text:
    No. 11,938.
    George W. McConnell vs. David Lemley.
    A member o£ a surprise party visiting the house of a friend for the purpose of spending an evening in social amusement, sustaining injury by means of a fall ing gallery.

      Held: that she can not recover damages of the owner of the building, who had leased it as a place of residence to the friend whose house the party visited.
    Revised Civil Code, Arts. 2322 and 670, must be construed together as laws in par materia; and being thus construed they exclusively relate to the injuries which may be inflicted by falling walls, or materials composing them, upon neighbors or passers by, and not to those resulting to occupants of the buildings, or guests therein assembled.
    APPEAL from the Oivil District Court for the Parish of Orleans. Ellis, J.

      Frank E. Rainold and A. G. Brice for Plaintiff, Appellee.

      James Wilkinson, R. H. Lea, and Farrar, Jonas & Kruttschnitt, for Defendant, Appellant. - -

      Argued and submitted March 11, 1896.
    Opinion handed down April 6, 1896.
    Rehearing refused November 16, 1896.
   The opinion of the court was delivered by

Watkins, J.

Plaintiff seeks to recover ten thousand dollars damages of the defendant, as owner of the house at the corner of Julia and St. Charles streets in the city of New Orleans, it being at the time occupied as a residence, by one W. H. Burgess, as his tenant, under the following circumstances as related in his petition, viz.:

“On the 16th of November, 1894, Burgess entertained a party of friends at his home. They had come as a ‘ surprise party’ and were welcomed by Burgess as guests. Among them was the daughter of plaintiff, and tshe was made welcome by the host and his wife. A little after 1 o’clock, Miss Virgie McConnell was standing on the veranda, or gallery, that surrounded the dwelling, and on which a number of doors opened. She had stepped upon the gallery for the purpose of enjoying the fresh air, as the evening was a warm one, while the other young ladies were putting on their hats preparatory to leaving. While she was standing on this gallery, which was a structure extending along both the Julia and St. Charles street sides of the house, being about twelve feet wide, with a railing encircling it, the fire bells rang and about a dozen of the guests came out to watch the fire engine pass. The engine house was nearly opposite, and they viewed the preparations of the firemen, and the departure of the engine out Julia street toward the woods.
“The engine had scarcely crossed St. Charles street before the section of the gallery upon which Miss McConnell, with about seven or eight other guests, was standing, suddenly gave way and fell, and precipitated her and others to the hard flag pavement of the sidewalk, a distance of about thirteen feet. Two others fell on top of her. Her right leg was broken above the knee, and she was bruised all over the body. She remained six weeks in bed in the Charity Hospital, suffering excruciating pains and agony; and she could not walk without a crutch for months after the accident. After healing, her injured leg was found to be shorter than the uninjured one. Dr. Schmittle, who had not measured the extent of the shortening, thought it was between one-quarter to one-half inch; Dr. E. J. Graner, who made a critical examination, testified that it was about one-half inch. Both physicians concur in pronouncing the injury permanent, and that Miss MeOonnell will be a cripple for life. She will always limp.
The cause of the falling of the gallery was fully proved. It was'rotten to such an extent that no repairs could have rendered it safe.. The inspector of public buildings of the city of New Orleans, Mr.. Beeler, made an examination of that portion of the structure that» did not give way, and ¡ordered it torn down, as dangerous to human» life.”

Admitting his ownership of the premises in question and the lease' of Burgess, the defendant, for answer, avers that it was rented for the uses and purposes of a residence, and was in thoroughly good» condition at the time the accident happened; and that it was amply safe for its usual, ordinary and contemplated purposes. That there-was no defect in said gallery which was apparent to an observer and that he had effected all the repairs which were necessary a short time before the accident, and if any further repairs were desired it-was the duty of the tenant to have notified him to make same, and-in default of his so doing to have made same, and deducted the cost-from the amount of rent due or to become due.

He denies that plaintiff’s daughter went on the premises with the knowledge or consent of himself, or even with the request or at the invitation of his tenant. He avers that his tenant possessed and used the gallery daily, and had same been in the dangerous condition it is represented to have been, it would have been the duty of the tenant to have warned the young people composing the surprise party-of the danger there was of crowding thereon, as they are admitted-, to have done. That the proximate cause of the accident and of the injury which was inflicted upon plaintiff’s daughter, was the sadden rushing of the dozen of young ladies out upon the gallery simultaneously, same not having underneath any proper and suitable support, as is usual when it is expected to be resorted to by an unusual, assembly of persons.

As matter of law, it was contended by the defendant’s counsel-that the precept of our Code, which provides that the owner of a-building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it (R. C. C. 2322), applies only to-passers-by upon the public highway, and to neighbors, and not to persons voluntarily entering upon private premises, and there suffering aú injury.

That a person who thus enters the premises of another, by the •permission of the tenant, is, with respect to the owner, a mere /licensee, and sustains a relation to him somewhat like that of a subtenant, and can acquire no greater rights than the principal lessee; ..and if he enters without permission of the lessee, he is a trespasser, •without any privity of contract with respect to the owner, through 4he medium of the lease.

That a tenant can not recover damages of the landlord by reason of his failure to make repairs, when the arrearages of rent are sufficient to enable the lessee to make them, in case of the lessor’s failure to make same after he has received due notification of the necessity of same being made; and he avers that at the time of the .happening of the accident the tenant was in arrears a sufficient ..amount to have defrayed the cost of the necessary repairs.

-On the trial there was judgment for twenty-five hundred dollars .-against the defendant, predicated upon the verdict of a jury, from which he has appealed; and in this court plaintiff has demanded 'that this allowance be increased to five thousand dollars.

The proof at the trial substantially conforms to the foregoing -statements pro et con.

It shows that shortly after he rented the premises to Burgess, the -defendant sent carpenters to the leas 3d premises, with instructions .to place it in good order, and that materials were ordered and delivered for that purpose, and used by the carpenters. That all the repairs necessary were voluntarily made by the defendant, and that no demand was subsequently made by the tenant for additional repairs; that at the time of the accident the tenant was in default in making payment of his rent, and was subsequently notified to vacate the leased premises on account of his non-payment of rent. That the gallery was not in a condition to stand this unusual strain is not denied, but on the contrary, was generally known among the guests, and that during the course of the evening that the accident happened the visitors were warned and admonished to desist from dancing, as the gallery would not stand the strain it would produce.

That notwithstanding that warning the guests rushed out on the .,gallery when the fire-bell rang, causing it to give way and fall beneath their accumulated weight, causing the injury complained of-to the plaintiff’s daughter.

Plaintiff’s counsel puts his clients’s right of recovery upon the following provision of our Code, viz.:

“ The owner of a building is answerable for the damage occasioned-by its ruin, when this is caused by neglect to repair it, or when it is-the result of a vice in its original construction.” Revised Civil Code, 2322.

And the further provision, viz.: .

“Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.’’’ R. C. C. 2316.

These provisions of the Code treat of offences and quasi-offences. toward the general public and they impose upon the owner ofi a building the general duty of keeping it in such a state of repair and-preservation that it will not occasion damage to any one. And in: case of his failure so to)do they declare that he is answerable in damages to one who shall suffer injury in consequence of his neglect,, imprudence or want of skill.

But counsel for the defendant contend that the article first cited-must be construed in connection with the provisions of Art. 670,. which are as follows, viz.:

“ Every one is bound to keep his buildings in repair, so that neither their fall, nor that of any part of the materials composing them, may injure the neighbors or passengers under the penalty of all losses and damages which may result from the neglect of the owner in that respect.” (Our italics.)

These articles have been frequently construed by this court, but in no ease of which we are aware have they been applied to-a. case circumstanced as this case is.

They have been construed as applying to persons injured while-walking along the street. Howe vs. New Orleans, 12 An. 481; Barnes vs. Beirne, 38 An. 280; Tucker vs. Railroad Company, 42 An. 114.

And they have been applied to persons occupying an adjoining building, who have sustained- injuries by reason of another building falling against and demolishing it. Knoop vs. Alter, 47 An. 570 Steppe vs. Alter, 48 An. 363.

These are obvious arid necessary safeguards the law has provided for the citizens of towns and cities, to whom old and dilapidated, or-'badly designed and constructed buildings are a constant menace, «while attending to the ordinary and every-day concerns of life.

But it is not readily perceivable upon what principle of duty or -equity these precepts of the Code are to be extended to the accidental occupants of a house, having no contractual relations with either the proprietor or his tenant.

But, it must be observed, that the articles cited do not rest upon contractual relations, at all; but the liability of the owner arises ex delicto alone.

He is held liable because he is deemed guilty of a fault in not keeping his building in such a safe condition as it will not do any member of the public an injury. It is the thing which offends, and the owner -suffers the consequences of the offence. The imposition of the penalty results from the idea, that the faulty or defective building is an invasion of the security that municipal government guarantees to «.the citizen, or wayfarer in the public thoroughfare of the city.

The reason and spirit of this rule does not seem to apply to the person who seeks admission to the premises or who goes there upon the invitation of the owner or tenant, either on business or pleasure; for, in such case, the. ordinary rules of trespass or contract would .apply. Visitors are, in a certain sense, members of the family.

