text:
    No. 336.
    J. L. Baker vs. J. B. Smith.
    1. Whilst it is true that, under our law and jurisprudence, a sale which stipulates a condition of redemption — vente áréméré — passes the ownership of the property to the pui'chaser, and that, upon making- restitution of the price paid, the vendor becomes reinvested with title; yet this rule of law and judicial interpretation applies exclusively to eases in which the vendee obtains actual possession, and a real and adequate consideration has been paid by him.
    2. In ease the debtor of several debts receives information that his creditor has imputed what he has received to one of his debts specially, the debtor ceases to have the right to require the imputation to be made to a different debt. And when the debtor has opportunity afforded him of ascertaining' that an imputation has thus been made, and does not avail himself of such opportunity to object thereto, and suffers a great length of time to pass without so doing, he will be precluded by his silence and tacit acquiescence from making- complaint afterward.
    APPEAL from the Second District Court, Parish of Bienville. Watkins, J.

      W. N. Bichardson and L. K. Watkins for Plaintiff and Appellee:
    1. Fifteen clear days is a sufficient citation for a person living fifty miles from the court house. O. P. ISO.

      2. If a person moves from a parish, he can be sued in the parish from which he moved within one year. 15 An. 538; 0.1\ 167.
    3. Silence and acquiescence in accounts constitute an approval of them. 35 An. 778.
    1. Contracts cannot be avoided for error, unless it is caused by fraud, force or improper influence. 22 An. 14; 30 An. 19á, et seq.

    5. Paying part of a debt waives prescription as to the remainder. Act 78 of 1888 applies only to open accounts. Pothier, Yol. 1, p. 506 [666].
    6. If a contract intended for a sale is decreed to be a mortgage, it secures tin* payment of the debt intended to bo secured. 38 An. 155.
    7. Whore a planter owes for advances, and owes a mortgage debt, the crop which he delivers is to be credited on the supply account. 26 An. 653.
    8. Admissions, etc., made in judicial proceedings bind those who make them, and can not afterward be denied by them. 29 An. 161.
    9. Asale, with the right of redemption, is a complete transfer of the property; not only as between the original parties, but as to third persons. 23 An. 661; 29 An. 1; 28 An. 29; 30 An. 186, 966; 32 An. 781; 33 An. 1026; 35 An. 856; 38 An. 183, 39 An. 190; 32 An. 781.
    10. The sale is perfect between the parties as soon as there is a price and a consent before delivery. O. C. 2156.

      J. G. Egan & Sora’for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

Plaintiff seeks to obtain judgment upon an open, running account of the defendant of several years’ standing, and on several promissory notes, one of which is secured by mortgage and vendor’s lien. His averments are, however, subject to the qualification that the two largest notes, aggregating in capital $2098.53, are subject to the credit of $2000, the amount of the purchase price of a certain tract of land, “unless the court should determine that the contract was not one of sale.”

He also makes claim for the annual rent of the land thus acquired, at the rate of $200. After unsuccessfully interposing some dilatory pleas, the defendant entered a plea of prescription, and subsequently filed an answer — original and supplemental.

The purport of his defences is, that the plaintiff had made an improper imputation of payments of certain crop proceeds that came into his hands; and that he should be allowed certain additional credits. Supplementary to the foregoing is the allegation of the defendant that plaintiff is not the owner of the land mentioned in the act of March 31, 1887, and that he does not owe him any rent therefor.

He also denies the consideration of the note of $87.50.

On the trial, there was judgment sustaining the plaintiff’s money demands (except that on the note lastonentioned) and decreeing him not to be the owner of said land; but it also awarded defendant an additional credit of something more than $1000, as the value of certain machinery which is included in the alleged act of sale, the price of which had subsequently inured to the plaintiff’s benefit by a separate and distinct contract.

From that judgment both parties have appealed, and the plaintiff has requested such an amendment thereof as will conform our decree to the prayer of his petition.

From this statement it is apparent that the determination of the character of the act that is alleged to be a sale by the plaintiff, and which is disavowed by the defendant, is the principal question for decision in the case. This question, however, arises in a collateral way — this being a personal and not a petitory action.

For, if it be a sale, and fully invested the plaintiff with complete ownership of the property, it is evident that the $2000 mentioned in the act as the price paid in cash was nothing more than the acknowledgment of that sum having been paid on the vendor’s existing indebtedness to the vendee — that is to say, on the note of date July 30, 1883, for $1098.53, and the note of date February 28, 1884, for $1000. But if, on the other hand, the transaction was not a sale, but a vente cl retrieve or a pignorative or innominate agreement of some kind, other than a sale, not absolutely and unequivocally passing the fee to the plaintiff as vendee, the latter would have his action on the original obligations of the defendant, but no valid claim for the rent of the land; and he would have to make restitution — on account, perhaps — for the price of the machinery sold.

Viewing the case in this light, this question must be determined first.

A fair synopsis of the argument relied upon by the plaintiff as a rule is as follows, to-wit:

That on the 31st day of March, 1887, the defendant executed an act under private signature, which recites that, for and in consideration of $2000 cash in hand paid, he granted, bargained and sold unto the plaintiff the tract of land described, to have and to hold, free from all incumbrance, and with full guarantee of title.

This act contains the further stipulation that the vendor is to pay to the vendee the sum of $400 on the 1st day of January, 1888, and a like sum annually thereafter, for four additional years — said sums aggregating exactly $2000 ■ Also the further provision that all revenues arising antecedent to the 1st of January, 1892, shall be the property of the vendee, and the duty of paying taxes is to be imposed upon the vendor.

It is evident to our minds that the act in question is not one of sale, pure and simple, transferring the fee to the plaintiff absolutely.

Upon its face there is evidence of it having been intended as a vente d réméré, the price having been apparently paid in cash, and the price that is stipulated to be paid in the future by the vendor, having the appearance of a condition of redemption.

But the proof is clear to the effect that plaintiff never obtained actual possession of the property, and it is equally clear that the defendant never paid the plaintiff the $2000 named as the purchase price, or any part thereof.

The contention of the plaintiff, however, is that the $2000 cash was intended to pay an ddischarge the two large notes pro tanto, but that through error and inadvertence the proper credits were not indorsed thereon; but this suit is founded, in part, upon those identical notes, as previously stated — in the alternative, it is true — and this is quite sufficient to raise a reasonable doubt in our minds with regard to the seriousness of such a payment having been contemplated by the defendant at all.

Under this view of the agreement defendant had no occasion to comply with his part of it by paying the plaintiff, as vendor, the $400 instalments, there being no need for the exercise of the stipulated condition of redemption.

In Howe, Executor, vs. Powell, 40 An. 308, this court had under examination a similar instrument, and of which the court said: “ It has all the characteristics of a sale, but contains the pact of redemption. * * * It is evidently a sale with the faculty of redeeming, vente d remise.

“The text of the law, and the jurisprudence upon it, are to the effect that by such a sale the ownership passes to the purchaser, who, most of the time, is a mere money lender; but that, on payment to him of the amount mentioned in the act, he is divested of that ownership, which passes to the original vendor. In two late cases we had occasion to consider that matter to some extent— Lawler & Hack vs. Cosgrove, 39 An. 488, and Davis vs. Citizens Bank, Ib. 523. Also, in Jackson vs. Lemlee, 35 An. 855.

“But the law and the jurisprudence only thus say, when the' transaction is really a sale d réméré — that is, where, among other requirements, the price paid was adequate, i. e., in reasonable proportion to the true value of the property. Stewart vs. Buard, 23 An. 201.

“ Hence it is that when the price is inadequate, and possession has not been delivered to the purchaser, but was retained by the vendor, it has uniformly been considered and held that the transaction was not a sale, but a mere security — indeed, a sort of pignorative contract, upon which the law looks with suspicion, for the protection of the embarrassed and unfortunate debtor against the rapacity of his ravenous creditor. Indeed, the settled doctrine of this court on this subject is that redeemable sales, unaccompanied by delivery of the thing sold,- of which the considerations are inadequate, will be treated by courts — without sufficient evidence to the cqntrary — as contracts for which the thing nominally sold stands as security, and nothing else. LeBlanc vs. Rouchereau, 16 An. 11; Collins vs. Pellerin, 5 An. 99; Miller vs. Shotwell, 38 An. 891; Ware vs. Morris, 23 An. 665.”

Taking this to be the settled rule of construction in such cases— that a sale d réméré amounts to a security and nothing more, in case the consideration is inadequate, or the price named is vile — and, for a much stronger reason, must such a sale be thus treated and considered in case there has been paid no part of the consideration that is expressed in the act.

But the act in question was specifically interpreted by the parties-themselves in 1888 and 1884 — more than a year after the date of its execution — in that the machinery that was sold with the land, and which is specifically mentioned in the act, was sold by the defendant to one King, for something more than $1000, and King satisfied the purchase price by arranging for a credit of defendant with the plaintiff for $1000 upon his (defendant’s) indebtedness — the proof showing that the defendant conducted the negotiations and fixed the price. This is altogether inconsistent with the idea of the plaintiff’s title to the property — the machinery constituting, as it did, part of the realty by destination.

But, inasmuch as this is not a petitory action, and the question of' itle arises only incidentally for interpretation, our opinion can go no further than to declare that the act in question is not one of sale, and that the non-payment of the consideration of the price expressed leaves the defendant’s notes in full vigor.

On other questions in the ease little need be said.

The proof discloses that one of the two flOOO notes antedates the commencement of the account sued on, and that the other was executed shortly subsequent thereto. That the account was the ordinary plantation account the defendant kept with the plaintiff, a country merchant, which run uninterruptedly through the years 1886 and 1890, inclusively; and that in each of those years, amounts in cash, and proceeds of the sales of cotton produced on the land in question, were delivered by the defendant to the plaintiff, unaccompanied with any specific request that same should be applied to any particular portion of bis indebtedness to him.

