author: Nioholls, O. J.

text:
    No. 14,021.
    George D. Palfrey et als. vs. Arthur W. Connely, Sheriff and Ex Officio Tax Collector, et als.
    Syllabus.
    1. The “levying of taxes” and the “assessment of property” for the purposes of taxation are for each calendar year and are to be made on the basis of the condition of 'things existing on the first of January. (Southex'n Insurance Co. vs. Board of Assessors, 4Í) Ann. 401.)
    2. Trees standing by the roots -upon and forming part of a certain plantation on the fix'st of January of a given year are included in the taxation and assessment of the plantation for that year as a whole. Payment of the taxes upon the plantation carries with it payment of taxes for that year upon the ti'ees. They are not subject to taxation twice in the same year.
    APPEAL from the Twentieth Judicial District, Parish of Terrebonne. — Gaillouei, J.

      Charles A.. O’Niell, for Plaintiffs, Appellants.

      Charles W. DuBoy, for the Sheriff, Defendant, Appellee.

      Walter Guión, Attorney General, and Whitmell P. Martin, District Attorney, for O. A. Duvall, Jun., Assessor, Defendant, Appellee.

      Briant & Butlerfor Mrs. S. G. Humphreys, called in warranty, Appellee.
   Statement op the Case.

The opinion of the court was delivered by

Nioholls, O. J.

Plaintiffs allege that in February, 1900, they purchased from Mrs. Humphreys, for and in consideration of the price of $8,250, paid cash, “all of the cypress trees and the exclusive right to deaden, cut, fell and float and get out all of said cypress trees or timber on certain described lands in the Parish of Terrebonne. That by the contract the purchasers were given all advantages and facilities necessary for getting out the timber on said lands, and should have this exclusive right and privilege for the period of six years, commencing from the date of the contract, and to that end they should have and the vendor sold to them the right to cut and excavate a canal of certain described length and depth and direction, and to construct certain tramways.

That at the time of said purchase and during the years previous to 1899 the said property, which formed part of the Magnolia Plantation, was assessed to Mrs. Humphreys. That their vendor had paid all taxes ■at the time of the contract, and that she obligated herself to pay all subsequent taxes upon the property affected by the purchase (which they styled a servitude) and including and embracing the said servitude and the property acquired by the purchase.

That for the year 1900 the same property was again assessed to Mrs. Humphreys under the identical description contained in the assessment for the year 1899, and without any reservation or deduction whatever, at identically the same cash value of $4,355.

That in addition to the said assessment of the entire property affected by said servitude, without deduction or reservation of any timber or mention of any servitude in said description or assessment to petitioners, the aforesaid servitude described on the assessment rolls as “One lot of cypress timber situate in swamp on left bank of Bayou Black or Magnolia Plantation of Mrs. S. G. Humphreys.” That said servitude was assessed at $6,000, notwithstanding the entire Magnolia Plantation, including the said servitude and timber, was assessed to Mrs. Humphreys at $4,355, the same value at which it had always been assessed.

That the sheriff, ex-officio tax collector for the Parish of Terrebonne, was attempting' to enforce from petitioners the payment of the taxes unlawfully and illegally levied against the said timber servitude amounting to the sum of $185.

They averred that the said assessment was errroneous, illegal, null and void, for the reason that the same constitutes a dual assessment, the said timber being still attached to the soil, and forming part and parcel of the realty, and being included in the assessment of the Magnolia Plantation to Mrs. Humphreys. That none of the timber had been cut or separated from the realty, and the same was still attached by the roots to the soil, for the further reason that the description did not state the quantity of timber nor the area of the land on which it was situated, nor the dimension of the land' and the boundaries thereof, nor the subdivisions according to the United States survey or any other survey.

That the tax collector should be enjoined from enforcing the collection of said tax erroneously and illegally assessed to petitioners. That the assessment should be annulled and avoided and stricken from the rolls.

In the alternative they prayed, should t'he court decree the said assessment to be valid for any reasons whatever and collectible from petitioners, and should the court render judgment accordingly, then petitioners were entitled to remuneration for the full amount of said tax and all costs from their vendor, Mrs. Humphreys, as their warrantor and as provided for in said contract of sale, wherein she specially obligated herself to pay all subsequent taxes that might be levied against the property or any portion thereof, and therefore they were entitled to cite her in warranty as their vendor in order that, if judgment be rendered against petitioners decreeing the assessment legal, then they might have judgment against her in warranty for said taxes and costs. They prayed for citation on her, the tax collector and also the assessor of the Parish of Terrebonne, that there be judgment in their favor against the tax collector and assessor annulling and revoking the said assessment and decreeing the same to be absolutely null and void, and that the said collector be enjoined from enforcing the said collection of the tax assessed against them, and that the assessment be ordered to be stricken from the rolls. Contingently, should the court render a judgment in the premises adversely to their claims and upholding the tax assessed against them, they prayed for judgment against Mrs. Humphreys for the amount which the court might maintain the tax and costs, and they prayed for general relief.

The tax collector pleaded the general issue.

The assessor, after pleading a general denial, averred that the plaintiffs had purchased all of the cypress trees on the land described in their petition, and admitted he had assessed the land as alleged. He averred that by the sale to the plaintiffs the trees were mobilized by anticipation, thereby rendering the trees movable quoad the right of ownership acquired by the plaintiffs, and the trees therefore became subject to be assessed separate and apart from the land. He maintained the legality of the assessment.

Mrs. Humphreys, after pleading a general denial, specially denied the legality of the assessment attempted to be made against plaintiffs. She admitted the execution of the act and that it contained the clause that “ all the taxes assessed against the above described property have been paid as evidenced by the tax collector’s receipts annexed, and the vendor obligates herself and her assigns to pay all subsequent taxes”; that the plain meaning and extent and the only legal effect of said clause was to bind her to a continuation of the payment of whatever taxes (such taxes as she had always heretofore paid) that in the future might be assessed against the Magnolia Plantation (that plantation being “the above described property”) referred to by the tax collector in the receipt annexed to and made part of the original act.

That it never was her intention nor was she ever requested by her vendees in said sale, nor did she ever agree with them to stand between them and the payment of any taxes with which they might ever be burdened by the State of Louisiana or Parish of Terrebonne, on account of timber purchased by them, nor did she ever understand that she was expected so to do by said vendees or give them any reason to believe that she expected so to do. That she understood the motive of the vendees in requesting the incorporation of said clause in said act was to secure themselves against the contingency of the worthless swamp land upon which said cypress trees and timber stand being sold by the State for the non-payment of taxes, to the possible annoyance and loss of vendees, and that it was this purpose and with no other intention that she consented to said clause; that taxes on the “Magnolia Plantation” had always been paid and would continue to be paid.

She averred that the timber assessed to plaintiffs was not all situated upon the Magnolia Plantation, and that in no event would she he liable for any greater portion of the taxes than for the taxes upon the timber on that plantation.

Her prayer was in accordance with her pleadings.

The District Court rendered judgment in favor of the defendants and of the vendor called in warranty and rejected plaintiffs’ demand with costs.

The plaintiffs filed a petition in which they alleged that they were aggrieved by the judgment and desired to appeal both from the decision upon the legality and unconstitutionality of the tax and upon all matters of assessment and questions of fact. They averred that the questions of the legality and constitutionality of the tax and the question of the violation vel non of the Constitution and of the Act No. 170 of 1898, especially Section 7 thereof, were questions of which the Supreme Court had jurisdiction exclusively, but that all other questions raised and .issues involved pertaining to the method and mode and regularity vel non of the assessment and collection of the taxes as well as the question of recourse against the warrantor were matters within the jurisdiction of the Fifth Circuit Court of Appeals. They prayed that an appeal be granted them to the Supreme Court upon the questions of the violation vel non of Act No. 170 of 1898, especially Section 7 thereof, and therefore the questions of the legality or constitutionality of the tax in question, that the court grant both a devolutive and suspensive appeal in the alternative and fix the bond.

The also prayed for an appeal to the Fifth Circuit Court of Appeals only upon the questions of fact and issues involving the regularity of the assessment and method of collecting the tax and the right to judg-' ment against the warrantor. That on these issues the appeal be granted in the alternative and that the court fix the bond. The appeals were granted as prayed for.

In May, 1901, the plaintiffs filed a petition in the District Court in which they averred that an appeal had been granted by it to - the Supreme Court on all the issues involving the constitutionality or legality of the tax in question, and to the Fifth Circuit Court on all other issues as the regularity of the assessment.