Looking at the evidence as we have related it, it is manifest, that «if the members of the surprise party had passed along the banquette underneath the gallery of defendant’s house, and had not entered the building at all, it would not have fallen, and plaintiff’s daughter would have suffered no injury; consequently we must look to som -different principle of law on which, if at all, the defendant can be held bound.

In our opinion the guests of the tenanc have no claim against the landlord for damages they have sustained while on the premises.

The guests of the tenant are not guests of the landlord. During the term of the lease the owner may be said to have, for a consideration, parted with his exercise of the right of ownership. If the tenant be neglectful of the safety of his guests they have their recourse against him personally and not against the owner of the building. In such case it is the duty of care the occupant owes his guest and not the duty the owner of the building owes to the public, .that controls the recourse of an injured party.

If on plaintiff’s theory, a person, upon invitation of a tenant, should enter any old and dilapidated building and suffer injury, and the owner would be responsible, the consequences would be disastrous to landlords; for who could afford to lease property under the circumstances, and take the risk of suffering thousands of dollars in damages for the carelessness or imprudence of tenants on their failure to make, as in instant ease, some trifling repairs, the cost of which he could have easily reimbursed himself from the arrearages of rent in his hands.

We are fully convinced that the article of the Code on which plaintiff’s counsel rely was never intended to govern this kind of a case; and this becomes more evident when we take into consideration the article of the Code which counsel for the defendant has cited as being in pari materia.

Counsel has also referred us to several pertinent common law authorities, but we prefer to rest our decision upon the principles of our own statutes.

But if, on the other hand, the members of the surprise party were uninvited, and to be treated and considered as trespassers, or mere licensees, the plaintiff’s only recourse must be against the person by whose tacit permission they were on the premises. O’Connor vs. Railroad Co., 44 An. 339; Snyder vs. Railroad Co., 42 An. 302.

But, in any event, the evidence satisfies our minds that the defendant, as owner of the building, has exonerated himself from liability by making all the repairs which he supposed to have been necessary to the safety and security of the building; and if any fault there was on his part, the tenant and his guests contributed, in some degree, to the accident, by not desisting from rushing out upon the gallery as they did after having been warned against the danger of dancing on it.

A case for damages is not made out.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed; and it is further ordered and decreed that the plaintiff’s demands be rejected at his costs in both courts.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    No. 12,086.
    Miss Louise Prechter vs. David Lemley.
    The court adheres to the opinion in McConnell vs. Lemley, presenting same question. 48 An.,p. 1438.

      APPEAL from the Civil District Court for the Parish of Orleans. King, J. ■

      Frank E. Bainold, A. G. Brice and T. J. Semmes for Plaintiff, Appellee.

      James Wilkinson, Farrar, Jonas & Kruttschnitt and B. H. Lea for Defendant, Appellant.
    Argued and submitted June 6, 1896.
    Opinion handed down November 16, 1896.
   The opinion of the court was delivered by

Miller, J.

This case presents the same issue as that determined in McConnell vs. Lemley, 48 An. p. 1433. In view of the importance of the question and the earnestness of the argument for plaintiff, in this as well as on the application for the rehearing in the McConnell case, we have given the subject a re-examination. In the light of our jurisprudence, meagre as it is on this question, and that afforded by the French authorities, we are constrained to adhere to our opinion in the McConnell case.'

For the reasons assigned in the opiniou in the case of McConnell, it is ordered, adjudged and decreed that the judgment of the lower court be avoided, reversed and annulled.


author: McEnery, J.

text:
    No. 12,207.
    Henry J. Schmitt et als. vs. City of New Orleans.
    The City Council of New Orleans, in its discretion, can provide for the paving, or the repairing of any street in the city of New Orleans.
    The city is not compelled to return to the property holders the value of the old pavement which has been replaced.
    The City Council, in locating a street railway, has the right to designate what part of the street it is permitted to occupy.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Joseph Maille and Gus A. Breaux for Plaintiffs, Appellants.

      Samuel L. Gilmore, City Attorney. (Denigre, Blair & Denigre, of Counsel), for Defendant, Appellee.

      Farrar, Jonas & Kruttsehnitt for Intervenors, Appellees.
    Argued and submitted November 17, 1896.
    Opinion handed down November 30, 1896.
   The opinion of the court was delivered by

McEnery, J.

The City Oouncil of New Orleans gave legal’notice •of its intention to cause the paving of Ursulines street from North Claiborne to Broad street, in order that the property holders, under Act 142 of 1894, might select, within the legal delay, the material with which the street should be paved, and the imposition upon them of the proportion of their assessments in accordance with said act.

The ordinance authorizing the pavement of the street, designated twenty-one feet as the portion of the street to be occupied by the tracks of the Orleans Railroad Company, which was about to reconstruct its tracks on said street, the paving to be on either side of the tracks of the said railway company.

The plaintiff property holders on said street enjoined the paving of the same. The advertisement for a contract had been made, and the contract entered into under a later ordinance, when the injunction was obtained.

There is no conflict as to the manner or mode of the contract, or the regularity of the proceedings of the council.

The objections urged are that the city had no right to designate neutral ground in the centre of said street; that it had no right to take up the cobble-stones on said street, and that the ordinance was illegal, the city having no right to order the repavement of a street. The street had been partially paved with cobble-stones. But we will assume that it was paved with cobblestones from curb to curb in its full length. The city has full plenary power over the streets. This is explicitly delegated by the General Assembly in the charter granted to the city. We have so often stated that it is unnecessary to cite authorities to support the assertion, that the City Council, in the exercise of its control and supervision of the street, can designate the part to be occupied by a street railway company. In this case it designated the centre of the street to be occupied by the railway street company with its consent. And, we may state here, the acceptance of a new route, designated in place of a former one, will not relieve the company from its obligations to the city to keep the street in repair. The location having been selected at the request of the railroad, even if it should change from one street to another its obligations would remain unaffected by the authorized change, except perhaps, it might be in the abandonment of the old route, and a payment of a price for the new franchise. This is not made a matter of complaint in the part of the record brought here, but it is argued in the briefs.

The objection that the city has no authority to order the re-pavement of a street is totally untenable. The general power given to the city to control the use of the streets, to improve and police them, necessarily carries with it the authority to pave them. This can not be restricted to unpaved streets. To repave is to pave. The streets may become impassable from old and worn-out pavements, or those in existence, although they may be in good repair, may be of such character as to fall behind the improved methods of pavements, which modern comfort and convenience demand.

The city charter and the act amendatory thereto give the property holders on the streets the right to demand.the pavement or repavement of a street, and thus force to action an inert and non-progressive city government.

Section 32 of the city charter accords to the property holders on a street, where one-fourth the number shall demand it, the paving of an unpaved street by the City Council. The City Council is without discretion to deny the demand. Sec. 33 accords the same right to property holders to have a paved street repaved.

In either case the council can not refuse to comply with the demand unless the same, after the publication has been made, is met with the opposition of a majority of the property holders. And in both cases the property holders have the right to designate the kind of material to be used in the paving of the street. Section 37 gives the City Council the power to order the pavement or repavement of any street. Its discretion can not be controlled, and it is beyond judicial power to interfere with it.

The city charter provides for the action of the property holders when the Council fails to move in the paving of an unpaved street, or the renewal, or the putting down of a new pavement. Section 37 is but a reaffirmation of the Oity Oouncil’s control of the streets, and vests in it the power, “in its discretion,” to provide for the paving or banquetting of any street or portion thereof at the expense of the whole city, and to force from the proprietors of lots fronting on the streets a specific local assessment.

The sections 32 and 33, which provide for the petitioning of property holders for paving unpaved streets, or renewing or repairing of pavements, impose the entire cost on the property holders, while Sec. 37, which empowers the council to move in the matter of pavement on its own motion, charges the cost of pavement to the entire city and the property holders on the paved streets.

Act 142 of 1894 has direct reference to Sec. 37 of the city charter. It applies to the pavement of streets which the council orders to be improved on its own motion and in its discretion. It is an amendment of Act 119 of 1886, which was an act to amend Sec. 37 of Act No. 20 of 1882, which is the city charter. The amendatory act makes only two changes in the amended act, and provides for the payment of paving banquettes and sidewalks, and gives to the property holders, a majority in number and measurement on the street, the right to designate the kind-of material to be used. The Oity Council of New Orleans, in its discretion, has the power to order the pavement or repavement of any street in the city. Its discretion can not be controlled by judicial power, unless it should be so arbitrarily exercised as to demand that protection which all courts grant when positive and unnecessary injury is inflicted. But such is not likely to occur in the paving of streets and their improvement in other ways, which promote convenience, and comfort and health. The ordinance requiring the pavement of Ursulines street is valid, and the proceedings under the same are regular in all respects.

It is claimed by defendants that they are entitled to the value of the cobble-stones taken from the street. They have received the benefit of their value in the contract with the parties to whom it was adjudicated. The stones are to be reduced in size and used in the reconstruction of the street. It would be impractical for the city to dispose of the stones and to return to each property holder his proportion of the value. When they were placed in the street at the cost of the property holders it was a contribution to the public, and they became the property of the city for the use of the public.