The proof further shows that while the defendant had not been furnished with stated accounts, showing the items of his debit and credit, he had frequently gone over the plaintiff’s books with him and examined his account thereon — in part, if not in detail — and made no objection to the manner in which the imputation of payments had been made by the plaintiff, and this is such an acquiescence on the part of the defendant as will preclude him from urging objection at this lata date.

The language of the code is:

“ When a debtor of sevei’al debts has accepted a receipt, by which the creditor has imputed what he has received to one of his debts specially, the debtor can no longer require the imputation to be made to a different debt,” etc. R. C. C. 2165.

And, in interpreting this article, this court said in Robson & Allen vs. McKoin, 18 An. 544: “This long silence on the part Of this defendant implies his assent to the imputation of payment made by the plaintiffs (italics ours) and he can not now require that the imputation should be changed.” Slaughter & Crosby vs. Milling, 15 An. 526.

We are of opinion that the defendant’s demand that the credits on the account should .be applied to his two notes, is without merit and was properly rejected; and, considering same as properly made, defendant’s plea of three years’ prescription lacks foundation, and was properly overruled by the district judge.

Notwithstanding we hold that the act shown in question supra was not one of sale d, réméré, but a nude security, apparently, it does not follow that thus holding gives any support to the defendant’s plea of prescription against the notes; on the contrary, it is clear •■and well settled that possession by a creditor of a pledge interrupts, ¡and keeps suspended the current of prescription upon the debt it is intended to secure, so long as that possession continues. And, confessedly, the instrument in question had direct relation, of some •sort, to defendant’s notes, and hence prescription was suspended in respect to them also.

The note of $87.50 was given by defendant to plaintiff for the price of a horse, which was sold upon the expressed condition that if the note was not paid at maturity there was no sale, and the defendant ¡was to pay hire of the horse. ,

While the defendant’s title was thus suspended the horse died, •and it is clear that the consideration of the note failed on that account.

The fact of King having consented and agreed to arrange for defendant a credit of $1000 on his indebtedness to the plaintiff, as part purchase price of the machinery above mentioned, and the plaintiff having given him no credit therefor, on any part of said indebtedness, it was proper for the judge a quo to make the allowance and the imputation of payment he did.

Under the evidence, which is somewhat desultory, we are of opinion that the amount of $150 which the court a qua allowed on the ¡defendant’s reconventional demand is proper and sufficient.

A careful review of the record and the law has satis&ed us of the -correctness of the conclusions of the court below.

Judgment affirmed.


source: Caselaw Access Project

author: McEneey, J.

license: Public Domain

text:
    No. 318.
    Thos. T. Land vs. Robt. N. Smith et als.
    ‘The owner oí land within the corporate limits of a town or city has the legal right to make it a suburb or subdivision of the town or city by dividing it into lots,, blocks and streets, and to soil the same at private or public sale.
    A sale of a lot bounded by streets is a dedication of the street to public use.
    Apian or map by which property is sold binds vendor and vendee.
    Jn a judicial partition each co-proprietor has a right to demand in kind his share of the property to be divided.

      Co-owners oí property can not be compelled to bold it in indiyision to await the future speculative value of the property. They can not be compelled to hold it ill indivisión and to contribute for its improvement. They can demand a partition at any time.
    APPEAL from the First District Court, Parish of Oaddo. Taylor, J.

      Land & Land for Plaintiffs and Appelles:
    1. The owner of land within the corporate limits o£ a town or city has the legal' right to make it a suburb or subdivision of the town or city, and the right to have it surveyed into lots, blocks, streets and alleys, and to sell the lots separate from the streets at x>rivate or xmblic sale. O. 0., Art. 491 (483).
    2. A sale of lots bounded by streets is a dedication of the streets to public use. Dillon on Municipal Corjiorations, Vol. 2, p. 638, Hoc. 640.
    3. A plan or map by which property is sold Jornis a part of the title, and is binding- on both the vendor and vendee. Canal Bank vs. Coxmland, 6 Da. 550; 3. An. 1.
    4. The advertisement of the property forms a part of the description, and binds, both the vendor and vendee. Wm. Koay vs. Now Orleans Canal and Banking Company, 7 An. 259; Bruney vs. New Orleans Canal and Banking Company,. 12 An. 541.
    5. A person who is present at a public sale, and is silent, or acquiesces in the sale, or becomes a purchaser at the sale, is estopped from denying that the property was sold as described in the advertisement, and according to a plan or max) of survey, as stated in the advertisement and read at the sale. See 1 I-Icn. Dig. Kvidence XII, f. 4, p. 512.
    6. A mandatary under a special power must coniine himself strictly within the limits assigned to him, and thosedealing with him must, at theirperil, seethat he does not exceed his authority. Brown vs. Frantum, 6 Da. 47; Ward vs. War-field, 3 An. 468; O. C., Art. 3010 (2979).
    7. An agent wbo acts without or beyond bis authority does not bind his prineixial. Menefee vs. Johnson, 2 B. 274; Uro vs. Curren, 4 IT. S. 502; C. C. 3010 (2979).
    8. In a judicial partition, each heir or eo-imoprietor has a right to demand in kind his share of the imoperty to be divided. O. C., Art. 1337 (1260),
    9. The xminciple of equaiity, equity and justice in the partition in kind, of property whatevermay be its nature, is declared in the Civil Code in the following words: There ought to bo included, if possible, in each lot, the same quantity of movables and immovables, rights and credits of the same natwi'e ami value. C. C. 1365 (1287).
    10.In a judical partition in lcincl, the law provides that the mortgages, lions and privileges existing against one of the eo-x^ropricitors shall, by the mere fact of the partition, attach to tlie share allotted to him, and cease to attach to the shares of his c.o-proxfrietors. C. C. 1337 (1338).

      T. Alexander for Defendant and Appellant:
    Owing- to the facts of the case, the partition should be'by licitation. See Meyer vs. Pargoud, 84 An. 969; Blakemoi’e vs. Blakomore, 39 An. 804; Am. and Bng. Encyclopedia Law, Vol. 17, pp. 788, 789, Tille Partition.
   The opinion of the court was delivered by

McEneey, J.

Plaintiff sues for a partition of property within the ■corporate limits of the city of Shreveport, known as Silver Lake.

The property is owned in indivisión by a number of proprietors in the proportions of one-twenty-fourth, one-twelfth, one-fourth and one-sixteenth. He prays for a partition in kind. His co-owners join in this demand, or make no opposition to it, except A. H. Leonard, who answers demanding a partition by licitation. There was judgment rendered directing the Silver Lake tract to be divided in kind into four parts equal in quantity and value as near as practicable ; one-fourth of same to be allotted to E. W. Smith; one-fourth to A. H. Leonard; oue-fourth to R. W. Smith, W. L. Smith, J. S. Smith and E. A. Duval; one-fourth to T. T. Land, A. D. Land, J. R. Land and D. T. Land; that W. R. Deval, surveyor, make a survey of Silver Lake into four parts, equal in quantity and value as near as practicable; that an inventory and appraisement be made of said property after such survey, and that P. A. Leonard, notary public, be appointed to make of said property an inventory and appraisement afcer said survey, and to partition the same into four parts equal in quantity and value as nearly as practicable. A. H. Leonard appealed. The plaintiff and the other owners of the property pray for an amendment of the judgment so that the surveyor be ordered to survey Silver Lake tract into lots, blocks, streets and alleys, as it was described, advertised and sold at public auction, and was purchased by the parties to this suit, and to make and return a correct and accurate map of the survey to the recorder of the parish for registration in his office; and they further pray that the judgment, so far as it orders the notary public therein named to make an inventory and appraisement of the property, and afterward to make a partition of the entire] tract into four separate parts or lots, be also amended, and the notary be ordered to make an inventory and appraisement of the lots as represented or shown on the map of the survey ordered by the judgment, and afterward to make a partition of the lots into four parts equal in quantity and value if possible, the inequality in the value of the lots, if any, to be compensated by means of a return of money. In other respects, they pray that the judgment be affirmed.

All parties to this suit seem to agree that the partition as ordered by the judgment appealed from is impractical in execution. The partition in kind is the one contemplated by law, the exception being that when the property is not capable of being divided, or where a great loss or inconvenience to the proprietors would be the result, a partition by licitation must be resorted to.

The evidence in this case shows that the Silver Lake tract is-speculative in value, and that its future value depends upon its. thorough leveeing and drainage and reclamation from overflow. By a sale the present owners would lose its prospective value, which would inure to the purchaser who could hold it and improve’it.

The testimony is, we think, conclusive that a public sale of the entire tract would result in great loss, the entire value of the tract, to. the present owners. The argument urged by defendant, Leonard, that it would be to the advantage of the present owners to hold it in indivisión and by co-operation reclaim the property, is without weight. No one can be compelled to hold property in common with another to await its speculative value, and certainly he can not be compelled to thus hold it and contribute for its improvement. He has a right to demand a partition at any time, and the only issue to-be determined is whether or not it must be divided in kind or by licitation. The evidence is conclusive that the property can be divided in kind.

It is true, from the shape of the property and some portions being-more valuable than others, that there is even in this division in kind difficulties to overcome in securing absolute equality among the co-owners. But there can be no doubt but that the loss and inconvenience would be less than by a public or private sale of the entire-property.

The testimony shows that the property can be more equally divided and a nearer approach to equality reached by having it surveyed into lots, streets and alleys, and a division made from this, survey.

The learned judge of the District Court refused to have it thus surveyed and divided, as it would be dedicating,'without the consent of the owners, private property, streets and alleys to public use.

But this practically had already been done by the owners of the-property.

There had been litigation íd relation to the property and fees were due the attorneys, T. T. Land and A. H. Leonard, plaintiff and defendant. J. F. Utz was appointed the agent and attorney in fact of the heirs of Smith, the owners of the property. The property belonged to them' and they could do with it what they pleased, sell it or dispose of it in any form, mode or manner they desired, either in block or by dividing it into lots, separated by streets and alleys, in order to dispose of it by parcels or lots more readily.

They selected this latter mode, and authorized their agent, by power of attorney, to have the Silver Lake tract surveyed into town lots, and to sell the lots at private or public sale, and after deducting costs of survey and of the sale, to pay to their attorneys one-half of the remainder of the proceeds in payment of their stipulated fees.