That the appeal to the Circuit Court had been lodged there first and a decision was rendered thereon reversing the decision rendered by the District Court; that they had then no interest in prosecuting the appeal to the Supreme Court to reverse the judgment on the ground of unconstitutionality, because said judgment had been reversed by the Fifth Circuit Court of Appeals for the other reasons involved within its jurisdiction, and, therefore, they did not forfeit their appeal by lodging the transcript in the Supreme Court, though they did furnish the bond for a suspensive appeal within the proper delays and did everything incumbent upon them to perfect their said suspensive appeal to the Supreme Court, in the event they had not succeeded in obtaining a judgment from the Fifth Circuit Court reversing the judgment rendered by the District Court; that the Circuit Court of Appeals having refused to grant a rehearing, the defendants in said suit had obtained from the Supreme Court a writ of review and certiorari to the said Court of Appeals, requiring that court to certify up the case for the review and determination of the Supreme Court; that this proceeding revived, therefore, their interest in prosecuting the appeal to the Supreme Court on the issues involving the constitutionality vel non and the legality vel non of the tax in question, and that the Supreme Court had sole and exclusive appellate jurisdiction of such issues. That if the case was certified up from the Circuit Court of Appeals, without an appeal to the Supreme Court direct from the judgment of the District Court, the record would be incomplete and that only the questions of regularity of the assessment and the question of fact, not appealable direct to the Supreme Court, would be presented thereto by the process of review and certiorari, while the Supreme Court will be deprived of the record on the questions of constitutionality and legality vel non of the tax in question, i. e., the only issues which were really appealable to the Supreme Court directly from the District Court.

They averred that it was necessary that the said appeal be regranted and perfected in order to bring the entire record before the Supreme Court so that it might, if it saw fit and proper in its wise discretion to consider and decide the question of legality and constitutionality vel non, and especially the question of the violation of Act No. 170 of 1898, and in order that the Supreme Court might not have its powers curtailed and be required to do a vain thing by reviewing a judgment which annuls the levy of a tax which is unconstitutional, and in order that the Supreme Court might, if it considered the decision of the Fifth Circuit Court incorrect upon the questions, of fact and regularity of assessment, still refuse to reverse the same on account of the unconstitutionality of the tax itself, and in order -that the Supreme Court might, even if it reversed said judgment of the Circuit Court on the facts and regularity of assessment, still also reverse the judgment of the District Court upon the question of constitutionality and legality vel non of the tax itself.

In view of the premises, they prayed for a new order of appeal, for devolutive appeal, and to revise the order before given; that* said appeal be granted upon the questions of constitutionality and legality vel non and especially the violation of Act No. 170 of 1898, Section 7, and all incidental questions and issues not appealable to and not appealed to the Fifth Circuit Court of Appeals. An order of appeal was granted as prayed for.

An appeal bond was executed and the record lodged in this court. Defendants, in the District Court, moved to dismiss the appeal on the ground that it was an appeal from the judgment of the District Court, rendered in a case wherein neither the constitutionality nor legality of a tax was raised in the District Court, and wherein the same was not in issue and in contestation, and a case whereof the Supreme Court was without jurisdiction by reason of the smallness of the amount involved.

Opinion.

On Motion to Dismiss.

We have jurisdiction of the appeal. The case is one in which the constitutionality and legality of a tax is in contestation. While the assessment made by the assessor of the Parish of Terrebonne is involved, the matter at issue lies back of the assessment. The matter in dispute is whether the plaintiffs are liable legally to taxation as owners of the cypress trees on the Magnolia plantation by reason of the contract made by them with Mrs. Humphreys, the owner of that plantation. The assessor and tax collector insist that they are so liable; the plaintiffs insist they are not. A claim for a tax advanced by the tax officers of the State against a particular person or his property, which is met by a denial on the part of the parties in interest, necessarily raises the question as to whether there exists any legal right of taxation against such person or his property. Parker, Tax Collector, vs, Strauss & Co., 49 Ann. 1173; State ex rel. City of New Orleans vs. Voorhies, Judge, 41 Ann. 541; State vs. Zuriche, 49 Ann. 457; Torian vs. Shayot, 47 Ann. 589; State vs. Lundie, 47 Ann. 1596; Gillis vs. Clayton, 33 Ann. 286; Adler, Goldman & Co. vs. Board, 37 Ann. 507; Bush & Levert vs. Police Jury, 39 Ann. 901.

Were the plaintiffs to permit the assessment which they object to in this suit, to remain unchallenged, they would, .under Article 233 of the Constitution of 1898, subject any movable property which they might own to seizure and sale hereafter in payment of the tax. The assessment would be practically a “judgment” affecting consequently all movables owned by the plaintiffs. The article declares that taxes on movables shall be collected by seizure and sale by the tax collector of the movable property of the delinquent, whether it be the property assessed or not, sufficient to pay the tax.

The defendants defend the tax which they advance against the plaintiffs as being one upon movables.

The appeal is maintained.

On ti-ie Merits.

Our attention is first directed to the objection which plaintiffs urge against the legality of the tax claimed against them, that the same property had for the year 1900 been included in the assessment made of the Magnolia plantation in the name of its owner, Mrs. Humphreys, and she had paid that tax. That under the express provisions of Act No. 170 of 1898 the same property could not be taxed twice in the same year. They urge that if the right which they acquired under their contract with Mrs. Humphreys was a right of ownership in the trees themselves, they having formed part of the plantation on the first of January, 1900, and having been taxed with that property, could not become again subject to taxation in their name for that year, because they may have become detached later in the year from the land and sold to them. • They contend that they did not belong to them on the first of January, and that when they acquired them after that date they had been included in the assessment of the Magnolia plantation and the taxes on the same had been paid and they were not liable to taxation.

If that proposition be sustained, it disposes of the taxes for the year 1900 and of all other issues raised by the pleadings, for if the trees had already been assessed as part of the plantation in the name of its owner, Mrs. Humphreys, as owner, they could not be assessed a second time that year in the name of the plaintiffs.

It is urged by the appellees that the plaintiffs have no interest in that matter, but it is very clear that they have, for the liability of themselves on that and their other movable property to taxation for 1900, under Article 233 of the Constitution of 1898, is dependent upon the solution of that question. (Schlater vs. Brodus, 3 N. S. 324.)

In Southern Insurance Co. vs. Board of Assessors, 49 Ann. 401, this court held that “the levying of taxes is for the calendar year,” and the “assessment of property” for the purpose of levying the annual taxes is likewise for the calendar year. So when the law provides that the assessment is to begin on the 2nd of January, and be completed on the 1st of March, it contemplates an assessment on the basis of the condition of thing's existing on the 1st of January.

The application of the doctrine of that case to the facts of the present one protects the plaintiffs and their movable property from taxation upon the trees on Magnolia plantation in the year 1900, and the trees themselves from taxation other than that for which they were liable on the 1st of January, 1900, as forming part of that plantation.

For the reasons assigned, it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the taxes for the year 1900, assessed in the name of the plaintiffs on a lot of cypress trees on the Magnolia plantation in the Parish of Terrebonne, by reason of their having acquired the ownership of the same under the contract made between themselves and Mrs. Humphreys on the 20th of February, 1900, by act before Edwin Clarence Wurzlow, notary public in and for the Parish of Terrebonne, be and the same are illegal, null and void, not due by the plaintiffs under the said assessment, the said trees having been included in the assessment for the year 1900 of the Magnolia plantation of which they formed part at that time, and not being subject to taxation a second time for the year. It is ordered that the said taxes be not enforced under that assessment, which is hereby declared null and void and ordered to be erased from the records. It is ordered that the appellees pay the costs in both courts.


source: Caselaw Access Project

author: Monroe, J.

license: Public Domain

text:
    No. 14,107.
    State of Louisiana vs. Charles G. Cain.
    Syllabus.
    1. The defendant In a criminal ease who takes the stand as a witness in his own behalf may be cross-examined in the same manner as any other witness in such case, and where he testifies, in his direct examination, that he wrote to a person, and professes to state what he wrote, he may be interrogated, on cross-examination, as to the number, dates, and contents of the letters. Nor has he the right to demand, as a condition precedent to answering such questions, that the letters, themselves, in the possession of the prosecuting officer, shall be submited to the inspection of himself and his counsel.
    2. Construing Section 800, R. S., with Act No. 93 of 1898, the necessary, and only effect, is, that the penalty provided oy the act is substituted for that provided by the first paragraph of the section.
    3. If a statute has made it criminal to do any act under particular circumstances, the party voluntarily doing that act is chargeable with the criminal intent of doing it.
    4. What comes by way of proviso in a statute must be insisted on by way of defense by the party accused, though, where the exceptions are in the enacting part of the law, it must appear in the charge that the defendant does not fail within them.
    5. Where a defendant, prosecuted for bigamy, undertakes to defend by showing that he contracted the second marriage in the honest belief that the first had been dissolved by a decree of divorce, the burden of proof rests upon him to show that he had reasonable grounds (his' mental capacity and surroundings considered) for such belief and that he did, in fact, so believe. It is not enough that he should merely create a doubt upon that subject in the minds of the jury.
    APPEAL from the Criminal District Court, Parish of Orleans.— Chretien, J.

      Walter Guión, Attorney General, and J. Ward Gurley, District Attorney (Lewis Guión, of Counsel), for Plaintiff, Appellee.

      Chandler C. Luzenlerg, for Defendant, Appellant.
   The opinion of the court was delivered by

Monroe, J.

The defendant was convicted of bigamy and appeals ■from a sentence of imprisonment at hard labor.

