    An indictment which, correctly contains the defendant’s name, but on the endorsement there is a variance, the endorsement may be corrected at any time to conform to the description in the body of the indictment.
    No advantage can be taken of a defective endorsement corrected and amended with the consent of defendant in open'court, aided and assisted by his counsel.
    There are exceptions to the rule that no evidence is admissible of distinct offences committed by the defendant than that charged in the indictment, when it is material to show the intent with which the act charged was done.
    The Supreme Court will not set aside a verdict on the ground that the attorney for the prosecution made statements to the jury not warranted by the evidence.
    In such a case it is the duty of the trial judge to confine the attorney to within proper limits. But this is a matter relating to the discipline of the inferior court, with which this court will not interfere.
    It is not necessary in a criminal case when the jury returns a verdict in writing, for it to be written in ink.
    A verdict which finds the prisoner at the bar guilty as charged is responsive to the indictment. It is not necessary that each defendant should be named.
    APPEAL from the Second District Court, Parish of Webster. Watkins, J.

      M. J. Cunningham, Attorney General, for the State, Appellee.

      L. K. Watkins for the Defendants and Appellants.
   The opinion of the court was delivered by

McEnery, J.

The defendants were’indicted for murder, tried and sentenced, the jury returning a verdict of guilty without capital punishment.

The defendant Blackstone in the body of the indictment was described as Allen Blackstone. The indictment returned and filed in court was endorsed Randell Anderson and Allen Blackshire.

The title of the case was docketed as endorsed, and the accused were arraigned and the defendant Blackstone pleaded not guilty. It was then immaterial whether the case was prosecuted as docketed, as the defendant had pleaded to the indictment. One of the objects of the arraignments is to identify the defendant, and he appeared and answered and thus identified himself as the person accused in the body of the indictment. But this clerical error was corrected. It appears from the judge’s statement that the defendant Blackstone was also called Blackshire, and on being questioned he said his name was Blackstone.

On this statement made by him the name was changed to Blackstone, in open court, with the consent of the defendant and his counsel. The district attorney stated that he would prepare a written motion to change the endorsement so as to read Blackstone, if the defendant required a written motion, but if he did not require it he would make the change in the record, whereupon, by the consent of defendant and his counsel he changed the endorsement. Conceding that there was error in the endorsement, his consent cured the defect and is a sufficient waiver of a formal written notice.

The State offered a witness to prove the details of a difficulty between one of the accused and deceased on the day before the homicide. This witness’ testimony was objected to by defendants on the ground that the “ details of the transaction on Sunday could not be received in evidence, as it was a separate and distinct offence and no part of the present transaction, and not a part of the res peste.”

The objection was overruled, the trial judge assigning as reasons therefor “ that it was sought to be proved by the State that Randell Anderson and Jim Watson, the deceased, had a difficulty on Sunday, the day before Randell Anderson killed Jim Watson, in which difficulty Randell Anderson threatened Jim Watson, The details were allowed to show the threats and feeling between the parties.”

There are exceptions to the rule that no evidence is admissible of other felonies or distinct offences committed by the defendant than that charged in the indictment, one of which is that when it is material to show the intent with which the act charged was done, evidence of the distinct offence may be received in evidence.

In the instant case the details of the difficulty were admitted to show the intent of the defendant. Threats against the deceased are always admissible to show malice. Whar. Homicides, Secs. 701, 702 ; State vs. Patza, 3 An. 512; State vs. Rohfrischt, 12 An. 382; State vs. Mulholland, 16 An. 377; State vs. Vines, 34 An. 181; State vs. Deschamps, 42 An. 568.

The trial judge, in applying the above principle to the facts incorporated in bill No. 2, we think was correct in his ruling.

In bill No. 2 it was shown that a witness was put on the stand in behalf of the State, and was asked by the district attorney “to tell what was said in a conversation by the defendant Randell Anderson, about the hog of John Snell, or the taking of John Snell’s hog.” This question was objected to by the defendants for reasons assigned in bill No. 1, and for the additional reason that the offence had no connection with the crime under investigation, and that it}was only admissible to prove a threat against deceased.

The trial judge permitted the evidence to go to the jury, with the understanding that the district attorney should not ask the witness anything about the hog, unless he eouid.proveathreat coupled with it. This ruling seems to have been Satisfactory to'defendants. The district attorney repeated the identical question, which was again objected to by defendants. The trial judge permitted the question to be answered subject to the ruling" of the court. The witness answered that he had not heard the accused say anything at the time about the hog, but the deceased had stated that the defendants had killed John Snell’s hog. The defendants were not present at this conversation. , . .

In his reason for overruling the motion the trial judge says, the effort on the part of the prosecution was to show that the deceased had accused the defendants of hog stealing, to show a motive for the killing, and although the defendants were not present this conversation had been communicated to them. So far as the evidence tended to show the intent, on the part of the defendant Anderson, the ruling was correct and in accord with the cases above recited, as authority for his reasons in admitting the testimony to which defendants objected in bill No. 1. But in the argument of the case, the attorney employed to assist the district attorney stated to the jury in the closing argument that the defendant Anderson had murdered the deceased because he was a witness against him for stealing John Snell’s hog. The counsel for defendants called the attention of the court to the statement,'hut it was allowed to go to the jury, the trial judge stating in his reason appended to the bill that the statement was based on the facts as stated in bill No. 2.

- Reference to bill No. 2 shows that the statment made by the assistant prosecutor is not borne out by the facts stated in said bill. It was the duty of the trial judge to have limited the statement, and to have warned the jury against its influence.

This is a matter, however, which is under the control of the trial judge, and comes under the discipline of his court; we have repeatedly stated that in all matters which relate to the discipline and order of the inferior tribunals, we will not attempt to control them in its exercise.