The City Surveyor, Wm. R. Deval, was selected by the agent to make the survey, and in strict conformity to. the instructions given the agent a map was made of the tract, showing the survey into lots, blocks, streets and alleys, corresponding with the survey of the streets in Shreveport at their intersection with the boundary lines of the Silver Lake tract. The map was accepted and approved by the agent, the heirs, the owners of the property and the attorneys. A real estate agent was employed to sell the property, at public or private sale, according to the map made by the surveyor.

It was advertised as divided into lots, blocks, streets and alleys. The agent and the attorneys agreed that in order to prevent a sacrifice of the property they would bid $30,000 on the first offering.

The defendant Leonard, one of the attorneys, for himself and other interested parties, bid the property in for the above sum, and it was adjudicated to the heirs and the attorneys — one-half to the heirs and one-half to the attorneys. They became owners of the property according to the description in the advertisement, and acquired it as-laid off into lots, blocks, streets and alleys. Had other bidders appeared, and bid off each lot, they would have acquired certain lots in certain blocks, fronting on certain streets. After this sale the purchasers can not now deny and repudiate the description of the property advertised. The evidence discloses the fact that there has been some loss to the property in caving and washing into the Red river. Another survey, conforming as near as possible to the first, into lots, blocks, streets and alleys, is now necessary in consequence thereof.

We are of the opinion that the judgment appealed from, amended as prayed for by plaintiff and other eo- owners of the property, will do substantial justice between the parties to the litigation.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to order the surveyor therein named to survey the Silver Lake tract into lots, blocks, streets and alleys, as it was described and advertised and sold at public auction, and purchased by the parties to this suit; and to make and return a •correct and accurate map of his survey to the recorder of the parish -of Oaddo for registration, and in his office. And it is further ordered that the notary public mentioned therein, and ordered to make an inventory and appraisement of the property, make an inventory and appraisement of the lots as represented and shown by the map of the survey ordered by this judgment, and afterward to make a partition •of the lots into four parts, equal in quantity and value if possible. The inequality in the value of the lots to be compensated by means •of a return of money.

In all other respects the judgment is affirmed.


author: McEnery, J.

text:
    No. 344.
    Robt. M. Sibley vs. J. Frank Lay.
    In this action for defamation and malicious prosecution the evidence fails to establish the facts that the defendant acted with malice and without probable cause.
    Having-pleaded justification the burden of proof is upon the defendant that he acted upon probable cause, without malice and upon reasonable grounds of belief.
    PPEAL from the Second District Oourt, Parish of Bossier. Watkins, J.

      W. U. Richardson, A. J. Murff and Joannes Smith for Plaintiff and Appellee:
    On tide Hekits.
    1. The only defences to slander are a denial, justification or confession. 3 An. 69; 6 An. 779; 14 An. 198, 406; 15 An. 166; 36 An. 469 ; 38 An. 161.
    2. There is no such thing- as half-way justification; hence, justification and denial are inconsistent. Townsend’s Libel and Slander, par. 212 and note; 38 An. 161; 10 An. 231; 28 An. 238.
    3. The only defence in this case is justification, and the burden of proof is all upon the defence to show exoneration from liability. 34 An. 1265; 36 An. 467 ; 38 An. 161.
    To charge one with burglary is calculated to injure and "damage one in his business character, in the estimation of his friends and in the eyes of the public, and one malting such a charge must know the injurious effect it is calculated to produce. 40 An. 423 and references.

      5. To charge one with burglary without good and reasonable grounds is within itself a legal imputation of malice (11 An. 206; 33 An. 914; 38 An. 161), and needs not be proved, 3 L. 207; 25 An. 170.
    6. Malice implied, in the use of slanderous words and charges, does not meanneeessarily a spite against the individual, but it means a wanton disregard for the rights of others. 36 An. 469; 27 An. 214; 16 L. 389; 40 An. 423.
    7. Injuries to one’s feelings, his social standing and business character, are legitimate grounds for damages. 17 An. 64; 19 An. 322; 23 An. 280; 38 An. 162.
    6. The reasonable grounds for belief, upon which a probable cause must be based, must be supported by circumstances sufficiently strong to warrant a cautious man in the belief that the one charged is guilty. 33 An. 392; 41 An. 303. A simple belief or supposition will not shield one. 36 An. 378 ; 41 An. 57.
    X A. Snider a?nd Wise <& Herndon for Defendant and Appellant:
    1. The slander charged in this case consists in making public statements that plaintiff was guilty of burglary and larceny.
    2. The grand jury of this parish indicted this plaintiff for burglary and larceny.
    3. The slander became merged in the prosecution, and if the prosecution is not actionable, neither is the slander. 40 An. 374.
    4. If not identical with the action for malicious prosecution, it is germane to it and resembles it. BB An. 1266.
    5. In an action for slander or for malicious prosecution, the plaintiff must prove: (a) that there was no probable cause for the accusation, or for the prosecution: (b) that it was actuated by malice; (c) that he has sustained damage thereby. All these must exist, and the burden of proof is upon the plaintiff. 3 K. 17; 9 K. 240; 8 An. 12 and 130; 10 An 537; 12 An. 333; 13 An. 274; 16 An. 3; 33 An. 915 and 1268; 34 An. 1147.
    6. Probable cause does not depend on tbe actual state of the case in point of fact, hut upon the honest and reasonable belief of the prosecution. However innocent the plaintiff may have been of the crime charged, it is enough for defendant to show that he had reasonable grounds for believing him guilty at the time the charge was made. Ibid.
    7. An acquittal is not proof of want of probable cause. Ibid.
    8. Actions like this are not favored by the law, and must be cautiously entertained. 3 II. 20; 15 An. 605; 40 An. 375
   The opinion of the court was delivered by

McEnery, J.

This is a suit for damages for defamation of character. The plaintiff alleges in his petition “that J. P. Lay,being instigated by malice against petitioner and in wanton disregard of all social duty, and with the view to defame petitioner and to bring him into disrepute and dishonor, did falsely, maliciously and publicly, at divers times and to divers persons, accuse your petitioner of being implicated in breaking and entering, on or about April 30, 1889, the store house of the said Lay at Borden Station, in the parish of Bossier, with intent to steal.”

The defendant, Lay, for answer, pleads justification and want of malice.

There was a verdict and judgment for the plaintiff for $500 damages, from which the defendant appealed.

Having admitted that he made the charge, the burden of proof that he acted upon probable cause, in honest belief, based upon reasonable grounds, rests upon the defendant. 34 An. 1265; 36 An. 461; 38 An. 161.

The defendant’s store was broken into on April 30, 1889. He charged the plaintiff, a former clerk, with having committed the burglary and larceny in conjunction with others. These declarations were made openly and publicly, and, although a criminal prosecution was not instituted for some months afterward, the charges were made in the course of investigation to ascertain the guilty parties. It was the defendant’s store which was entered, and it would be unreasonable to suppose that, in conducting the investigation, he should keep absolutely silent as to the person to whom the evidence would point as the guilty party. A term of court intervened without the fact of the burglary being brought to the attention of the grand jury, and in the meantime no affidavit had been made before a justice of the peace denouncing the plaintiff for having committed the crimes of burglary and larceny. Some months afterward, in the month of February following, after the institution of this suit, the defendant brought the matter to the attention of the grand jury, and a bill was found against plaintiff for breaking into defendant’s store. The plaintiff was tried and acquittéd. The slander thus became-merged in the prosecution, and if the prosecution is not actionable, neither is the slander. Dearmond vs. St. Amant, 40 An. 374.

In the case just referred to, as in the case at bar, the defendant moved cautiously, and refused to prosecute, although urged to do so by the district attorney, until he had made further'investigation into the charge urged against him by the plaintiff. We do not think the delay in bringing the offense to the attention of the grand jury can be urged as a part of the proof of the want of justification and malice in the alleged defamation. The civil suit was tried after the acquittal of the plaintiff, which resulted in a mistrial. At a subsequent trial there was the verdict and judgment for the plaintiff which was appealed to this court.

We have carefully reviewed the testimony in the record. We are convinced that the defendant acted without malice, and from an honest belief based upon reasonable grounds. Vinas vs. Ins. Co., 33 An. 1266.

The defendant,when informed of the burglary in the morning, made an immediate examination. Erom the window where the entry into the store was made he saw footprints leading directly to the house occupied by the plaintiff. The plaintiff admitted that one of the footprints was probably made by him, as he had been to the store the evening before to a rubbish pile to get kindling wood. The footprint was of the size of defendant’s foot, and made by a shoe or boot square toed, which he wore.

The defendant had seen the plaintiff the evening before at the rubbish pile, but a rain'had intervened which would have obliterated the track then made. He had good reason to believe that the track was made by the plaintiff, although he may have made a second visit, after the rain, to the rubbish pile. He was told by a negro, whose testimony and character were unimpeached, that the night before he had seen the plaintiff with two negroes, with tools, going-to the store. The negro witness may have been and probably was. mistaken; the footprints may have been made after the rain by the plaintiff in going to the rubbish pile. But the defendant had areasonable ground of belief that the tracks he discovered were those of the burglars, and the statement of the negro witness was true. Under these circumstances, having a reasonable ground to believe that the plaintiff had committed the burglary from facts coming to his knowledge in the course of an honest investigation to find out the guilty parties, therecan be no malice imputed to him.

It was the duty of the defendant to make the investigation. It was his duty to repeat the facts to the grand jury and institute a judicial investigation.

The grand jury found an indictment for the offence against the plaintiff. The facts were such that this grand inquest found it necessary to put him upon his trial. This public accusation is evidence,. at least, that the defendant had reasonable ground for charging the plaintiff with having entered his store in the night-time.

The plaintiff was undoubtedly innocent of the crime. A jury gave him a trial and acquitted him. But the failure to convict is not evidence of malice or want of probable cause on the part of the prosecutor. 34 An. 1268.

