source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 9816.
    The Board of Liquidation vs. The New Orleans Waterworks Company.
    In an action for tlie transfer of stock and the payment of dividends, brought against the stockholder in whose name the shares stand, and against the corporation, the latter has no interest at stake, and has no right to prosecute an appeal from a judgment rendered contradictorily with both parties defendant, in favor of plaintiff, where the real party in interest — the stockholder — has not appealed, and the judgment has become final and executory.
    In such a case the Court, proprio motu, will dismiss the appeal.
    APPEAL from the Civil District Court for the Parish of Orleans. Lazarus, J.

      Henry O. Miller for Plaintiff and Appellee.

      Jr R. Beclcwith for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action for three thousand shares of the capital stock of the Waterworks company, and of the dividends declared thereon, under allottmeut of same to the city by the charter of the company.

Both the city and the company were cited and answered.

The city filed a general denial, while the company urged that the board has no authority to claim the stock and dividends, and that the same are to be affected to a special trust, etc.

There was judgment in favor of plaintiff. From this judgment the city does not appeal. It is brought up for review by the Waterworks company only.

The judgment against the city has become final and executory.

In this matter the Waterworks company is a meie stockholder and has no interest to attack the correctness of the judgment, where the city, to whom the stock and dividend belong, does not.

Undoubtedly a stock corporation has the right to require the transfer of its stock to be made by the party in whose name it stands, or by his authority. This right it has to protect itself from the injury which it might be subjected to, in case the transfer was unwarranted. The company, in an action against it for such transfer, would have a right to ask that the stockholder be made a party; but this is unnecessary in the present case, in which the city and the company were both cited and joined issue, and where the judgment was Contradictorily rendered.

We therefore conclude that the company, under the circumstances,— the city, the real party concerned, not having appealed, and the judgment in favor of plaintiff having become executory,- — has no interest in the controversy, and that, by making the transfer and payment decreed by the judgment appealed from, the company is fully protected. State ex rel. Plaisent vs. Railroad Company, 38 Ann. 312.

It is therefore ordered, proprio motu, that the appeal in this case be dismissed at appellant’s cost.


text:
    No. 9812.
    The State of Louisiana vs. Henry Wilson.
    Sections 790 and 791 R. S. ore designed to punish a generic offense — shooting with a dangerous weapon, with intent to commit murder, and they define its grades.
    In certain circumstances death is the penalty j in others hard labor is inflicted.
    The sections may be regarded as one law justifying a verdict under either.
    APPEAL from the Ninth District Court, parish of Concordia. Young, J.

      M. J. Ott/UMimgham, Attorney General, and Hugh Tullís, District A ttorney, for the State, Appellee :
    1. When the crime prohibited by one statute is greater in degree and includes the crime punished by the other statute, the greater crime denounced in a single count necessarily embraces the prosecution of the lesser crime, for which, therefore, the accused may be convicted under the count. 35 Ann. 734; 6 Ann. 286.
    2. The verdict, being “the finding of lay people,” need not be framed under the strict rules of pleading, or after any technical form. Any words which convey the idea to the common understanding will be adequate. And all fair intendments will be made to support it, •' # * * 'v *v if it sufficiently finds anything, whether for or against the defendant. 1 Bish. Crim. Pro. Section 1005.
    (?. F. Bowles and Flam & Ltiee, for Defendant, and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

On the indictment presented in this case, the jury returned the following verdict:

“We, the jury, find the accused, Henry Wilson, guilty of shooting Chas. Zerkosky with a pistol, with intent to kill and murder.”

The district judge sentenced the accused to ten years at hard labor.

From the verdict and sentence the defendant appeals.

The Becord contains several bills of exceptions and a motion in arrest of judgment.

The bills are to the charge of the court and to the refusal of the district judge to give certain special charges. They all rest on the assumption that the defendant could not be convicted of a crime lesser than tjiat charged in the indictment, a theory which the trial judge would not accept.

Sections 790 and 791 of the Revised Statutes are to be considered under the issues presented.

Section 790 reads as follows :

“ If any person lying in wait, or in the perpetration, or attempt to perpetrate any arson, rape, robbery, or burglary, shall shoot, stab or thrust any person with a dangerous weapon, with intent to commit the crime of murder, he shall, on conviction thereof, be punished with death.”

Sec. 791 provides, that: “Whoever shall shoot, stab or thrust any person with a dangerous weapon, with intent to commit murder under any other' circumstances than those mentioned in the preceding section, shall, on conviction, suffer imprisonment at hard labor, or otherwise, for not less than one nor more than twenty-one years.”

Those two sections, for a propel' understanding, have to be considered together, as it is impossible to ascertain under what circumstances a conviction under Sec. 791 can take place without consulting Sec. 790, which, by the reference made to it, by Sec. 79], forms part of it.

Both sections were evidently designed to punish a general offense, viz : “ Shooting with a dangerous weapon, with intent to commit murder,” defining its grades. But as the act or offense might be aggravated, when done by one lying in wait, or in the perpetration, or attempt to perpetrate, arson, rape, robbery or burglary, the first section provides that on conviction the penalty shall be death; and, as the act or offense might be committed under other circumstances, of less gravity, the second section provides that, on conviction, the punishment shall be hard labor only.

For the purposes of prosecution, the indictment needed not to be framed necessarily under the first section to secure conviction under the second section ; for the same reason that, en an indictment for murder, a verdict of manslaughter can be legally found and returned.

The two sections may be treated as one aud the same law, justifying a verdict under either the, first or the second section, the moment that the jury find a state of facts under either.

Similar views have been entertained in germane eases. State vs. Gregory, 33 Ann. 738; State vs. Frances, 38 Ann. 387. What was said in the Scott case, 38 Ann. 387, on the question of form of the indictment there does not in the. least militate against the ruling now alluded to in the Frances case.

It is true the jury did not find the accused guilty as charged, which, had they done so, would have warranted the infliction of death. Front the fact, however, that they omitted those words, or a statement of facts found by them, it is inferable that they negatived the circumstances constituting an offense under section 790, and that they found the accused guilty under the second section.

Such was the construction put by the district judge, who instead of sentencing the defendant to death, merely condemned him to hard labor for a medium term, of which he here complains with little grace. State vs. Stouderman, 6 Ann. 286; State vs. Green, 37 Ann. 382; 30 Ann. 313, 116, 215, 1173; 28 Ann. 434; 40 N. Y. 1, 348; Bishop Cr. L. 7 cd., vol. 1, sec. 794; Ib. vol. 1, sec. 1005; Wharton, Cr. L. 384.

The record does not'show that any illegal evidence was received.

These views are a sufficient answer to the motion in arrest, which charges that the accused was found guilty of no crime under the laws of Louisiana; that the verdict was not responsive to the indictment or the charge of the court; that it does not set forth the facts and elements constituting the crime for which they find.

As to the objection that the verdict does not find that the shooting was done with a dangerous weapon, it suffices to remark that it says that the shooting was done with a pistol, and that a pistol eo nomine is declared by law to be a dangerous weapon. Sec. 932 R. S. See, also, State vs. Jackson, 37 Ann. 467.

Judgment affirmed.


author: W atkins, J.

text:
    No. 9793.
    Shattuck & Hoffman vs. City of New Orleans et al.
    The tax payer, before bringing suit for the reduction or correction of an assessment, must, as a condition precedent, mate the preliminary opposition thereto and application for redress, provided for by law.
    A PPEAL from the Civil District Court for the Parish of Orleans. lüg'htor, J.

      W. F. & I). O. Mellen for Plaintiffs and Appellees:
    1. A lumping assessment, including “ money loaned on interest, all credits and all bills receivable for money loaned or advanced $175,000- — does not enable the tax collector to ascertain the tax due on any class or article of property, and is void. Thibodaux vs. ' Keller, 29 Ann. 510; Clinton and P. H. R. R. vs. Collector, 30 Ann. 626; Desty on Taxation, Vol. 1, pp. 564 and 565; San Francisco vs. Maokay, 21 Fed. R. 539; Constitution, 1879, Art. 210; Act 96, 1882.
    2. Under the State Constitution of 1879, and the various acts of the legislature passed since that Constitution went into effect, neither the assessment of taxes nor the filing of the tax rolls in the mortgage office, affects the property of the tax payer who is assessed, with a general lien or privilege or legal mortgage. Each piece of property is liable for tho tax assessed on it and no other. Const., Arts, 210 and 218; Act 107,1884 ; Act 96,1882, secs. 32, 33, 34.
    3. A general privilege or legal mortgage affecting all the property of the tax payer assessed would be a vain tiling, for a suit to enforce such privilege or mortgage could not be maintained. The right of seizure and sale is expressly limited to the assessed property for the amount of tax assessed thereon. Const., Arts. 210 and 218 ; 35 Ann. 301; lb. 329; 36 Ann. 812; Act 96, 1882, secs. 40, 41, 42, 44, 45, 46,47, 48.
    4. Only such property can be seized and sold for taxes assessed upon it as lias been assessed in such maimer that it can be identified by the owner, by the tax collector, and by the purchaser. Act 96, 1882, secs. 6,12,13, 14,18, 21, 24, 25, 26, 27, 34, 35, 41, 43, 44, 45, 46, 47, 48.
    5. A tax on moneys loaned on interest, is incapable of being enforced. “Moneys loaned on interest” cannot be identified or seized and sold.
    6. A tax on “ all credits and all bills receivable for money loaned or advanced,” cannot be enforced. It is possible to identify a particular bill when properly described in the assessment ; hut the general designation “hills receivable” in an assessment is an insufficient description, and meaningless.
    7. Bills receivable, whether properly described or not, are transitory tilings. They may he paid and surrendered after assessment and before the time for the collection of the tax arrives. The collector cannot, as to such property collect the taxes in the manner pointed out by the Constitution.
    8. The Constitution, Art. 210, in providing: 1st., that taxes should be collected without suit; 2d., that they should be collected by advertisement and sale; 3d., that the advertisement and sale should be confined to the property on which the - taxes are due; 4th., that the collector should sell such portion of the property assessed as the debtor should point out; 5th., and that if the debtor should fail to point out sufficient property, the collector .should forthwith sell the least quantity of property which any bidder will buy for the amount of the taxes, interests and costs; has excluded from taxation all property on which the taxes assessed cannot be collected by seizure and sale.
    9. Under the Constitution and laws of this State, the Bureau of Assessments is the oomple* ment of the Bureau of Collection, and there is no authority in the General Assembly to require tliat the assessors shall do the vain thiDg of listing and assessing “moneys loaned on interest, and all credits and bills receivable for money loaned or advanced,” since the Constitution permits of no legislative provision for the collection of taxes assessed thereon.
    10, A suit to annul an assessment on the ground of its unconstitutionality or illegality is different from a suit to revise or correct an assessment, because of; errors in description or valuation. The right of action to correct an assessment, conferred by Art. 203 of the Constitution, and recognized by sec. 27 of Act No. 00 of 1882, and seo. 0 of Act No. 107 of 1884, does not depend upon a previous application to the Board of As.sessors or the Committee of Revision. A fortiori, such application is not a condition precedent to a suit to annul an assessment as unconstitutional or illegal. Act 107, 1884, sec. 0; Act 96, 1882, sec. 27: Act 77. 1880, sec. ól; Act 96, 1877, secs. 87, 88 and 89; (Jay vs. Board of Assessors, 34 Ann. pp. 370, 372, 373; Const., Art. 203.