There is in the record a petition in the way of an intervention of the property holders, a majority in number and measurement, who oppose the demand of'plaintiffs and join with the city in its defences.

This dispenses with the objection to the want of ninety days’ time in .which the majority of the tax property holders in amount and measurement] have to designate the kind of material with which <¡he street shall be paved.

Judgment affirmed.


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    No. 12,223.
    State of Louisiana vs. Ben. White.
    When a juror after lie lias heard the case and retires, but before going into the jury room declares that he will convict or acquit the accused, in other words, that lie will speedily agree on a verdict, without reference to the merits of the ease, the verdict will be set aside.
    APPEAL from the Criminal District Court for the Parish of Orleans. Moise, J.

      M. J. Gunningham, Attorney General; JR. JR. Marr, District Attorney; John J. Finney, Assistant Attorney, for Plaintiff, Appellee.

      Paul W. Roussel for Defendant, Appellant.
    Submitted on briefs November 21, 1896.
    Opinion handed down November 30, 1896.
   The opinion of the court was delivered by

McEnery, J.

The defendant was convicted of manslaughter and sentenced to hard labor. He appealed. He relies upon a bill of exception taken to the charge of the trial judge and on a motion for a new trial.

The exception to the charge is that the trial judge dwelt upon particular facts in the case and gave an unfair and undue prominence to testimony of the only witness for the State. In his statement appended to the bill the trial judge says he can not give his assent to the facts stated in the bill, and that there was no conflict in the testimony of all the witnesses as to who was the aggressor in the fatal affray. “ That portion of the charge objected to presented to the jury, by way of illustration, a merely hypothetical case, without assuming any fact as proven or disproven.”

His statement brings this case within the rulings of State vs. Smith, 11 An. 633; State vs. Dennison, 44 An. 136. In the bill of exception no testimony is brought up to show that any witness testified to a state of facts in opposition to the illustration given by the trial judge, or that his charge was based on the testimony of the State witness which had been controverted by other witnesses.

In these hypothetical statements it is the duty of the judge not to trench upon controverted facts, and so state the case that the jury may assume that a certain state of facts has been proved. But this from the judge’s statement does not seem to be the case here.

The bill of exception in relation to the refusal to grant a new trial is based on the statement of a juror. It was shown on the trial of the motion for a new trial that one of the jurors had gone to the water closet. When he came out one of the deputy sheriffs said to him: “ I guess this is good for all night.” The juror, Switzer, replied: “Oh, no! I’ll wind it up in a short while; one way or the other will suit me.”

Any act of jurors clearly indicating a disregard of the solemn duty imposed upon them and a disregard of the solemnity of their oaths will be sufficient to avoid the verdict. When the juror was sworn the defendant had a right to believe that he would give hiña a fair and impartial trial from the testimony adduced on the trial. He could not expect that the juror would give no weight to the testimony and consult his own convenience and pleasure, and make it a matter of indifference whether he would convict or acquit the defendant, if in that way he could avoid the unpleasant confinement for a night in the jury room.

The juror may have reconsidered his declaration of indifference as to the manner in which the ease was to be decided. But of this we can know nothing, and must accept his declared intention to acquit or convict, according as a vote either way would relieve him from jury duty and a night’s confinement in cáse of disagreement.

The sentence and verdict are annulled and avoided, and it is now ordered that the case be remanded to be proceeded with in due course of law.


text:
    No. 12,227.
    State of Louisiana vs. Louis Reiz.
    If a grand jury is impaneled on the first day of the term, and on the second day it is discovered that one of the jurors is disquali&ed, it is competent for the court to discharge him, and order an additional grand juror to be drawn from the list of the grand jury furnished by the jury commissioners for that term.
    APPEAL from the Eleventh Judicial District Oourt for the Parish of Acadia. Dupré, J.

      M. J. Cunningham, Attorney General, and B. Lee Garland, District Attorney, for Plaintiff, Appellee.

      Philip S. Pugh for Defendant, Appellant.
    Submitted on briefs November 7, 1896.
    Opinion handed down November 16, 1896.
    Rehearing refused December 14, 1896.
   The opinion of the court was delivered by

McEnery, J.

The defendant was indicted for grand larceny and convicted. He complains that the grand jury which found the indictment against him was illegally constituted.

When the grand jury was impaneled, one of the members was under indictment for selling liquor to a minor.

He was incompetent. State vs. Thibodeaux, 48 An. 600.

The trial judge on the next day, before the grand jury had transacted any business, discharged the incompetent juror, and substituted for him another from the list of grand jurors drawn for the term. His name was drawn from the box in which the names of grand jurors had been placed.

Section 4 of Act 89 of 1894 requires the jury commission to select twenty-four citizens, who shall constitute the list from which the grand jury is drawn to serve for the term for which they are drawn. These twenty-four citizens’ names are placed in an envelope, sealed and deposited in the jury box, and put in the custody of the clerk. They are deposited with this official for service, if necessary during the term, in case of a disqualified juror, or in the event of the jury being reduced below the lowest number constituting a grand jury, to be drawn to supply the required number.

The discharge of those not needed to organize the grand jury did not have the effect of relieving them from further service if required.

The proper practice is to dismiss the disqualified grand juror and let the panel remain undisturbed, unless it be reduced below the required limit for the legal existence of the jury. State vs. Causey, 48 An. 897; State vs. Jacobs, 6 Texas, 99.

But the restoration of the full number from the list of grand jurors drawn for the term does not vitiate the findings of the jury, because it is legally constituted from those required to serve during the term of court. If it was competent for the court to'cause the jurors to be drawn to keep f the jury from falling below the required number to transact business, he could keep the jury up to the number as originally impaneled. State vs. Jacobs, 6 Texas, 99.

In the case of Commonwealth vs. Burton, 4 Leigh, 645, in a case similar in all respects to this, the court said: “In this case the grand jury as first impaneled was not legally constituted. If it had found the indictment the want of qualification in the member subsequently withdrawn, might, and no doubt, would have been pleaded in abatement; so that, if the doctrine contended for by the defendant should prevail, the swearing of a single unqualified juror would put an end to the business of the grand jury for the whole term.”

In this State it might be that the panel could be reduced below the minimum number, and the court, if defendant’s contention should prevail, would be powerless to transact criminal business. Such a contingency has been provided against by the selection of twenty-four citizens from whom the grand jury is selected, the names of the entire number being placed in the custody of the clerk to be drawn as occasion requires.

Judgment affirmed.


author: McEnery J.

text:
    No. 12,233.
    State ex rel. City of New Orleans vs. George H. Theard, Judge Division “E,” Civil District Court.
    The civil district courts in this State have no authority to restrain the execution of a criminal statute.
    A court which has no jurisdiction of a cause, exceeds the bounds of its authority when it issues therein an injunction. It has no power to entertain a rule for contempt for the violation of such an injunction.
    QN APPLICATION for Writs of Certiorari and Prohibition.

      Samuel L. Gilmore, Oity Attorney, and W. B. Sommerville, Assistant Oity Attorney, for Relator.
    Respondent Judge in propria persona.

      Benjamin Armbruster and Buck, Walshe & Buck, for Gambrinus Benevolent Association, also Respondent.
    Submitted on briefs November 2, 1896.
    Opinion handed down November 16, 1896.
    Rehearing refused December 14, 1896.
   The opinion of the court was delivered by

McEnery J.

The Gambrinus Benevolent Association, through its officers, alleging that Act No. 18 of 1886, known as the Sunday Law, did not apply to said association in the sale of beer and refreshments at a picnic or festival, which it proposed to hold, obtained an injunction from the respondent judge, forbidding the Mayor and police of the city of New Orleans from interfering with said festival in the sale of beer and other refreshments.

The case was allotted to Division D,” Civil District Court.

• The relators filed an exception to the jurisdiction of the court on 25th of August, 1896, and on the same day, bub prior to the filing of this motion, the respondent judge granted a rule, ordering relators to show cause why they should nob be punished for contempt for alleged interference with the writ of injunction. The relators applied for and obtained writs of certiorari and prohibition and pray that the writ of prohibition be perpetuated.

The respondent judge urges as an exception that the plea to the jurisdiction had not been disposed of. We adhere to the doctrine so often asserted in our jurisdiction that relief can not be granted under our supervisory jurisdiction, in anapplication for writ of prohibition, until all remedies have been resorted to in the lower court.

State ex rel. Shakespeare vs. Judge, 40 An. 607.

But in this case a rule for contempt was issued, ordering relators to show cause why they should not be punished for violating the writ of injunction. This is made a matter of complaint in the application for the writ. Under the writ of certiorari the whole record is before us, and it is competent for this court to ascertain whether or not the rule was issued by the court for the violation .of an order within its jurisdiction. State ex rel. New Orleans Gas Light Company vs. Voorhies, Judge, 37 An. 606.

This disposes with the necessity of passing upon the exception also urged by respondent that he had received no notice of the intention to apply for the writ. An application for the writ of certiorari does; not come within the meaning of the rule.