The plaintiff has been unfortunate, and he has undoubtedly suffered a wrong, and has been the victim of unfortunate circumstances, which have appeared against him, “and for him to be compelled to bear it without redress is indeed a hardship, but it is one of those sacrifices which the individual is requested to make to the interest of society. It is not only the lawful right, but the civil duty of every citizen to set on foot criminal proceedings whenever he believes honestly and on reasonable*grounds that a crime has been committed. The social interests require and the law invites him thus to aid the State in the discovery and punishment of crime, and it would be equally unjust and impolitic to make him a guarantor of the. success of the prosecution or to make its failure an actionable wrong.” Dearmond vs. St. Amant, 40 An. 374.

. The record fully satisfies us that the defendant acted throughout in good faith from honest motives, on probable and reasonable grounds, without malice express or implied.

It is therefore oi’dered, adjudged and decreed that the verdict and judgment appealed from be annulled and set aside, and that there be now judgment in favor of defendant, rejecting the demand of plaintiff at his costs in both courts.


author: Breaux, J.

text:
    No. 319.
    Merchants and Farmers Bank vs. R. N. McKellar.
    The first trial haying resulted in a verdict for defendant,
    Plaintiff moved for a new trial on the ground that the verdict was contrary to the law and the, evidence.
    It was not error in the judge to grant the motion.
    The written reason containing statement of the court that its charge was not sufficient and explicit on one of the issues of the case did not preclude the court from exercising its discretion to grant a new trial.
    The dissatisfied party could not malte the incompleteness of the charge a ground of application for a new trial, not having excepted, but the judge could not he thereby prevented from having a verdict corrected which was contrary to the law and evidence.
    The creditor who tabes an attachment on a debt not due must tafee oath to the existence of the debt and to one of the requisites contained in the C. P. 210, hut need not swear that “said debtor is about to remove his property out of the State before said debt becomes due, for to the conjunctive phrase “ and moreover swears,” of Section 7 of the Act of 1826, “ or swears,” was substituted in the Revised Code of Practice of 1870.
    The case of Seligman vs. Rigmaiden, 37 An. 722, is authority in so far as it is held that a mortgage granted by a debtor in good faith, to one of his creditors, is not a ground for attachment.
    A charge of the court|being correct as a whole, is not construed as having operated to the pi’ejudice of the party cast, and as vitiating a verdict, because the judge, in instructing the jury in reference to one of the issues of the case, suggested» hypothetically, an unavoidable inference.
    APPEAL from the First District Court, Parish of Caddo. Taylor, J,

    Farrar, Jonas & Kruttschnitt and Wise <So Herndon for Plaintiff and Appellee: ,
    1. Under Article 242 of the Code of Practice, it is not necessary for a creditor who takes an attachment on a debt not due, in addition to the grounds mentioned in Article 240, to swear that the debtor is about to remove his property out of the State before the debt becomes due. Section 7 of the Act of 1826 has been fundamentally modified by the revision of the code, and the words “and moreover swears ” have been therein stricken out and the words “ or swears ” substituted, changing a conjunctive sentence into a disjunctive sentence.
    2. The syllabus of the case of Seligman vs. Rigmaiden, 27 An. 722, is not supported by the body of the decision, and the doctrine stated in the syllabus is not the law of Louisiana.
    3. In examining the charges given and exeepted to, the whole scope and bearing of the charge must be taken together. Magniac vs. Thompson, 7 Pet. 348; Congress and Empire Springs Go. vs. Edgar, 99 U. S. 645.
    4. It is not enough for a party who desires the reversal of a judgment to show error therein; he-must show error to his prejudice. Ealer vs. Preret, 11 An. 455; Railroad Company vs. Smith, 21 Wall. 261; Packet Company vs. Olougli, 20 Wall. 542; Blackwell vs. Patten, 7 Cranch, 471; Campbell vs. Pratt, 2 Pot. 354; Greenleaf vs. Birth, 5 Pec. 182; McMecken vs. Webb, 6 How. 292; Chandler vs. Von Roedor, 24 How. 221; Grand Chute vs. Winegar, 16 Wall. 355; Cavazos vs. Trevino, 6 Wall. 773; Philpot vs. Gruninger, 14 Wall. 570; Chicago Railway Company vs. Ross, 112 U. S. 377; B N. S. 509, 541 and 582; 7 K. S. 148; 9 Louisiana, 350; 14 Louisiana, 381; 5 jAn. 43; 9 An. 197: 14 An. 727.
    5. Where three separate and distinct grounds of attachment arc averred, and the judge’s charge covers all three, an exception is taken to the judge’s charge to only two of the grounds, and nothing in the bill of exceptions, and the record goes to show that no evidence was adduced to support the third ground, or not enough evidence adduced to entitle the plaintiff to a verdict on such ground alone, error in the charge of the judge as to the two grounds will not justify a reversal of the verdict of the jury, because, «on constat, that the verdict of the jury was based entirely upon the grounds to which no exception is taken, and the presumption in the appellate court is that the judgment in the court below is frorreet.
    6.' This presumption will be rigidly enforced against a litigant who deliberately leaves all of the evidence out of the record and brings up a case upon technical bills of exception taken at the trial. The bills of exception or the record must clearly demonstrate that the errors complained of below were vital to the case,'’ and that the verdict and judgment would have been otherwise if the errors complained of had not been committed.
    7. In an attachment suit whore defendant reconvenes for damages upon the ground that the attachment is illegal and he has been injured thereby, the maintenance of the attachment of itself disposes of the whole rcconvontional demand, and if the court finds no error in that part of the record relative to the validity of the attachment, they can not reverse and remand for errors relative to defendant’s claim for damages growing out of the attachment.
    8. The charge of the judge that the invalid attachment of a solvent partner's interest in a commercial firm did not dissolve the firm is a correct exposition of the law. Article 2823 refers only to the seizure and sale of an individual partner’s interest under final process, and not to (he seizure thereof under a preliminary writ.

      Land & Land and Belt <& Randolph for Defendant and Appellant:
    1. The first trial of this case having resulted in a verdict for the defendant, on a written charge, which was not excepted to by plaintiff, nor additional instructions asked by counsel, and plaintiff having moved for a new trial on the sole ground that the verdict was contrary to the law and the evidence, it was error in the judge to grant a new trial for the reason that in liis opinion his charge was not sufficiently full and explicit on the issues of the case. O. P. 517; 5R.218 The order was interlocutory and duly excepted to, and its correctness is revisable on appeal from final judgment. II. D. 2, p. i)87, new trial, No. 1.
    2. In case of a debt not due, the creditor must not only make oath to the existence of the debt and to one of the requisites contained in O. P., Art. 240, but must, moreover, swear tbat “ said debtor is about to remove his property out of the State before said debt becomes due.” See-amendment of 1826; decisions on same prior to 1870; Sec. 104, Revised Statutes-of 1870; C. P. 243 and 244. The word “ or” preceding the word “ swears” in Article 244 is a clerical or typographical error, and makes neither grammar nor sense, and leads to the absurd conclusion that an affidavit sufficient in law for an attachment when the debt is due is sufficient when the debt is not due, and that a creditor in the latter case may also attach on making oath that a debtor is about to remove his property out of the State before the debt becomes due, without swearing to any of the requisites contained in Articles 240 or 246. Article 244 is ambiguous, if not absurd, and its true meaningmay be sought by examining the context, laws mparimateria,t\ie reason and spirit of the law, judicial construction, and if the letter leads to an absurd conclusion, it must be rejected. O. O 13-18; II. X). l, p. 784, No. 3. The legislation of 1870, “so far as it affects this code (C. P.), was merely revisory, with very little revision, and it can not bo construed as if it went on the statute book then for the first time.” Yale & Bowling vs. Cole, 61 An. 687. In that case the court read the text, “exceeding one-half,” in Article245, as meaning “exceeding by one-half.” There was error in the charge of the judge on this point.
    3. The doctrine announced in the syllabus of case of Seligman vs. Rigmaiden, 37 An. 722, is the decision of the Supreme Court, has the authority of precedent, until overruled, and it was error in the district judge to charge the jury to disregard the same.

      4. It was error in the district judge to charge the jury that they would, be justified in finding an intent to defraud from certain facts, if found, when said facts might be consistent with an honest intent, and where the presumption to be drawn is not a presumption of law, but of fact, from all the evidence before the jury. The judge had no legal right to express an opinion in such a case. 14 An. 189. An erroneous instruction can not be corrected simply by another instruction which states the law accurately. It should be formally withdrawn. 36 An. 204.
    ■5. It was error to refuse to charge the jury that a seizure by attachment of a partner’s interest in a commercial firm necessarily throws the firm into liquidation, and dissolves the firm if the seizure be legal. C. C. 2823; 11R. 136; 6 An. 704; 14 An. 108.
    6. It was error to charge the jury that “ loss of profit s ” is not an element of actual damages. 33 An. 6.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff sued defendant to recover 'the sum of $11,328.69, of which $5000 was at the time due, and $6328.69 became due some time after the suit had been filed.

He also in the suit obtained an attachment and seized defendant’s property, alleging the grounds contained in paragraphs 4 and 5 of Art 240 of the Code of Practice.

Two days after the suit had been filed, and the attachment had issued, that portion of the debt actually due was paid by the defendant. The balance, $6328.69, was paid at maturity, about a month and a half after.

The defendant on trial filed the plea of payment, and presented a motion to set aside the attachment on the ground that the plaintiff’s allegations in his petition, and his affidavit for an attachment, were not true, and that the attachment was illegally, unlawfully and maliciously obtained.

He pleaded in reeonvention for damages in the sum of $37,000.

The case was tried before a jury, and the trial resulted in a verdict for the defendant for $7500.

New Trial.

The plaintiff moved for a new trial, alleging that the verdict was contrary to the law and the evidence.

The district judge granted a (new trial for reasons assigned in a written opinion, in which it is stated that the second ground for attachment presents an issue which may not have been sufficiently considered by the jury in making up its verdict.

The district judge expresses the conclusion in this opinion that he had not sufficiently instructed the jury in his charge touching this issue, and it resulted in the jury not having given it sufficient consideration.