      W. H. Bogers, City Attorney, and B. K. Miller, Assistant City Attorney, for Defendants and Appellants.
   The opinion of the Court was delivered by

W atkins, J.

Plaintiffs were assessed in 1885 on “money loaned on interest, all credits and all bills receivable for money loaned or advanced, $175,000,” in value, and they sue for the annulment thereof on the ground that the assessment is “vague, indefinite and uncertain, and does not sufficiently describe tlip property assessed. That it is meaningless and confuses property of different kinds, each kind insufficiently described. That it shows nothing, no property of any kind, that, under the Constitution and laws of the State, can be seized and sold by the collector of taxes.”

In the alternative, they pray that, if it be held that said assessment is not null, it be reduced to $25,000, for the reason that a proper assessment of all the effects of said firm would not have exceeded that sum.

The State aud city affirm the validity of the assessment; and all the defendants — including the Board of Assessors — except to plaintiffs’ action, because “ it does not appear that the plaintiffs ever applied to the Committee of Revision of the City Council for the correction of this assessment, antecedent to the institution of this suit.

This exception seems not to have been passed upon by the judge a quo; but, on the merits, lie annulled the assessment, and from this judgment the defendants have appealed.

T

The exception must be first disposed of.

Section 27, of Act 96 of 1882, provides: “That all taxpayers shall have the right to appear before the Board of Assessors iu the parish of Orleans, during the sessions of said hoard, and he heard concerning the description of the property listed and the valuations of the same as assessed, and they shall have the right of testing the correctness of their assessments before the courts of justice, in any procedure which the Constitution and laws may permit, but the action to test such correctness shall be instituted on or before the first day of November of the years in which the assessment is made.”

That, law was amended by Section 9 of Act 107 of 1884, so as to read as follows, viz: “That all taxpayers shall have the right to appear before a standing committee on assessment of the City Council of New Orleans, as provided in the aforesaid act, during the sessions of said board, and be heard concerning the description of the property listed and the valuation of same, as assessed, and they shall have the right of testing the correctness of their assessments before the courts of justice in any procedure which the Constitution and laws may permit, but the action to test such correctness shall be on or before the 1st day in November of the year in which the assessment, is made. Said committee shall determine upon said application and report, their action at once to the City Council for its approval or rejection, and such decision of the Council shall be final, unless sot aside, in accordance with Article 203 of the Constitution.”

In City of New Orleans vs. Canal and Banking Company, 32 Ann. 157, the Court construed the provisions of Act 96, of the extra session of 1877, which are quite similar to those above quoted, and said : “As regards the methods adopted by the assessors to ascertain the value to be taxed, we think that the objection, even if well founded, comes too late. After assessments have been made, the law directs the rolls to be exposed and advertised for thirty days, and requires all persons objecting thereto to come forward and claim correctness. Ample opportunity and efficient means are provided to enable the taxpayer to have a,11 errors corrected. If he does not urge his objections within the time allowed, he is thereafter precluded.”

That act permitted any taxpayer who conceived himself aggrieved by an assessment, to make an appeal in writing to the assessor, within thirty days after same had been filed and advertised, “statingparticularly the correction desired ; ” and made it the duty of the assessor to “ proceed to hear and adjudge his case.” It gives to the taxpayer the right of appeal to the courts on his taking an oath “ that gross injustice has been done him.” Sections 5, 15 and 29 Act 96 extra, session of 1877.

In Gay vs. Board of Assessors, 34 Ann. 370, the Court had under consideration the provisions of Article 51 of Act 77 of 1880, which are identical with those of Section 27 of Act 96 of 1882, above quoted, with the exception of tlie limitation of time within which, the action should be brought, which, in the former, was “prior to the day of tax sale, as advertised', and not afterward.”

The Court said of the Act of 1877 : ■ “ The complaint to the board and a resort to arbitration were conditions precedent to the appeal to the courts.”

There was no like phraseology employed in either the law of 1880 or 1882; but in that of 1884 it was expressly provided that the standing committee on assessment, shall determine, upon the application of the taxpayers,” and report “ their action at onco to the City Council, for its approval or rejection; and such decision of the City Council shall be final, unless set aside, in accordance with Article 203 of the Constitution.”

This we consider as a condition precedent to the taxpayer’s right of action to test the correctness of an assessment before the courts, and its non-observance is fatal to the plaintiff’s action.

II

But plaintiff’s counsel argue that this is not a case to test the correctness of an assessment, the constitutionality or legality of which are otherwise admitted; but one to annul, to declare void the whole assessment. It says : “The right to institute it was not conferred by the tax laws of 1882 and 1884. It existed independent of those laws, under the general jurisprudence of the State.”

Again: “ Besides Art.-203 of the Constitution gives to the taxpayer the right of testing the correctness of their assessments before the courts of justice. It is an absolute and unconditional right, and the legislature cannot take it away.”

This argument is fully answered by the statute of 1884, which has placed an intepretation on that article. It clearly states that the report of the standing committee shall be final, unless set aside in accordance with Art. 203.

The right of the taxpayer to appear before the standing committee,. and be heard concerning the description of the property listed and the valuation of the same as assessed, and the report of the standing committee on assessment-of the City Council, are proceedings preparatory and prerequisite to the taxpayer’s right of action to test the correctness of the assessment in the courts of justice. This was certainly a wise precaution taken by the legislature to prevent unnecessary and vexatious embarrassment and delay in the collection of the revenues. We think the revenue laws must be consulted in determination of plaintiffs’ right and cause of action. They afford the taxpayer ample justice. We cannot assume that the committee on assessment, would not or could not have afforded plaintiffs ample and speedy relief' — if indeed they were entitled to any, and if they had not, they could then readiljr have applied to the courts of justice for relief.

Conceding all that plaintiffs urge against their assessment, for the purpose of argument, we can see no reason why the committee did not have ample authority under the statute to correct any errors shown to have existed in the description of the property listed, and the valuation of same as assessed; aud that is the substance of their demands.

The case of Adler, Goldman & Co. vs. Board of Assessors, 37 Ann. 507, is conclusive against the plaintiffs as to the character of their action.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and proceedings to render such judgment as should have been rendered by the judge a quo, it is ordered, adjudged aud decreed, that the exception taken by defendants be sustained and plaintiffs’ suit dismissed, and all costs of both courts be taxed against them.

Rehearing refused.


author: Fenner, J.

text:
    No. 9869.
    Jean M. Levet vs. Antoinette and Charles Lapeyrollerie.
    The servitude of drain through a canal is continuous and apparent and may he acquired by possession of ten years.
    "When such a servitude is established in favor of an estate owned by a partnership over a contiguous estate belonging to one member of tbe partnership, the possession by the firm for ten years will sustain the ownership.
    In absence of any stipulation to that eifeot, such right will be presumed to be a roal servitude .
    APPEAL from the Twenty-sixth District Court for the Parish of St. John the Baptist. Host, J.

      T. J. Semmes <& Legendre for Plaintiff aud Appellee:
    Servitudes are divided into two classes: personal and real. O- C. 646.
    A personal servitude is oue established for the benefit of a person, such as usufruct, use, habitation and antichresis.
    A real servitude is one established on an estate for the benefit of another estate.
    Examples: right of drainage, right of pasturage, right of watering. C. O. 72J.
    Servitudes are continuous or discontinuous, apparent or uon-apparent.
    A servitude of (hainago is continuous and apparent. C. C. 727, 728.
    It can he acquired by len years’ proscription. 0, C. 765; 34 Ann. 568; 33 Ann. 797; 7 La. 55.
    Presciiption attaches to aright the moment it can be exercised. Hence, in matters of real servitude (drainage), it begins to run from the time that the right is exercised, and from the time that the works necessary for the exercise of it are constructed. C. N. 642, Marcado, p. 561; Demolombe, vol. xii, pp. 268, 269; Aubry & Rau, p. 80; Zacharie. p. 79; Toullier, vol. iii, p. 479, § 479; Laurent vol. vii, p. 236 ; Hennen, vol. ii, p. 1227.
    A partner may establish on his individual property a real servitude in favor of an estate belonging to a partnership of which he is a.member. In such a case the respective estates are held by different owners, the partnership being distinct from the members composing it. Aubry & Rau, p. 63 ; Demolombe XII, § 696; Zaeharia, Vol. Ill, p. 63, § 47; 16 Ann. 275.
    In cases of doubt, the court is to decide in favor of the real servitude. Dallo», Servitude, Ho 28.
    The destination made by the owner is equivalent to title with respect to continuous, apparent servitude. O, C. 649; 6 R. 16; 1 Ann. 407; 3 Ann. 166.
    If the owner of two estates between which there exists an apparent sign of servitude sell one of the estates, and if the deed of sale be silent respecting the servitude, the same shall continue to exist in favor of the estate which has been sold. 35 Ann. 469 ; 29 Ann. 633 ; 5Ann.590; 5R.16; 16Ann.275; 12Ann 108; Marcado, p. 642 ; Aubry&Rau.p. 86,
    A right of servitude is indivisible by its nature and is inseparable from the estate to which it belongs. C. G. 656-657.
    Warranty is implied in partitions of property between co-owners, in the same manner and to the same extent as between co-heirs. C. C. 1290,1384 to 1397.
    He who receives part of the proceeds of a sale, ratifies it and is estopped from questioning the title of the purchaser. 32 Ann. 121;
    Tic who, by his words or conduct, causes another to believe in the existence of a certain state of things, on the faith of which the latter has acted, is estopped from averring a different state of things. 4 Ann. 293; 5 Ann. 366; 6 Ann. 274; 30 Ann. 30.