It appears that he had been married in Georgia; that his wife had sued him for a divorce and that there had been a judgment rejecting her demand; that the defendant had thereafter come to New Orleans and contracted another marriage, and that, during a subsequent absence from this city, his second wife obtained some information as to his status, which led her and her friends to communicate with him and to become very insistent in demanding an explanation; and, the explanation not proving satisfactory, to instigate this prosecution. The special defense was set up that the defendant acted in good faith and in the honest belief that he was divorced from his first wife; and, having taken the stand, he testified that upon learning that the judgment in his favor in the action brought by her had not divorced him, he brought suit on his own account, but that his second wife, or her friends, kept pressing him for explanations, which he could not make by correspondence; and, having decided to return to New Orleans and explain in person, he wrote to his second wife that he “was coming to New Orleans.” This statement was made in his examination in chief,' and in answer to a question propounded to him by his counsel, the impression conveyed, as we read the testimony, being, that he wrote but once and only to convey the information mentioned, though it may well be that it was not the intention of the witness to convey that impression. Howbeit, upon the cross-examination, he was interrogated and gave answers as follows: “Q. You say that you wrote to your wife? A. Yes, sir. Q. Do you recollect about what day you wrote? A. I wrote her a letter every day; sometimes two or three. Q. You don’t remember the substance? A. I don’t know if I could call them from memory right 'off.” It appears that the prosecuting officer, whilst asking these questions, had the letters referred to by the witness in his possession, and the defendant’s counsel objected to the defendant’s being inteiTogated as to their contents unless they were submitted to him for inspection, and he objected further that on his examination in chief the defendant was not asked and did not testify as to the letters or their contents, or as to any fact that he had written to his wife, save that he was coming to New Orleans; that he was not examined in chief as to any fact that he had stated in conversation with his second wife, and that the letters were not in evidence; and, these objections having been overruled, bills of exception were taken.

We find no error in this ruling. The defendant, having voluntarily taken the stand, was subject to cross-examination as any other witness in his behalf would have been. It has been held in this State that a witness for the defense in a criminal case can be cross-examined only with respect to statements made in his examination in chief, but, even under this rule, the defendant having testified in his direct examination, not only that he had written to his wife, but, in part, what he had written to her, cross-examination as to the number of letters, the dates and the contents was germane to that statement. Equally correct was the ruling of the judge a quo in denying the demand of the defendant that the letters in question, in the possession of the prosecuting officer, should be submitted to the defendant for inspection as a condition precedent to the cross-examination. The defendant had given testimony upon which the prosecuting officer had the right to cross-examine him, and the fact that the prosecuting officer had the letters in his possession whilst so doing did not affect that right. If the defendant wanted the letters for the purpose of his defense, it was his privilege to call for them in the proper way and at the proper time, but the State was under no obligation, voluntarily and at that stage of the case, to furnish him means wherewith to defeat the .cross-examination to which it was entitled.

The defendant, through his counsel, objected and excepted to the following in the judge’s charge, to-wit:

“ Section 800 of the Revised Statutes, as amended by Act No. 93 of 1898, reads as follows: ‘If any married person shall marry, the former husband or wife being alive, the one so offending shall, on conviction, be imprisoned at hard labor in the State penitentiary for a period of not more than five years and not less than one year. The provisions of this statute shall not extend to any person whose husband or wife shall absent himself or herself from the other for the space of five years, the one not knowing the other to be living within that time, nor to any person who shall be, at the time of such marriage, divorced by competent authority, nor to any person whose former marriage, by sentence of competent authority, shall be declared void,” on the ground that it did not correctly define the crime of bigamy, as denounced by the law of this State. This objection, as we understand it, is based upon the proposition that the second paragraph of Section 800, R. S., has been repealed by Act No. 93 of 1898. The first paragraph of the section mentioned, as found in the Revised Statutes, reads: “If any married person shall marry, the former husband or wife being alive, the one so offending shall, on conviction, pay a fine not' exceeding five hundred dollars and be imprisoned not exceeding two years.” The second paragraph is as given by the judge to the jury. Act 93 of 1898 reads: “Sec. 1. That any person who shall be convicted of the crime of bigamy in this’ State shall be imprisoned at hard labor in the State penitentiary for a period of not more than five years nor less than one year. Sec. 2. That all laws or parts of laws in conflict with this act be and the same are hereby repealed.” It will be seen, therefore, that the judge a quo, in charging the jury, merely incorporated in the pre-existing law the penalty imposed by the Act of 1898 as a substitute for the penalty imposed by that law. This, we think, is the necessary effect and the only effect properly attributable to the Act of 1898. But, if it were otherwise, and it were held that the effect of the act was to subject the persons exempted by the second paragraph of the section to the penalty imposed by the first, the result would be that the penalty imposed by the first paragraph would be applicable to the defendant, even though he had established his special defense, since it could hardly be held that he could escape liability because he honestly believed that he had been divorced,. if he would have been liable notwithstanding that he had been actually divorced. “Bigamy” is, however, a statutory crime, and the crime denounced by the first paragraph of Section 800, R. S., falls within the commonly accepted definition thereof. 2nd Wharton’s Or. Law (10th Ed.), §1682. The Act of 1898 imposes a penalty for “bigamy,” and repeals all laws in conflict with its provisions; hence, it operates the repeal of the penalty for that crime as provided in the first paragraph of Section 800, R. S. But the second paragraph of that section purports to exempt certain classes of persons from the penalty denounced by the first, and the fact that one penalty is substituted for the other does not affect such exemption. In fact, of the three classes mentioned, two — that is to say, persons — who at the time of their second marriages have be¿n divorced, or those whose first marriages have been decreed void, would not incur the penalty denounced by the first' paragraph, even if they had not been specially exeinpted, for the reason that they are not included within the terms of the first paragraph; and with regard to the other class, i. e., persons whose husbands or wives have been absent, etc., the defendant has no concern. He would, therefore, have no reason to complain if the charge had been erroneous, but there was no errror.

The defendant excepted to the charge: “ The criminal intent of the accused is presumed to exist whenever a statute has made it criminal to do any act under particular circumstances and the party voluntarily does the act; he is thereby chargeable with the criminal intent by the doing of the act,” on the ground “ that it was misleading and confusing and not a correct exposition of the doctrine of criminal intent, as applied to the crime of bigamy.” There is no error in this charge. Com. vs. Mash, 7 Met. (Mass.), 472; Am. & Eng. Ency. of Law (2nd Ed.), Vol. 4, p. 40, note.

Exception was taken to the refusal of the judge to charge that “the essence of the crime charged in the information is a wrongful intent, and the existence of a reasonable doubt as to whether the evidence establishes a wrongful intent entitles an accused so charged to an acquittal,” and to his refusal to charge: “If the jury believe from the evidence that the accused believed, whether correctly or not, that he was legally divorced from his wife, Fannie J. Pierce., at the time that he married Emma J. Sampson, then the crime of bigamy has not been committed by him, and they must acquit the accused”; and to his refusal to charge:

“If, from all the evidence in the case, you, the jury, are convinced beyond all reasonable doubt that the defendant, Charles G. Cain, whilst married to one Fannie J. Pierce, and during the life of said Fannie J. Pierce, as is charged in the information, did on the 14th day of November, 1900, in this parish, marry one Emma J. Sampson, yet, from all the evidence you entertain a reasonable doubt as to whether the defendant, at the time he did so many said Emma J. Sampson, believed he was legally divorced from the said Fannie J. Pierce, then I charge you it is your duty to give the defendant the benefit of such reasonable doubt and to find him not guilty of the crime charged”; and to his refusal to charge:

“Before you can convict the defendant of the crime charged in the information, you must believe, from all the evidence, beyond a reasonable doubt, that the defendant (when) he married Emma J. Sampson, as is charged in the information, did so mariy her knowing he was at the time married to Fannie J. Pierce and that the bonds of matrimony had not been dissolved between him and the said Fannie T. Pierce, and a reasonable doubt as to the existence of this fact would entitle the defendant to an acquittal.”

The reasons of the judge for refusing these charges are stated in a bill reserved to his refusal to give the charge first above mentioned, and are thereafter referred to in support of his action in regard to the others.

He says: “The charge was not refused, but was not read to the jury, because it had already been given, in substance * * * in the court’s general charge. For instance, the court charged the jury as follows: ‘If you entertain any reasonable doubt as to any fact or element necessary to constitute the prisoner’s guilt, it is your sworn duty to give him the benefit of that doubt and return a verdict of acquittal.’ Again: ‘If, after giving a fair and impartial consideration to the facts of the case, you find the evidence unsatisfactory upon any one single point necessary to constitute the prisoner’s guilt, this would give rise to such a reasonable doubt as would justify you in rendering a verdict of not guilty.’ Again: ‘The onus is, therefore, upon the State to establish, to your satisfaction, and beyond any reasonable doubt, the guilt of the prisoner.’ Again: ‘There must be established, and beyond any reasonable doubt, an evil and criminal intent in the prisoner when he married the second time; and, if it were established by the evidence that he had contracted the second marriage in good faith, having reason to believe that he had the right to do so, then, the intent to commit a wrong not existing, he could not be held responsible. For instance, if the accused honestly believed that his first wife was dead, or that he had been divorced from her, or that the marriage had been annulled by competent authority.’ This, I claim, covered the charge requested.”

The charge as thus given includes all, and rather more than all, that the defendant was entitled to.