Act No. 18 of 1886 is a criminal statute. The duty was imposed' upon relator to see that the statute was executed. It was their duty to arrest all offenders against that statute. No court has the power-by injunction to restrain the execution of a criminal statute. But the; respondent judge says the law does not apply to the plaintiff iñ injunction. This is placing an interpretation upon a criminal statute that is within the jurisdiction of the Criminal Court.

In the case of Hottinger vs. City, 42 An. 630, it was said the courts of this State have no power to issue an injunction to prevent a municipal corporation from enforcing, by authorized judicial process, its police ordinances, penal in their nature, enacted for the promotion of the public health.

Much stronger, therefore, is the reason that no court can enjoin the execution of a criminal law of the State, or the officers upon whom devolves the duty, from enforcing obedience to the law.

The District Judge had no jurisdiction of the case, no right or power to issue the injunction, and, therefore, no power to issue the rule for contempt for violating the order.

The relief prayed for in the contempt proceedings is granted and the proceedings of the District Judge in the rule for contempt are annulled.


text:
    No. 12,248.
    State of Louisiana vs. John McNally.
    Tlie Oity Council o£ New Orleans lias tlie right to designate the number o£ hours in which laborers and mechanics shall work on the public works of the city; but the Oity Council has not got the power to make the violation of an ordinance, regulating the number of hours in which laborers and mechanics shall be employed in the public works belonging to the city, a misdemeanor, as this is an indictabie offence, one which the General Assembly alone can create.
    A PPEAL from the Fourth Recorder’s Court of the City of New Orleans. Clement, J.

      Samuel L. Gilmore, City Attorney, and James J. McLoughlin, Assistant City Attorney, for the City of New Orleans, Plaintiff, Appellee.

      E. C. Kelly for Defendant, Appellant.
    Argued and submitted November 19, 1896.
    Opinion handed down November 30, 1896.
   The opinion of the court was delivered by

McEnery, J.

The City Council of New Orleans enacted the following ordinance: “An ordinance relating to the limitation of the hours of daily service of laborers and mechanics employed upon the public works of the city of New Orleans.

Be it Ordained by the Council of the City of New Orleans, That the service and employment of all laborers and mechanics who are now or may hereafter be employed by the city of New Orleans, or by any contractor or subcontractor upon any of the public works of this city, is hereby limited and restricted to eight hours in any one calendar day; and it shall be unlawful for any officer of the city government, or any such contractor or subcontractor, whose duty it shall be to employ, direct or control the services of such laborers or mechanics, to require or permit any such laborer or mechanic to work more than eight hours in any calendar day, except in case of extraordinary emergency.

“ Be it further ordained, That any officer of the city government, or any contractor or subcontractor, whose duty it shall be to employ, direct or control any laborer or mechanic employed on any public works of the city, who shall intentially violate any provision of this ordinance, shall be deemed guilty of a misdemeanor, and for each and every offence shall, upon conviction, be punished by a fine, not to exceed twenty-five dollars, or by imprisonment for not more than thirty days, or by both such fine and imprisonment, in the discretion of the court having jurisdiction thereof.

Be it further ordained, That the provisions of this ordinance shall not be so construed as to in any manner apply to or affect contractors or subcontractors, or limit the hours of daily service of laborers or mechanics engaged upon the public works of this city for which ^contracts have been entered into priorato the passage of this ordinance.

“ Adopted by the Council of the city of New Orleans, February 25, 1896.

“Approved February 28,1896.”

The defendant was charged with violating this ordinance, and convicted in the Recorder’s Court. He has appealed, and attacks the legality and constitutionality of the ordinance on the ground that it violates Art. 46 of the Constitution of the State, and also that independent of said article the city is without power to enact said ordinance. This defence would, undoubtedly, be good if the ordinance applied to the regulating of the hours of labor generally within the city limits.

But the ordinance only regulates the hours of labor on the city public works. The city has the absolute control of its own property, and can regulate the hours of work to be employed on the same.

The ordinance violates no law so far as it designates the number of hours in which laborers may be employed on public works. Having this right over its property, it has also the right to enforce, by appropriate legislation, the violation of the ordinance fixing the hours for work on city buildings. But such an enforcement of the ordinance must be within the powers delegated to the municipality. It can not trench upon the rights of the State and invade the domain of its legislative department.

The ordinance creates the offence of misdemeanor.

The word is generally used to denote an offence in contradistinction to felony, comprehending all indictable offences below felony, but does not include offences over which magistrates have exclusive summary jurisdiction. The State of Louisiana has never made the offence criminal and indictable, and the city is without authority to make that an offence which the State has failed to do.

That part of the ordinance describing the offence and making it a misdemeanor is null and void.

The judgment appealed from is avoided and reversed, and the defendant ordered to be discharged.


author: Watkins, J.

text:
    No. 12,245.
    Mrs. Charlotte M. Moore, Widow, vs. City of New Orleans.
    A manufactory not operating five hands usually and customarily is not exempt Irom taxation under Art. 207 of the Constitution.
    y^PPEAL from the First Oity Oourt of New Orleans. Richardson, J.

      James B. Rosser, Jr., for Plaintiff, Appellant.

      Samuel L. Gilmore, Oity Attorney, and James J. McLoughlin, Assistant Oity Attorney, for Defendants, Appellees.
    Argued and submitted November 19, 1896.
    Opinion handed down November 30, 1896.
   The opinion of the court was delivered by

Watkins, J.

Plaintiff’s claim is that the property in controversy is exempt from taxation, State and municipal, on the ground that it is employed in the manufacture of machinery within the sense and intendment of Article two hundred and seven of the State Constitution ; and that, consequently, the assessment thereof for the year 1895 was illegal, null and void, and should be annulled and abated, and her property declared exempt.

Entertaining a different view, the judge of the city court denied plaintiff’s application for relief, and rendered judgment in, favor of defendants, maintaining the legality of the assessment, and the former has appealed.

The following is a statement of facts upon which the case was tried in the lower court, viz.:

“That the plaintiff has succeeded to and conducts the business, lately conducted by Charles Moore, known as Moore’s brass foundry, on the premises designated as lot No. 19 of square 123, in First District, in square bounded by Constance, Tchoupitoulas, Julia and St. Joseph streets, measuring twenty-five feet front on Tchoupitoulas ■ street by one hundred and seventy-two feet deep, of manufacturing brass faucets, cocks and other articles of brass, besides casting and manufacturing iron castings, iron shafting and connections, iron piston rods and other similar- articles of iron. That when said manufactory or foundry is in full operation not less than five hapds are employed, but that five hands are not constantly em-, ployed, and frequenty not more than two, or three, or four.

Confining our attention to this statement, do the facts recited make out a case of exemption under the terms of the Constitution?

The two essential requisites of the Constitution are, first, that the plaintiff should be engaged in manufacture, and, second, that her manufactory is engaged in manufacturing machinery.

But in addition to these requirements there is a very important proviso to the effect “ that not less than five hands are employed in any one factory.”

In Benedict vs. City, 44 An. 793, we held it to be essential to exemption under Art. 207 of the Constitution, that the proof should show that the property claimed to be exempt was in operation as a manufactory; and in Behan vs. Board of Assessors, 46 An. 870, a similar principle is announced.

In the agreed statement of facts it is said that when said manufactory or foundry is in full operation not less than five hands are employed; but that five hands are not constantly employed; and frequently not more than two, or three, or four.” (Our italics.)

This admission is, in our opinion, fatal to the plaintiff’s alleged exemption. It clearly shows a want of full compliance with the proviso to said article “ that not less than five hands are employed in any one factory.”

To be within the exemption the proof should show that not less than five hands were usually and customarily employed in the manufactory. And inasmuch as the admission is made that plaintiff’s manufactory was frequently operated with not more than two, three or four hands, it had just aswell to have been idle,in so far as its operation as a manufactory was concerned, during a large portion of the time.

It is a maxim consecrated in many decisions of this court interpreting this article that tax exemption is the exception and taxation is the rule.

We think the judgment is correct and it is affirmed.


text:
    No. 12,262.
    State of Louisiana vs. Arthur Collins.
    A motion to quash a venire must he filed on the first day of the term at which the indictment is found, or exceptional circumstances shown which rendered compliance with the" rule of law impracticable.
    The object of this rule is to speed the administration of justice, and it must be rigidly enforced, except in cases of great urgency, and when enforcement would operate injuriously to the defendant.
    APPEAL from the Eleventh Judicial District Court for the Parish of St. Landry. Dupré, J.

      M. J. Cunningham, Attorney General, and R. Lee Garland, District Attorney, for Plaintiff, Appellee.

      W. 8. Frazee and C. F. Garland for Defendant, Appellant.
    Argued and submitted November 21, 1896.
    Opinion handed down November 30, 1896.
   The opinion of the court was delivered by

Watkins, J.

The defendant was indicted for the crime of murder, found guilty of manslaughter and sentenced to imprisonment in the penitentiary for a term of ten years, and from that verdict and sentence prosecutes this appeal, relying upon two bills of exception, one of which was taken to the ruling of the trial judge overruling his motion to quash the venire, and the other to his refusal to permit the introduction of certain testimony.