      J. 1). Augustin, L. DePoorter and Q. Leche for Defendants and Appellants:
    Possession nomine propHo is of the essence of the possessory action. 32 Ann. 192, Dooley vs. Gibson; seoalso2 Ann. 749; 4 Ann. 525; C. C. 3441, 3510, 35ÍL, 8514.
    Prescription (if applicable at all here which is denied) is governed by the same rule as to the possession necessary to iuitiate its starting point. R. G. Ü. 3478, 3479, 3489, 3490; see also as to title and requisites for prescription. 12 Ann. 730; 12 M. 17; 5 Ann. 594; 6 Ann. 683.
    One who holds as agent cannot prescribe. 30 Ann. 808.
    A possessor by a precarious title cannot, by selling and buying back tho property, acquire a title as a^basis for prescription. 10 Ann. 580.
    A partner is only the agent of the partnership for purposes of administration of its affairs and property. Ü. G. 2870.
    In actious of partitions involving a settlement of claims and accounts, no prescription is applicable except that which is a bar to tbe partition. 16 Ann 170, Chapman vs. Woodward ; 14 Ann. 740.
    The same rules of partitions, and the same as to the obligations of the partners inter sene. apply as in cases of successions. C. Ü. 2890.
    If the use only of specified property has been brought into the partnership, and that property is such of a nature that it may be used and enjoyed without destroying it, the ownership remains in the partner who brought it in and is at his risk. C. C 2863; see also on partnership, C. C. 2808, 2801; 22 Ann. 503; 3 R. 488; 3 Ann. 319.
    Statutes of prescription and limitation cannot be extended from one action to another, nor to analogous cases beyond the strict letter of the law. 15 Ann. 143, Garland vs. Scott.
    In the absence of a title, and exclusive adverse individual possession thereunder, plaintiff could only prescribe by thirty years, for a continuous apparent servitude, the others being imprescriptible. C. G. 3504; Troplong de la Prescription, Vol I, sec. 408, p. 519 ; lb. Vol. II, sec. 556, p. 439; Toullier 3, par 61 ¿tseq.) Servitudes, pars. 356, 373, 443, 458. 450, 461.
    A use for'the benefit of a partnership, through the estate of an individual partner, cannot be presumed to have been intended by the partner as being a dismemberment of a real nature in favor of the partnership estate itself, said use lapsing with the closing and end of the partnership. C. C. 647, 648, 753, 768.
    A service is not a servitude; and a servitude may be personal as a service, even if the estate belonging to the person be benefited in some way by the service; the real character of the service cannot be presumed, and cannot be created by lapse of time, unless the estates belong to distinct persons, and an adverse, uninterrupted, exclusive, public possession can be predicated. Above authorities and R. O. 0 . 640 ; O. 0.3483,3480. 3490, 3514
    Prescription is not favored, hut is striGiissimi juris, like homestead laws and never supplied This is elementary.
    At any rate, the restoration of the natural drainage of tract C by Mr. Edrington opening the dam and leaving it so for over two months, was an interruption of the prescription of the cross drainage, if any such could ever ha.ve been either intended, contemplated or imagined. 37 Ann. 250.
    The essence of the partnership bond is good faith and honesty like in marriage; and iho attempt to convert into a prescriptive title, after the death of a partner, a service granted previously to the firm, is in bad faith a.nd should he discouraged.
    A natural servitude by the situation of the estates in the peculiar position of the alluvial lands of Louisiana especially, need not be by title nor prescription, of course; hut artificial servitudes of a real and perpetual nature must be by contract; or may be by prescription in case of continuous, apparent servitudes, if the possession be adverse, exclu. sive, notorious, public and uninterrupted, during the period expressly fixed by law. <:. (J. 471, 2440, 2275; 32 Ann. 839, Bailey vs. “Ward.
   Tlie opinion of the Court was delivered by

Fenner, J.

This ease involves the claim to a servitude of drain, and the following diagram exposes the situation of the estates concerned :

The, facts are as follows :

In 1866 the partnership of Levet & Lapeyrollerio acquired the tract A. In 1867 the same partnership acquired the tract C.

, In the same year J. M. Lapeyrollerie, a member of said partnership, became the individual owner of the tract B.

The natural drainage of tract C was to the rear, but the owners of the rear lands having obstructed the same, in 1871 the partnership of Levet & Lapeyrollerie, with the consent of Lapeyrollerie, dug the canal indicated in the diagram, running from the tract C across tract B, and emptying into a canal in tract A, which conducted its waters to the rear.

From that date the waters from tract C have enjoyed uninterrupted optlet through this canal.

In 1883 the partnership of Levet & Lapeyrollerie was dissolved by the death of the latter.

A judicial partition was effected between the heirs of Lapeyrollerie and the surviving partner, Levet, which was made by sale of the common property, and the tracts A and C were adjudicated to Levet, to whom the said tracts were duly transferred, “with all the rights, ways, privileges, improvements and appurtenances thereunto belonging.

In 1884 the heirs of Lapeyrollerie, owning tract B, attempted to close the canal, when the present plaintiff, claiming a servitude of drain in favor of tract C, through said canal, acquired by a possession of ten years, brought the present suit for a perpetual injunction, restraining defendants from any acts interfering with it.

The servitude claimed is a real servitude. C. C. 646, 714. It is continuous. C. C. 727. It is apparent. C. C. 728.

The Code provides that “continuous and apparent servitudes may be acquired by title or by a possession of ten years." C. C. 765.

There is no dispute that the servitude here has been possessed or enjoyed for more than ten years, without interruption.

The defendants contend, how ever, that the owner of tract C cannot claim the benefit of such possession, because, up to the death of Lapeyrollerie, said owner was a partnership, of which their said ancestor was a member. The proposition has no support in reason or authority. The partnership was a distinct entity entirely separate from the individual members, capable of acquiring such a servitude by title from the member Lapeyrollerie, and equally capable of acquiring it by possession for the requisite length of time.

It is next claimed that the right of drain here involved is not a real servitude properly so-called, but a mere personal right established in favor of the partnership, and expiring with it, under C. C. 758.

This contention cannot be sustained under the plain language of the Code, Arts. 754, 755, 756, 757.

Where a servitude is acquired by title, the act stipulating it may validly declare whether it is in favor of the estate or only in favor of the owner, and such stipulation will receive full effect. But Art. 755 says that in case of silence of the act, it is to “ be considered whether the right granted be of real advantage to the estate, or merely of personal convenience to the owner.” And Art. 756 provides that “if the right granted be of a nature to assure a real advantage to an estate, it is to be presumed that such right is a real servitude, although it may not be so styled.”

Plaintiff is entitled to the full benefit of this presumption in this case, where there was no express title, and where the evidence conclusively shows that the servitude was established for the benefit of tract C, and is of such advantage to it that, without it, the tract could not be successfully cultivated.

Defendant’s pretensions are the less worthy of consideration when raised, for the first time, after the partition sale, at which the price paid for tract C would have been doubtless reduced had it been supposed that its established servitude of drain would be disputed. We think the district judge did justice in the case.

Judgment affirmed.


text:
    No. 9829.
    The State of Louisiana vs. George Morgan.
    Where the case shows lack of diligence, and where the motion for continuance exhibits no reasonable certainty of being able to procure the attendance of the absent witness at a future day, the ruling of the court refusing continuance will not be disturbed.
    In an indictment charging in a single count both burglary and larceny, verdict for larceny alone sustained.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Burgess, J.

      M. JGwmiinghmn, Attorney General, and L. I). Beale, District Attorney, for the State, Appellee:
    Due and proper diligence must be shown in order to obtain a continuance on the ground of the absence of a witness, and the judge a quo must use his discretion in such cases. 28 Ann. 40. The ruling of tho judge a quo on a motion for continuance in a criminal case involves both questions of law and fact, and cannot therefore he examined on appeal, because the jurisdiction of she appellate court in criminal cases is limited 1o questions of law alone. 23 Ann. 558.

      The general rule is that two distinct offenses cannot be charged in one count of an indictment. But “the most prominent exception is to be found in indictments for burglary, in which it is correct to charge the defendant with having broten into the house with intent to commit a felony, and also with having committed the felony intended.” Wharton’s Criminal Practice, sec. 244. Same principle recognized in 34 Ann. 48, and authorities there quoted. On the same point we refer to 37 Ann. 780, State vs. STichols .
    One indicted for burglary and larceny may be acquitted of burglary and found guilty of larceny. Wharton's Criminal Law, 8th ed. sec. 819.
    S’. W. Sherburne and Q. W. Buckner for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The defendant moved for a continuance on the ground of the absence of a material witness, who, he alleges in his motion, had been duly summoned. The name of the witness was Jim. Smith, and one Jim Smith had been summoned and appeared, but defendant said it was not the man he referred to.

The judge allowed the sheriff to explain his action in the premises. He stated that on reception of the subpoena for Jim Smith he called on defendant for instructions, who told him lie did not know his residence, but that lie was “the Jim Smith who had been in jail in this parish and stayed around a woman named Bella Cannon,” aud could give no further description or direction. The Jim Smith summoned had been recently in jail and did stay about Bella Cannon and he had been unable to find any other Jim Smith.