In Com. vs. Mash, 7 Met. (Mass.) 472, where the defense, in a prosecution for bigamy, was that the defendant believed his former wife to be dead, because of her absence, though the limit of time prescribed by law to authorize the presumption of death had not been reached, Chief, Justice Shaw, among other things, said:

“If the statute has made it criminal to do any act under particular circumstances, the party voluntarily doing that act is chargeable with the criminal intent of doing it. On this subject, the law has deemed it so important to prohibit the crime of polygamy and found it so difficult to prescribe what shall be sufficient evidence of death of an absent person to warrant a belief of the fact, and as the same vague evidence might create a belief in one mind and not in another, the law has also deemed it wise to fix a definite period of seven years continued absence, without knowledge of the contrary, to warrant a belief that the absent person is actually dead. One, therefore, who marries within that time, if the other party be actually living, whether the fact is believed or not, is chargeable with that criminal intent by purposely doing that which the law expressly prohibits.”

The learned judge a quo correctly charged the jury in the language of the first sentence of the foregoing excerpt. We have it, therefore, that, by marrying whilst he had a living wife, the defendant was chargeable with the evil intent necessary to his conviction of the crime of bigamy. But the defendant says: “True, I voluntarily did a particular act, under circumstances which constitute it bigamy in the eye of the law, including the evil intent and all other necessary ingredients, but I am, nevertheless, not guilty of that crime, because, when I went through the form of marriage with Emma Sampson, I believed that my wife, Fannie Pierce, had been divorced.” The question, then, is whether, in order to acquit himself of the charge, of which otherwise he stands convicted, he must show that he believed that Fanny J. Pierce had obtained a divorce, or whether it is only necessary for him to excite a reasonable doubt as to that belief in the minds of the jury. In State vs. Barrow, 31 Ann. 693, this court, considering the provisos contained in the second paragraph of Sec. 800, R. S., quoted from Lord Mansfield to the effect that, what comes by way of a proviso in a statute must be insisted on by way of defense by the party accused; though, where the exceptions are in the enacting part of the law, it must appear in the charge that the defendant does not fall within them, and said: “ It must, therefore, be insisted on, by way of defense, that the party accused comes within one of the provisos of this statute, and he musí prove’ (italics by the present writer) ‘that his wife had absented herself from him for five years, he not knowing that she was alive within that time, or that they had been divorced by competent-authority.” But, in order to prove a fact, something more must be done than to create a doubt, however reasonable, as to its existence. Hence, we think the judge a quo would have been justified in charging that, if the jury found that the defendant, being already married to one woman, had married another, he was chargeable with the intent necessary to constitute the crime of bigamy, and if he claimed to have contracted the second marriage in the honest belief that the first had been dissolved by a decree of divorce, the onus was upon him to establish, to their satisfaction (his mental- capacity and surroundings considered), that he had reasonable grounds for such belief, and did, in fact, so believe; but that it would not be enough for him merely to create a doubt in their minds and upon that subject. The charge as given was more favorable to the defendant, and he has no just cause of complaint. The motion for new trial contains nothing which has not been considered.

Judgment affirmed.


author: Blanchard, J.

text:
    No. 14,136.
    State ex rel. Fitzpatrick-Cromwell Co., Limited vs. Thomas C. W. Ellis, Judge.
    Syllabus.
    Where a defendant, having admitted part of the claim set up against him and judgment having been taken for the amount so admitted with reservation of plaintiff’s right to continue the action for the disputed balance, appeals suspensively from such judgment, this appeal bears only on that part of the cause merged in the judgment, and does not affect the case as to the balance of the claim left in dispute, and the plaintiff may demand trial of the issue thus left open, notwithstanding the appeal.
    The writ of prohibition applied for is denied.
    APPLICATION for writs of Certiorari and Prohibition.

      McCloskey & Benedict, for Eelator.
    Eespondent Judge-pro se.

      Charles F. Claiborne, for Anton Erey, Eespondent.
   The opinion of the court was delivered by

Blanchard, J.

Anton Erey brought suit against the Fitzpatrick-Cromwell Co. alleging that in October 1900 he had sold and delivered to that corporation a lot of hides at eight cents per pound, but that the company, claiming some of the hides were damaged and not worth the price, caused those asserted to be damaged to be weighed separately.

The company, it seems, also claimed that some of the hides were calf skins and not worth the price offered for the other hides.

The seller, it is averred, did not at the time concede either of those claims of the purchaser.

The purchaser, however, took away all the hides of the lot, no price being agreed upon for the damaged hides, nor the calf skins.

It was alleged by Frey that damaged hides at that date were worth seven cents a pound and calf skins fifty cents apiece, and upon the basis that of the lot of hides sold so many (in pounds) were sound, so many damaged, and so many were calf skins, he made out a bill showing $2539.30 due him, for which he asked judgment.

The defendant company answered this demand averring that it bought a certain lot of hides at the price of eight cents per pound, but that the hides contemplated in the purchase were sound hides; that upon inspection of the hides delivered a number were found to be damaged and not worth the price agreed upon, and a certain number were found to be calf skins.

The answer further averred that it was agreed between seller and buyer the latter was to pay for the damaged hides one-third of the price of sound hides, and for the calf skins sixty-five cents apiece, but upon controversy arising, to avoid litigation, the company offered plaintiff $2138.38 and made legal tender of same.

The plaintiff declined the tender and brought suit. The prayer of the answer was that plaintiff be condemned to accept the $2138.38 in full settlement of his demand, the tender of the same prior to suit be recognized to have been legal and binding, and that plaintiff be condemned for costs from the date of the tender.

As to the further proceedings in that case, so far as the instant cause is concerned, it is only necessary to add the following:—

That plaintiff, Frey, took judgment for the amount admitted to be due him, on account of the sale and purchase of the hides, by the company’s answer, reserving the right to proceed with his suit on that part of his claim contested; that from this judgment the company asked and obtained a suspensive appeal and the transcript of appeal was filed in this court; that, later, the case of Frey vs. The Fitzpatrick-Cromwell Co. for the balance claimed was called up in the District Court for assignment for trial, and was set down for trial on the 3rd of June 1901; and that on said 3rd of June it was called for trial, whereupon the defendant objected to the trial because, as alleging, the jurisdiction of the District Court had been divested by the appeal taken from the judgment for that part of .the demand admitted in its answer, which objection was overruled and the case reassigned for trial on October 24,1901.

Thereupon, alleging that the district judge will proceed to the trial and determination of the cause as pending, notwithstanding the appeal, the Eitzpatrick-Oromwell Co. applied to this court for writs of certiorari and prohibition, and its right to these writs is the question now presented.

The prayer of the application is for a decree holding that the appeal taken in Frey vs. Fitzpatrick-Cromwell Co. has divested the court of the first instance of all jurisdiction over the case, pending the appeal, and that the respondent judge be restrained from further proceeding in the cause.

To the preliminary order to show cause why this prayer should not be granted, the judge returns, in substance, after stating the facts, that he awarded Frey a judgment for $2138.38 on the admission of the Fitzpatrick-Oromwell Co.’s answer; that this left in dispute $400.92, as to which Frey’s right to prosecute was reserved; and that this practice, as to taking judgment in advance of trial for the amount admitted, and then proceeding to trial for the disputed balance of his demand, is sanctioned in the jurisprudence of the State.

He, further, submits that the appeal from the judgment for the amount admitted, while suspensive, cannot have the effect of staying trial as to the amount (the balance left) upon which his court has not yet acted, since the same is not the subject matter of any appeal taken and not covered by any appeal bond given.

Ruling — Much of the matter set up in briefs of counsel filed herein, and in the application for the writs and in the judge’s return, is properly referable to the case pending on appeal-Frey vs. Fitzpatrick-Cromwell Co., Limited, No. 13,983 on the docket of this court. We decline to anticipate any more than possible the decision of that cause.

In our view, the sole question properly presented here is whether Frey, having taken judgment for that part of his demand admitted in the answer of the Cromwell Co. to be due him, is entitled to proceed to trial for the balance of his demand pending the appeal taken by the company from the judgment for that part of the claim admitted.

It has long been the practice, sustained by many decisions'of this court, that when a defendant admits part of the claim judicially asserted against him, judgment may, on the strength of that admission, be taken against him, leaving the balance claimed by the ’plaintiff, and which is contested by the defendant, to be litigated between them in the pending cause.

Parsons, et al. vs. Suares, 9 La. 411, decided in 1836, was a ease where plaintiffs sued to recover a certain sum of defendant. The latter admitted he owed part of the amount, mentioning the sum he contended he owed, which was $410.00 less than plaintiffs demanded. The latter took judgment for the amount admitted, reserving their rights to the balance of the claim which was disputed.

From this judgment the defendant appealed and his counsel assigned as error on the face of the record, among other things:—

“That judgment was given ex parte, and without the cause being fixed for trial.
“That part of the cause cannot be tried at one time, or on one day, and the remainder at another time.”

Judge Martin, as the organ of the court, said:—

“No trial was had and none required for the balance admitted by the defendant, and for which alone judgment was rendered.”