The jury was the judge of the facts in the case, and it was their province to determine what facts had been proved on the trial. The indiscreet statements of attorneys are not grounds for granting a new trial. Their assertions may not be of the facts, but the jury are not bound to receive them as a true statement of the case.

The defendants say in their motion for a new trial that the threats made by Randell Anderson, if true, would not have resulted in his conviction, unless coupled with the testimony in relation to the killing of the hog of John Snell by Allen Blackstone; and that Allen Blackstone would not have been convicted on the declaration made by himself and the evidence in the case against him, except for the prejudicial declarations and threats of Randell Anderson, in which he was no party, and did not concur and assent. All this may be very true, but the facts of the ease were exclusively with the jury, and they have said that they were sufficient. We can not judge of the sufficiency of the testimony.

This statement will apply to the other reasons urged in the motion for a new trial.

We will, however, state that in the reasons for the denial of a new trial the district judge asserts the fact to be that both the defendants were present aiding and abetting at the homicide; that the homicide was the result of the charge of hog stealing made by deceased against defendant Allen Blackstone, and that Anderson intervened in this difficulty, and that both defendants were present when Anderson, a short time before the homicide, threatened the life of deceased, and that a conspiracy was sufficiently shown by the circumstances of the case, to kill the deceased by defendants.

The jury returned the following verdict: ‘‘We the jury find the prisoners at-the bar guilty, as charged, without capital punishment.” It was written in pencil.

In the motion in arrest of judgment, the verdict is objected to because it was “ written in pencil and without giving the style of the case, and without designating the defendants by .name, or otherwise, and without naming them severally at all, but simply styling them ‘prisoners.’ ”

There is no law requiring a verdict in a. criminal case to be written in ink. The accused were the only prisoners on trial before that jury and no other persons could have been intended than the “ prisoners at the bar.”

Judgment affirmed.


author: MoEnery, J.

text:
    No. 11,246.
    The State of Louisiana vs. Pierrault Littell et als.
    Under the laws of Louisiana, all parties present aiding and abetting at the com mission of a felony are principals therein.
    An indictment, in a separate count which charges'that certain persons were present aiding and abetting another in the commission of a felony, charges them as principals therein.
    APPEAL from the Eleventh District-Court, Parish of St. Landry. Perrault, J.

      M. J. Cunningham, Attorney General, for the State, Appellee.

      Bstilette & Dupré and E. P. Veazie for Defendant and Appellant.
   -The opinion of the court was delivered by

MoEnery, J.

One of the defendants, Jack Hardy, was indicted under Sec. 791, Revised Statutes, and whs tried and convicted and sentenced to one year’s imprisonment at hard labor. He filed a motion in arrest of judgment, and complains that he has been wrongfully indicted in being charged as an aider g,nd abettor instead of as principal; that the statute under which he was indicted is silent as to aiders and abettors; that the language of the statute makes the offence personal, and excludes the idea of accessorial guilt.

The motion was overruled and the defendant appealed.

The indictment is as follows:

“State of Louisiana, \
“Parish of St. Landry./
“ In the name and by the authority of the State of Louisiana, the-grand jurors of the State of Louisiana, duly empanneled, sworn and: charged to inquire within and for the body of the parish of St. Landry, State aforesaid, upon oath do present:
“That at the parish'of St. Landry on the 31st day of October, A.. D. 1892, one Pierrault Little, feloniously, wilfully and of his malice-aforethought, did shoot one Ben Wilson and one Mark Bates, with a dangerous weapon, to-wit, a pistol, with the intent then and there,, them, the said Mark Bates and Ben Wilson, feloniously, wilfully and of his malice aforethought, to kill and murder. And the grand jurors-aforesaid, on their oath aforesaid, do further present that Jack Hardy,. Bastían Joseph, Man Fischer and Alcide Lewis, on the day and year-aforesaid, at the parish aforesaid, feloniously were present aiding, abetting and assisting the said Pierrault Little the felony aforesaid to do and commit, contrary to the form of the statute of the State of Louisiana in such eases made and provided, in contempt of the authority of said State, and against the peace and dignity of the same.
“ E. B. Dubuisson,
“District Attorney Eleventh Judicial District of Louisiana.'1'1

Under the laws of this State all parties present aiding or abetting-in the commission of a felony are principals therein. State vs. Prudhomme, 25 An. 523; State vs. Blackman, 35 An. 483.

The defendant was charged in the indictment as principal, as it is-averred therein that he was present, aiding and abettiogin the commission of the offence.

Defendant relies upon State vs. Hendry, 10 An. 207. This ease-was overruled or greatly modified in the case of State vs. H. B. Ellis, 12 An. 390. In the latter case the court said:

“But two of the defendants, Derby and Edrington, contend that they should be discharged because they are accused as aiders and abettors to a crime (inflicting a wound less than mayhem) which does not admit of accessories, and they rely upon the case of State vs. Hendry, 10 An. 207. But these parties are indicted as principals-in the same count with other defendants, so that the case of State vs. Hendry i3 not altogether in point.
Moreover, on reviewing that ease, we are not satisfied with its doctrine in the full extent to which it seems to have been carried. A person present aiding and abetting the commission of an offence is a principal, and may be punished as sach.”

Sec. 11, Acts of 1855, page 149.

The indictment against the defendant is in the form of an indictment against a principal in the second degree, and we are of opinion that it was eminently proper that it should have been so framed. Principals in the first degree and those in the second are under the common law equally guilty, and in practice the distinction is immaterial, and one indicted as principal in the first degree, on proof that he was present aiding and abetting another in committingthe offence, will support the indictment, and if he be indicted as principal in the second degree, proof that he was not only present, but committed the offence with his own hand, will support the indictment.’

When an offence is punishable by statute which makes no mention of principals in the second degree, such principals are within the meaning of the statute as much as- the parties who actually commit the offence. Archbold Cr. Pr. and PL, Yol. 1, pp. 66, 67.