Exception was taken to admission of this statement of the sheriff, but as it was, in fact, simply a full return of his action on the subpoena, the objection has no force.

The judge refused the continuance on the ground that the case had been fixed two weeks in advance, and the subpuma having been issued only two days before the trial, there was want of due diligence. This reason taken in connection with the absence of any suggestion in the motion that defendant knows, or has any means of ascertaining, the whereabouts of his witness, is sufficient.

I.

The indictment is for burglary and larceny charged in a single count. The accused asked the court to charge the jury that it “could find a verdict of burglary alone; ” but the court charged that they could find a verdict for “both burglary and larceny, or either.”

The jury found a verdict for larceny. This is assigned as error under an exception to the charge, and also in a motion in arrest.

We have twice sustained indictments assailed on the ground that charging burglary and larceny in the same count avoided them for duplicity. State vs. Johnson, 34 Ann. 48; State vs. Nicholls, 87 Ann. 779.

But in both of those cases the verdict was for burglary, or for burglary and larceny.

In the last case we suggested that, had the verdict been for larceny alone, a different question might arise.”

That question is directly presented in this case, and upon it we encounter a direct conflict of authorities. Mr. Wharton holds that, under such an indictment, verdict for larceny alone may be sustained. Wharton Cr. L., §§ 383, 560, 617, 1615.

Mr. Bishop, while holding that burglary and larceny may be charged together in a single count, construes such a charge to be only for a single offense, viz: burglary in a particular manner, and holds that it can support only a verdict for burglary. Bishop Cr. L. 1062.

The reason of the matter seems to us to support the principle of Wharton; for if the accused may be validly charged in the same count with both burglary and larceny, we cannot see why, on simple failure to prove the breaking into the house, as for instance, when the accused had simply entered the house through an open door, the accused should go free, although it. might he fully proved that he then and there committed the larceny.

We therefore hold that the judge did not err in his charge to the prejudice of defendant.

Judgment affirmed.


author: Fenner, J. Toed, J.

text:
    No. 9880.
    Felix Bourgeois vs. Euphrosine Chauvin.
    The charges of abandonment, defamation and attempt on plaintiff's life, on which the claim of separation from bed and board is claimed, are not proved.
    The charge of adultery on which immediate divorce is claimed, is supported by no sufficient evidence after the incident of March, 1884, which was fully condoned by plaintiff.
    Where the conduct of the husband indicates a real intention to have his wife transgress or, at least, an intention to allow her to do so undisturbed and unprevented, this constitutes connivance, and operates as a bar to the suit.
    APPEAL from the Twentieth District Court, Parish of Lafourche. Beattie, J.

      David Todd, for Plaintiff and Appellant:
    A plea of condonation admits the charge of adultery as true.
    The exception of reconciliation shall not avail where the wrong h repeated. C. O. 152-3-4.
    Positive or direct testimony is not neccessary to establish adultery. 16 Ann. 4.
    When three facts combine to show the guilt of defendant, it may be taken as proved: first, the criminal intent in defendant; secondly, the same in the alleged partieeps eritnin is,thirdly, the opportunity sought with secrecy and concealment. Bishop. Marriage and Divorce, Sec. 427; Sec.439; also, p. 347, Sec. 433; Brarawellvs. Bramwell, 3 Hagg. 618, 5th E. E. B. 32. See Phil. onEv. (Cowan Hill's Notes) p. 600.

      Knóbloóh, Moore & Badecmx, for Defendant and Appellee :
    1. The incident of March, 1884, does not establish, even by presumption, any act of adultery •
    2. Even if it did, -which is denied' the act was condoned; plaintiff, although an eye witness to that scene, continued to live with his wife in -matrimonial relationship for five months afterward. See C C. 15?, 154; 22 A- 9 ; 18 A. 643: 10 Da. 251: 14 A. 387 Bienvenu vs. Buisson.
    3. Nothing has transpired since March. 1884, which throws the slightest suspicion of infidelity on the wife.
    4. Every subsequent act or circumstance, although not one can be considered even suspicious, is fully explained by the wife, and proves her to have been pure and virtuous throughout.
    5. There was no abandonment by the wife, as alleged in original petition. Thehnsband in August, 1884, left his wife. '
    6. Even if the wife had abandoned her husband, no judgment for separation can be entered, as the abandonment must be shown by the three summons provided for by law.
    See C. C. 145 ; 8 A. 14; 14 A. 386; 28 A. 194.
    7. No act of impropriety, indiscretion or even suspicion, is sufficient to adudgeawife guilty of adultery. See Cooper vs. Cooper, 10 Da. 251; Hall vs. Caulwright, 18 A. 414; Galen vs. Darby, 36 Ann- 73.
   The opinion of the Court was delivered by

Fenner, J.

The plaintiff brought this suit against his wife, originally, for separation from bed and board, on grounds of abandonment, defamation, attempting his life and the like.

This part of the case may as well be dismissed with the statement that the evidence fails entirely to support the charges.

He subsequently filed an amended petition in which he claimed an absolute divorce on the charge of adultery against his wife.

The testimony exhibits facts not creditable to either party and as discreditable to plaintiff as to defendant.

In March, 1884, plaintiff, with two other spies procured by himself, were witnesses, through an opening in the window, of a scene between defendant and one Boudro, the salacious details of which need not be mentioned but from which the worst inferences might be drawn.

He had the patience not .to disturb this scene which lasted several hours, but suffered the parties, without interference, to pass and remain some time out of his view, from which faet he deduces the commission of the act of adultery.

Notwithstanding this, he condoned the offense and continued to live with his wife until August following, when, lie left her and she returned to her father’s home.

He was equally forgiving to Boudro with whom he continued to speak and even to take friendly drinks.

It is needless to say that this offense was fully condoned and can only figure as adjuvatory of subsequent causes of complaint.

We find in the record no proof of any subsequent adultery, and no evidence from which such guilt can be legitimately inferred.

• It is true that defendant and Boirdro continued to speak and to associate publicly with each other; but this is explained and excused by two facts : 1st., the example of her husband; 2d., the fact that Boudro was engaged to be married to defendant’s sister.

One note is also shown to have passed from defendant to Boudro, but it was enclosed in an envelope with a note from her sister to him, and its innocent purport is fully established.

There is no evidence of their ever having been alone together except on a single occasion, which is supported only by the evidence of a single witness, who is contradicted by others.

We quote the comments of the judge a quo on this witness and his testimony: ‘‘An attempt was made to show clandestine meeting at night. One of these meetings is proved by the witness Albert Toups to have taken place in the fall of 1884. He testifies that lie crawled upon his ‘ all fours ’ for some distance of a moonless night, and through the crevices of a fence, saw two people, the defendant and Boudro, together and heard her call him back. The testimony of this .witness is stronger in innuendo than in assertion, and I think he so intended it.

“ I disbelieve his testimony.

“I disbelieve it because of his manner in giving it and of his admitted part of a. spy employed to procure the testimony; and at the request of counsel for both sides, I went to the locus in quo accompanied by them, and from what I saw on a moonless night, I do not believe he could have seen what he says he did see.”

The judge had better opportunity of determining the credibility of this witness than we have, and we feel bound to accept his conclusion.

With this testimony blotted out, plaintiff’s case has not “ a leg to stand on.”

There are other features of plaintiff’s conduct referred to in the evidence which deprive him of the least claim to consideration.

This evidence need not be detailed; but taken in connection with his conduct on the occasion above referred to in March, 1884, it strongly indicates an intention to have his wife transgress, or at least an intention to allow her to do so undisturbed and unprevented, which amounts to connivance and operates as a bar to tbe suit. Cairns vs. Cairns, 109 Mass. 408; Morrison vs. Morrison, 136 ed. 310; Bishop on Marriage and Divorce, passim. See authorities collected in American Law Register, Feb’y. No. of 1886, p. 98 et seq.

Judgment affirmed.

Dissenting Opinion.

Toed, J.

I think the evidence in the record fully sustains the charge upon which this action is founded, and I find no ground appearing in the record for impugning the veracity of the witnesses who testified in support of the charge.

I therefore dissent from the opinion and decree rendered.


author: Todt), J.

text:
    No. 9837.
    The State of Louisiana vs. Richard J. Estoup.
    A declaration mod© by.a wounded man, who subsequently died from his wound, ten minutes after the wound was inflicted, and seventy yards from the place where the fight occnrred, charging that the accused had shot him, is no part of the res gestae, and is, therefore, not admissible in evideuce against the accused on trial.
    APPEAL from the Criminal District Court for the Parish of Orleans. Roman, J.