I.-

The motion to quash the indictment was grounded on the complaint that the clerk of the court had failed to publish the list of the jury, as drawn from the ensuing term of court, in conformity with the requirements of Sec. 5 of Act 99 of 1896; and further, because the jury commission by whom the venire was drawn was illegally constituted, for the reason that one of the jury commissioners who participated in the drawing of same was at the time of his participation a duly qualified and acting member of the police jury for the first ward of the parish of St. Landry, having been theretofore elected to said office at the general election held on the 21st of April, 1896; and further, because another of the said jury commissioners was at the time of his participation in the drawing of said venire an officer of the United States government, and that, on that account, neither of said persons were qualified to act in the discharge of the duties imposed upon them by law as jury commissioners, and the venire as drawn was illegal, and that its illegality necessarily draws to it the nullity of the grand jury selected therefrom, and by whom the bill of indictment against the defendant was found.

This motion was denied by the trial judge mainly upon the ground that it came too late, not having been tendered and filed on the first day of the term of court at which the grand jury was drawn and organized, but was only filed several days subsequent to the commencement of the term and the organization of the grand jury.

The contention of defendant’s counsel is, substantially, that he is exempted from the operation of the statute which requires the filing of a motion to quash a venire on the first day of the term, by reason of the fact that the grand jury did not find and report the indictment against him until after the lapse of several days subsequent to the commencement of the term, thus rendering it impracticable for him to file such motion on the first day of the term; but the contention of the State is that while that statement is literally cox’reet, yet the defendant committed the homicide for which he was subsequently indicted on the 15th of August, 1896, and was preliminarily examined upon a charge of murder on the 26th of .August, 1898, and remanded to jail without the benefit of bail, and thus remained in confinement until the court was convened in September following, when the indictment was found and he was arrested thereunder; and that he was thoroughly admonished of the necessity of examining the venire and the manner in which it was drawn and of filing by anticipation the necessary motion to quash same upon the first day of the term.

The statement of facts furnished by the trial judge conforms to the foregoing contention on the part of the State.

Undoubtedly there are exceptions to this rule, and cases have been presented in which exceptions thereto have been recognized— for instance, in State vs. Ashworth, 41 An. 683, in which we held that a motion to quash a venire must be filed on the first day of the term at which the indictment is found, or “ exceptional circumstances shown which rendered compliance therewith impracticable.” See also State vs. Vance, 31 An. 399; State vs. Sterling, 41 An. 679.

But there is nothing in the defendant’s motion to exhibit the existence of exceptional circumstances rendering compliance impracticable. There is nothing to show that defendant and his counsel were unaware of the alleged nullities in the drawing of the venire, or the want of qualification of the jury commissioners at the commencement of the term, or that they could not, in the exercise of ordinary diligence, have ascertained the existence of same, and on that account have filed his motion on the first day of the term.

There is nothing to the contrary stated in State vs. Taylor, 43 An. 1131.

In State vs. Vance, 31 An. 398, the defendant was indicted for an offence committed after the first day of the term. 'In State vs. Texada, 19 An. 436, the offence charged was committed on the first day of the term. But in State vs. Thompson, 32 An. 879, the motion to quash the venire was made before the organization of the grand jury by a defendant who was afterward indicted by them.

In a recent case the rationale of the requirement of the statute is thus given, viz.:

“The requirement of the statute, that a motion to quash a venire for supposed defects in drawing juries, shall be made upon the first day of the term, is to secure the prompt administration of justice, and with that view to prevent the holding back of motions of this character’, preventing alleged irregularities of this character easily corrected without serious delay or expense, if made at the beginning of the term. If the statute should be relaxed when the indictment is’found after the time, as was the case here, although the accused was in custody and represented by counsel, cognizant of áll the facts' on which the motion to quash the venire was based, still the motion should not have been delayed until the 30th of March, ten days after the term began, and the day had been fixed for the trial. In any view we hold it to be too late.” State vs. Leftwich, 46 An. 1195.

That was a case of murder and the defendant had appealed from a‘ sentence of death.

The reasons favoring adherence to the rule of the statute are quite as strong in this case. The court convened on September 1, the indictment was returned into court on the seventh, and the motion to quash was not filed until the fourteenth — though the cause had not been set down for trial at the time of the filing.

Manifestly, there was no occasion for this delay; and to treat the motion as having been timely filed, under the circumstances, would be an unwarrantable infraction of the rule, resulting very injuriously to the public weal. This we are unwilling to do. We therefore approve of the ruling of the trial judge.

II.

With reference to the second bill of exceptions we make the following'extract from the brief of defendant’s counsel, viz.:

“ When the State had closed its case the defendant placed oh the stand the witness, Ludger Lastrapes, and asked him the question, ‘’Do you know'Alphonse Collins?’ to which he answered, 'Yes, sir.’ He was then asked,’ ‘ Has he ever gone by any other names?’ which question was objected to by the State and sustained by the court.
.' “Alphonse Collins was the only State witness to the shooting, and in his cross-examination by the defendant in his examination-in-chief, he was asked if he did not go under several names; he answered, that if. any one called him by any other he was not aware of it.
“ Defendant proposed to prove by witness, Lastrapes, and others, that this State witness, Alphonse Collins, had worked forthemí ánd had given them other names than that of Alphonse Collins.
The purpose of this testimony was to contradict the testimony of Alphonse Collins; to impeach his credibility as a witness, and to show to the jury his character. ...
“ We think the lower judge erred in sustaining the objection of the State.”

The difficulty is, that the statement which defendant’s counsel proposed to prove was irrelevant to the matter at issue, and it was not competent for the defendant to attempt to contradict or impeach the truthfulness of a State’s witness by the employment of such immaterial things.

There ought to be some connection between the matter at issue and the testimony offered; and, in our conception, the truthfulness of the witness would not have been impaired or his credibility successfully assailed if the testimony objected to had gone to the jury.

This objection is not well founded.

There is no error apparent, which entitles the defendant to relief at our hands.

Judgment affirmed.


text:
    No. 12,167.
    The Mutual Loan and Building Association vs. the First African Baptist Church.
    The court again aiSrms that no grace is allowed on extensions of time to file records of appeal.
    The right to dismiss the appeal not filed in time is not lost by the lapse of three days from the date of filing. The three days’ rule has no application when the ground to dismiss is failure to file the record on the original or extended return day. 47 An. 1534.
    Nor is such right at all affected by an order extending the return day made on the ex-parte application of the appellant after the return day has passed. 4 An. 350; 10 An. 76; 47 An. 1534.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Henry P. Dart and Benjamin W. Kernan for Plaintiff, Appellee.

      Albert Voorhies and Henry J. Rhodes for Third Opponent, Appellant.
    Argued and submitted November 18, 1896.
    Opinion handed down November 30, 1896.
   The opinion of the court was delivered by

Miller, J.

This appeal was returnable on the 4th of May, 1896. On the 5th, before the expiration of the three days’ grace allowed by law, an extension of thirty days was allowed to file the record in this court. That delay, by the terms of the order granting it, begun from the date of the order, not from the 7th, the end of the grace period, as contended for by the appellant. There was another extension of sixty days granted on the 4th of June. The record was not filed within that delay, and on the 4th of August, one full day over the sixty days, another extension was granted, and still another afterward, within which, on the’ 10th of August, the record was filed.

The ground to dismiss is, that the appeal was lost by the failure to file the record within the sixty days from June 4. This seems to be fatal to the appeal. Sixty clear days had elapsed from the date of the June extension. It is settled that no days of grace are allowed on extensions of the return day. The subsequent extensions on the applications of the appellant could not revive the appeal. Hudson et al. vs. Sheriff et al., 47 An. 1534; Succession of Gast, 42 An. 91; Succession of Quin, 37 An. 391; Chretien vs. Poincy, 33 An. 131; Centennial Exposition vs. Railroad Company, 38 An. 905; Holz vs. Fishel, 40 An. 294.

Nor is the appellant prejudiced by the fact that his motion to dismiss was not made until the 10th of November. When the period for filing the record goes by, the appellee is not required to notice the date of the subsequent filing and move to dismiss within three days. The rule that motions to dismiss must be made in three days has no application to motions of this class. Dwight vs. McMillen, 4 An. 350; McDonogh vs. DeGruys, 10 An. 76; Hudson et al. vs. Sheriff et al., 47 An. 1534.

We are reluctant to dismiss appeals, when, as in this case, there appears to be an earnest controversy, but in the circumstances we have no alternative.