Mr. Archbold concludes the section partially quoted above as follows:

“ But although a principal in the second degree may be convicted and punished upon an indictment charging-him as having committed the offence, yet, as a grand jury, ignorant of this rule of law, may by mistake imagine in such a case that the evidence does not support the indictment, and ignore the bill, it may be thought convenient in some cases to indict the aider and abettor in felony, as such. The following may be the form of an indictment against a principal in.the second degree.” And he gives the form, after stating the offence of the principal in the first degree. '

This form was followed in the indictment" in the case at bar.

As all the'defendants were principals, whether present aiding and. abetting, or personally committed the offence, the indictment was framed so as to meet the exigencies of the case. They were all equally guilty and all were principals and.- subjected to the same punishment.

Charging them as aiders and abettors was indicting them in the same indictment, although there are two counts, as principals.

Judgment affirmed.


author: McEnbry, J.

text:
    No. 11,122.
    The State of Louisiana vs. Jean Marie Deffes.
    Same as in State ys. Dubarry, 45 An-

      A PPEAL from the Second Recorder’s Court, City of New Orleans, il DelaBretonne, J.

      Thos. B. Bozier,- Assistant City Attorney, for Plaintiff and Appellee.
    P. L. Fowrohy for Defendant and Appellant.
   The opinion of the court was delivered by

McEnbry, J.

The defendant was convicted before the Recorder’s Court; of the city of New Orleans for violating Ordinance No. 6600 relative to the establishment of private markets in the city of New Orleans. The defendant appealed.

His defence is that the ordinance contravenes the 14th amendment to the Constitution of the United States; that it violates Act 116 of 1888, and the Constitution of the State of Louisiana, as its terms empower the City Council of New Orleans to prohibit private markets in the populous part of the city of New Orleans, and creates a monopoly; that it compels the defendant to establish his private market in a building flagged, sixteen feet high and three and one-half feet from any dwelling, and is therefore unreasonable, oppressive and ultra vires.

The facts in this case and the defence urged are identical with those in the case of State vs. Dubarry, reported in 11 Southern Reporter, p. 718, and 45 An., p. —.

As the Ordinance 6600 was in that case declared to be null and void, the judgment appealed from will be avoided and reversed.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided, annulled and reversed, and the defendant be discharged at the cost of the city.


author: Breaux, J.

text:
    No. 11,255.
    The State of Louisiana v. Watkins Stuart.
    In * judicial district in whieli there are three parishes, three weeks should intervene between the opening days of the court’s sessions.
    No: i - c omp 1 i an c e with the law' in this respect, in so far as relates to another parish Df the district than that in which the defendant was indicted, is not an irregularity of which he can avail himself.
    There was no irregularity in the terms of the court in the parish in which he was * tried and condemned.
    APPEAL from the Sixth District Court, Parish of Richland. J.

      ?,I. J. Cunningham, Attorney General, for the State, Appellee.

      Robert Whetstone for Defendant and Appellant.
   The opinion of the court was delivered bj

Breaux, J.

The defendant, indicted for rape on 15th February, 1893, was convicted and sentenced to serve at hard labor during his natural life.

He moved the court to quash the indictment, on the ground that at> the time it was returned there was no legal term of court, for the order of the court fixing the terms of the District Courts was illegal null and void.

The following is copied from the. order assailed by the motion to quash:

‘For the Parish oe Franklin.
“Criminal Term — First Monday of January and August.
“Civil Term — First Monday of April and October.”
“For the Parish oe West Carroll.
“Criminal Term — Third Monday of January and August.
“Civil Term — Third Monday of April and October.”
“For the Parish oe Richland.
“Criminal Term — Second Monday of February and September.
“Civil Term — Second Monday of May and November.”

Act 22 of 1892 provides that the district judges shall, by order in open court or chambers, fix the terms of the court.

Act 78, of the same session, orders that in each district composed of three or more parishes the judge shall fix at least four terms, beginning on days at least three weeks apart.

The above order shows that in the parish of Franklin the court opens and begins a session on the first Monday of January.

In the parish of West Carroll on the third Monday of that month, and that only two weeks intervene between these two terms.

In the parish of Richland the order fixing the terms is not subject to the same objection.

The second Monday of February, under the order, is fixed as the first day of the term.

No term of court in the district is fixed to begin within three weeks preceding that day. The third Monday of January is the first day of the preceding term in West Carroll.

The non-compliance with the letter of the law in fixing the terms of court in other parishes of the district did not affect the terms as ordered in the parish of Richland.

The order may be legal in this parish, though not in strict conformity with law in one of the other parishes. If, for instance, the judge were inadvertently to set down a dies non as the first day of a term in one of the parishes, it would not offer the least ground of objection in the other parishes of the district.

The district judge — it is provided — shall fix the terms of the court in such a manner that no term shall conflict in any parish with any of the terms of the Supreme Court or Circuit Court.

If a judge were to fix the terms of court in one of the parishes of the district purposly to conflict with these courts the irregularity would not extend to the other parishes of the district.

There are practically three orders contained in one general order fixing the terms.

It is entirely regular in so far as relates to the terms in Richland parish.

The irregularity, if any there is, in the other parishes is confined to their courts.

The determination of this question involves all the issues presented.

The teim having been regularly fixed in Richland parish, the indictment was not a nullity nor any part of the other proceedings assailed.

We have given careful consideration to the point raised, upon which the defendant rested his last hope of relief before the courts.

By no rule of interpretation can the conclusion be reached that the order as issued, as it applies to the courts for the parish of Richland, vitiates verdict and sentence.