      M. J. Gunnmgham, Attorney General, and Lionel Admrs, District Attorney, for the State, Appellee :
    1.Any statement which is the natural or inseperable concomitant of the principal fact in controversy, is not within the meaning of hearsay, hut is an original and independent fact, admissible in proof of the issue. 1 G-renl. on Ev. Secs. 99,100.
    Where the probative force of the statement offered as partof the res gestae rests not on the credit of its maker but on the cogent influence of the circumstances under whifih it was uttered, it becomes original evidence. Best’s Prin. of Ev. Sec. 492, 1; Id. p. 470, note (e).
    2.These declarations are admissible if, 1st, they so limit, explain or characterize the fact in issue as in a just sense to he part of it, and necessary to its complete understanding; and, 2d, if such declarations he contemporaneous with the fact to which they relate. Best’s Prin. of Ev. p. 469, notes; 1 Greenl. Ev. 14th ed., Sec. 108; Starkie on Ev. 9 Am. ed. p. 87; 1 Bishop Crim. Law Secs. 1085, 1086 ; Whart. Ev. Secs. 262, 263.
    3.While it is universally conceded that these declarations are competent evidence if contemporaneous with the facts to which they relate, yet great and irreconcilable differences exist as to the true construction of the term “ contemporaneous.” In some jurisdictions it is limited to its strictest sense of being concurrent in time. To this category belong the decisions relied on by appellant, which are reviewed and their inapplicability shown.
    4.But the current of decisions, both in this country and in England, is to admit the declarations if they are so connected with the main fact as to qualify, characterize or explain it, although not strictly contemporaneous with it. In the loading case of Insuranee Go vs. Mosley, 8 WalL. (U. S.) 397, the declarations were uttered some minutes after the facts which they characterized had occurred. In Com. vs. McPike, 3 Cash. (Mass.) 181, subsequent declarations were also admitted. In State vs. Molisse, 38 Ann. 382, the declaration of deceased, made ten minutes after he was fatally shot, was ruled to be admissible as part of the res gestae. And in accord with these decisions are Best’s Prin. of Ev. 469, 1; Starkie on Ev. p. 87; 1 Greenl. on Ev. Sec. 110-; 1 Bish. Crim. Proc. Secs. 1085,1086; 1 Taylor’s Ev. See. 588; 12 B. 51, p. 60; 9 Bing. 349: 2 Bing. 104; 6 C. and P. 325; Skin. 402; 6 East’s E. 193; Cox’s Cr. Lw. Ca. 477; 57 Mo. 93; 5 W. Y. 510; 2 Allen (Mass.) 136 ; 4 Tex. App. 202; 2 Dill. C. C. 154 ; 1 "Wall. (U. S.) 637; 35 Cal. 49; 55 Pa. St. 402; 1 How. (TJ. S.) 219; 47 Mo. 239; 25 Gratt. (Ya.) 921; Id. 943; 32 Ga. 672.
    5. Upon the trial judge, who heard all the witnesses testify, devolved the duty of determining the relation of the declaration to the litigated act. 1 Greenl. Ev. Sec. 108; State vs. Molisse, 38 Ann. 382. In'the exercise of a sound discretion that officer has decided that under all the circumstances of the case the statement was “ unconsciously associated with and related to the homicidal act, even though separated from it by a short time.”
    This judgment should not be disturbed.

      W. L. Evans, for Defendant and Appellant:
    In alL cases where the question arises, whether declarations made are a part of the res gestae or not, it is well settled that the facts of each case stand alone and must speak for themselves. State vs. Molisse,'38 Ann. ; Denton vs. State, 1 Swan Ténn. E. 281.

      Res gestae are events speaking for themselves, through the instinctive words and acts ofparticipanls, not the words and acts of participants, when narrating the events.” Whar. Crim. Ev. See. 262.
    The principal points of attention are, whether the circumstances and declarations offered in proof were contemporaneous with the main fact under consideration, and whether they are so connected with it, as obviously to constitute one transaction. 1 Greenl. on Ev. 14th Ed., Sec. 108 and note; 1 Taylor on Ev. Sec. 525; State vs. Carlton, 48 Yt. 642 : Eeg. vs. Bedingfield, 14 Cox, C. C. 342.
    An instance of the doctrine of the res gestae rendering admissible declarations of a person wounded, is where they relate to his physical or mental feelings, but not as to who inflicted the wound or with what weapon it was inflicted. 2 Bish. Cr. Pro. 3d Ed. Sec. 626; Jones vs. State, 71 Ind. 81; Denton vs. State, 1 Swan Tenn. B. 282.
    The declarations must he so closely connected with the main fact as to be without suspicion of afterthought. Hall vs. State, 48 Ga. 609; State vs. Carlton, 48 Yt. 643, 044-
    The declarations, to he part of the res gestae, must have been made at a time and place, and under circumstances which preclude the hypothesis of concoction or premeditation. Whar. Crim. Ev. See. 263.
    “The test is, were the declarations the facts talking through the party or the party’s talk about the fact. Instinctiveness is the requisite.” Whar. Cr. Ev. Sec. 691.
    “The rule before us, however, does not permit the introduction, under the guise of res gestae, of a narrative of past events, made after the events are closed by either the injured party or by bystanders.” Whar. Crim. Ev 264; State vs. Melton, 37 Ann-78; State vs. Williams, 34 Ann. 961.
    ' ‘An act cannot be varied or explained, either by a declaration, which amounts to no more than a mere narration of a past occurrence, by an isolated conversation held or an isolated act done.” 1 Taylor on Ev. Sec, 527.
    In the instant case, the declarations admitted in evidence (against the objection of the prisoner) were made after the transaction was at an end, after the parties had separated, after the declarant had been in company with a person other than the witness, after the declarant had gone sixty or seventy yards from the place where the event, which resulted in his death, occurred, and after the lapse of about ten minutes. They contained nothing but the words of one of the participants when narrating what had become a past event. 31. pp 28,29.
   The opinion of the Court was delivered by

Todt), J.

The defendant appeals from a. sentence of fifteen years’ imprisonment at hard labor, being charged with murder and convicted of manslaughter.

The only question presented for oiu* determination relates to the ruling of the trial judge in admitting in evidence a certain statement of the deceased, made a few minutes after receiving the wound of which he died.

To understand it fully we reproduce the hill of exceptions taken by the counsel of the accused to the admission of the evidence:

“Be it remembered, that, on the trial hereof, one Thomas Herlihy, a witness for the State, being examined by the assistant district attorney, after testifying that he heard four shots fired at the corner of Clio and Howard streets, and that in about ten minutes after he was called out of the house, where he was, by some one, who said to him that his brother was shot, that when he went out he found his brother, John Herlihy, sitting on the steps of the house on Howard street, about 60 or 70 yards from tho corner of Clio street. The witness was about to say what his brother, John Herlihy, (the deceased) said to him at that time. The defendant objected on the ground that what John Herlihy said after the shooting was all over and the parties had separated, and after John Herlihy had gone away 60 or 70 yards from the place where the trouble and shooting occurred, and after he, John Herlihy, had been with one King, his brother-in-law, who was with said John Herlihy on the steps when this witness went out as testified to by this witness, was not part of the res gestee, but hearsay, and not admissible in evidence. The court overruled the objection and defendant excepted to said ruling and reserved this his hill of exceptions. This witness said that his brother, John Herlihy, then and there told him, in answer to his question, that Estoup had shot him.” Rec., pp. 28, 29.

As will be seen this statement was admitted not as a dying declaration but as part of the res gestes.

In this ruling the trial judge was clearly in error. The weight of authority is decidedly against it. This will fully appear by a few references to the authoritative works on evidence.

Thus G-reenleaf on this point says: “ The principal points of attention are, whether- the circumstances and declarations offered in proof were contemporaneous with the mam fact under consideration, and whether they were so connected with it as to illustrate its character.” 1 Greenl. Ev., 14th ed., sec. 108; and in a note, the author says : Declarations to become part of the res gestee, must have been made at tjie time of the aet done, which they are supposed to characterize; and have been well calculated to unfold the nature and quality of the facts they were intended to explain, and so to harmonize with them as obviously to constitute one tramsaction.'1''

Says Taylor: “In all cases the principal points of attention are, whether the circumstances and declarations offered in proof were so connected with the main fact under .consideration, as to illustrate its character, to further its object, or to form in conjunction with it one continuous transaction.’’ 1 Taylor on Ev., sec. 525.

The same author says (see. 526): “ Still, an act cannot be varied, qualified or explained either by a declaration, which amounts to no more than a mere narrative of a past occurrence, or by an isolated conversation held, or an isolated act done at a later period.”

Bishop says: “An instance of the doctrine of res gestee, rendering admissible declarations by t,he deceased, is where they relate to his physical or mental feelings. Thus his statements, after being wounded, explanatory of the injury have been held competent; but not as to who inflicted it or with what weapon.'" 2 Bish. Cr. Pro., 3d ed., sec. 626; Jones vs. State, 71 Ind. 81; Denton vs. State, 1 Swan Tenn. R., 282.

“ The rule before us, (says Wharton) however, does not permit the introduction, under the guise of res gestee, of a narrative of past events made after the events are closed by either the party injured or by bystanders.” Whar. Cr. Ev. sec. 264.

This was the view adopted by this Court in the recent case of the State vs. Melton, 37 Ann. 78. In that case certain declarations of the defendant were offered in evidence as a part of the res gestee, and the. reasons given by the trial judge for excluding the declarations were quoted in the opinion of the court and approved.

These reasons were as follows, (quoting): “Because, it, the declaration of the defendants, six or eight minutes after the killing, and after they had left the place and gone sixty or eighty yards and then re- ■ turned on their way home, or wherever they went; and was no part of Ihe res gesta;, either in point of time or connection with the killing, and was evidently not spontaneous, as the defendants had met the same, witness a few minutes -before, twenty-five or thirty yards from the gate, as they were leaving, and made no such statement."

So in the instant case the declaration was made by the deceased ten minutes after the fight ceased, 50 to 70 yaidsaway from the spot where it occurred, and the deceased at the time was sitting by his brother-in-law and in conversation-with him and. made no such declaration to him, before found by the witness testifying, so far as the record shows, and the circumstances clearly exclude it from the conditions and rules that would make it a part of the res gestee.

This view of the matter is fully sustained to the very letter by frequent adjudications. State vs. Williams, 34 Ann. 961; State vs. Carlton, 48 Vt. 643; Hall vs. State, 48 Ga. 609; Jones vs. State, 71 Ind. 81; Denton vs. State, 1 Swan (Teun. R.) 282. The case of the State vs Molisse, 38 Ann. —, is referred to as opposed to this view of the subject.

In that case the question presented in no manner related to any declaration of the deceased, naming the person who committed the offense, but consisted of an admission made by the accused himself im mediately after the fight as to his own acts or conduct therein, which tended to justify the accused in making the attack and inflicting the wound.

The conclusion reached compels us to remand the case.

It is therefore ordered, adjudged and decreed that the sentence and judgment of the lower court be annulled, avoided and reversed, that the verdict of the jury be quashed and the case remanded to the lower court to be proceeded with according to law.


author: Watkins, J.

text:
    No. 9341.
    President and Board of Church Wardens of the Congregation of the Roman Catholic Church of the Parish of Ascension vs. Right Rev. N. J. Perché, Bishop, et al.
    Under the ex parte showing made by affidavits by the appellees, that the judgment appealed from has been acquiesced in by the appellants, tbe case is remanded for the purpose of adducing proof of that fact.
    A PPEAL from the Twenty-second District Court, Parish of Aseension. Duffel, J.