In Small vs. Zacharie et als., 4 R. 144, it was held that where the answer admits a portion of the amount claimed to be due, judgment may be obtained therefor, on motion without trial, and the case be left open as to the part in dispute.

In that case, as in the instant one, defendant, admitting a part of the debt, pleaded tender. Still it was held plaintiff could take judgment for the part admitted, leaving the tender and the defense set up as against the balance claimed, to be established on the trial to be had relative to that balance.

In Skinner vs. Dameron, 5 R. 447, defendant admitted he owed sixty per cent, of the amount plaintiffs claimed and alleged tender of the same prior to suit. Whereupon plaintiffs moved for judgment and it was awarded for this sixty per cent., reserving to them the right of prosecuting their demand for the balance claimed. Their right to do this was not only affirmed, but defendant was even refused an appeal from the judgment awarded for that part of the claim he admitted.

In Municipality vs. Corning, 4 La. Ann. 407, Eustis, C. J., as the organ of the court, said:—

“The mode of proceeding by which judgment for the part of a debt acknowledged to be due may be taken, with reservation of the rights of the plaintiff for the balance claimed, has been sanctioned in several cases'.” He then cites the authorities supra.

In Gilly vs. Roumieu, 11 La. Ann. 747, the party owing the debt admitted in his pleadings part of it to be due. The other party took a rule upon him to show cause why there should not be judgment for the amount admitted. He excepted to the rule on the ground that the court could not try a part of the case, and that the trial could not take place on any other day than that fixed by the court when the case is called in its turn. The rule was tried and made absolute, and from the ■ judgment thus rendered an appeal was taken. This court sustained the ruling of the trial court, saying: — “ It is no objection to this judgment that a part of the case was left open for trial.”

In Conrad vs. Burbank, 24 La. Ann. 17, the question which the organ of the court stated the case presented was:—

“Can a judgment be rendered, on motion, for the amount of the original demand admitted to be due, reserving to plaintiffs the right-to prosecute their demand for the balance?”

Answering this the court said:—

“This is no longer an open question. The amount admitted is not a matter of dispute, and the only issue to be tried is the sum not admitted. The plaintiff is, at any time after the admission is made, entitled to a decree for such amount confessed. The fact that the admission is made upon an account consisting of various items, no one or more of which are specially admitted to be due or correct, does not affect the question. The defendant is supposed to have presented his claim and right in the most favorable light to himself.”

Erom these authorities is easily deduced the conclusion that when a defendant, having admitted part of the claim set up against him and judgment having been taken for the amount so admitted, reserving plaintiff’s right to continue the action for the disputed balance, appeals suspensively from such judgment, this appeal bears only on that part of the case merged in the judgment, and does not affect the ease as to the balance of the claim left in dispute, and the plaintiff may demand trial of the issue thus left open notwithstanding the appeal so taken as above.

In other words, the jurisdiction of which the trial court is divested by the appeal is that over issues presented between the appellant and appellee in their appeal, and this divesture does not extend to matters in the case still pending and undisposed of by the court below.

Levy vs. Collins, Sheriff, 32 La. Ann. 1003; State ex rel. Butchers Union, etc., vs. Judge, 33 La. Ann. 436.

It is entirely true that after a suspensive appeal has been taken from a judgment, the trial judge has no power to grant any additional order in the ease. But this means he has no power to grant any additional order involving the subject matter of the appeal. State ex rel. Avery vs. Judge, 41 La. Ann. 958.

As to matters still pending in the case, not tried, not determined, and, of course, not included in the appeal, his jurisdiction still attaches and as to them he may proceed in his court to take such action as the law and practice warrant.

We hold that the subject matter of the appeal taken in Frey vs. Fitzpatrick-Cromwell Co. is the amount for which the plaintiff took judgment on the admission of defendant company.

The balance of the account between the litigants left in dispute forms no part of the subject matter of the appeal, and trial of the issues raised in respect of such balance may be proceeded with.

It is ordered that the rule nisi issued herein be set aside, and that the writs applied for be denied at the cost of relators.

Rehearing refused.


author: Nicholls, C. J.

text:
    No. 13,935.
    State of Louisiana vs. J. E. McAdams, et al.
    Syllabus.
    1. The issuing of a State license to a person as a wholesale and retail liquor dealer does not authorize him to retail alcoholic liquors without a parish license in a parish where such a license is required, as a condition precedent to making such sales therein.
    2. The Appellate Court will accept as correct the ultimate conclusions of fact .as to the venue of the crime charged and the guilt of the party accused, which the district judge, who decided a criminal case, reached from the consideration of the entire testimony on the trial. It cannot go behind them and review them in order to test their correctness. (State vs. Clifford, 45 Ann. 983 ; State vs. Kennon, 45 Ann. 1193.)
    3. It is only through testimony adduced that it can be ascertained whether • orders sent by an agent in DeSoto Parish to his principal, a merchant in Caddo Parish, to forward goods by express to certain parties in DeSoto, price payable C. O. D., evidence merely “offers to buy” made by the parties in DeSoto, or whether the orders are sent on for the carrying into execution by the principal of absolute sales of goods by the agent in DeSoto to the parties there.
    4. In order that a party should be guilty of retailing alcoholic liquors in a particular parish without a license from the parochial authorities of that parish, it is not essential that he should be actually present in that parish at the time of the sales. He may be constructively present.

      APPEAL from the Twelfth Judicial District, Parish of DeSoto.— Lee, J.

      Walter Guión, Attorney General, and Amos L. Ponder, District Attorney (Lewis Guión, of Counsel), for Plaintiff, Appellee.

      Alexander & Wilkinson, for Defendant, Appellant.
   The opinion of the court was delivered by

Nicholls, C. J.

J. E. McAdams, Jack Eachal and-Fleming were indicted in the Parish of DeSoto, charging that they, on the 5th of January, 1901, at and in the Parish of DeSoto, unlawfully did keep a grog and tippling shop and retail spirituous liquors without previously obtaining a license so to do from the police jury of DeSoto Parish, and other authorities having the power to issue licenses, contrary to the form of the statutes of Louisiana and against the peace and dignity of the same.

The defendants excepted to the jurisdiction of the court for DeSoto Parish ratione materias and rationae personnae, assigning as a reason that “they nor either of them are residents of said parish, being domiciled in the Parish of Caddo, where their place of business is located, and for the further reason that neither of them have ever been in said Parish of DeSoto, nor were either of them present when said offense was alleged to have been committed in the Parish of Caddo.” Under reservation of this exception they further excepted that the laws upon which the prosecution was based did not confer jurisdiction on that court to give it any right or authority to proceed against them in manner and form as attempted, and such proceedings and indictment resulted from an erroneous and illegal construction of said statute and the law in such cases.

They further excepted and pleaded that they, and each of them, had paid their State and parish and municipal licenses in the Parish of Caddo, City of Shreveport and State of Louisiana, as wholesale and retail liquor dealers, and the said State was without any right and the court was without jurisdiction or right to, proceed against them as attempted, and same was an attempt to deprive them, and each of them, without adequate compensation previously made, and without due process of law, of their right to pursue their business, as authorized, and of their property, thereby denying them the equal protection of the law in contravention to Article 2 of the Constitution of the State of Louisiana, and of the 14th amendment of the Constitution of the United States.

These exceptions were, by the court, referred to the merits without prejudice.

The case was tried before the district judge, who found the defendants guilty, and imposed upon each a fine of three hundred and fifty dollars ($850.00), and, in default of payment of same, to four months’ imprisonment in jail.

Before sentence, defendants applied for a new trial on the ground that the finding by the court that the defendants were guilty as charged, was contrary to the law and the evidence. The court overruled the application and defendants reserved a bill of exceptions to said action, and they then appealed.

The following bill of exceptions had been reserved and filed by the ■ defendants:

“Be it remembered, that in the above case the defendants, before pleading to the indictment or making any other appearance in said cause, filed therein a written and special plea to the jurisdiction of said court raiione personae et materiae, to which special reference is made in amplification hereof, which plea and exception was, by the court on Febry. 25th, 1901, on motion of the district attorney, referred to the merits of said cause without prejudice to the rights of defendants thereunder, and defendants were ordered to plead to said indictment, and thereupon waived arraignment, and plead not guilty to said charge in said indictment preferred. That on evidence then and there adduced, said trial being then proceeded with, the said court took said cause^under advisement until Saturday, March 2nd, 1901. That on said day the said court rendered its decision in said cause, overruling said plea to the jurisdiction of said court rations personae et materiae, heretofore referred to, and holding said defendants guilty as charged in said indictment, to which ruling of said court in overruling said plea to the jurisdiction of said courts defendants then and there duly excepted, and to the ruling of said court holding that defendants had retailed spirituous or intoxicating liquors in said Parish of DeSoto without a license, and in holding that the payment by defendants of a license to the City of Shreveport, Parish of Caddo, and to the State of Louisiana, did not authorize them, or either of them, to make sales in said Parish of DeSoto in the manner and form as set forth in the evidence adduced on the trial of said cause, defendants then and there excepted, a copy of which evidence is hereto annexed and made part of this bill of exceptions for the purpose of showing:

That the sales complained of were made in the Parish of Caddo, said State, and without the territorial limits of the jurisdiction of said court.