Judgment affirmed.


author: Bkeaux. J.

text:
    No. 11,248.
    The State of Louisiana vs. George Porter.
    The appointment of triors is not ajmatter of right.
    The refusal of a motion to appoint triors does not vitiate the verdict of a jury.
    There are eases, under an exception, settled in jurisprudence, in which evidence is admissible of another offence than that charged, to prove the intent of the defendant.
    APPEAL from the Eleventh District Court, Parish of St. Landry. J.

      M. J. Cunningham, Attorney General, for the State, Appellee.

      John N. Ogden for Defendant and Appellant.
   The opinion of the court was delivered by

Bkeaux. J.

The defendant was charged, tried, convicted and sentenced.

He was indicted under Sec. 792, R. S., for “ assaulting another by wilfully shooting at him.”

Two errors are alleged:

The first, that the court erred in overruling his motion to appoint triors.

The bill of exceptions to the court’s ruling recites that the accused filed a motion for the appointment of triors to “ inquire into and ascertain the qualification of the jurors who were to pass upon his case.”

The second, that the court erred in permitting the prosecuting officer to propound the question to the prosecuting witness: whether the accused had made an assault upon him with a knife just previous to the shootings.

The question was answered in the affirmative, it is alleged.

■The judge states, in the bill of exceptions to his ruling admitting the testimony, that it was part of a continuous act; that the evidence showed that the assault made by the accused on the prosecutor with the knife immediately preceded the assault made by him on the prosecutor, by wilfully shooting at him.

That he admitted the evidence to show malice toward the prosecutor.

The first question relates to the court’s refusal to appoint triors.

As a preliminary to a discussion of the subject, it is in point to state that a principal cause of challenge is grounded upon facts producing “such manifest presumption of partiality that, being conceded or proven to be true, the challenge must be allowed, while challenge to the favor is grounded upon facts giving rise rather to a suspicion of partiality.”

“Again the challenger must state why the juror did not stand indifferent ; he must state some facts or circumstances which, if true, will show either that the juror is positively and legally disqualified, or create a probability or suspicion that he is not or may not be impartial. In the former case the challenge would be a principal one, triable by the court; in the latter it would be to the favor and submitted to triors.” Thompson vs. Merriam, p. 105; Archibald’s Waterman’s Notes, p. 555, Yol 1.

These challenges, whether for principal cause or for favor, all relate to the competency vel non of jurors.

It would offer ground for discussion to determine whether sufficient showing is made in the case at bar of facts and circumstances creat - ing a probability that jurors were not impartial; also to determine whether it is sufficient to bring up the question in reference to triors to present a motion written in general terms, moving the court to appoint triors.

The objection for favor must be made to the poll, and is presented ordinarily after the trial judge has determined that there is no ground to challenge for principal cause, and it then becomes timely to challenge on the ground of favor and to submit to triors.

But we prefer to rest our conclusions upon other grounds.

The case of State vs. Bunger, 11 An. 109, was remanded because of several errors committed in ruling.

As to one of these errors, it is stated that “ as to the appointment of triors when there is a challenge to the juror, although such a re - quest is unusual in this State, we think it should be allowed upon the request of the prisonex-. It was the English practice, and our statute of 1805 adopted the common law of England as a guide in criminal procedure. Such seems also to be the practice in other States of the Union.”

The opinion was authoritative at one time. It was rendered in 1856.

The question is subject to the changes made by subsequent legislation, and the consistent ruling of the courts.

It has become entirely exceptional to leave any question arising in selecting jurors to the discretion alone of the trial judge.

If triors are admitted, the challenge to the favor is to be determined by the conscience and discretion of the triors, and from their findings there is no appeal.

We do not think it is in contemplation of the law as now framed, particularly of those conferring jurisdiction upon courts, to leave the determination of any question wholly to an agency not judicial.

The jury laws have been entirely remodeled since that decision was rendered and they now contain entirely different provisions.

The first section of Act 44 of 1877 enacts that nothing in the act shall be so construed as to deprive the judges of the District Courts of the discretion to decide upon the, competency of jurors when from physical infirmity, or from relationship within the fourth degree, or from ignorance of the English language or other cause, the person called may be incompetent to sib upon the trial. (Omitted words of the acts are not pertinent. Italics ours.)

Under the jury law in force in 1856 the exemptions from jury duty-only are stated.

The jury laws enacted in 1877, and subsequently, in terms, authorize the judge to determine the competency of jurors for the causes expressed and “ other causes.”

The doctrine ejusdam generis, or noscitur a sociis, in its application to the phrase “the other cause ” in the above section, will legitimately include the authority to decide all questions to the favor.

It is (i. e. the authority) of the same class and the same nature as the specially enumerated authority in Sec. 1 of Art. 44 of 1877.

The discretion to decide the degree of relationship and other similar questions^ may, we believe, be classed under the above rule as being of the same generic character as those questions which arise when challenge is made as to favor.

Nothing shows the intention of the Legislature to limit the court’s authority in this respect.

It is comprehensive and does not give rise to the inference that part of this authority is curtailed so as to allow the defendant application for the appointment of triors.

The second bill of exceptions relates, as we have stated above, to the proof of a previous assault made by the defendant on the prosecuting witness.

It was a continuous transaction says the trial judge.

As such it was permissible.

In State vs. Thomas, 30 An. 681, evidence of another offence than that charged was admitted to prove the intent.

In State vs. Patza, 3 An. 513, it is held:

“To this rule, however, there are exceptions, one of which is when it becomes material to show the intent with which the act charged was done. Evidence may then be given of a distinct offence not laid in the indictment.”

The narrative of the trial judge in the bill of exception brings the ruling within the exception laid down in our jurisprudence.