After the new trial had been granted the defendant reserved a bill of exceptions to the court’s action.

In support of this bill defendant says that the verdict was set aside, not because it was contrary to the law, as charged by the court and the evidence adduced, but because after verdict the judge came to the conclusion that he had failed to charge the jury as fully as he might have done on the trial of the cause.

That the reasons for granting the new trial could not have been urged by plaintiff, for a party dissatisfied with the charge must require the judge’s opinion in writing and except to it before the jury retires.

That unless excepted to in due time the charge can not be made a ground for a new trial.

That although a trial judge has certain discretion in matter of granting new trials, it is a legal discretion which should not be exercised when litigants are not permitted to ask relief.

That the verdict should be reinstated, all subsequent proceedings annulled and the ease remanded for further proceeding. These are the grounds of complaint and the relief sought by defendant.

The district judge concluded that the verdict was contrary to the law and the evidence.

He exercised a discretion with which he is entrusted in granting the new trial.

• The incompleteness of the charge and the failure on the part of counsel to object on that ground do not preclude him from setting aside the verdict, should he conclude that it is contrary to the law and the evidence.

The verdict was illegal; it was stated by the judge that the jury had not sufficiently considered an important issue.

Though the plaintiff had not objected to the charge, the court a qua could have the finding reconsidered by granting a new trial.

The insufficiency of a charge will not justify the error of a jury.

The question does not come to us as it was presented to the court in the case of Penn vs. Collins, 5 R. 213 (relied upon by the def endant), in which it was held that a party dissatisfied with the charge must require the judge’s opinion in writing to except to it before the jury retires; it can not be done afterward.

The issue is not one growing out of an application for a new trial, because of misleading charge to which counsel failed to object, but relates to a verdict the judge in his discretion determined was con•trary to law and evidence.

Creditor’s Oath for Attachment.

■On the second trial the court, in a written charge, instructed the .'jury that in case of a debt not due the creditor need only take oath •to one of the requisites contained in Art. 240, O. P.

To this portion of the charge the defendant reserved a bill of exception, on the ground that the creditor must moreover swear “ that said debtor is about to remove his property out of the State before said debt becomes due,” and refers to Art. 244, R. S.,Sec. 104.

Prior to the re-enactment by the Legislature of the Revised Code ■of Practice of 1870, an affidavit for an attachment sued out upon a debt not due was defective, if it did not state that the debtor was .about to remove his property out of the State before the debt became due.

By Art. 244 of the Revised Code of Practice, the words “ or .■swears” are substituted to “ and moreover swears.”

It is contended that the word “ or ” in the article is a typographical or clerical error, and that the sentence is dependent upon and but a continuation of the sentence preceding.

In short, that the law has not been amended nor changed by the ■disjunctive.

The meaning of “ or ” in the sentence can not be departed from without reading “ and ” in the article, and without considering as not repealed two words, “ and moreover,” to) which it, “ or,” was .substituted in the re-enactment of the Code of Practice.

Under the rules which are laid down in the construction of statutes •“or” and “and” are not treated as interchangeable, unless the intention requires, and in deference to the context.

With reference to intent: “and moreover” were not only the words of the law, but in a number of cases prior to the adoption of the Revised Code of Practice the court held, under the requirement of Act of 1826, that to maintain his attachment a creditor must moreover swear “ that said debtor is about to remove his property out of the State before said debt becomes due.” Kleinorth & Cohen vs. Klingenders, 14 An. 96; Friedlander vs. Myers, 2 An. 920; Tuch vs. Wright, 8 R. 428; Millaudon vs. Foucher, 8 L. 583.

There was nothing dubious about the decisions nor about the law. It was well known.

In the enactment the requirement to obtain an attachment when the debt is not due was changed, nevertheless, as already stated.

The most latitudinarian construction would not sanction the interchange of “or” for “ and moreover” in an article of the Code of Practice, in the construction of which strict meaning should not be departed from. We would not feel justifiable in substituting the-stricken out conjunctive phrase “ and moreover” to the disjunctive- “ or ” in a Code of Procedure.

Creditors Endeavor to Obtain a Mortgage.

The defendant reserved a bill of exceptions to the part of the-charge which reads:

“ I am induced to instruct you on this point because defendant contends that admitting for argument that he did intend to give an unfair preference to some creditors by granting them special mortgages, nevertheless the plaintiff can not make such preference legal ground for attachment, for the reason that they, themselves, endeavored to obtain from him a special mortgage to secure their claim a very short time before they attached.”

“The case of Seligman vs. Rigmaiden, 37 An. 722.” “But this-decision applies only to the case where the giving of an unfair preference is the sole ground for the issuance of the attachment, as was the fact in that case.

“I do not think that the court in that case intended to establish the law as stated in the syllabus.”

The record does not include the note of evidence, for this cause comes up for review on bills of exception, whereby it is shown that prior to the institution of the suit plaintiff, through one of its officers, asked the defendant to execute a mortgage for the amount due.

The defendant contends that this case is absolutely similar to the Seligman vs. Rigmaiden case, which involves, it is said, a question of law more particularly stated in the syllabus, while the opinion, presents a question of fact of intent to defraud.

For obvious reasons we will not discuss a proposition as stated in a syllabus as establishing a principle of law.

The court held in the body of the opinion that a mortgage granted by a debtor, in good faith, to one of his creditors, is not of itself a ground of attachment.

In discussing the facts, the court sharply refers to a demand as made by the plaintiffs of the defendants for a mortgage, to be accompanied with an engagement to buy only from them.

This demand was not the controlling issue of the ease; it was at most an incident which played no important part in the decision.

There is a difference between these cases, even with reference to the demand for a mortgage.

There is no evidence before us to sustain the contention that the defendant in the case we are now considering was insolvent at the time he was asked to execute a mortgage.

There is no proof of the date of the request for a mortgage.

The Entire Charge.

The defendant urges that “ there was error in the charge, in that, after correctly instructing the jury, that the intent to defraud was the crucial question to be determined from all the facts and circumstances of the ease,” the judge added, as follows: *****

“ If you find that these alleged mortgages were given, not to secure a pre-existent indebtedness, but to enable the defendant to raise money, and that in fact no money was advanced by the mortgagees, but in the place of money notes drawn to the order of and endorsed by defendant were executed and retained by him so as to enable him to have them discounted, or placed beyond the reach of his creditors by mere delivery with endorsement to other persons, you would be justified in concluding that defendant’s intent was to place his property beyond the reach of his creditors, especially if you should be satisfied that the defendant was so embarrassed pecuniarily as to unable him to obtain relief from any source.”

The objections of defendant are summed up by the proposition that an instruction should not be given which might be understood by the jury as intimating the opinion of the judges upon the facts of the case.

Its correctness does not admit of question.

The charge is lengthy; taken as a whole it was a fair presentation ■of the law applicable to the case.

If we limit our analysis to the lines quoted we do not discover any reference to the facts improperly suggesting to the jury the opinion ■of the court.

The instruction may be resolved into the following:

If the mortgage was not given to secure a pre-existing indebtedness:

If it was executed to enable defendant to raise money :

If no money was advanced by the mortgagees, but notes were ■so made as to enable the debtor to have them discounted or placed beyond the reach of his creditors by mere delivery — you would be justified in concluding that defendant’s intent was to place his property beyond the reach of his creditors, especially if the debtor is embarrassed pecuniarily.

Such an instruction in a charge, continuing previous instruction of law applying to the cause of plaintiff and to that of the defendant, is not misleading and such as will vitiate a verdict.

The inference is unavoidable when considered with the other portions of the charge.

Any other inference would not only be a departure from the law, but utterly unreasonable.

The issues relate to the reconventional demand.

The main action was disposed of by the payment of the debt after suit had been brought.

The intent of a debtor in mortgaging or disposing of his property must be taken as made evident by the fact about the time the mortgage was executed.

We have no reason to conclude that the jury did not correctly appreciate and decide all questions of facts of the case, which facts are not of record on appeal, or that the court exceeded its authority in the explanation of the law to the jury.

The verdict of the jury and the judgment of the court are affirmed ■at the cost of defendant and appellant.


text:
    No. 322.
    The State ex rel. Maloy Long et al. vs. Jackson Sikes, Justice of the Peace.
    Act; 112 of 1S80, relative to public roads, confers civil jurisdiction on the magistrate’s court
    Suit may be brought and judgment obtained on a demand for the amount imposed on persons neglecting or refusing to work on the public road.
    But the justice of the peace has no authority to proceed, as in a criminal case, to receive affidavits, issue warrants of arrest, and render judgment of imprisonment against delinquents.
    APPEAL from the Second District Court, Parish of Webster. Watkins, J.

      L. K. Watkins for Appellant.
   The opinion of the court was delivered by

Breaux, J.

The defendant, justice of the peace, on the affidavit-of a resident of the parish, issued a warrant and caused the relatorsto appear before him.

They were proceeded against as in a criminal proceeding, and each was condemned to pay $4 for failing to work two days on the public roads, and in default of payment they were ordered to be imprisoned one day.

The relators allege that the judgments were rendered without citation and without allowing them to answer. That the proceedings and the judgments were in criminal cases, wherein the justice-had no jurisdiction, and his proceedings, if conducted civilly, were without demand and the judgments.nullities.

They applied for a writ of certiorari to have the record and proceedings reviewed and the judgments avoided and annulled.

In compliance with a preceding order copies of proceedings and records of the cases were filed before this court. They prove the-correctness of relator’s allegations in his petition for a certiorari.

The purpose of the magistrate was to enforce Act 112 of 1880 and! the ordinance of the police jury of Webster parish relating to the public roads.

The said act confers only civil jurisdiction on the magistrate’s-court. The party who fails to comply with the law, after having-been duly notified,may be cited before a justice of the peace- having; jurisdiction, for the recovery of the amount which the law directs shall be imposed.

This is the extent of that officer’s jurisdiction in these eases. Cons., Art. 126.

Whatever of a criminal nature there is in matter of the enforcement of the road law is within the jurisdiction of another tribunal.