The motion of appellees is maintained, and the appeal in this case is dismissed at appellant’s costs.


text:
    No. 12,212.
    John P. Baldwin, Receiver, vs. John S. McDonald.
    1. The transfer of property by the insolvent debtor, alleged to be in fraud of creditors, will not be set aside merely and only because the transferee is a creditor, and the indebtedness, the consideration of the transfer. If under the circumstances the transfer was to the advantage of the creditors, or at least not injurious to them, the transaction is not within the scope of the revocatory action, one of the elements required in that action being injury to creditors. Civil Code, Arts. 1968,1970,1978,1984; IS La. 383; 14 La. 322.
    2. If such transfer fulfilled the obligation resting on the debtor before and at the time of his insolvency, there is no room for the revocatory action.
    3. The court adverts to the lin$ of decisions that deny to syndics the right to disturb bona fide transactions of the insolvent, for informalities or such defects as non-delivery in contracts of sales; defects which the insolvent could not urge. 9 An. oB9; 5 An. 274; 37 An. 472.
    A PPEAL from the Oivil District Court for the Parish of Orleans. Monroe, J.

      Benjamin Biee Forman and Hugh C. Cage for Plaintiffs, Appellants.

      J. B. Beckwith for Defendant, Appellee.
    Argued and submitted November 17, 1896.
    Opinion handed down November 30, 1896.
   The opinion of the court was delivered by

Miller, J.

- The plaintiff, as commissioner of Leeds & Co., Limited, brings this revocatory action to set aside a transfer of property by the company to the defendant, the petition containing the allegations of the insolvency of the company, that defendant was their creditor with knowledge of the insolvency and of injury to the creditors. The defence is the general issue, with the additional averment that the property transferred was covered by patents to defendant securing to him the exclusive use and to the delivery of which he was entitled. The judgment was in defendant’s favor, and plaintiff appeals.

The defendant was the patentee of an attachment to sugar mills for the separation of the juice of the cane. Leeds & Co. were machinists, with a contract to manufacture for the defendant the patented machinery to be taken and paid for by him, as well as sold by them when opportunities offered. To secure prompt execution of orders for machines, the work of the company was generally or often done in anticipation of orders from planters, and the result was the machines or castings and other parts of it were ready for prompt delivery when orders came for the machine. This led, as we gather from the record, to a course of business by which the company anticipated payment for their work before the machines were ordered, or at least before the price was realized, and the defendant would practically make that payment in advance. The company would obtain defendant’s notes for amounts assumed to be coming to them from work in hand, or to be done under anticipated orders for the attachments. The notes thus given the company would discount, and at maturity the notes would be taken up by defendant. The president of the company testifies the notes were deemed prepayments for the work of the company in constructing defendant’s machine or part of it. It seems, too, that in delivering the machines or orders the company would collect from the purchasers, and in this way money of the defendant came into their hands. In this course of business the company had collected four thousand dollars of defendant’s royalties, and besides the defendant had furnished them his note for twenty-five hundred dollars, which at maturity he had taken up, aggregating sixty-five hundred dollars. The company becoming insolvent, a few days before the seizure of the property and the appointment of liquidating commissioners, agreed to deliver to defendant the castings and portions of machines on hand they had made in anticipation of orders, the delivery to discharge to the extent of the value of the property the liability of the company for the money they had collected for defendant and for the amount of his note on which they had realized. Under this agreement the delivery was made by the commissioners acting for the company before the appointment of the plaintiff.

The plaintiff insists that this delivery of the patented machines or portions of it, made for the defendant under the course of business shown by the record, is to be viewed as the prohibited transfer of the insolvent debtor to his creditor. Civil Code, Arts. 1970, 1978, 1984, 2658 et seq. The defendant’s contention is that the property delivered, covered by his patents conveying his exclusive right to sell, was of no use or value to any but himself; that the-creditors were benefited, not injured by the ti'ansaction, and haviag the right under the method of his dealing with the company to demand the property, the delivery merely fulfilled the obligation of the company.

The law forbids the giving in payment to the creditor of the property of the insolvent debtor, the creditor knowing of the insolvency and the transaction operating injury to the creditors. This prohibition enforces the principle that the debtor’s property, the common pledge of all the creditors, is not to be appropriated for the benefit of one of them. Civil Code, Arts. 1968, 1970, 1976, 1984 et seq., 2655, 2658. But with other essentials to bring the transfer within the scope of the prohibition the law looks to the intent of the parties, and the important question whether there is any resulting injury to creditors. Monthly vs. Creditors, 18 La. 888. In this case the delivery embraced, as we read the record, the parts of an incomplete machine or portions of it, and appliances required for the machine, admitting of no other use. The defendant was the patentee. All the property delivered had been made for him. Our attention has been directed by plaintiff to the provision in the patent laws discharging from all liability for using or selling the patented machine, the purchaser from the patentee, or who constructs the machine before the patent issues, or one who makes such sales with the patentee’s consent. Any privilege which it may be supposed was derived from this provision of the patent laws seems to us to be of small, if of any, importance to the commissioners of an insolvent firm whose property was sold or to be sold, and whose business was at an end. Practically, the patentee solely entitled to sell the machine was the only party to whom the incomplete parts of the machine was of the least use. To this effect is the testimony in the record which attributes to these castings or parts of the machines no value except to the patentee, save such value as is attached to old junk. The transfer, treating the defendant as a mere creditor, discharged over three thousand dollars of debt. The price was adjusted, we understand, at the factory rates, with the discount off allowed on large orders. With the light of this record, it seems to us this transaction utilizing metal in forms admitting of no use except to the patentee of the machine, and which could not be sold for any price equivalent to the indebtedness the transfer settled, stands unaffected by the law, setting aside transfers by debtors, only when injurious to creditors. The interference of the law through the revocatory action with transfers by debtors to creditors, is not simply because of that relation. Oases are nob infrequent where such transfers are beneficial to creditors, or, at least, work them no harm. Transactions between an insolvent debtor and his creditor, by which he gets property for his debt, are to be closely scrutinized, in view of the articles of the Code on that subject. We must, however, take the case as it is placed before us by the record. The testimony, in our appreciation, is that the property transferred was practically of no value, except to the patentee. Nor, from our examination of the record, is there any testimony to the contrary; that is, on this point of value. If we are correct in this appreciation of the testimony, we are called on to set aside a transfer operating no injury to creditors, but of benefit to them. Injury to creditors is an indispensable element of the revocatory action, and that basis, in our view, the record does not furnish. Of this opinion, too, was the lower court.

The plaintiff claims there was no delivery prior to the appointment of a liquidating commissioner. It is claimed by defendant that the property was set apart, put in a room and placed under the control of the defendant. The delivery before che appointment of the commissioners is contended for by defendant, and in argument for the plaintiff the actual delivery, it is insisted, was nob till after the commissioners (the first that acted) were appointed. On this branch of the case, we think the tendency of our jurisprudence is to exclude the syndics or commissioners from objections of this character. The agreement in this case was made by the parties, it seems to us, in entire good faith and in the appreciation on both sides, that the defendant was entitled to the property, and that the transfer itself was the best for the interest of creditors and all concerned. When the present commissioners came into office, they found the defendant in possession under that agreement. Such an agreement, in our view, may well be deemed valid .as against the syndic, or, at least, not to be assailed on the ground of non-delivery or delivery attempted, but not executed. The protection the law gives to bona fide contracts of the insolvent before the insolvency extends as well to defects or informalities in the giving in payment as to the sale itself. Civil Code, Arts. 2456 et seq., 2655, 2658. Campbell vs. Slidell, 5 An. 274; Nicolopulo vs. Creditors, 37 An. 472; Partee vs. Corning, 9 An. 539. Irrespective, however, of this question of delivery we are dealing with a transaction which, if we correctly read the testimony, worked no prejudice to the creditors. In that view, the transaction is not open to attack.

Again Leeds & Oo. not only manufactured the attachments sold by defendant himself, but when they sold sugar mills the opportunities often occurred of supplying also these attachments. When paid, they collected as part of the price, the royalties of defendant as patentee. These amounts, thus collected, remained in their hands. When they needed money the defendant would be called on for his notes which they would realize on discount. These pecuniary accommodations were due entirely to the relation they occupied of manufacturing for defendant his patented machines and manufacturies in advance to secure prompt execution of orders. The accommodations were, as it seems to us, on the basis of anticipated work to be done by the company and to be settled by the manufacture of the machine when the orders came either through defendant or from the planter ordering from the company. As the president of the company puts it in his testimony with reference to the defendant’s notes, they were considered prepayment. In that view the defendant might well be deemed entitled to the machines or the incomplete machines — i. e., parts not put together on hand and delivered to him. Of course, the commissioners or syndics can not question the fulfilment of an obligation resting on the insolvent at or before the insolvency. Nor for the same principle can non-delivery urged by the commissioners avail them. Partee vs. Corning, 9 An. 539; Nicolopulo vs. Creditors, 37 An. 472. On this as on the other branch of the case we do not think the record affords any basis to disturb the judgment of the lower court.

It is therefore ordered that the judgment of the lower court be affirmed with costs.


author: Breaux, J.

text:
    No. 12,239.
    State of Louisiana vs. Michel Scossoni.
    Substantially, the law of self defence, as given by the court in its general charge, covered the principle of law involved in the request niade in behalf of *the . ,/ defendant for special instructions to the jury on the subject of .self,defence.."