It is therefore ordered, adjudged and decreed that the verdict and 'udgment appealed from be affirmed.


text:
    No. 11,205.
    Mati-iilde McLean vs. Jules Janin.
    Domicil is acquired by tile combination o£ residence and tlie intention to reside in a certain locality.
    If the intention of permanently residing in a place exists, a residence in pursuance of that intention, however short, will establish a domicil.
    If thewife wilfully and maliciously decline to accompany her husband to a new home without any just or reasonable cause, it is an act of desertion on her part.
    If, on the other hand, the husband leaves his home and his wife and children, and goes elsewhere, abandons them, without making the least attempt to aid in enabling them to join him, he may be summoned to answer to an action based on abandonment of the wife by the husband.

      APPEAL from the Tenth District Court, Parish of Natchitoches. Andrews, J.

      Cunningham & Tucker for Plaintiff and Appellee.

      Chaplin, Breazeale & Chaplin for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

This is an action for a separation from bed and board, on the ground of abandonment of the wife by the husband.

The required summonses were served upon the defendant to return to the alleged place of domicil in New Orleans.

Before answering to the merits of the cause the defendant interposed an exception of no cause of action, which was overruled.

In his answer he alleges that his domicil is in the parish of Natchitoches ; that his wife left his house without cause; that he is anxious to welcome her return to his house, and, accord her protection.

The facts are that plaintiff and defendant married in New Orleans in October, 1881.

That they lived apart from August, 1882, until 1889, when they became reconciled to each other a.nd established their home at defendant’s mother, in the town of Natchitoches.

In 1890 plaintiff, with the approval of her husband, came to New Orleans, in which city her mother resides, and received her mother’s care at the birth of her child, which occurred in December, 1890.

The defendant also came to this city, and remained from November 26 of that year until Christmas. ■

He returned the February following, and remained about two weeks with his wife and chiidren at the residence of his mother-in-law.

While on these visits the matter of a change of residence was diseased, and plaintiff’s witnesses testify that the defendant agreed to leave Natchitoches and stay at plaintiff’s mother until it became possible for him to establish a home of his own in New Orleans.

The witnesses are the mother, two brothers, the sister-in-law of plaintiff and an intimate friend of their family.

The declarations of the parties to the suit were objected to on the ground that, under Act 59 of 1888, amending Art. 2281 of the Civil Code, no statement of either party in suit for separation from bed and board or divorce shall be received in evidence.

The mother of the defendant testifies that his wife joined him in Natchitoches in 1889 and remained with him, except occasional visits by plaintiff to her mother in New Orleans, until December, 1890, at which time she returned to her mother’s residence; that she would welcome her to her residence; that she does not know whether hec son, the defendant, wishes her to reside at her house or not.

Judgment was pronounced for plaintiff, from which the defendant appeals.

The exception and the objections of the defendant to the testimony will be considered with the merits.

To sustain the action it devolved upon plaintiff to establish that her husband changed his domicil from Natchitoches to New Orleans; and in the second place, that she was willing to follow him to any other domicil.

In reference to the facts, after eliminating from consideration mere declarations of the husband or the wife and all testimony of witnesses heard to prove them, we think it is manifest that the de - fendant intended when he was in this city in December, 1890, and February, 1891, to establish himself here permanently. In carrying-out that intention he allowed his family to remain at his mother-in-law’s house and consented to its becoming their home! While there the question of their support and. his own was considered and hie determination in that regard made known. He shipped his furniture to the dwelling place of his family.

He sought employment here. .

In his letters and telegrams to plaintiff, a short time after leaving New Orleans, he expressed an intention to return.

At no time prior to the institution of the suitjwas intimation given to his family to follow him.

The expenses for support were not furnished, and no amount whatever was sent to his family;

A change of domicil is effected from one place to another by the abandonment of the first place of residence with intention to remáis absent, and,by>electing and occupying a home in a new locality with purpose of staying.

It is proven that the defendant had left the first place of residence.

With reference to the second proposition, that the wife must follow her husband, it is not entirely independent of all attempt on the part of the husband to provide a home or a stopping place of some kind.

The records do'not disclose that the defendant had any house at all in the parish of Natchitoches after his return to the parish, though he alleges that he is “ready, willing and anxious to welcome her return to his house.”

The willingness testified to by defendant’s mother to receive his. wife and children was independent of all consent on his part.

It was not shown that plaintiff Was ever made aware of the kindly disposition of her mother-in-law in that respect.

It did not devolve upon the wife to find a place to stay at defendant’s domicil.

The jurisprudence of France, in obedience to its code upon the subject, is exacting in reference to the duty of the wife, It is clearly laid down that the intimacy of the marriage relations and the welfare of the family must be maintained by4 requiring that the wife shall have the same residence as the husband.

Under those laws, as inflexible as they, are in regard to the wife’s duty to follow her husband, he is not relieved from all responsibility in fixing and establishing the conjugal domicil.

The Articles 39 and 120 of the Louisiana Code were copied from the Code Napoleon (being 108 and 214 of that code). In reference to the latter Baudry Lacantinerie, Vol. 1, p. 169, says:

“ The residence of the husband is imposed upon the wife by Art. 214. The article last referred to (108) imposes that her domicil shall be the same.
“ Marriage establishes between man and wife the most intimate relations that it is possible to conceive (erunt duo in carne una). It is natural that they should have the same residence and the same domicil, and since under other articles the husband is invested with the marital authority and he is the- head of the community, the law quite naturally left to him the selection of the • residence and the domicil. The wife must therefore reside wherever her husband will judge' proper to establish the residence, and she will be domiciled wherever it pleases her husband to fix the domicil.”

The place of residence was selected by the defendant, where, in obedience to his will, she remained.

No attempt was made by him subsequently to change it, or to return to the conjugal domicil he had fixed.

From another French authority we quote:

u From the fact that the domicil of the wife is inseparable from that of the husband, jurisprudence concludes that the domicil acknowledged by the husband as being that of the wife must be considered as the legal domicil of the husband.
“ At least the latter is not allowed to object to judicial notification at the instance of the wife from that domicil.” Fugier Herman, Yol. 2, p. 168, No. 16.