The defendant, justice of the peace, had jurisdiction, not however in a criminal proceeding, but of a civil suit for the recovery in the name of the overseer of $2, after citation and the legal delays, for every day the defendants failed to comply with a legally issued summons to work on the public roads.

It is therefore ordered, adjudged and decreed that the writs of certiorari issued in said eases are made peremptory, and the judgments and all proceedings in each of the said cases are annulled, and set aside at defendant’s and respondent’s costs.


author: Nicholls, C. J.

text:
    No. 323.
    The State of Louisiana vs. Fred. Christian.
    Where a party accused o£ crime has introduced witnesses to impeach the credibility of a witness for the State, and the impeaching witnesses had declared under oath that they knew his general reputation for truth and veracity in the community in which he lived, and that it was bad, it was error in the district judge after such a basis had been laid to refuse to permit the witnesses to answer the further question whether from their knowlege of his generai reputation for truth and veracity they would believe him under oath. 6 An. 596; 5R. 109.
    Whether or not a proper foundation has been laid for the introduction of the dangerous character of the deceased is a matter to be decided by the trial court whose ruling in such matters will not be reversed unless manifestly erroneous.
    APPEAL from the Fourth District Court, Parish of Winn. Wear, J.

      J. B- Land, District Attorney, for the State, Appellee:
    1. The regular mode of examining into the general reputation for truth and veracity is to inquire of the witness whether he knows the general reputation of the person in question among his neighbors, and what that reputation is. But it can not be inquired whether, from such knowledge, the witness would believe that person upon his oath. Greenleaf, Vol. 1, Sec. 461.

      2. Before evidence of the dangerous character of the deceased can be introduced there must be proof of an attach, or some hostile d emonstration on the part of the deceased at the time of the hilling. 38 An. 71; 37 An. 489.
    3. Plea of self-defence admits the hilling. 36 An. 148.
    4. The burden of proving that the homicide was excusable on the ground of self-defence rests with the defendant. Desty’s American Criminal, Law p. 352.

      Henry Bernstein and Scarborough & Carver, for Defendant and Appellant,
    cited: Starkie, Evidence, Vol. 1, See. 28; Phillips, Evi•denc, Sec. 7, p. 229; Wharton, Orim. Ev., Chap. 4, Sec. 487; 7 An. 85; Bishop, Orim. Pro., Secs. 617 to 620.
   The opinion of the court was delivered by

Nicholls, C. J.

Defendant, convicted of murder without capital punishment, has appealed, and relies for reversal upon three bills of exception and an assignment of error.

The first bill is to the ruling of the district judge in refusing to allow counsel of the accused to ask certain witnesses, who had previously testified that they knew the general reputation of Charles Enoch, a State witness, for truth and veracity to be bad in the com - munity in which he lived, whether from their knowledge of the genral reputation of said Enoch for truth and veracity they would believe him under oath.

The judge assigns as his reason for refussal that the question Prom your knowledge of the general reputation of a witness for truth and veracity would you believe him on oath?” is improper— that the credibility of any witness is a matter for the jury alone to determine.

Defendant complains in his second bill that the judge improperly refused to allow him to prove the desperate character of Charles Enoch, the person at whom the accused fired when he killed Henry Washington, with whose murder the defendant stands charged in the present case.

In respect to this matter the judge says: In the opinion of the court a proper and sufficient basis had not been laid to admit proof of the desperate character of Charles Enoch, the party the defendant claims assaulted him, and whom he shot at at the time he' killed Henry Washington.

“ It was manifest from the manner of the witnesses by whom the-accused attempted to prove the assault by Enoch that they had great interest in the result of the trial and were anxious to see the-accused acquitted, and from other witnesses and all the circumstances attending the case the court could not accept the statement of the witnesses upon the issue of the assault by Charles Enoch at the time the fatal shot was fired as true. The evidence for the State-shows that at the time the fatal shot was fired Charles Enoch and the-deceased Henry Washington were quarreling, talking distance from accused; which evidence was partly corroborated by the witnesses, by whom accused attempted to prove the assault.”

In the third bill, which is directed against a part of the judge’s, charge to the jury, it is complained that on the trial of the case the-district judge, as would be shown by his written charge, told the jury that “the plea of self-defence admits the killing, and it devolves upon the defendant to show that the killing was done in self-defence; in other words, the party pleading self-defence must make-good his plea.”

The judge, though signing this bill, declares that the accused took no exception to the charge at the time it was given and asked for no correction of the same. ,

The assignment of error is merely a repetition in that form and mode of the complaint made in the third bill to the part of the judge’s charge already mentioned — the defendant alleging error to his prejudice in that respect as being apparent on the face of the-record.

The counsel for the defendant, in support of the first bill of exception, says, in his brief, “The following authorities sustain the position here taken.”

“The proper question to be put to a witness for the purpose of impeaching the general character of another witness is whether he would believe him upon his oath.” Starkie’s Evidence, by Metcalf, Vol. 1, Part 2, Sec. 28.

“The regular mode is to inquire whether they have the means of knowing the former witness’ general character, and whether from such knowledge they would believe him on his oath.” Phillips on. Evidence, Sec. 7, Ohap. 8, p. 229.

“ Supposing the impeaching witness be shown to be competent to-express an opinion, he may then be asked whether he wouldbelieve the impeached witness under oath.” Wharton’s Criminal Evidence, Chap. 9, Sec. 487.

“ The proper inquiry is, what is his general character for truth in the place where he resides, and whether from the witness’ knowledge of his general character he would believe him under oath.” Waterman’s U. S. Crim. Digest, Verbo Witness, No. 151.

“ The proper question to be put to a witness called to impeach another is whether he would believe him on oath.” Waterman’s Crim. Digest, No. 152.

We have not been able to refer to the books themselves from which these citations are made, but the authorities are in accord with the views of this court as expressed in Stanton vs. Parker, 5 Rob. 109, and Paradise, Lawson & Co. vs. Sun Mutual Ins. Co., 6 An. 597.

In the latter case objection was made to a question asked of several witnesses “whether they would believe on oath” certain witnesses for the defence.

The objection taken was “ that the opinion of a witness as to the credibility of another was inadmissible, that it allowed the witness to usurp the functions of the jury, that it was the introduction of a collateral issue rendering necessary the summoning of a fresh array of witnesses whose opinions might in turn be attacked and defended; that it was allowing vent in a court for feelings of personal spite and malice, was not an inquiry of fact, and was subversive of the good order of judicial proceedings.”

Commenting on these objections the court said, “It will be observed that the bill of exceptions does not show that the question was put without previous inquiry touching the general reputation of the persons in question. When these preliminary inquiries have been made, we have no doubt that the question we are considering may be put. It is not to be supposed that jurymen are personally acquainted with the character of all the witnesses that come before them, and when they are called to find out the truth by means of the testimony presented to them, it is indispensable for the purposes of truth that they should know how far portions of that testimony are entitled to credence. The inconvenience suggested is a serious one, but the exclusion of necessary information from the jury would be a much greater one.” .

The two cases last cited were civil cases, but the principles • •announced are as applicable, if not more applicable, in criminal actions.

See on this same subject 7 An. 85.

We are of the opinion the district judge should have allowed the question to be answered.

The second bill of exception is disposed of by the decisions in State vs. Ford, 37 An. 443; State vs. Janvier, Ib. 644; State vs. Ib. 728; State vs. Jackson, Ib. 896, wherein it is declared that whether or not a proper foundation has been laid for the introduction of evidence of the dangerous character of the deceased is a matter to be decided by the trial court, whose ruling in such matters will not be reversed unless manifestly erroneous.”

The judge a quo says he did not believe the witnesses who testified to the facts which were sought to be made the foundation for the evidence offered to be introduced; and we have no means, even had we the right, to say that his conclusion was wrong.

The third bill of exception and the assignment of error cover the same subject matter. In view of the conclusion reached by the court on the first bill, it becomes unnecessary for us to consider them. For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the verdict of the jury and the judgment of the court thereon be annulled, avoided and reversed, and that this case be remanded for further proceedings according to law.


text:
    No. 337.
    The State of Louisiana vs. Frank Ware.
    On atrial iorstealing ahorse under an indictment wherein ownership of the animal was laid in Ned Dansby, the evidence going to show that at the time of the commission of 'the crime there existed a contract between Dansby and one Brooks, whereby it was left in doubt whether its legal title still remained in Dansby or had passed to Brooks, the district attorney, with leave of the court, and without objection from the accused, amended the indictment so as to make it aver that if the horse alleged to have been stolen was not the property of Ned Dansby, then it was the property of Newt. Brooks.
    On the second'trial of the accused (the first having resulted in a mistrial), as the State was about to introduce evidence as to ownership, the accused objected to any evidence on that subject on the ground that the indictment, as amended, alleged no ownership in any particular person. The court overruled the objection. Held, the objection was not well taken and the ruling was correct.

      The amendment was authorized to be made by See. 1047 of the Revised Statutes, and the State had the right to support the indictment as amended by evidence.
    A verdict and judgment upon the amended indictment would bar a future prosecution for stoalingthe particular horse mentioned in the original indictment; its identity was not affected by the amendment.
    Ownership in a particular person is not an essential ingredient in larceny. If the particular hoi'se mentioned in the indictment could be shown to have been taken by the accused under the circumstances mentioned therein, he would be guilty of tile crime charged, and it would be immaterial to him whether, as between Dansby and 'brooks, it belonged to the one rather than to the other; it would be sufficient, so far as he was concerned, to show that it did not belong to him, but to a third person.
    For the same reasons held, that the district judge acted correctly in overruling a motion in arrest of judgment, based upon the ground that the verdict of the jury on the amended indictment, and the judgment of the court thereon, were void for uncertainty.
    APPEAL from the Third District Court, Parish of Claiborne. Barksdale, J.

      J. D. Everett and J. R. Land, District Attorneys, for the State, Appellee.

      J. R. Phipps for Defendant and Appellant.
   The opinion of the court was delivered by

Nicholls, C. J.