That defendant, J. E. McAdams, as principal, had paid and was regularly licensed by the City of Shreveport, and the State of Louisiana, the Parish of Caddo not requiring a license, to engage in the business of a retail liquor dealer, and that under said license said sales were made, and that no court had jurisdieton to ignore such license in the manner and form attempted.

That said license by said McAdams fully protected him in such sales, and likewise protected his drummers or solicitor, defendant Fleming.

That under said evidence no crime or offense was committed by either of said defendants, and the ruling of said court holding them guilty of said offense was illegal and resulted frpm a misconstruction of said statute, under which said indictment was preferred. For all of these reasons defendants duly excepted to the ruling of said court ,at the time of the said rulings herein complained of and tender this their bill of exceptions.

By the Court: The accused resides in Shreveport and pays a retail license to do business in the Parish of Caddo. The accused hired salesmen to solicit and take orders for the sale 'of whiskey In DeSoto (admitted without license in this parish).

There are no accessaries before or after the fact to misdemeanors, therefore, if the agents so sent out are guilty, the principals so employing them are guilty. The acts of the agents, acting in the scope of their authority, bind the principal. Tt> determine the violation of local option law “vel nonJ> we must first find what was the intention of the parties (accused) when they employed agents to come into the prohibited district and make sales. They sold promiscuously to all persons, a preponderance being in favor of negroes. The goods were agreed on, the price agreed -on, and the whiskey was to be shipped C. O. D. It is true that the jurisprudence of the other States is somewhat divided on the question of shipments O. O. D., but the testimony shows so conclusively to my mind that the intent of the parties was to consummate the sale at the time the agent took the order, and that was the intention of the party sending out said agent, that I had no option except to convict.

Nearly one thousand packages sent out in less than two months to parties that the principals never knew or heard of until the orders were received from their agent, convince my mind that there was a subterfuge and evasion resorted to to bring the enforcement of the law into disrepute. The sale and price was agreed to here and the goods shipped C. O. D. to prevent loss by the shipper, and it could never be contended that the principal would ship whiskey to men, “negroes and whites, that they had never heard of unless they ratified the acts of the agents and relied upon their sales so made.”

Could a dealer in an incorporated ciy allowing whiskey to be sold, send agents in the wards which were prohibition and make sales and agree on the price, subject to payment when delivered, and then take a wagon and deliver the same, and collect the money for the same?

The intention of the parties is further shown by the fact that some of them were present themselves and took orders, and their agents delivered by w/itten orders packages that were sent to various parties, to other parties who did not order the same, and the principals accepted the same and thereby ratified their acts, even if the agents were acting beyond the scope of authority, which I do not think they were.

At last the intention governs, and common sense and reason must decide the issue.

Which bill of exception was duly read, signed and filed in open court, on this March 2nd, 1901. J. B. Lee,

Filed March 2nd, 1901. Judge 12th List, of La.
L. II. Bell, Jr., Dy. Clerk.

We find in the transcript just after the bill of exceptions the following words:

Note. — For evidence referred to in the foregoing bill of exceptions see stenographer’s notes accompanying this transcript.

Section 910 of the Revised Statutes declares that “whoever shall keep a grog or tippling shop, or retail spirituous liquors without previously obtaining a license from the police jury, town or city authorities, on conviction shall be fined not less than one hundred nor more than five hundred dollars, and in default of payment shall be imprisoned not less than fifteen days nor more than four months.”

The statute is a State law enacted in aid of the enforcement of the ordinances of police juries requiring for the purposes of the sale, specially of liquors, that parties selling liquors should have acted under .the authority of a license so to do.

The District Court basing its decision on evidence as to the facts of the case held that the defendants had violated the law, found them guilty and sentenced each of them to pay three hundred and fifty dollars, and in default of payment, to an imprisonment of four months.

The defendants appealed and the case comes before us upon two bills of exception. The first bill of exception was to the refusal of the District Court to grant a new trial upon the averment that the judgment was contrary to the law and the evidence. The district judge states at the foot of the bill that he was convinced that the conviction was in accordance with law and justice.

The second bill of exception we have copied in full. In it the defendant declared that he annexed to and made part of the bill the evidence taken at the trial of the cause, for the purpose of showing that the sales complained of were made in the Parish of Caddo and without the territorial limits of the jurisdiction of the court. We find attached to the transcript the evidence as taken down by the stenographer.

It is conceded by the State that the defendant, McAdams, .had a place of business in Shreveport, Parish of Caddo, and that he sold liquors under a retail license for the Parish of Caddo issued by the City Council of the City of Shreveport and by the State of Louisiana.

The defendant concedes that he has no retail nor whosesale license issued from the Parish of DeSoto; that he sent out a solicitor to taki. orders for whiskey ranging in quantity from one quart to any amount less than five gallons, and that the solicitor took orders from any and all people. That the price was agreed upon between the solicitor and the purchaser and that the whiskey was delivered to a common carrier to be delivered to the purchaser C. O. D.

Our inquiry in this case is limited to sales of spirituous liquors and to such sales viewed from the standpoint of the criminal laws of the State. No demand is made upon the defendant for a license, nor are any property rights involved in the case. The defendant, if we understand clearly his position, claims that the license as a retail liquor dealer which he obtained from the State and from the Common Council authorized him to make retail sales of liquor in any parish of the State without reference to whether the ordinances of the police juries of the different parishes made the obtaining of a license from them to make such sales therein a condition precedent to their making that character of sales. The right of the defendant under the authority of his license to make within the Parish of Caddo retail sales of liquor to parties living or being outside of the State and to cause the property sold in Caddo to be delivered by'carriers to the purchasers at their places of residence, even if the purchasers lived in parishes where a parish license to sell in those parishes is made a condition precedent to liquor being sold there, is not at issue in this case.

If the sales made by the defendant were sales made by him in the Parish of Caddo, defendant would be guilty of no violation of law.

If they were not made in the Parish of Caddo, but were made in the Parish of DeSoto, where a license is exacted by the police jury as a condition precedent to sales of that character being made, then he was guilty of the misdemeanor charged in the indictment.

A license from the State to a person as a retail liquor dealer is granted subject to the qualification attached thereto as to its scope by the provisions of Section 910 of the Revised Statutes. That section must be read into the license, otherwise the statute would be a dead letter. It would be utterly inconsistent to make the retail selling by a person of spirituous liquors in a parish without the consent of the police jury a misdemeanor and punishable by fine or imprisonment, and yet protect a person making such sales under a license to sell granted to him by the State in another parish. From the operation of the State’s license to sell are necessarily excepted sales to be made without a license in a parish where such licenses are required. We are limited in this case to decisions of questions of law.

In the second bill of exceptions sent up with the record the district judge recited a certain state of facts as having been proved by the testimony and held under that state of facts as a matter of law, that defendant had made in DeSoto sales of liquor without the license of the police jury of the Parish of DeSoto. Is this court authorized to look into the whole testimony taken down by the stenographer and declare that conclusions of fact, the facts in the case, were not such as they were declared to be by the District Court ? ’ We think not. (43 Ann. 205; 45 Ann. 983; 52 Ann. 2061; 104 La. 65, 165.) The utmost that we could do would be to examine and declare whether the conclusion ■ of law drawn by the judge from the ultimate facts as stated by him, was a correct legal conclusion. The tacto fuuud by the court are that “the accused resides in Shreveport and pays a retail license to do business in the Parish of Caddo. The accused hired salesmen to solicit and take orders for the sale of whiskey in DeSoto (admitted without a license in this parish). What was the intention of the accused when he employed agents to come into the prohibited district and make sales ? They sold promiscuously to all persons, a preponderance being of negroes. The goods and price were agreed on and the whiskey was to be shipped O. O. D. Nearly one thousand packages were sent out in less than two months to parties that the principals never knew or heard of until the orders were received. The sale and price were agreed to here to prevent loss by the shipper.”

We are of the opinion that under the state of facts found by the court, it could well find that the defendant, McAdams, had made retail sales of intoxicating liquors in the Parish of DeSoto without a license from the police jury thereof. Under such circumstances, the defendant, McAdams, violated Section 910 of the Revised Statutes and he was legally found guilty and sentenced. There was no necessity for him to have been actually present in person in DeSoto Parish in order that he should have made such sales. If he sent an agent to DeSoto Parish “to take orders there from prospective purchasers” of spirituous liquors at retail with the duty of “forwarding the orders, to be by himself filed at Shreveport, and if in obedience to these instructions his agent did take such orders there, the goods being then and there agreed on and the price fixed, and forwarded them to Shreveport, to be there filled by McAdams, and sent forward by express, to be delivered in DeSoto Parish,” “the express company collecting the price and freight charges at the point of delivery,” and if McAdams on receiving these orders did fill the same and forward the liquor bv express to DeSoto Parish, to be there delivered C. O. D., we cannot say that the court erred as a matter of law in holding that sales had been made by McAdams in DeSoto Parish through his agent.

It was obviously ‘understood and agreed upon between all parties that the sales should be made in DeSoto. Everything connected with the sales was done or to be done there except the mere act of filling the jugs or bottles and sending them forward by the express company. The goods and the price thereof were fixed there between the agent and the party buying; the price was to be paid in DeSoto Parish, but only upon the delivery of the liquors, and the liquors were to be delivered there, but only upon the payment of the price.