"We are concerned at this time with the question of abandonment.

The matter of a house or of the wife’s support is not an issue.

It is a question of uninterrupted abandonment.

The defendant did nothing to show an intention to bring about a change — to cause the abandonment to cease, either prior or subsequent to the service of the summonses served upon him to return to the residence and domicil of his selection.

He may have had the right to decline to return, but the obligation of the husband to the wife and children required notification of some kind that they were expected to join him at the new domicil in Natchitoches, or some other, at least, equivalent act showing a desire to put an end to the abandonment.

The records do not disclose the least intimation of a desire to receive them.

u The true meaning of this aphorism, touching the domicil of the wife being that of her husband, is that the domicil of the wife is the domicil the husband has at his marriage, or provides after marriage for himself and his wife, and which, though he may change at pleasure, must be one to which the wife is taken or invited, or at least of which she knows, and to which she may go and stay at her will,” Champen vs. Champen, 40. An. 89.

The suit at his domicil on the ground of abandonment at another prior domicil was properly maintained.

The judgment is therefore affirmed at appellant’s costs.

Rehearing refused.


author: Breaux, .J.

text:
    No. 11,165.
    H. Legendre & Co. vs. The New Orleans Brewing Association.

      A stockholder lias tlie legal right to inspect the hooks of the corporation of which he is a member. ‘
    The error of tlie secretary in refusing to permit him to inspect the hooks is not of itself ground for damages against tlie corporation.
    The company was not placed in default, and the act is not fixed upon tlie company as ah act for which it is responsible.
    A PPEAL from the Civil District Court for the Parish of Orleans, il Monroe, J.

      E. W. Huntington and H. L. Dufour for Plaintiffs and Appellants.

      Gharles F. Buck for Defendant and Appellee.
   The opinion of the court was delivered by

Breaux, .J.

This is an action sounding in damages to the amount of $13,500 and interest.

Suit was filed on 1th March, 1892.'

The plaintiffs as owners of 838 shares of the capital stock of the defendant’s association, on the 8th day of May, 1891, and thereafter, applied to the secretary of the association to examine its books, in which were recorded the transfers of stock.

About that date the said stock could have been sold for $131 per share, and subsequently it depreciated to $115.50 per share.

The plaintiffs allege that they have by reason of the depreciation sustained damages in the amount above stated, which they would have averted if the permission to examine the books of records of transfers of stock had been granted.

> That under Art. 245 of the Constitution, and other laws, they had the right to inspect defendant’s books.

That the refusal to allow the examination obliges the defendant to repair the damages.

The defendant interposed the peremptory exception of no cause of action. Also the plea of vagueness.

The plaintiffs presented a supplemental petition, which was filed on the 18th day of April, 1892, reiterating the allegations of their original petition and claiming that they had been damaged, since the filing of the suit, in the further sum of $10,000, making the aggregate $23,500 claimed as damages.

A second supplemental petition was subsequently filed in which it was alleged that the books they applied for permission to inspect were, in addition to the book alleged in their original petition, defendant’s stock ledger and the bills-payable book, cash and ledger book and journal.

Further, that on the 8th day of May, 1891, these books showed that large sales of the stock of the company had been recently made.

That the company had borrowed money to pay dividends.

That its affairs were not conducted by the directors.

That these books were the only source from which they could obtain information of the facts alleged.

That had they been allowed to inspect these books, these facts would have come to their knowledge; they would have foreseen the inevitable depreciation of their stock and prevented the loss by selling their certificates of shares. They reiterate their demand for the difference in the value of the stock.

The District Court maintained the exception of “ no cause of action,” and rejected appellants’ demand at their costs.

The plaintiffs invoke the rule that stockholders of a corporation have a right to examine its books at any reasonable time.

The following authorities sustain the rule: Const. 1879, Art. 243; Martin vs. Bienville Oil Works Co., 28 An. 204; Cockburn vs. Union Bank, 13 An. 289.

The rule is conceded by the defendant.

The constitutional right to inspect the books at a reasonable time can not reasonably be denied.

There can be no question that the -ownership of stock confers the authority to see that the property is well managed.

The exercise of this authority involves primarily the right to examine the books.

A denial of the right by the company in a proper ease exposes the corporation to an action, either of mandamus, whereby the custodian of the books is ordered by the court to permit the desired access to them, or in an Action of damages against the corporate officers who prevented the examination.

The responsibility of the corporation for the acts of the agent and the right of a stockholder to sue, in a proper case, are not denied in argument.

The question presented is whether upon the demand which was .-■rade upon the secretary for permission to examine certain hooks end his refusal, plaintiff can maintain an action for damages against “he defendant company.

It may be incidentally stated that mandamus is a remedy preferable to a suit for damages. Oook, Sec. 511'.

But the right to inspect the books is not so absolute that mandamus will issue without regard to facts and circumstances.

The reasonableness of the request should be considered.

Though the right to inspect is the rule, and it is very seldom proper for the officers of a company to refuse to allow the examination, the refusal is justifiable when curiosityps the motive or when the object ,'s manifestly in opposition of the interest of the company.

If mandamus had issued immediately after the refusal, the action would have been maintained against the company only.

It would have had the right to repudiate the refusal and permit the inspection.

The act of the secretary is not .absolutely binding upon the company in matter of inspection of the books.

He can not stand in judgment, nor can he as agent of the stockholders occasion damages by refusing the books, for which the company will be liable to one stockholder to the loss of the others, who are not parties and have not given the least sanction to the refusal.

Although the following quotation is not directly in point, it has certain bearing upon the subject:

“Stockholders can not sue the corporation for the purpose of remedying the wrongs committed by its officers without first applying to the directors to interfere and put a stop to the wrongs and a refusal of the directors to do so.” Beach, Sec. 885.