      B. If. Sims and W. If. Pugh for Plaintiffs and Appellees.

      St. M. Pe'rault for Defendants and Appellants.
   The opinion of the Court was delivered by

Watkins, J.

Plaintiffs and appellees move to dismiss this appeal on the ground that the defendants and appellants have acquiesced in the judgment.

It was signed on the 13th of December, 1884.

In the opinion of the judge a quo it is stated that plaintiffs claim, in their corporate capacity, to represent the Catholic inhabitants of the parish of Ascension, who owned, long prior to the charter of 1877, the property known as the “Church property.” That the Roman Catholic Congregation of that parish was incorporated by an act of the- legislature, approved on the 18th of February, 1817, and which was subsequently renewed and finally expired by limitation on March 1, 1881 ; but it was again incorporated by notarial act on the 12th of February, 1883, and assumed control and administration of the common property.

They averred the nullity of the action of the then Church Wardens, and their transfer by notarial act to the defendants of the administration of the church property and its revenues, and enjoined both the bishop and his curate from interfering with their administration of said property.

Notwithstanding defendants urged the nullity of the act of incorporation of February 12, 1883, their demand was rejected and the act-sustained, and the plaintiffs’ right of administration of the Church property and its revenues recognized and enforced.

The appellee’s motion to dismiss contains the following statement of facts as establishing appellant’s acquiescence in the judgment appealed from:

That on the 9th of February, 1885, an agreement in writing, was entered into by the Right Rev. F. X. Leray, Bishop, and the Curate of the Catholic Church of Ascension, on the one part, and the Board of Church Wardens of the Congregation of the Roman Catholic Church of Ascension — plaintiffs herein — wherein it was agreed that a fixed proportion, of the revenues of the congregation should be applied to the payment of the curate and his assistant, and that the remainder of said revenues shall be under the administration of the said Board of Church Wardens, to meet the other expenses of the Church and congregation ; and that said agreement has been faithfully carried out by them.

They further represent that said curate has participated actually in the deliberations, and at the meetings of said Board of Church Wardens, as organized under their charter of 1883, and with the knowledge and approval of said Bishop.

That, during the year 1886, the said curate, with the knowledge of said bishop, purchased and, with the active co-operation of said Board of Church Warden, erected a building for a school for children and a residence for teachers, selected by said curate and said bishop, on the lands of said congregation, towards which a considerable sum of money was contributed by them.

And that, on various other grounds aud in various enumerated ways, the authority of plaintiffs has been fully recognized over said church property and its revenues by said curate aud said bishop.

Of these averments there is no proof in the record, except the appellee’s ex parte affidavit; but we think the showing made entitles them to have the case remanded for the purpose of supplying the proof of same.

It is therefore ordered that this case be and the same is hereby remanded to the court a qua for the purpose of, enabling the parties to adduce proof on plaintiffs and appellees’ motion to dismiss on the ground of acquiescence in the judgment appealed from.

Cause remanded.


text:
    No. 9860.
    The State ex rel. T. L. Broussard vs. The Judge of the Twenty-first District Court.
    An interlocutory deorce which admits a reconstructed record to replace a mislaid or destroyed record, does not belong to the class of orders, tbe execution of which can cause irreparable injury and be arrested by a suspensive appeal.
    PPLICATION for Mandamus.

      Felix Voorhies and Robert 8. Ferry for the Relator.
   The opinion of the Court was delivered by

Bermudez, C. J.

The relator prays that a mandamus issue to compel the respondent judge to grant a suspensive appeal from an interlocutory order which was made in the course of the suit of Halphen vs. Guilbeau and Broussard, a contested election case, and which admitted a reconstructed record, to supply one which had been lost, mislaid or destroyed.

The order complained of does not belong to that class of decrees, the execution of which may cause irreparable injury. It simply declares that certain papers and documents shall be taken as substitutes for similar ones which have disappeared, and without which the suit could not be proceeded with. It cannot cause any irreparable wrong, and therefore cannot be susp. nsinely appealed from. If it was erroneously rendered, it can be revised and corrected on appeal from a final judgment adverse to relator.

In the case of Halphen vs. Ouilbean and Broussard, 37 Ann. 711, we had occasion to express our views touching the mode of rebuilding or replacing the wanted record.

Tt is uo doubt in furtherance of those views and of the decree in that case that steps were taken to reconstruct tiie disappeared record, and that the decree now complained of was made.

If an appeal, suspensive in character,.was allowable and granted, the whole proceeding’s would necessarily be stayed, until the final determination of the question presented by it and the delay consumed in the meantime would cause great injury to the plaintiff in the sail, if lie be entitled to the, office.

'I'he order complained of, not being one which, by its execution can cause irremedial wrong, cannot be suspensively appealed from.

It is therefore ordered that the application for umandamm be refused with costs.


author: Poché, J.

text:
    No. 9630.
    Lamarque M. Thibodeaux vs. Thomas. L. Winder.
    A transcript which is shown by the cleric’s entry, not to contain all the evidence which had been received and considered below, and which does not show that the appellant took the necessary steps to seenro and bring up a statement of facts, cannot sustain an appeal.
    An assignment of errors, which does not assign any error of law, appearing on the face of the record, hut specifies only errors of fact, does not’comply^with the requirements of the law.
    APPEAL from the Nineteenth District Court, parisli of Terrebonne. Allen. J.

      11. G. Elliott, for Plaintiff and Appellant.

      L. F. Suth.on, for Defendant and Appellee :
   Motion to Drsanss.

The opinion of the Court was delivered by

Poché, J.

Plaintiff appeals from a judgment sustaining a plea .of prescription to his petitory action, and dismissing the same. Appellee’s motion is based on the alleged deficiency of the transcript, which does not contain all the evidence, parol and documentary, which had been offered and considered below ; and because it is not shown that appellant had made any effort, as required bv law, to obtain a statement of facts. Both grounds are supported by the record, and the motion to dismiss must therefore prevail.

Appellant's contention that the omission to bring up the missing evidence is not imputable to him, because it was the duty of the appellees to liave reduced their parol testimony to writing, and to have seen to the liling of their documentary evidence, is untenable.

No law compels a party to cause his testimony to be taken in writing; the provision of the law on the subject is simply directory. C. P. art. 601. This Court has held: “Because one of the parties has not caused his oral testimony to be taken down and his written evidence noted, it does not follow that, in the event of an appeal by his adversary, he should be deprived of it and placed at the mercy of his opponent. The appellant should in such a case, have a statement of facts seasonably made as the law directs.” Morrison vs. Lynch, 36 Ann. 612 and authorities therein cited.

In support of his plea plaintiff relies on a document, which he filed in this Court within ten days after the record was brought up and which he styles an assignment of errors. But an inspection of the document shows that the errors assigned therein are not errors of law appearing on the face of the record, but simply errors of fact, or a complaint that the plea of prescription was sustained on insufficient evidence. Hence the assignment does not come up to the requirements of the law, and it cannot avail the appellant as an assignment of errors, or as a supplement to the evidence, which had been considered below, or of a statement of facts, prepared in compliance with the “law. C. P. Art. 897.

In the absence of proof to the contrary, this Court must presume that the judgment of the lower court was rendered on legal and sufficient evidence. The clerk’s certificate shows affirmatively that certain designated parol testimony, which had been offered and heard below, and that certain documentary evidence, which had been received at the trial, are not included in the transcript, and it is elementary that such a condition of things fully justifies the conclusion that the defense was sustained by due and necessary proof. Fowler vs. Smith, 1 Rob. 448; Landry vs. Jefferson College, 7. Rob. 179; Huffner vs. Hesse et al., 26 Ann. 48; New Orleans vs. Labatt, 33 Ann. 107.

From the foregoing considerations it follows that this appeal is not legally or properly before us, and that the fault therefore is already imputable to appellant.

It is, therefore, ordered that the present appeal be dismissed.


author: Todd, J.

text:
    No. 9833.
    The State of Louisiana vs. Emile Harkis.
    Bills of exceptions attached to tlie record, “but unsigned by the trial judge, will not bo noticed by this Court.
    The fact that the final report of the grand jury was not drawn by a member of that body, nor by the District Attorney, but by an attorney at law, called to draft tbe report, will not invalidate an indictment found by the jury, where it does not appear that the attorney was present at any of their deliberations, or otherwise assisted them in their proceedings and findings.
    APPEAL from the Twenty-sixth District Court, parish of St. Charles. Rost, J.

      M. J. Oimninghami, Attorney General, Qervais Leche, District Attor- . ney, Chas. A. Baqwi.e and Jules Reine, for the State, Appellee.

      Jas. T). Augustin, for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant was convicted of murder, and appeals fiom a sentence of life imprisonment at hard labor.

There are. a number of hills of exception taken by defendant’s counsel to tbe rulings of the judge a quo in the progress of tire trial, attached to the record ; but as they were not signed by the judge, it is obvious that we cannot consider them.

In this court was filed an assignment of errors, which presents the sole matter for our consideration.

They are:

1. The record shows that the official report of the grand jury was offered in evidence, and the same is not in the record.

■It is not in the record because its admission in evidence was refused by the trial judge on objection made by the attorney for the Slate, and to the ruling of the judge excluding it we find no bill of exceptions. This complaint is, therefore, unfounded.

2. “The extract from the record of the grand jury, copied in the minutes, shows that the indictmeut is null and void, as the grand jury were assisted by other counsel besides the district attorney, and it was admitted that the official report of the grand jury is drawn up in the handwriting of said assistant counsel.”

The extract shows that the assistance received by the grand jury by another counsel than the district attorney, consisted solely in the drawing up of (he final report of the grand jury. This report contained simply, so far as the extract shows, the thanks of the jury to the several officers of the court for attentions shown and services rendered during their session. It does not suggest or intimate that the attorney drafting the report, or any other person named therein, was present, or assisted at the'deliberations of the jury, or was in any other way connected with the discharge of their duties.