The defendant having been found guilty of stealing a horse and sentenced to hard labor in the penitentiary for one year and three months, appeals.

It appears that in the indictment the ownership of the horse was originally laid as being in one Ned Dansby, but that later, on the trial of the case, after evidence had been adduced, an amendment was offered by the district attorney and allowed by the judge without objection from the accused, so that the indictment was made to aver that if the horse alleged to have been stolen was not the property of Dansby, then it was the property of Newt. Brooks.

The first trial resulted in a disagreement of the jury. On a second trtal, as the State was about to introduce evidence on the subject of ownership, it was met by an objection on. the part of the accused that evidence on that point was inadmissible for,the reason that the indictment, as amended, alleged no ownership in any particular person. The court overruled the objection, to which ruling the defendant reserved and has taken a bill of exception. The second trial resulted in a verdict of guilty, which was followed by a judgment and sentence, as has been stated.

Before judgment was rendered, however, the defendant moved in arrest thereof on the ground:

1. That under the indictment it was impossible to ascertain whose-horse Ware had been convicted of stealing, and the verdict is void for uncertainty, and could not be the b»sis of a judgment in rhe case.

2. That the indictment is void for duplicity and uncertainty in that it alleges that the defendant stole either the horse of Dansby or-the horse of Brooks, and that judgment in said case could not be a bar to"a future prosecution for stealing the horse of Dansby nor as a bar-to a prosecution for stealing the horse of Brooks.

The first point we are called on to consider is the ruling of the-judge in permitting evidence to be introduced as to ownership. Though the facts would not have affected the result, it will be ob - served that, at the time of that ruling, no direct attack had been-made by the accused upon the indictment as amended, and also observed that he interposed no objection to the granting of the amendment at the time when the application therefor was made by the district attorney.

His objections first took shape during the progress of the second trial, and then only by way of opposition to the introduction of evidence in support of the averments of the indictment as it then-stood amended on the subject of ownership.

We think the reasons assigned by the judge in support of his action were well founded and justified by the decisions in the cases-of State vs. Hanks and State vs. Harris.

He says in substance that the case bad been tried once, and that after hearing the evidence the district attorney offered the amendment which appears on the record, and that it was allowed without objection by the defendant; that under the indictment he concluded the allegation as to ownership distinctly negatived the idea that the horse belonged to defendant and meant that its legal title was in dispute between Dansby and Brooks; that the evidence on the first trial showed a contract between them of a conditional character-which left in great doubt the question as to where the legal title was, and that knowing the facts, it was clear to him that the indictment, as amended, alleged ownership with reference to this condition of affairs, and meant that the horse stolen was not defendant’s, but was the property of either Dansby or Brooks, and therefore the State could introduce evidence on the subject of ownership as alleged.

In the case of the State vs. Hanks, 39 An. 235, where it was complained that the district judge had erred in allowing an information to be amended after the trial had begun, and which amendment consisted in changing the averment óf the ownership of the horse stolen from Sevigne Duhon to Oeeile Duhon, wife of William Harron, the court said the amendment was fully supported by Sec. 1047 of the Revised Statutes, and that the judge a quo had sustained his action by conclusive reasons showing that the amendment as to ownership did notin the slighest degree affect-the identity of the particular horse charged to have been stolen.

The court proceeded to say that the section contemplated a correction or variance, not merely in the name of the person mentioned as owner, but in the ownership itself; that the ownership of a particular person is not an essential ingredient of the crime of larceny, which is simply the felonious taking and carrying away the personal goods of Í'another, and even if the owner be unknown the offence may be properly charged and sustained; that the essential facts constituting the crime of larceny of a particular specified horse were not in any manner affected by the question whether the horse was the property of Sevigne Duhon or of Cecil Duhon; that it was sufficient it was the property of another; that the identity of the horse charged to have been stolen was the important thing in determining whether the offence proved is the offence charged.

These views were referred to approvingly in State vs. Harris, 42 An. 980, and apply directly to the present case.

The reasons here given in support of the ruling of the district judge in the matter of evidence support also his action in overruling the motion made in arrest of judgment.

The judgment rendered in this case will bar any future prosecution of the defendant for the stealing of the particular horse mentioned in the indictment.

Defendant is in error when he states in his motion in arrest that the indictment charges that he stole either the horse of Ned Dansby or the horse of Newt. Brooks — it charges that he stole the particular horse referred to in the indictment, wherein it is declared to be the property of Ned Dansby, and if not the property of Ned Dansby, then it was the property of Newt. BrooksJ

Judgment affirmed.


author: Fenner, J.

text:
    No. 326.
    The State of Louisiana vs. Marshall J. Lewis.
    Exclusion of evidence offered for the purpose of impeaching a leading witness for the State by proof of contradictory statements, when the foundation for such contradiction has been fully laid in compliance with the rules of law, is the denial of a legal right which may have been materially injurious to defendant and justifies a reversal of his conviction and remanding of the case.
    APPEAL from the Third District Court, Parish of Claiborne. Barksdale, J.

      J\ D. Everett and J. B. Land, District Attorneys, for the State, Appellee:
    1. In order to constitute res gestee the facts and declarations must be such as are connected with and tend to explain the principal transactions. 38 An. 459, 949.
    2. Testimony to impeach a State witness is no ground for a new trial. 34 An. 346; 35 An. 9.
    The statement of a witness to a collateral matter is conclusivo and can not be contradicted. Grreenleaf on Evidence, Vol. 1, p. 449.
    3. The judge can not be requix^ed to give a special charge when it is included in his genei’al charge. 35 An. 1058, 1180.
    Nor to charge abstract px*opositions of law. 35 An. 1043.
    An objection to the entire chai'ge is not admissible. 37 An. 77.
    4. The State has aright, on cross-examination of one of defendant’s witnesses, to ask him “what the feelings are between him and one of the State’s witnesses,” though nothing on this point was said in the examination in chief. The question is permissible as testing the credibility of the witness. 33 An. 537.
    The same rule applies when the defendant is a witness in his own behalf. Act 29, 1886.

      J. E. Moore and J. W. Solbert for Defendant and Appellant:
    We submit to the court that the defects pointed out in assignment of errors filed in this case arc fatal, and that the verdict and sentence should be set aside and a new trial awarded defendant. On this point we cite the following authorities: 33 An. 231; 31 An. 397 and 406 ; 32 An. 558 and 1098; 35 An. 208; 30 An. 311; 37 An. 915.
   The opinion of the court was delivered by

Fenner, J.

The assignment of errors on the face of the record filed by counsel for appellant has no merit.

The record affirmatively shows that defendant was personally present when the sentence was passed.

His presence was not essential when his motion for new trial was overruled. 27 An. 375; 32 An. 558; 33 An. 1408; 38 An. 459.

Neither was it essential for the record to show that he was asked if he had anything to say why sentence should not be passed. 27 An. 393; 30 An. 326; 33 An. 1253; Wharton Or. PL, Sec. 906; 1 Bishop Cr. Pr., Sec. 1293.

There are several bills of exception, however, which present charges of serious error.

Erom the first bili it appears that Jesse Madden, a brother of the deceased, and a leading State witness, had been asked, on cross-examination, the following question as stated by the judge: “Did you not say on the gallery of Louis’ store-house, to or in the presence of W. C. Bond, and shortly after the shooting, that your brother Joe was in fault or was in the wrong, or words to that effect, and that you were glad you saw the difficulty?” To which he answered, “No.” Subsequently, defendantoffered W. O. Bond as a witness and asked him “if Jesse Madden did not tell him, just out of the room, on the gallery, immediately after the shooting, that he was glad he saw the fight, that he did not believe his brother was hit, although he was in fault?”

The question was based on the double purpose of impeaching and contradicting the witness, Madden, and also of proving a part of the res gestee.

The State objected on the grounds that the evidence did not belong to the res gestae and that it was not admissible for the purpose of contradicting the witness because the proper basis had not been laid.

We pass by the question as to whether the evidence belonged to the res gestee, about which there might be doubt. But certainly, as impeaching testimony, the foundation for its introduction had been laid in full compliance with the rule on that subject. Comparison of the two questions which we have copied shows conclusively a substantial identity between the statement which he denied having made and that which the defence offered to prove by the impeaching witness that he had made, with all necessary particulars of time, place and circumstances. The judge does not deny the sufficiency of the foundation, but sustained the objection on a ground not urged by the prosecution, viz.: because the statement was not material to the issue, being merely the witness’ opinion of the merits of the affair.” We can not agree with the. learned judge. The statement might have had a very material and vital influence in the case, and, at all events, the defendant was clearly entitled to the evidence as tending to impeach the credibility of the witness, and as lessening the weight of his testimony. Witness was a brother of the deceased, had seen the whole difficulty, and was a leading witness for the State, and proof that he had made the statement which he had denied, if believed by the jury, would surely tend to weaken his evidence against the defendant.

The cases cited by the State from 34 An. 346 and 35 An. 9 to the effect that newly discovered evidence tending only to impeach a State witness is no ground for new trial, rest on entirely different principles, and obviously have no application here.

This is sufficient to remand the case, and we need not discuss other bills of exception which involve matters not likely to arise again, and, besides, do not strike us as very meritorious.

It is, therefore, adjudged and decreed that the verdict and sentence appealed from be annulled and set aside, and that the case be remanded to the lower court for further proceedings according to law.


author: Eenner, J.

text:
    No. 329.
    The State of Louisiana vs. Anderson Jones.
    The rule of law is well settled that a witness can not be impeached by p'roof of contradictory statements made by him. unless proper foundation has first been laid by asking him whether he has made such statements, giving particulars of time, place and circumstances, in order that he may have the opportunity of denying or admitting and explaining.
    Evidence, inadmissible except for purpose of impeachment, is properly excluded when such foundation has not been laid.

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

      P. Brazeale and J. B. Land, District Attorneys, for the State, Appellee.

      M. L. Desmukes for Defendant and Appellant.
   The opinion of the court was delivered by

Eenner, J.

The errors complained of are presented on two bills of exceptions!'