An error of an officer in a subordinate position in refusing to permit books to be examined is not per se such an error as will expose the company to the payment of damages.

■ The secretary may be the custodian of certain books, of which he has not, however, the absolute control. They are the company’s books.

Persons who become officials of- a corporation become the cestui a'e trust of the stockholders. Wait’s Act. and Def., Yol. 2, p. 341.

A corporation is not responsible for the unauthorized and unlawful acts of its officers, though done colore officii.

“To fix the liability, it must either appear that the officers were expressly authorized to do the act, or that it was done bona fide, in pursuance of a general authority, in relation to the subject of it, or that the act was adopted or ratified by the corporation.” Angelí and Ames, p. 318.

It has been decided that the member of a corporation has the same right as any other creditor to secure the payment of his demand. .

An action was maintained against a corporation on a bond securing a certain sum to the plaintiff, a member of the corporation, the member being decreed by the court a plaintiff for the purpose of the suit, so of notes and book accounts and right to dividend. Angsll and Ames, p. 405.

But we have not found a decision or a principle laid down' in any of the text books suggesting the possibility of a stockholder holding his co-stockholders responsible in damages on account of the refusal of an officer to allow certain books to be inspected.

It is stated that the individual members are distinct from the artificial body endowed with certain corporate powers.

This of itself does m t demonstrate that it. was ever contemplated that a secretary of a corporation might place a stockholder in the advantageous position for a certain time of having his account credited with an amount as damages because from a date of refusal to allow inspection the stock had depreciated in value.

The defendant company was not placed in default by an informal request made of the secretary.

The plaintiffs do not allege that they offered their stock for sale.

They limit their complaint to the averment that the facts which they would have ascertained by an inspection of the books would have enabled them “ to foresee the inevitable depreciation of their stock and prevented their present loss by selling the same.”

This is not actual but remote, and does not offer good ground to hold part of the stockholders in damages.

The bad management of the directors charged in the petition, which plaintiffs state they would have discovered, is not a cause of action which they can maintain alone and for their sole benefit, nor do directly they set it forth as a ground to recover.

They limit their action to the refusal of the secretary; though they allege mismanagement on the part of the board of directors, they do not allege that the secretary had for object in refusing the books the screening of any of the directors in any mismanagement.

In reference to any loss by reason of the negligence of the directors or other officers it has been decided “ that the injury is practically and ultimately an injury to the stockholders, but in the eye of the law the injury is to the corporation itself. * * * *

It is for the corporation to call the directors to an account for their negligence. The action is not an action which the stockholder is to bring. The negligence affects him not directly but indirectly. It is clear also that the stockholder can not hold the corporation itself liable for the negligence of its directors. * * * *

To allow such an action would be to make part of the stockholders liable to other stockholders for the loss, when all are equally injured, equally innocent and equally in a position to complain.” Cook on Stock and Stockholders and Corporations, p. 702.

The action can not be maintained by one of the stockholders against the directors for his account and benefit, a fortiori an action can not be maintained by him against the company on the ground that the secretary did not surrender the books for inspection whereby he would have ascertained that the affairs were not properly conducted by the directors.

The exception of no cause of action was properly maintained.

•It is therefore ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed at appellants’ ■cost.

Judgment affirmed.


text:
    No. 11,191.
    Dr. John Callan vs. Board of Commissioners of Fire Department.
    The petition shows that the act sought to be enjoined had already been committed. If so, it could not be corrected by injunction, as the purpose of an injunction, in the matter of the discharge of functions or the performance of duties in a a public position, is to prevent and not to correct wrongs.
    APPEAL from the Civil District Court for the Parish of Orleans. Theard, J.

      H. H. Bryan and James Timony for Plaintiff and Appellant.

      E. A. O’Sullivan, City Attorney, for Defendants and Appellees.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff alleges that during the year 1892 he .has been the legal acting physician of the fire department of New Orleans.

That the office of department physician is not an annually elective office.

That it is held by the legal incumbent during good behavior; that he has duly performed all the duties of the office, and that no charges have ever been filed against him; that notwithstanding his protest, the Commissioners of the Fire Department have illegally attempted to oust him from the office by electing Dr. George T. Granger in his stead.

The lower court refused to grant the injunction. The following are the grounds of refusal:

“ Considering that the power to elect a department physician is invested in the Board of Fire Commissioners by Ordinance No. 5841, Council Series; considering that in the exercise of that power the board has elected Dr. Joseph T. DeGrange to the said office of department physician, in the stead of Dr. John Callan, the present incumbent; considering that, by this action of the board, Dr. Callan has been ousted from office and has ceased to be a de facto officer; considering that this is a proceeding by injunction to restore Dr. Callan to the said office, and to test his title thereto, and considering that an injunction is not the proper remedy to determine disputed title to office,” plaintiff’s prayer for an injunction is denied.

The plaintiff had been the legal acting physician of the fire department in 1892.

It is not alleged that he had been elected or appointed under prior ordinances.

On December 8, 1891, the. Common Council amended ordinance 5614, O. S., by striking out the words “ city physician ” and inserting the wolds “ department physician ” to be elected by the Board of Fire Commissioners.

They named an office by distinctive title and ordained his election.

Under this ordinance the Board of Eire Commissioners elected a department physician” to succeed the acting physician of the fire department.

The cases of Guillotte vs. Poincy, 41 An. 335; Goldman vs. Gillespie, 43 An. 83, are referred to by plaintiff in support of his application for the injunction.

There is a marked difference in these eases; injunction was applied for to maintain plaintiffs in possessions pending the judicial determination of the disputed rights to the offices they respectively claimed.

They were actually in possession and discharging the functions of the office each held.

In the case at bar the plaintiff does not allege that he is actually performing the duties of a physician.

An injunction should only be granted when it appears that sufficient grounds exist for its issuance.