There is no force in this assignment.

8. “ The minute of evidence also shows that the coroner’s inquest was read in full to the trial jury to the great prejudice and injury of the appellant, and notwithstanding the protest of his counsel.”

U would seem a sufficient answer to this that no bill of exception was taken to the admission of this evidence, and that however earnest the protest of the counsel might have been, it does not appear in such form as to enable us to notice it. Apart from this, however, this proces verbal did not contain the evidence of the witnesses testifying at the inquest, and was offered simply to prove the death, and instructions of the trial judge; the effect of its admission was to be confined to this one fact.

This completes the review of the matters urged in defense of the accused on this appeal, and as appears, they cannot afford him the slightest relief.

Judgment affirmed.


text:
    No. 9844.
    The State of Louisiana vs. Henry A. Boyce.
    Refusal of new trial will not "be disturbed when the grounds assigned consist of alleged irregularities in the course of the trial to which no exception was taken at the time of their occurrence.
    APPEAL from the Twefth District Court, parish of Rapides. Blaebtnem, J.

      M. J. Cunningham, Attorney General, and Jolm C. Wielcliffe, District Attorney, for the State, Appellee.

      James Andrews, for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

Unaided by any argument or brief on behalf of defendant we have, nevertheless, critically examined this record, in search of any error to his prejudice.

No exception having been taken to the ruling of the Court refusing the continuance, it is not subject to review.

The grounds of the motion for new trial are:

1st. The refusal of a continuance above referred to and disposed of.

2d. A misstatement of the evidence by the district attorney in his closing argument, to which no objection was made at the time, and as to which no ill intent is imputed.

3d. An erroneous refusal by the judge, on the trial, to give a certain charge asked by defendant, to which refusal no exception was taken.

4th. That one R. E. Stuckey served as a regular juror, while the name on the list and in the summpns was C. E. Stuckey — unaccompanied by any suggestion of any injury or wrong intent.

Such grounds need only to be stated in order to show their insufficiency as grounds for new trial; and it is needless to consider exceptions to admission or refusal by the judge of evidence offered in their support.

Judgment affirmed.


author: Bermudez;, C. J.

text:
    No. 9881.
    Elvina LeBlanc vs. Ambroise Rougeau.
    An appeal will not be dismissed where the bond was furnished before the order of appeal was granted, for an amount corresponding with that fixed in the order.
    A married woman, separate in property, is properly authorized by the district judge to sell her paraphernal estate, when her husband is unable and fails to minister unto her necessities, and she has no other means of supporting herself.
    The refusal of the husband to give his sanction to such sale being unfounded, can lawfully be supplied by that of the judge.
    APPEAL from the Twenty-second District Court, Parish of Ascension. Duffel, J.

      JH. N. Pugh and P. Leehe, for Plaintiff and Appellee.

      Ji. AT. Sims, for Defendant and Appellant.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez;, C. J.

The appellee contends that the appeal should be dismissed because the bond was furnished before the order of appeal was signed.

The petition for .an appeal was filed on the 13th of December, 1886. The district judge, who had recused himself, signed the order of appeal on the same day. The bond was filed on the 15th following for the amount fixed in the order.

On that same day, the judge ad hoe, who decided the case on its merits, signed the same order of appeal.

In this court, however, his affidavit at foot of the motion to dismiss, shows that he signed the order on the 16th.

The appellant is in no way in fault. If the order of the district judge was a nullity, it was a blank order, which could produce no effect. The appellant then furnished a bond for an unauthorized amount, dependent for its validity on the giving of an order of appeal requiring a bond for a like amount.

Tt so happens that the order made by the judge ad hoc fixed that amount.

I-Iad the order required a' larger amount the appellant would have had to furnish another bond for that amount.

The motion to dismiss cannot prevail, and it is overruled.

On the Merits.”

The defendant appeals from an order authorizing the plaintiff, his wife, to sell certain real estate belonging to her as paraphernal property, which is worth more than two thousand dollars. The order was contradictorily rendered. R. C. C. 125.

The evidence shows that the plaintiff is separated in property from her husband; that she has no other means of supporting herself; that her husband lives separate from her, and does not provide for her necessities, or minister unto her wants, no doubt because of his inability to do so.

The judge ad hoc did not consider the refusal of the husband justified by the circumstances, and we cannot say that it is founded; to say nothing of the apparent absence of interest on his part in the matter.

Judgment affirmed.


author: Pocuá, J.

text:
    No. 9836.
    The State of Louisiana vs. J. Mack Smith, et al.
    The Supreme Court has no iurisdicfcion oi' an appeal taken by the State from a judgment quashing an information for an offense punishable by fine, or in default, by imprisonment or otherwise than at hard labor, as, in such a ease, no fine exceeding $300 can possibly bavebeen actually imposed, which is the constitutional requirement.
    APPEAL from the Fourth District Court, parish of Jackson. Bridges, J.

      M. J. Gunningham, Attorney G-eneral, for the State, Plaintiff and Appellant.
   The opinion of the Court was delivered by

Pocuá, J.

The State appeals from a judgment quashing an information against the accused for beeping a grog or tippling shop and retailing spirituous liquors without a license.

The penalty prescribed by law for such an offense is a fine of not less than one hundred or more than five hundred dollars, and in default of payment, an imprisonment of not less than thirty days or more than four months. Now, under the Constitution (Art. 81) our jurisdiction in criminal matters is restricted to cases in which “the punishment of death or imprisonment at hard labor may be inflicted, or a fine exceeding three hundred dollars is actually imposed.”

In this case no imprisonment at hard labor may result from conviction, and as no trial has yet taken place, no fine has been actually imposed. It, therefore, follows that we have no jurisdiction of Ihe appeal, as at present brought up, and that our plain constitutional duty is to refuse, on our own motion, to entertain it.

It is, therefore, ordered that this appeal be dismissed.


text:
    No. 9845.
    The State of Louisiana ex rel. the Attorney General, vs. John B. Budd, Sheriff.
    A sheriff is responsible for all loss or damage resulting from tbe malfeasance or gross misconduct of his deputy, but such malfeasance or misconduct of the deputy does not subject tbe sheriff to the punishment of removal or suspension from office, unless he has encouraged or sanctioned the delinquency of his deputy.
    The deputy himself can be punished for his delinquencies by line and imprisonment, and prohibited from acting in said capacity.
    APPEAL from the Nineteenth District Court, Parish of Terrebonne. Allen, J.

      M. J. Cunningham, Attorney General, W. K. Wilson, District Attorney, and Knohloeh, Moore & Badeaux, for the Relator and Appellant.

      L. F. Suthon and T. L. Winder, for the Respondent and Appellee.
   The opinion of the Court was delivered by

Todd, J.

This is a proceeding on the relation of the Attorney General under section 3593 R. S., to suspend from office and punish by fine and imprisonment the defendant, sheriff of the parish of Terrebonne, for gross misconduct in the discharge of his official duties.

From a judgment in favor of the defendant discharging the rule taken against him the relator has appealed.

It is suggested in the brief of defendant’s counsel that this court has no jurisdiction of the proceeding rations material.

On tlie authority of the case of the State ex rel. vs. Routon, sheriff, 34 Ann. 1256, and the cases therein cited, the appeal must be maintained.

The complaint of the relator is substantially to the effect:

That a writ of attachment was issued from the district court of Terrebonne at the suit'of one Grabenheimer, against S. Simon, directing the seizure of a stock of goods of the debtor; that owing to the delay of the officer in executing the writ a similar writ issued subsequently by another creditor of Simon, was first executed on the property, and fully exhausted it, whereby Grabenlieimer’s debt was lost.

The facts are briefly these:

The storehouse which contained the stock of goods, directed to be seized, was situated about eleven miles from the courthouse. The sheriff received the writ of attachment, and in the two hours after-wards was on the spot to make the seizure. lie found when he reached there that he had been preceded by his deputy about 10 minutes, who had made a seizure of the property under the second writ.

It further appears that these two writs were issued almost simultaneously : that the second writ was prepared secretly at the instance of the creditor’s attorney, and was placed in the hands of a deputy sheriff, who was provided with a fast horse, and instructed by the attorney to proceed and execute the writ as speedily as possible. This writ was not carried to the office where the sheriff was present when it issued, but it was privately handed to the deputy sheriff with the instructions stated.

It is further shown that the deputy never informed the sheriff that he had the writ, or of the instructions given him concerning its execution, but the sheriff was entirely ignorant of the matter until his arrival at the storehouse, where he found the deputy, and ascertained the fact of the prior seizure made by him, and upbraided him for his conduct.

It is clear that there was no collusion between the sheriff and his deputy. If there was a wrong committed against Grabenheimer, it was by no personal act or delinquency of the sheriff; and the question arises that, granting a wrong was done by the deputy sheriff, did such misconduct or delinquency on the part of the deputy subject the sheriff himself to removal or suspension from office or other penalty.

The district judge held that it did not, and we believe he was right.

The Code of Practice provides that the sheriff may appoint depu ties, and that he is responsible for them ; but that the deputies shall be subject to fine and imprisonment for delinquency of duty as provided by special laws. C. P. 764.

Section 3593 R. S., after providing for tlie punishment of tlie sheriff and others for delinquencies in the execution of orders and writs, proceeds, quoting : If it be a deputy of any such officers, then the deputy shall be subject to the fine and imprisonment, or either, above fixed, and shall be absolutely prohibited from acting in the capacity of deputy thereafter.”

Our conclusion, from a careful consideration of these several provisions of the Code and the Statutes is, that whilst the sheriff is responsible civilly for all loss and damage that may be caused by the misconduct or delinquency of the deputy, such misconduct or delinquency of the deputy, unless encouraged or sanctioned by the sheriff, cannot subject him to the penalty of removal or suspension from office. The infliction of such punishment can only be incurred by his own personal official acts and delinquencies.

Judgment affirmed.