      It was therefore not error to decline to give the special instructions.
    Where there was no testimony to prove the character of the deceased, the court ' ’ could not be required to instruct the jury as to weight to bo given to character, as the instructions would have had no relevancy to the evidence in the case.
    The jury was properly instructed in so far as relates to a provocation by an antecedent wrong committed, which may have been felt by the accused.
    The omission in defining the crime charged, which the judge was not requested to supply, is not error.
    As relates to the character of the accused and the error urged to the charge in that particular, the following rule applies:
    Where there is no bill of exceptions or assignment of error the judgment will be aflinned.
    A PPEAL from the Criminal District Court for the Parish of Orleans. ¿ A Moise, J.

      M. J. Cunningham, Attorney General; B. H. Marr, District Attorney, and Jno. J. Finney, Assistant District Attorney, for Plaintiff, Appellee.

      Charles H. Luzenberg for Defendant, Appellant.
    Argued and submitted November 21, 1896.
    Opinion handed down November 30, 1896.
   The opinion of the court was delivered by

Breaux, J.

The defendant, Michel Seossoni, was indicted by the grand jury for the parish of Orleans on the 7th day of April, 1896, for the murder of Prank D’Antonio, committed, it is charged, on the 18th day of February of that year. He was put on his trial on the 11th day of August, 1896, and was convicted of manslaughter, and his punishment fixed at ten years in the penitentiary. Several bills of. exceptions were reserved during the trial to the rulings of the court. A motion for,a new trial was filed; it was overruled and a bill reserved- , ■

Perhaps the best method of getting at the questions involved in this case is to give a substantial statement of the facts.

The defendant Seossoni, while in his house, early in the evening, . w^s murderously assaulted and shot by the deceased, who was his father-in-law. The deceased was arrested_ by some citizens and .placed, in charge of two police officers, who ,escorted, him to/.the nearest patrol box with the intention of sending him to the police station. The wounded man, after his wound had been dressed at a neighboring drug store, was taken by citizens who had him in charge, to the same patrol box, with the view, from there, to send him to the Charity Hospital in an ambulance. Not less than fifteen minutes, and not more than thirty minutes, elapsed from the time of the shooting until the accused and the deceased were brought undesignedly face to face at the patrol box.

At the moment the deceased and the accused met at the patrol box, a policeman testified that he held D’Antonio, the deceased, by one arm, while the other policeman was inside the patrol box sending in the call for the wagon.

Immediately after the meeting, the deceased raised his arms and shook his clinched fist at the accused, at the same time said with an opprobious oath: “You son----, you are not dead yet.”

The accused thereupon rushed toward D’Antonio and stabbed and slew him.

Upon this state of facts, the accused took bills of exceptions to the refusal of the judge to give special charges.

The court was requested in the first special charge to instruct the jury, viz.: “If they were satisfied from the evidence, that the de- “ ceased had attempted to assassinate the accused by secretly shoot- “ ing him through a glass door, while the accused was peaceably and “ lawfully in his own house, and that shortly thereafter they had ac- “ cidentally met, and from the motions and language of the deceased, “ the accused still bleeding and suffering from his wound, the accused “ believed and had reasonable ground to believe that the deceased in- “ tended again to attack him and take his life or do him great bodily “ harm, and that it was necessary to kill him in order to avoid the “ apprehended danger, the accused was justified in killing the “ deceased, although he was mistaken in the appearances, and “ although there was, in fact, no design on the part of the deceased “ to do him serious injury, nor any danger that it would be done.”

The judge declined to give this charge for reasons stated on the bill. They are substantially that the law of self-defence, as given by the court in its general charge copied on the bill, covered the principle of law involved in the request.

Attention is called by the defendant to the portions of the general charge italicized as objectionable. This charge being lengthy we only copy the paragraphs and sentences in which are the words to which objection is urged:

“ A man may repel force by force, even to the taking of human life against one or many who manifestly intend and endeavor by violence to commit a felony on his person.”
“ In a personal conflict it must appear that the accused was assaulted and, that this assault was of such a character that the accused had apparent reason to believe and did believe that his life, was in danger or that he was in danger of suffering great bodily harm at the hands of his assailant.
The degree of force in defence of one’s person must not exceed the bounds of prevention and defence. This will depend upon the ct circumstances of the case, that is, the character of the assault, taking “ into consideration the relative situation and condition of the parties. “ And in considering the danger to which one is subjected by an il assault, the law does not hold him to the same sound discretion and cool judgment that a juror is supposed to exercise in deliberating over “ the facts of the case. The jury should view the facts from the de- fendanVs standpoint.
* * * u jf^ under these circumstances, the assault was slight, or was not an assault, but merely insult and threats, by threats and angry motions not amounting to an assault, and the defendant’s life-was not in real or apparent danger,, nor his person in real or apparen danger of great bodily harm, if he intentionally killed his assailant-the crime would be murder. * * * If, however, his life was apparently in danger, although not really in danger, or his person apparently in danger of great bodily harm by the suddenness or violence of the assault, although not really in danger, and he really and honestly believed that his life was in danger, and he had apparently reasonable grounds for this belief, then if he slay his assailant it would be excusable homicide. The rule of law, briefly stated, is, the accused must have honestly believed in his danger at the time, and the evidence upon which he based that belief must have been reasonable and must have been such as would have induced such a belief in a reasonable person.”

The italicized portions of the charge are at least softened, if not entirely explained and neutralized by the portions not here inserted. In our view that portion interpreted with the whole charge does not erroneously limit the right of self-defence. We understand the general rule of law on this point is: One must not exceed the limit of defence and prevention, and the evidence must be such that the jury can say that it had reasonable ground for the belief that the accused did not exceed these bounds.

There must have been an apparent necessity to ward off some unlawful and violent attack. The right of self-defence was not lessened by the whole instruction given. The learned counsel for the accused argues with force that the charge virtually decides that the fact of the accused being almost murdered by the deceased but a few minutes before the accidental' meeting of the two men at the patrol box, and the further fact of the assault or attempted assault upon the accused by the deceased at the meeting, with the gestures and exclamations of the deceased, should not have alarmed the accused or caused him to apprehend any danger from the deceased.

We think it sufficient answer to say:

The defendant was allowed to prove the manner in which the deceased actually assaulted him at the time of the homicide.

This evidence was relevant and material.

Further, the assault must be one committed or threatened at the time of the homicide, or so immediately preceding as to justify the taking of life in self-defence, or to ward off imminent danger of bodily harm. The attempted assassination was not intimately connected with the assault. The deceased had been arrested and was in the hands of officers of the law, at least, fifteen minutes after the shooting. •

On this point the jury was charged:

“While it is true the provocation must arise at the time of the com- “ mission of the offence and the passion must not be the result of a “ former provocation, yet in passing upon the sufficiency of a provo- “ cation and on the effect of the passion upon the mind of the de- “ fendant, the past conduct of the deceased toward the defendant, “ his threats, if any, and bearing — in fact, all the facts and circum- “ stances of the case should be considered by the jury. An act “ standing alone may not be sufficient provocation, but may be “ ample when it is one of a series of similar acts.”

In considering the “ facts and circumstances” of the case it included the admission of record, sustained by uncontradicted evidence that the deceased bad shot the accused as before stated. It was necessary that at the moment there should have been some positive demonstration of the fell purpose; that the accused had reason to believe, or did believe that there was such a purpose to warrant the exercise of the extreme right of taking the life of a human being. A belief of danger, founded exclusively upon the attempted assassination, was not enough in this case to maintain the plea of self-defence.

The record does not disclose that at the time of the homicide the deceased was armed. Nor does it disclose that the deceased made any demonstration such as to place the accused in fear of death or of the infliction of great bodily harm.

In view of these facts the charge was not erroneous upon this branch of the case.

We pass to the question of the character of the deceased.

The court a qua certifies a fact sustained by the record that n° attempt was made to prove the character of the deceased. The defendant urges that the real character as to bloodthirstiness of the deceased was illustrated to and well known by him from the fact of his having attempted to assassinate him. The intervening time between the attempting assassination, the arrest made and the disarming of the accused are reasons, we think, which sustain the ruling-, which limited the instruction to the jury to the provocation which may have been felt without enlarging upon the subject and instructing them as in case the general character of a deceased person is assailed by proof.

It is also urged by the defendant that the charge is objectionable and misleading for the reason that the definition of murder is incorrect as it does not require the slayer to be of sound mind; that the definition of manslaughter is incorrect, as it requires the provocation to have arisen at the precise time that the blow was struck and confines the consideration of provocation to that precise period.

With reference to the definition of murder there was no bill of exception reserved to the whole charge or any special point made of the omission.

We think the following applies in this case: “ Omissions which the judge was not requested to supply here have been deemed, therefore, not to be error.” Bishop Cr. Pr., Vol. 1, Third Edition, paragraph 980, Sec. 2.

With reference to manslaughter:

Evidence of the preceding act was not kept from the jury.

A portion of the charge sought to direct the jury’s attention to the fatal encounter; another (copied, in our opinion) directs attention to the preceding act. Taken and interpreted together we do not think that there was error to the prejudice of the accused in thus charging.

Lastly, it is urged that the instructions as to the weight to be given to proof of good character of an accused is wrong.