The fact that plaintiff had been the acting physician of the fire department in 1892 is not ground for an injunction reinstating him to that position in 1893.

An injunction will not be granted where the right is doubtful.

A past not continuing injury is not ground in itself for granting an injunction.

If the act sought to be enjoined has already been committed there is no ground for an injunction. Am. and Eng. Ency., verbo Injunctions.

The purpose of an injunction is to prevent and not to correct wrongs.

There was an actual exercise of corporate will within the mode prescribed which the writ of injunction can not revoke, annul or recall.

Corporations are bound by their contracts; they may be held bound oy their appointments.

They can not, however, in injunction proceedings be compelled to. reinstate any one to the performance of certain duties, and for that purpose remove an incumbent who has at least a prima facie right.

An incumbent should not be forbidden to perform the duties for the time being, even though his title were doubtful. The personal 'rights of the parties can not be determined by injunction. High on Injunctions, Sec. 798, note.

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


author: Watkins, J.

text:
    No. 11,126.
    Pierre Mengelle & Co. vs Mrs. Philip Abadie.
    It appearing upon the trial of a motion [to dissolve an injunction obtained by a lessee against the lessor to prevent dispossession of leased premises that the latter had previously obtained a judgment evicting the lessee as contumacious, it will be dissolved.
    To maintain an injunction, under such state of facts, would be to perpetrate a fraud on the law.
    PPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

    Plaintiffs and Appellants unrepresented.

      John Bassich for Defendant and Appellee.
   The opinion of the court was delivered by

Watkins, J.

This appeal is prosecuted on the part of the plaintiffs from a judgment dissolving an injunction they had obtained upon the following allegations, viz.:

“ That said firm are occupants of premises corner Toulouse and Bourbon streets, owned by Mrs. P. Abadie (appellee), and that she verbally leased said premises to them for two consecutive years, commencing November 1, 1890; that by a verbal agreement between the said firm and Mrs. Abadie she consented to lease, and did lease to them, said premises for one additional year, commencing November 1, 1892, upon the same terms, $300 per annum. That in violation of said contracts of lease the said Mrs. P. Abadie, lessor, leased said premises for the time covered in whole or in part by aforesaid contracts to Geo. P. P. David and others, unknown to petitioners, and in order to carry out said contracts ‘ both said parties is attempting to oust petitioners from possession of said premises,’ and unless restrained and enjoined from so doing will so oust and eject them from said possession and praying for a writ of injunction.”

Thereupon the defendant, Mrs. Abadie, took a rule on the plaintiffs to show cause why said writ of injunction should not be dissolved on the following grounds, to-wit:

“1. The petition for injunction alleges no cause of action and is insufficient, apd does not allege facts, showing either the intention or the attempt by mover to oust or eject plaintiffs from premises corner of Toulouse and Bourbon streets. The allegations that 1 defendant had rented said premises to Geo. P. P. David and others,’ and that the defendant is attempting to oust your petitioners from the possession of said premises and will, unless restrained by order from this honorable court, eject them from said possession ’ are not sufficient allegations to base an injunction upon in the absence of allegations of fact, showing an actual attempt by defendant to oust plaintiffs.
2. In addition to petition disclosing no facts the affidavit is equally insufficient, null and void, as no facts are sworn to in said affidavit. ,
“ 3. The injunction improvidently and illegally issued, because the facts of this ease were studiously concealed or misrepresented by plaintiffs to the honorable judge granting the injunction, especially the fact that Mrs. Philip Abadie had obtained a judgment against said plaintiffs, P. Mengelle & Go., in Proceeding No. 16,666 of the Second Oity Court, parish of Orleans, on September 12, 1892, which judgment unconditionally condemns plaintiffs to surrender at once said premises corner of Bourbon and Toulouse streets; that plaintiffs in this suit, then defendant in said suit, failed to file a special defence supported by oath, and otherwise comply with the conditions set forth in Sec. 2157 of the Devised Statutes, and were thus deprived by their own inability and fault to make the proper affidavit, of the right to suspend the judgment of said City Court; that said judgment now is, and was before issuance of the writ of injunction, definitive, final, executory, and has the force of the thing adjudged; that the granting of this injunction, or perpetuating of same, has the effect of arresting the execution of a judgment executory and perfect in form on grounds and defences plaintiffs could have set up and did set up availingly in said suit No. 16,666, and this attempt by way of injunction to again open the issues determined adversely to plaintiffs in injunction, and to obtain a suspensive appeal from this honorable court by injunction, not vested with original jurisdiction of the matter, is clearly unwarranted in law.”

Not only does the record disclose the existence of the judgment of court condemning defendants therein — plaintiffs here — to at once surrender the leased premises in controversy, but it discloses that the defendants had wholly failed to make any special defence supported by oath, as the law requires, entitling them to suspensively appeal therefrom. Hence, that judgment thus becoming exigible, the granting an injunction against the defendant, Mrs. Abadie, generally, from any attempt to oust plaintiffs, Mengelle & Co., from the premises, was equivalent to giving them the benefit of a suspensive appeal to which they were not entitled; or, in other words, to practise a fraud on the law.

The mere statement of the foregoing proposition carries with it its own answer. The judge a quo evidently granted the injunction under a misapprehension of fact as to the existence of the judgment of the Second City Court of New Orleans evicting plaintiffs from the leased premises as contumacious tenants.

“ The power to issue the writ implies the power to dissolve it,” says the district judge, and in thus speaking he announced a correct proposition of law.

The complaint made by appellants’ counsel of the trial of the motion to dissolve by judge of Division E, whereas the cause had been previously allotted to the judge of Division A, is of no consequence, because the judge of Division A was absent on leave, and it was undoubtedly competent for the judge of another division of the court to act in his place.

It is worthy of note that the appellants have not appeared in this court by counsel or by brief.

The judgment appealed from is unquestionably correct, and is therefore affirmed.