Poehé, J., takes no part in this opinion and decree.


text:
    No. 9832.
    The State of Louisiana vs. J. and H. Hanks.
    Sec. 1047 Rev. Stai. authorizes the judge to allow amendment of the information or indict* ment for larceny, for the purpose of correcting the allegation thereof as to the ownership of the property stolen, when satisfied that such amendment will not prejudice the defense. The ownership of a particular person is not an essential ingredient of the crime of larceny, and when the thing charged to have been stolen is otherwise fully identified, thus putting the accused properly on his defense as to the substantial fact, the error as to the person alleged to he the owner is immaterial and properly subject to con ection by timely amendment. The statute is not repugnant to Art. 8 of the Constitution. The decision in Morgan’s ease, 35 Ann. 1139, is not applicable.
    The refusal of a new trial on the ground of newly-discovered evidence will not be over' ruled, when the evidence is cumulative only, and not supported otherwise than by tlie affidavit of accused ; or, when the evidence, which is supported by tlie affidavit of the proposed witness, must necessarily have been known to accused before his trial.
    APPEAL from the Twenty-fifth District Court, parish of Lafayette. Débaillon, J.

      M. J. Oumningham, Attorney General, and 7?. O. Smedes, District Attorney, for the State, Appellee.

      Ohas. D. Oaffery for Defendant and Appellant.
   The opinion of the Court ivas delivered by

Fenner, J.

The first and second exceptions are taken to the rulings of the judge. 1st, in allowing the information to be amended after trial had begun; 2d, in overruling a motion in arrest of judgment, based on alleged error in said first ruling.

The amendment complained of was the following : The information charged defendants with larceny of a horse, the property of Sévigne Duhon; but it appearing from the evidence that, at the time of the larceny, the horse really belonged to Cecile Duhon, then a minor child of Sévigne, who, however, had subsequently married, the court permitted the information to be amended by substituting the name of Cecile Duhon, wife of William Harron,” as the owner.

The amendment is fully supported by Sec. 1047 of the Revised Statutes, which provides that, whenever, on or before the trial of any indictment for any crime or misdemeanor, there shall appear to be any variance between the statement in the indictment and the evidence offered in proof thereof * * * in the ownership of any property named or described therein, it shall be lawful for the Court, before which the trial shall be had, if it shall consider such variance not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defense, to order such indictment to be amended according to the proof; * * the trial to be had before the same or another jury, as the Court shall think reasonable.” It is obvious that the statute casts upon the judge two functions: 1st, to decide whether the amendment can be allowed without prejudicing the defendant; 2d, if allowed, to determine whether the trial should proceed before the samé, or be begun anew before another, jury. The only complaint presented under the bill is against the allowance of the amendment. After its allowance, no objection was urged against the continuance of the trial before the same jury, and no application was made for a new jury and a fresh trial. Therefore, the only question before us is the propriety of the amendment.

The judge supports his action by conclusive reasons, showing that the amendment as to ownership did not, in the slightest degree, affect the identity of the particular horse charged to have been stolen, which was a horse branded in a particular way, which had been sold by defendants to one Thomas Smith, who had been previously prosecuted for its larceny, and acquitted on proof that he had bought the animal from these, defendants.

The statute obviously contemplates, in this clause, a correction of variance, not merely in the name of the person mentioned as owner, but in the ownership itself.

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 of the personal goods of another-, and even if the owner he unknown, the offense may be properly charged and sustained.

The essential facts constituting the crime of larceny of particular, specified horse, are not, in any manner, affected by the question whether the horse was the property of Sevigne Duhon or of Cecile Duhon. It is sufficient if the horse was the property of another. The identity of the horse charged to have been stolen is the important thing in determining whether the offense proved is the offense charged.

In the case of rape, it is entirely different. A charge, of committing a rape upon the person of A cannot, by amendment, be changed into a charge of committing a rape upon the person of B, because such a change would involve the charge of an entirely distinct and separate crime, to be supported only by proof of essentially different facts.

Hence our decision in Morgan’s case, 35th Ann. 1139, has no application here.

The statute here under consideration presents no conflict with Art. 8 of the Constitution, which provides that:

In all criminal prosecutions the'accused shall enjoy the right to be informed of the nature and the cause of the accusation, etc.” The accused have had full enjoyment of that right in this case ; the information charging them with larceny of “one two-year old female horse;” and if the evidence establishes the identity of the particular horse referred to, “the nature and cause of the accusation” arc not affected by the question as to whether it was the property of Sevigne Duhon as. originally charged, or of Cecile Duhon, as subsequently l>roved and charged in the amended information.

There is no merit in the exceptions.

The remaining exception was taken to the ruling of the judge on the rule for a new trial based on newly-discovered evidence.

As to all the witnesses named in the motion, except two, the motion is not sustained by their affidavits, and for this reason, as well as for the reason that the defendants had nob used due diligence, and the expected evidence would be cumulative only of that which had been given on the trial, the judge considered that it furnished no good reason for the new trial. State vs. Young, 34 Ann. 346; State vs. Washington, 36 Ann. 341; State vs. Cotten, id. 980.

The evidence sought from the witnesses, Primaux and Patin, is, in no sense, newly-discovered, the object being to prove by them that defendants had made certain statements before a jury of which these parties were members. How could defendants have been ignorant of statements made by themselves before a jury, or of the fact that the members of that jury heard aud knew what those statements wore, or of the fact exposed by the open "records of the Court that Patín and Primanx were members of that jury!

We find no error.

Judgment affirmed.


text:
    No. 9883.
    City of New Orleans vs. A. H. Schoenhausen.
    The Supreme Court has no jurisdiction over a tax suit, in which a suiu not exceeding $2000 is claimed, where the constitutionality or legality of the tax sued for is not put at issue, and where the question presented is one of procedure only.
    If the amount sued for exceeded $2000, the court would, as in ordinary similar cases, in which money is claimed, have jurisdiction over the question of procedure.
    APPEAL from the Civil District Court for the parish of Orleans. Houston, J.
    IF. TI- Boyers, City Attorney, and B. K. Miller, Assistant City Attorney, for Plaintiff and Appellee.

      MacMahon & Pratt, for Defendant and Appellant.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The defendant appeals from a judgment condemning him to pay $1000 for a license, and, besides, certain penalties and costs of suit.

The defense was simply, that the proceeding by rule was not “ due process of iaw,” and a general denial.

He moved for a suspensive appeal, which the Court allowed on his furnishing a bond for $1500.

The motion, to dismiss is based on the following grounds, viz:

That this Court has no jurisdiction over the matter; and,

That the appeal bond is insufficient in amount.

It is apparent that the issue presented does not.involve the constitutionality or legality of the license tax claimed; but only the validity of the proceeding by rule ; in other words, a question of procedure.

It is only when an issue on the constitutionality or legality of a tax is presented, that this Court has jurisdiction, regardless of amount. If the sum in controversy here exceeded $2000, this Court would have jurisdiction, as it would of any ordinary case, in which a sum exceeding that amount would be claimed, and it would pass on tlio question of form. Constitution, Art. 81; State vs. Brewer, 9 Ann. 64; Ib. 305; Ib. 350; Stubbs vs. McGuire, 32 Ann. 817; State vs. Tsni Ho, 37 Ann. 50; State ex rel. David vs. Judges, 37 Ann. 898, and cases there cited.

This view of the case dispenses us from passing on the sufficiency of the bond furnished for a suspensive appeal.

Appeal dismissed.


author: Poci-ié, J.

text:
    No. 9828.
    The State of Louisiana vs. Levy Adams.
    Applications for new trial on the ground of newly-discovered evidence are entitled to no consideration when the affidavit of the party convicted is uncorroborated.
    In an information for uttering a forged order for the payment of money the pleader is not required to state the name of the .person on whom the order was passed, or that of the person whom the accused intended to defraud.
    PPEAL from the Ninth District Court, Parish of Concordia. Young, J.

      M. J. Ommingham, Attorney" General, and Hugh 'Mils, District Attorney, for the State, Appellee.
    P. Hough and Q. F. Botóles, for Defendant and Appellant.
   The opinion of the Court was delivered by

Poci-ié, J.

Appealing from a conviction of uttering a forged order for the payment of money, and a sentence of five years in the penitentiary the defendant submits two grounds of complaint:

1st. A refusal of a new trial prayed for on the ground of newly-discovered evidence, which is alleged to be the testimony of a witness, ■who would swear that in his presence and hearing, the accused was entrusted by another person with the collection of the order which lie did not know to he forged.

If such is the fact, the accused must have been aware of it from the moment that the occurrence took place, and it must have beeu forcibly reminded to him when he was charged with the crime ; it is, therefore, not newly-discovered evidence. Heu.ce, the ground of the motion lacks foundation either in law or reason. State vs. Gauthreaux, 38 Ann. 611. “ The credulity of courts cannot be strained to the point of believing that such evidence was discovered only since the trial.” if the defendant, as he contends, did not before trial know the name of the witness, he might have asked a continuance of the case for the purpose of ascertaining, as lie seems to have since clone, the name of his important witness ; but the suggestion came too late after conviction. But, in addition to these views, there is another obstacle to the relief prayed for.

The affidavit of the accused is entirely unsupported, not even by that of the newly-ascertained witness. It would have been so easy to have procured that important adjunct.

Dealing with a similar question this Court has said: “Applications for new trials on the ground of newly-discovered evidence must always be received with caution. The inducements to false swearing on the part of the person convicted are obvious, and therefore the rule is well established that the application for the new trial must be corroborated by the affidavits of other persons than the party convicted. If possible, the affidavits of the newly-discovered witnesses should be produced.” State vs. Washington, 36 Ann. 341; State vs. Cotten, 36 Ann. 980.

The judge did not err in overruling the motion for a new trial.

2d. The second complaint is a motion in arrest of judgment, in which the information is alleged to be defective, because it failed to allege the name of the person to whom the order was offered, and the name of the person whom the accused intended to defraud.

Most assuredly the person to whom the accused offered the order was the person whom he intended to defraud; and under the very terms of the statute, the pleader is relieved of .the necessity to give the name of the person intended to bo defrauded. Revised Statutes, Sec. 1052; State vs. Maas, 37 Ann. 292.

Judgment affirmed.