We have searched in vain in the record for an assignment of error or bill of exception regarding character. “An alleged error discussed by appellant in his brief, but not otherwise appearing from the record, can not be considered on appeal.” State vs. Romano, 37 An. 98.

This completes a review of the proceedings and we have found no grounds upon which the accused can be relieved.

Judgment affirmed.


text:
    No. 12,252.
    The State vs. Leon Compagnet.

      Scruples of a Juror Against Capital Punishment. — Tlie court may on the motion of the prosecution stand the juror aside -when he has a fixed opinion against capital punishment. But the defendant can not challenge himupon that ground, par. ticularly, if the juror himseif does not ask to be excused from serving. The challenge was properly denied by the court.

      Threats.^ — In order to be admissible as evidence a threat should indicate an intention to take the life of the one threatened.

      Character of the Deceased. — The foundation was not laid to admit testimony to prove the character of the deceased by proving that an assault was about to be committed and that the assailed standing his ground, killed his assailant, although not in peril of life or exposed to suffer great bodily harm.
    A PPBAL from the Twelfth Judicial District Court for the Parish of Calcasieu. Bead, J.

      M. J. Cunningham, Attorney General, A. B. Mitchell, District Attorney (D. B. Gorham and P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      Pujo & Moss and G. A. Fournet for Defendant, Appellant.

      Argued and submitted November 7, 1896.
    Opinion handed down November 30, 1896.
   The opinion of the court was delivered by

Breaux, J.

The defendant, Leon Compagnet, was indicted by the grand jury of Calcasieu on the 9th day of September, 1896, for the alleged murder of Henry Cuicheney, in that parish, on the 28th day of May, 1896.

He was put on his trial on the 22d day of September, 1896.

On the 28th day of that month the jury having failed to agree on a verdict, it was discharged, and a mistrial entered.

The case was reassigned, and on the 1st day of October, 1896, he was put on his trial a second time, and was convicted of manslaughter, and his punishment was assessed by the trial judge at ten years in the penitentiary. He reserved a number of bills of exceptions; eight of these bills of exceptions present the same point, and are argued by the appellant as one bill of exception.

The first bill of exception was taken to the court’s ruling in refusing to decide that a juror who had conscientious scruples against the infliction of the death penalty was an incompetent juror. The juror while being examined on his voir dire was asked by counsel for defendant whether he had conscientious scruples against the infliction of the death penalty. The prosecuting attorney did not challenge him, and the juror did not request to be excused. It therefore follows that the defendant had no legal cause to assign against this juror sitting in the cause. His rights were not prejudiced, and no error was committed of which he can complain. State vs. Kennon, 45 An. 1192; State vs. Taylor, 44 An. 783.

It is a sufficient ground of challenge by the prosecuting officer that a juror declares on oath, in answer to questions, that he has conscientious scruples on the subject of capital punishment.

It is also a sufficient ground to excuse a juror who on oath informs the court of his conscientious scruples. But the right ends here. The defendant has never been accorded this challenge for cause as a right under any of the decisions of this court. It has been decided by a court of another jurisdiction that the juror had no ground for excuse from serving as a juror; that it was a, cause for challenge which the prosecuting officer might invoke, not the juror. Thompson and Merriam on Juries, par. 202.

The decisions of this court, however, to which our attention is directed, do not thus limit the right, for it is held that a juror may for that cause be excused on his own motion.

This court, however, has never decided (on the motion of the accused and at his instance alone) that it was a good cause of challenge.

The remaining' grounds of objection are to the ruling of the trial judge sustaining objections to the admissibility of evidence of threats, communicated and uncommunicated, of character of the deceased for danger and desperation.

The evidence of the case to the stage of the trial, at which the offer to introduce testimony of threats and of the character of the deceased was made,- was not reduced to writing. The court excluded evidence of threats and character of the deceased (offered on examination of the defendant’s witnesses) on the ground that the proper basis had not been laid — in other Words, that the alleged overt act had not been sufficiently shown.

Taking up for review the testimony on this point, made part of the bill of exception, we find that the first witness for the defendant' (whose testimony is reduced to writing) testifies that the deceased,' Guicheney, who appeared angry, passed him, walking rapidly in the! direction of an alleyway. He motioned with his hand toward the accused, and the accused also made some motions of the hand. The accused stepped into his restaurant; the deceased stood at the entrance to the alleyway. He (deceased) jumped into the alleyway and immediately after the witness heard two shots. David Rich-! mond, another witness, testifies that about ten minutes before the shooting he delivered a message from Guicheney to the accused. >

■ This witness was sitting oti the steps of the Royal Saloon, about two feet from the alley. The accused, he says, cursed the decease's!, and said to him to come on. The former left the chair Where he was sitting, and went into the restaurant. The accused came out of a side door of his restaurant into the alleyway, and stood about two' feet from his,door; about that time the deceased stepped into-the alleyway. The accused asked him what message he had sent' him by this witness (Richmond). To which the deceased answered ' that it was none of the business of the accused. The latter said so'mething’ in French, which the' witness • did not' understand; h'e (accused).' pulled out his pistol; Guicheney (the deceased) was coming toward him; he (accused) motioned to him with his left hand, with his palm extended outward. Guicheney tried to catch the pistol; after seeing he could not catch it he turned sideways, and the accused shot him twice.

W. H. Smith, another witness, testifies that at the time of the shooting the defendant, Compagnet, was still in front of the side door of his restaurant; the deceased was approaching, and was at a distance of three or four feet. Immediately before shooting, the accused raised his left hand, and motioned toward the deceased, and said something that the witness did not understand. The deceased advanced with his left hand up, and his right hand by his side. He was dressed in undershirt, pants and apron. The defendant Compagnet, as a witness in his own behalf, testifies that the deceased cursed him, and said he would “ break his mouth.” To which he (defendant) answered “you can come.” He left the front of his restaurant, stepped inside, armed himself with a pistol, and stepped out into the alley, at the entrance of which the deceased was standing with one hand on a post; he said to him: “What do you mean by sending me such a dirty message by the boy?” to which deceased replied: “The message does not concern you.” The deceased then advanced somewhat rapidly, saying at the same time, “You son --I’ll kill you, and I’ll finish you to-day.” “Guicheney (testified the witness) rushed at me and I shot him twice.”

The theory on the part of the State and that on the part of the defence are at variance.

The theory of the defencefis, that the deceased was a strong, muscular man; that he was quarrelsome, violent and dangerous; that instantly before the homicide he was advancing on the accused in a private alleyway, showing a determination to carry out his threat to kill the accused; that the latter motioned with his left hand toward the deceased not to advance.

The theory of the State, on the other hand is, that the accused invited the difficulty, and that he was advancing on the deceased at the time of the homicide, and that in consequence there was no evidence indicating an overt act, and no foundation was laid to admit the testimony offered.

Waiving the State’s theory for the present, and giving consideration only to the theory of the defendant, we do not find that on the particular point of laying a foundation to admit the testimony offered, it is supported by sufficient testimony.

The testimony of the defendant annexed to the bill does not show that there was (as alleged by defendant) threat made to kill him about fifteen minutes before the conflict, as alleged.

The message, which the defendant says included a threat of intent to kill, was unquestionably provoking, insulting and obscene.

But it was not an expression of an intention to take life. Although very aggravating, it was not a menace (sent as it was by a mere boy), evincing a design to commit a possible act. Moreover, directly before the homicide, in answer to a question of the accused, deceased said that the message did not concern him. It was not relevant testimony, and as it was irrelevant, it was properly excluded.

With reference to the character of the deceased as a violent man and his strength, the testimony made part of the bill by the defendant, indicates that the quarrel was engaged in by both the deceased and the accused. Secondly: It does not reveal that the accused had retreated as far as he could with safety. Thirdly: Nor does it disclose that he was at the time in danger of being killed or of suffering great bodily harm. Without testimony of some weight denoting such an overt act, under our jurisprudence, in our opinion, a sufficient foundation is not laid to justify the admission of proof of character.

It has been decided that whether a proper foundation has been laid for such evidence as here offered, is for the trial court to decide, “ whose rulings will not be reversed unless manifestly erroneous.” State vs. Ford, 37 An. 443; State vs. Janvier, Ib. 644; State vs. Christian, 44 An. 950. Conceding, for the moment, that the position of the defendant is correct, and that the only testimony which should be considered is that of which we have before given a summary, it does not appear to us that the ruling of the trial judge, on the point here involved, was manifestly erroneous.

But reverting to the State’s theory, that the combat, or invitation to the combat, was mutual and the accused was advancing on the deceased,” as stated by the trial judge after having heard all the evidence, under the circumstances of this case we do not think that we should entirely ignore the statement. It was the best evidence obtainable in view of the fact that all of the witnesses for the State had been examined when the motion was made. A motion timely made, so as to enable the State to have the testimony of the overt act written, would present a different question. As it was, we have not found in this case that the Statute 113 of 1896 applies.

In considering either theory (the defendant’s or the State) it does not appear to us that the ruling of the District Judge was error.

The judgment is affirmed.