The district judge might well hold that the claim that the orders were sent to Shreveport, to be there accepted or rejected by McAdams, was a mere colorable pretext and device resorted to to evade the State law.

The character and quantity of the things sold — the trival price involved in the orders' — -the promiscuous taking of the orders from parties unknown to the agent himself and without regard to character and position, tended to show that these orders when sent forward were sent forward for execution and not for approval or rejection. An order sent to a retail liquor dealer in Shreveport by his agent in DeSoto to forward by express to DeSoto a half gallon of whiskey to a party named, for a designated price, to be delivered there on payment of the price and the freight, leaves very little occasion for the exercise by the liquor dealer of a right of acceptance or rejection. It is the right of courts where pretensions of this kind are set up by parties, manifestly advanced to cover violations of State law, (pretentions which if recognized would render the law practically a dead letter), to test the same, as the district judge declares he did in this case, by applying to them the rules of reason, common sense and common experience.

It is a matter of general knowledge that the parties whom the merchants or dealers in cities send out into the country known by the name of drummers, are provided in advance with price lists of the different articles which their houses have for sale, with authority to offer them for sale at those prices. It by no means follows as a presumption of law from the fact- that an order should have been sent to a merchant in a city to forward by express to a particular person in the country a certain article at a designated price, deliverable to the person named, on his paying the price and freight, that the order represents an “offer to buy” on the part of the person to whom the articles are directed to be sent. Such order may, on the contrary, follow an acceptance by the party named of an authorized “offer to sell,” which had been made at his home by the drummer of the house, and which had been then and there accepted. If after the defendant’s agent, acting under his authorization to “offer his liquors for sale” in DeSoto at a certain designated price, had done so and this offer had been accepted by parties in DeSoto, an order should have been transmitted to the plaintiff in Shreveport to forward the articles to DeSoto by express, to be delivered there on payment of the price and the freight, we scarcely think it could be claimed as a matter of law that the articles had been sold in Shreveport. If the parties who dealt with defendant’s agent in DeSoto had been informed after an agreement had been reached between them as to the kind and quantity of liquor they wanted, and after the price for this same had been fixed, that the orders had been sent to Shreveport for approval or rejection and not for the purpose of being filled — we think they would have had reason to be surprised.

In Erman & Cahn vs. Lehmann (reported 47th An. 1685), where the issue between the parties was whether or not a certain contract of sale of goods had been made in Louisiana or not, this court said: “When the interview between Lehmann and these parties terminated, the situation was not that of parties waiting to see ‘whether or not propositions for purchases which were to be sent forward would be accepted or not by principals residing in other States, and depending upon the action of these persons in order to determine whether contracts would be made or not, but of parties who had then and there made and completed contracts of sale, the one as a purchaser, the other claiming to be authorized by their principals to make presently concluded sales, and so making them Lehmann did not deal with the representatives for these houses as solicitors for them forwarding orders for acceptance or rejection, but as agents of those houses making present sales for them and forwarding orders, not for acceptance or rejection, but in execution of concluded sales. The orders sent forward were sent solely because the articles which were the object of the sales were in other States and required shipment. Had they been in New Orleans at the time of the interviews they would have been called for there at once by Lehmann. Under the evidence in the record, there would have been no necessity for any communication between the agents and their principals to justify the former in making a delivery. * * * We think they had ample authority to act as they did in making the sales, but were we to assume that they had transcended their authority or disobeyed secret instructions in so doing, it would by no means' follow when their principals (called on to take action in regard to their New Orleans dealers) should approve "them, that the contracts are to be made as contracts of the place of residence of the principals. On the contrary, the act of affirmance being of a sale made by the agent as one in presentí, the act would stand affirmed as made with its character as-fixed by the parties to it when made, the ratification would give to the act all the force of an original authority in the agent to have sold at the time, and in the manner, and at the place they did. (Omnis ratihabitio retrotrahitur et mandato aequiparatur.)

The authority exercised by the agents in Louisiana to sell absOT lutely in that State was ratified (if ratification was needed) and acted upon before Erman & Cahn had acquired any right in the premises. We think the contracts were Louisiana contracts and the rights and obligations of parties controlled by the decision in 47 An. 135, McLane vs. His Creditors.”

The present case was tried by the district judge and not by a jury. He may have taken the above view of the situation or he may have reached the conclusions he did from the testimony adduced on the ground that there were no sales until the prices were paid and the articles were delivered in DeSoto, as McAdams’ consent to a sale was held in obeyance until then by a suspensive condition that the possession of the express company was McAdams’ possession and the right of property was in him until the payment of the price.

(See on this subject State vs. Lee & O’Neill, 58 Vermont, 140; O’Neil vs. Vermont, 144 U. S. 323; U. S. vs. Schrivey, 23 Fed. Repr., State vs. Wingfield, 115 Mo. 428, 28 S. W. Rep. 363; U. S. vs. Cline, 26 Fed. Rep. 515; Wagner vs. Halleck, 3 Cal. 176; State vs. Intoxicating Liquors, 73 Maine 278; State vs. Peters, 91 Maine 31; Bagley vs. State, 9 S. E. Rep. 721. Meachem, in his work on Sales, Section 740. says: “ The delivery to the carrier to pass the title must be unconditional and made with the intention that it shall pass thereby. Of this intention, when the facts are in dispute, the jury is to judge.”)

We are not prepared to say as a matter of law that the judge’s decision was error. Defendant urges, however, that even if it were true that the sales were made in the Parish of DeSoto, he committed no crime, and in support of that proposition he refers us to State vs. Dennie, 51 Ann. 512; but the facts of the two cases are not analogous.

The defendant in that case kept a bar upon a steamer whose regular business required her to pass backward and forward through different parishes. The boat’s home port was New Orleans, and the license to carry on the business at its bar had been obtained both from the State and the city. A bar upon a steamboat, just as the restaurant upon the same, is part of the incidental business of the boat, and we did not think it was the intention of the General Assembly to have authorized the parish or municipal authorities of each parish or town at which a boat might touch on its trips to exact a license to carry on the bar or the restaurant upon it. (3 La. 15, Eagot vs. Graderigo.) The question in that case was sui generis. In dealing with the question we said: “Our view in this matter relates to the business of conducting a bar room on steamers engaged in carrying freight and passengers in good faith and in which refreshments for the passengers and employes are usually deemed proper. It is evident that defendant’s business was not carried on by him within the limits of the Parish of St. Tammany and that this parish is without right to collect a license on business having its situs in New Orleans, the domicile of the steamer and of necessity of defendant’s business.” We also referred to the fact that at that time the subordinate political divisions of the State were not entitled to exact a greater license than the State had exacted, but the restriction thus referred to has (so far as alcoholic liquors are concerned) been withdrawn. We think it apparent from the judge’s recital of facts that he concluded from the evidence that the defendant was carrying on a retail liquor business in DeSoto Parish through the instrumentality of parties there representing him, the liquors being simply transmitted from Shreveport in execution of the business.

If the offense committed by McAdams be held to have been committed in DeSoto Parish, the District Court of that parish is the proper tribunal before which he should be fried. (45 Ann. 983, 1193.) It was not necessary that he should have been actually and personally present in DeSoto Parish at the time of the commission of the offense. He was constructively present there.

The facts upon which Fleming was convicted are not recited. He is not mentioned in the bills of exception. As matters stand, we must assume he was legally convicted. We presume, however, that he was the agent referred to in the judge’s statement, as having acted in concert, ab initio, with McAdams in making the sales referred to by him. The case presents no legal grounds for reversal of the judgments, and they are hereby affirmed.

Provostv, J., concurs in the decree.

Rehearing refused.


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    No. 14,190.
    State of Louisiana vs. Asa Burton and Charles Jenkins.
    Syllabus

      1. The Constitution of the State restricts the jurisdiction of this court in criminal appeals to questions of law alone.
    2. Hence, in a criminal case where the judge tries the accused, equally as in a case where he is tried by a jury, a finding of facts is conclusive upon this court.
    3. The description of a boundary may be a matter of construction for the court and, therefore, a question of law, but the ascertainment of it with the view to its location Is a question of fact. So, too, what is “the middle’’ of a river Is a question of law; but once defining that “the middle” of a river is the half way point between its banks, or that the thread of the stream is Its middle, it is a quesion of fact to determine whether an object in the river is on the one side or the other of “the middle” as thus defined.
    4. Between nations, or States, the thread of a boundary river Is the line of sepa, ration, without reference to the track of navigation.
    5. “The thread” of a stream is the line midway between the banks at the ordinary stage of water, without regard to the channel or the lowest and deepest part of the stream.
    APPEAL from the Twelfth Judicial District, Parish of DeSoto— Lee, J.

      Walter Guión, Attorney General, and Amos L. tonder, District Attorney (Lewis Guión, of Counsel), for Plaintiff, Appellee.

      Goss & Sutherlin, for Defendants, Appellants.
   The opinion of the court was delivered by

Blanchard, J.