1. Bush, a witness for the State, had sworn that he went to the house of the defendant on the night after the killing, which was the subject of the prosecution, and the defendant then told him that he was the man who killed deceased. On cross-examination the witness was asked if Houston Nere and others were present and heard the conversation between him and the accused, to which witness answered they were not, but came afterward.

Defendant then called Houston Nore to the stand, who swore that he went with 'Bush to defendant’s house on the night in question, was present during the whole time he was there, and heard all that was said between the parties. He was then asked to state the whole conversation that passed between Bush and the accused — what Bush said and what defendant said about the killing. To this the State objected and the court sustained the objection, on the grounds that, if introduced for the purpose of impeaching the testimony of Bush, the proper foundation had not been laid; and that, for any other purpose, the evidence was inadmissible as introducing the declarations of accused in his own interest and through his own witness.

The grounds of exclusion were clearly sufficient.

The rule of law is well settled that a witness can not be impeached by proof of contradictory statements unless a proper foundation has been first laid by asking whether he had made such statement, giving particulars of time, place and circumstance. 1 Greenleaf Ev., Sec. 462; Whart. Crim. Ev., Sec. 483; State vs. Johnson, 35 An. 871; State vs. O’Kean, Id. 901; State vs. Hampton, 33 An. 1252.

The question objected to sought to elicit statements which had been made by Bush and by accused, and which could not be admissible except on the ground that they contradicted the statement to which Bush had sworn; and before they could be introduced for such purpose it was essential, under the rule, that the substance of the contradictory matter should have been stated to Bush, and he should have been asked whether the statements had been made, thus calling his attention to them and giving him the opportunity of explaining them. This was not done and the evidence was properly excluded. IT

2. The same principle is applicable and is equally fatal to the second bill of exceptions.

The State witness, Bush, was asked on cross-examination if he had not asked one John Houston, at a time and place designated, to swear that Jones killed the deceased, to which he answered, “No.” Bush was then asked if he had any conversation with Houston at said time and place, which he denied.

Houston was then placed on the stand for the purpose of impeaching the witness, but stated that Bush had not asked him to swear that Jones did the killing. Houston was then asked whether, at the time and place designated, Bush had not told him that he did not know who killed deceased.

This was objected to and objection was properly sustained. Bush had not been asked whether he had made stích statement. His denial that he had had any conversation with Houston was properly traversable by proof that he did have such conversation, but it could not be made the basis for evidence as to particular declarations made which had not been disclosed to the witness or called to his attention.

Judgment affirmed.


text:
    No. 338.
    The State of Louisiana vs. Webster Gryder.
    1. In a forged instrument it is not necessary that there should be such resemblance to the signature forged as to mislead one acquainted therewith. It is sufficient if there be an intent to deceive and a possibility of deceiving another who may not know the genuine signature.
    2. láven a misspelling of the name forged is not necessarily fatal.

      3. Where the forged Instrument is in such clumsy and illegible chirography as to be difficult to decipher, and the framer of the indictment has transcribed it • according to his reading of the characters, a doubtful variance even in the name forged will not be fatal, especially where the defendant lias had a former trial on the same indictment, and is fully advised as to the instrument to which the indictment refers.

      Barksdale, J. PPEAL from the Third District Court, Parish of Claiborne.

      J. D. Everett and J. R. Land,, District Attorneys, for the State, Appellee: ,
    1. To constitute the offence of forgery, it is sufficient if there be a bare possibility . of imposing on another with the forged instrument. Nor is it necessary that the forged order be intelligently written. 38 An. 797; 35 An. 1042; Wharton’s Criminal Law, Sec. 695; Bishop's Criminal Law, Vol. 2, Sec. 592.
    2. Where a forged document is copied in an indictment, and a capital “A” is put in the place of a small “a,” this is not a material variance. Nor are misspelled words, where the meaning is not changed. Whart. Orim. Plead, and Prac., Eighth Edition, Sec. 173; Whart. Orim. Law, Yol. 1, Sec. 695; Archibald Orim. Plead. 346.

      J. B. Phipps for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

Defendant was' prosecuted for forgery of a writing, which was set forth in the indictment in words following:

“Marsh th 21 the year of 1890. Jim Begman. Píese let "Webster Gryder have 2 dollars. J. A. Gandy at Home.”

On the trial the State offered as the document alleged to have been forged an instrument, the chirography of which is so clumsy and illegible as to involve difficulty in deciphering it. It corresponds, however, to that set forth in the indictment, except as to-the signature, which has much more the appearance of “Jo jandy” than “ J. A. Gandy.” It may be said, however, that the small “o” has a flourish which makes it resemble a small “a,” and that the small “ j” at the beginning of the surname has no dot over it, and is, therefore, neither a “ j” nor a “g.”

Counsel for defendant objected to the reception of this document on two grounds, viz.:

1. That said document is so unintelligible as to be incapable of deceiving a person of average understanding, and, therefore, could not serve as a basis for a prosecution or conviction for the crime of forgery.

2. That the said document differs materially from that set out in the indictment.

The first ground of objection was overruled by the judge a quo for the reason that it went only to the effect of the evidence, and should be left to the jury. The instrument, moreover, is not unintelligible; its meaning is very clear. We have held that the following are the chief essential elements of forgery: (1) A writing in such form as tobe apparently of some legal efficacy; (2) an evil intent; (3) a false making of such writing. State vs. Ford, 38 An. 797; 2 Bishop Crim. Pro., Sec. 400.

There is nothing doubtful about this instrument except the signature. The record does not advise us whether it resembles the ordinary signature of J. A. Gandy. The freaks of illiterate persons in signing their names might cover such a case. The judge informs us that previous evidence had shown that accused in presenting the order to Bridgman had stated that it was written by Gandy, which establishes the evil intent. It is not necessary that there should be such resemblance to the signature forged as to deceive a careful person. We hare held that it is sufficient if there be a bare possibility of imposing on another. State vs. Ferguson, 35 An. 1042; State vs. Ford, 38 An. 797; State vs. Dennett, 19 An. 395; 1 Whart. Crim. L., Secs. 695, 743.

Even the misspelling of a name forged does not destroy the possibility of deceiving. State vs. Covington, 94 N. C. 913; Gooden vs. State, 55 Ala. 178.

In the case last quoted, conviction was sustained where the name attempted to be forged was Thweatt, but the forged instrument had it Threet.

In another case it was held that an instrument purporting to be issued by a corporation might sustain an indictment for forgery though the names signed as officers of the corporation were entirely different from those of the actual officers. United States vs. Turner, 7 Peters U. S. 132.

It is the intent to deceive, coupled with the possibility of success in deceiving, that make up the offense. It does not follow that the person defrauded knows the handwriting or signature of the party purporting to be the author or would be able to detect the grossest defects of imitation.

The second ground of objection was overruled by the judge a quo for the reasons that “the document did not differ so materially from the one set out in the indictment as to exclude it. The previous evidence showed that defendant had presented the document to Bridgman and had stated that it was written by Mr. Gandy. The case had been twice tried before and defendant could not possibly have been surprised.”

We are satisfied that the framer of the indictment intended to transcribe this document as best he could from its illegible chirography. He interpreted the characters making up the signature as meaning J. A. Gandy, and, as heretofore intimated, they are susceptible of that reading from the conformation of the letters “o” and “J.”

As Mr. Wharton says, on the subject of such variances, “'the great rigor of the old English law in this respect was one of the consequences of the barbarous severity of the punishment imposed. A more humane system of punishment was followed by a more rational system of pleading.” Immaterial variances resulting from clerical inaccuracies in transcribing and misspelling even of the name forged are no longer necessarily fatal. Whart. Or. PL and Pr., Secs. 173, 273; Wharton Or. Ev., Sec. 114.

Thus where the name McNicoll, signed to a forged instrument, was set out in the indictment as McNicole, it was held no variance. R. vs. Wilson, 2 O. and K. 527.

The object of requiring the forged instrument to be set out in the indictment is twofold. (1) To enable the judge to determine from its face whether it is, by its nature, a proper subject of forgery. (2) To advise the defendant of the precise offense charged and to save him from surprise. The first object is clearly satisfied, and considering that defendant had had a prior trial under this indictment in which the same instrument was offered in evidence, it seems to us he was fully advised as to what he was to meet and could suffer no surprise from the variance charged.

There is another bill of exceptions to the judge’s charge, but under the judge’s statement appended to the bill the complaint against the charge is robbed of all force.

Judgment affirmed.


author: Watkins, J.

text:
    No. 343.
    The State of Louisiana vs. Joe Newton.
    It is the settled jurisprudence oí this court that the ruling of the trial judge in disallowing an application for a new trial will not be disturbed except in a clear case of error.

      Wathins, J. PPEAL from the Second District Court, Parish of Bossier.

      A. J. Murff and J. B. Land for the State, Appellee.

      J. A. Snider for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

Appealing from a judgment and sentence of two years’ imprisonment at hard labor in the penitentiary, pronounced against him upon a conviction of the crime of embezzlement, the defendant relies upon a single bill of exceptions as assigning error entitling him to relief.

The bill of exceptions states that “on the trial of the motion for a new trial * * * the defendant, amongst other reasons, urged as a reason for a new trial, and as an assignment of errors in the verdict of the jury, that the evidence in the case established the fact,” etc. — reciting the substance of the evidence relied upon— that the conversion of the goods constituting the body of the offence charged, took place in Oaddo, and not in Bossier parish, and that the same was solely and only indictable and triable in the former jurisdiction.

For reasons assigned, the trial judge overruled the defendant’s motion for a new trial, and maintained the prosecution as jurisdictionally well grounded. In so doing the judge passed upon the evidence that had been adduced on the trial of defendant’s motion for new trial — the purport of same being that the verdict of the jury was contrary to law and evidence — and he had undoubted authority for so doing. But it is equally unquestionable that this court has no authority to examine the evidence adduced, except for the purpose of ascertaining whether the judge exercised his discretion arbitrarily or unjustly and to the prejudice and injury of the accused, and we think it is clear that he did not.

Judgment affirmed.