Defendants were convicted of selling liquor without a license, and Burton having been sentenced to pay a fine of $350.00 and costs, or be confined in the parish jail for a period of sixty days, prosecutes this appeal.

The middle of the Sabine river is the boundary line between the States of Louisiana and Texas.

The town of Logansport is situated on the Sabine river in DeSoto Parish, Louisiana. The County in Texas across the river from Logansport is Shelby. Shelby County is, in the matter of the sale of intoxicating liquors, a prohibition county. DeSoto Parish was, at the time this indictment was laid, a “high license” parish. '

Burton owned a flat-boat 44 feet long, by 16 feet wide. Upon it was built a cabin divided into two compartments, one of which (towards the front of the boat) was fitted up for the sale of liquors; the other as a gambling room.

The boat was moored in the river opposite the town of Logansport, but care was taken to locate it entirely on the Texas side of the middle of the river. It was not touching the Texas shore, but was altogether in Texan waters.

It seems Burton was not so much afraid of being proceeded against by the authorities of Shelby County, as he was by those of DeSoto Parish.

This was the situation, and had been for some time, up to the 18th of July, 1901.

While the boat was thus moored opposite Logansport, Burton was indicted in DeSoto Parish for the same offense as is now charged against him. He was tried and convicted, but on appeal here the verdict was set aside, it appearing from admissions of record that the boat in which the liquor was sold was at the time wholly on the Texas side of the middle of the river and, therefore, the Louisiana court was without jurisdiction, notwithstanding one of the cables which held the boat in place was fastened to the Louisiana shore — this court properly holding that the jurisdiction of the Louisiana courts could not be extended over Texas territory by means of a rope. See State vs. Burton, 105 La. 516.

On the date mentioned above, July 18, 1901, Burton moved his boat down the river, a half mile from its usual place of location, and there tied it up in the river and sold liquors.

He was promptly indicted by the Grand Jury of DeSoto Parish, and brought to trial.

The fact of selling liquor without a license was - admitted; his defense being a plea to the territorial jurisdiction of the court.

The plea was referred to the merits without prejudice and the whole case was tried at one time.

The contention of the State is that the boat was on the Louisiana side of the middle of the river; that of the defense that it was on the Texas side of the middle.

On the evidence adduced as to its location in the river, the district judge, who tried the case (it being a non-jury case), found as a fact that the boat was on the Louisiana side of. the middle of the river. He, therefore, overruled the plea to the jurisdiction of his court and adjudged the accused guilty.

A bill of exceptions to the overruling of the plea was taken, and to it, and to a similar bill reserved to the judge’s ruling refusing a new trial, all the evidence is attached and brought up.

We are asked to sit in judgment on this evidence and to find as a fact that it establishes the boat was on the Texas side of the river, and, so finding, to reverse the judgment appealed from.

By the Constitution of the State the jurisdiction of this court is confined, in criminal cases, to questions of law alone. Article 85.

Hence, in a criminal case, where the judge tries the accused, equally as in a case where he is tried by a jury, a finding of facts is conclusive upon this court.

Counsel for defendant bring the ease here on the contention that what is the middle of the river is a question of law, and that the trial court erred in his ruling and findings in reference thereto.

The description of a boundary may be a matter of construction for the court and, therefore, a question of law; but the ascertainment of it with the view to its location, is a question of fact. So, too, what is “the middle” of a river, is a question of law; but once defining that “the middle” of a river is the half-way point between its banks, or that the thread of the stream is its middle, it is a question of fact to determine whether an object in the river is on the one side or the other of “the middle” as thus defined.

Mr. Gould, in his work On Waters, 2nd Ed., § 202, says that when parishes or towns are separated by a fresh water river, its thread is prima facie the boundary between them. Continuing he says:—

Between nations, or States, the thread of a boundary river, whether tidal or fresh, is presumably the line of separation, without reference to the track of'navigation.

And in a note to the section from which the quotation is made, it is said:—

The eastern boundary of Iowa, declared by statute to be “the middle of the main channel of the Mississippi river,” and the western boundary of Hlinois, declared by another statute to be “the middle of the Mississippi river,” and the jilum aquae, the middle of the main stream- of the river and not the middle of the deep water used by vessels.

Defining what “the thread” of a stream is, the same author, at § 198, says it is the line midway between the hanks at the ordinary stage of water, without regard to the channel or the lowest and deepest part of the stream.

In the instant case, the trial judge found as a fact- that the boat of the defendant was on the Louisiana side of the middle of the river if the thread of the river he taken as its center, and equally so if its center he the half-way point from bank to bank — meaning, we suppose, its high banks.

This court is powerless to disturb this finding. State vs. McAdams (not yet reported); State vs. Nettles, 41 La. Ann. 323.

Judgment affirmed.


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    No. 14,219.
    State of Louisiana vs. Will Smith.
    Syllabus
    1. Where the objections urged by a defendant In a criminal case are of a char' acter such as to require the taking of a bill of exceptions, this bill must make such a statement of the facts and circumstances connected with the matter complained of as will show error. Error will not be presumed.
    2. Mere belief on the part of one of the jury which tried an accused person that the verdict found would leave the sentence under it to a certain extent under the control of the district judge, and not carry with it necessarily a sentence of death, furnishes no legal ground for reversing the verdict. Considerations of that character must be addressed to the Board of Pardons.
    APPEAL from the Eighteenth Judicial District, Parish of Acadia. DeBaillon, J.

      Walter Quion, Attorney General, and William Campbell, District Attorney (Lewis Guión, of counsel), for Plaintiff, Appellee.

      J. E. Barry, W. R. Percy, and J. L. McOain, for Defendant, Appellant.
   Statement of the Case.

The opinion of the court was delivered by

Nicholls, C. J.

The defendant having been sentenced to be hung, under and by virtue of the verdict of a jury finding him guilty of murder, has appealed. We find in the record a motion for a new trial, the ruling of the court refusing the same, and a bill of exceptions taken to said refusal.

The motion for a new trial was based upon the following grounds:

Firstly — That the verdict was contrary -to the law and the evidence, in that the evidence adduced showed no malice aforethought and no intent to commit the act previous to 'its commission, also that it showed the deceased to be the assailant at the time of the homicide or shooting; that the accused had at the time actually and constructively withdrawn from the difficulty.

Secondly — That the counsel for accused reserved three bills of exception .to rulings of the court, during the progress of the trial, namely, to the admission of evidence intended to show a confession on the part of the accused, while under restraint; secondly, to the admission of questions of the State’s attorney to the accused on cross-examination, seeking to show a previous difficulty between accused and deceased.

Thirdly — To the admission of evidence in rebuttal of a previous difficulty between accused and deceased when accused had denied any previous difficulty, and when the State had shown a previous difficulty on the examination in chief before the defense’s witnesses had testified, and that in none of the bills, or at the time of the taking of same, did the court order the clerk to take down the evidence admitted by the court; that by reason of the failure of the court to order, and the clerk to take down, said evidence, the accused was without legal evidence upon which to take said bills of exception to the Supreme Court, and that the only way to right the oversight is to grant accused a new trial.

Fourthly — Because the meaning of the verdict was misconceived by one or more of the jury; that one Zach Lee, one of the jury that found defendant “guilty as charged in the indictment,” wanted to find a lighter verdict than the one carrying the death sentence; that he was convinced and thought that the judge could and would exercise a right and privilege to give the accused a lighter sentence than death; that since he had discovered the court had no such privilege, he is opposed to the infliction of the death penalty in this case, believing that accused is entitled to a lighter sentence.

Attached to this application is the affidavit of Zach Lee to the effect that he was a member of the jury which found accused “guilty as charged in the indictment,” of the crime of murder; that he did not wish to convict the accused of the offense he was charged with so as to carry the death penalty, but thought that, under the verdict, the judge could and would sentence the accused to imprisonment and not death.

The motion being overruled, a bill of exception was taken to the ruling, to which bill the application for a new trial was annexed. In this bill the judge assigns as reasons for his refusal of the motion that the only bill of exception of those reserved, which was tendered to him for signature, was that which he was then signing; that had they been tendered to him he would have signed them, and counsel was so informed; that there could and would have been no disagreement between counsel and the court on those bills. A bill was reserved to the confession of the accused because made when under restraint. That was the fact. There was no pretense that the confession was not free and voluntary. The other testimony complained of was admitted because legal and competent and nowise objectionable.

Opinion.

When the objections urged by defendant in a criminal case are of a character such as to require the taking of a bill of exceptions, the bill must make such a statement of the facts and circumstances connected with the matters complained of as will show error. Error will not be presumed. State vs. Tierney, 40 Ann. 525. No error has been shown in the case before us. The verdict of a jury and the judgment of a court, based upon the same, will not be reversed and a new trial ordered by reason of an affidavit of one of the jurors, before whom the ease was tried, to the effect that he misconceived the meaning of the verdict and its effect; that he did not wish to convict the defendant in manner such as would make the conviction carry necessarily the death penalty; that he thought the judge could and would sentence the defendant to imprisonment.

The proper tribunal to which matters of that character are to be addressed is the Board of Pardons. We have no alternative but to affirm the judgment appeal* d from.

It is hereby affirmed.