text:
    NO. 295.
    The State of Louisiana vs. Gus Simmons.
    1. Motion to quasli an indictment on a challenge to the general venire, based on alleged irregularities in the manner of drawing and summoning the jurors, is properly demurrable when it alleges neither fraud, wrong nor injury.
    2. Jn absence of express statutory authority, the fees of counsel, acting as counsel for accused, in obedience to an assignment by the court, can not bo taxed, as costs to be paid by the parish.
    A PPEAL from the Tenth District Court, Parish of De Soto. l\ Rail,. J.

      J. Henry Shepherd, District Attorney, for the State, Appellee:
    1. ’ In all criminal prosecutions the accused shall enjoy the right to defend himself and have the assistance of counsel. Art. 8 Const.
    Where the accused can not employ counsel, the judge should assign one. State ys. Doyle, 36 An. 91; State ys. Yiana, 37 An. 606; State ys. Simpson, 38 An. 28*
    2. Courts can require lawyers to actas counsel in cases where the accused are unable to pay, on the ground that they are officers of the court, bound to perform official duties, for they are a necessary part of the administration of justice. Dishop on Or. Pr.( Yol. 1, p. 305.
    3. The State as a sovereign owes no costs in litigation before her own courts,, even when cast in a civil suit. State vs. Taylor, 33 An. 1272; 34 An. 978; Succession of Kate Townsend, 40 An. 66.
    4. No irregularity in drawing, summoning, returning or impanelling grand or trial, jurors furnishes ground for challenging the array, or is sufficient to set aside a verdict unless it operated to the injury of the party complaining. Thompson & 3Ier. Jur. 63, 143; State vs. Harris, 34 An. 118; State vs. Hector, 35 An, 1098; State vs. Sandez, 37 An. 376; State vs. Gonsoulin, 38 An. 459.
    5. All objections to the manner of drawing juries or any defect or4rrogularity that can be pleaded against any array or venire must be urged on the first day of the term. Acts 1877, Sec. 31 of Act 44; State vs. Price, 37 An. 215.

      E. W. Sutherlin and J. W. Parsons for Defendant and Appellant :
    1. Section 11 of Act 44 of 1877 requires that all objections to the manner of drawing juries must bo urged on the first day of the term; but th o letter of the statute can not bo rigidly enforced in all instances, when circumstances render it impossible to do so. Where the term of court begins on the 3d, and is adjourned to the 6th, when the indictment is presented and counsel assigned, the accused being in jail and unable to employ counsel, a motion to quash indictment and challenge to the venire, made on the 7th, before arraignment, is seasonably made. 19 An. 436; 31 An. 387, 398; 41 An 513, 679.
    2. The venire must bo drawn in accordance with Sec. 4 of Act 44 of 1877, p. 56. 29 An. 824; 20 An. 356, 442. ‘
    3. The fees of counsel assigned by the court for tlie defense of an accused, unable to employ counsel, like all other expenses attending criminal proceedings, must be paid by the respective parishes, and taxed as costs. This yiow is supported by precedent and sound public policy. The assignment of counsel is indispensable to the trial, and “as essential to the due examination of the case as counsel for the prosecution, and to leave the services of the one unremunerated is as impolitic as it would be to leave the services of the other unre- • numerated.” Const., Art. 8; Revised Statutes, Secs. 992, 1042; 25 An. 3S1;33 An 979; 36 An. 91; 37 An. 267, 606; 38 An. 23; Bishop’s Criminal Procedure, Vol. 1, 3d | Ed., Secs. 304, 305, 306; Whar. Or. PI. and Pr., Sees. 557, 558, 559.
   The opinion of the court was delivered by

Fenner, J.

The defendant, convicted of murder and sentenced to be hung, assigns but one complaint of error in the proceedings,. which consists in the overruling of his motion to quash the indictment based upon a challenge to the general venire. His objections; to the venire are stated as.follows:

“Neither the clerk of this court nor the jury commissioners have-ever made or kept a list of the names of three hundred good and' competent men from which the venire for each term of the court is-by law required to be drawn, nor has any such list ever been kept complete and supplemented from time to time by said clerk or jury commissioners, as required by law; and that the pretended list kept by the clerk of the court was not kept and maintained at the original standard of three hundred, as required by law; nor have the names-of those who have served, nor of those, who are known to have died,, removed from the parish or become exempt or disqualified to serve as jurors since their names were entered thereon, been stricken therefrom; but that the pretended list from which the venire for-this term of court were drawn contained the names of more than one-thousand persons, many of whom had previously served, and who-are known to have died and removed from the parish and become-exempt or disqualified from jury service.”

The motion to quash was met by a demurrer on two grounds,, viz.:

. 1. That the challenge to the array was not pleaded on the first day of the term, as required by Section 11 of the Act 44 of 1877.

2. That the motion made no averment of fraud, or great wrong,, or of injury to defendant.

The trial^judge sustained the demurrer.

The letter of the statute is very peremptory that all objections to the array or venire “ must be urged on the first day of the term, or all such objections shall l>e considered as waived and shall not afterward be urged.” We have, however, held that the statute does not require impossibilities, and have recognized certain cases to which it could not be applied. State vs. Sterling, 41 An. 680; State vs. Strickland, Id. 513; State vs. Vance, 31 An. 398.

The defendant here urges certain circumstances as bringing his-case within a necessary exception to the statute, the sufficiency of which, however, we need not presently consider, because we hold-the second ground of demurrer to be conclusive.

The same statute which directs the methods to be pursued in the drawing of juries, specifically provides that “ no such defect or Irregularity in the drawing thereof or the summoning of the jury ■shall be sufficient cause (to challenge the venire), if it shall not appear that some fraud has been practised, or some great wrong committed, that would work a great and irreparable injury.” .

We have uniformly enforced this requirement of the statute. State vs. Gonsoulin, 38 An. 459; State vs. Sandoz, 37 An. 376; State vs. Rector, 35 An. 1098; State vs. Harris, 34 An. 118; State vs. Dozier, 33 An. 1362; State vs. Smith, Id. 1414.

We find every inducement to adhere to this line of decisions. The inconvenience and delay occasioned to the administration of criminal .■justice by the setting aside of the venire, are tod grave to be lightly Incurred on account of irregularities, which have arisen- from no fraud and resulted in no injury. There is no suggestion that the ■fifty names drawn from the general venire box to compose the .grand and petit jurors for the first week of the term were not good, true and qualified jurors, or that the grand jury selected from said number and which found the indictment against defendant, was not ■composed of qualified jurors, honest and impartial. What more ■does justice require? Defendant has alleged neither fraud nor injury, and, therefore, the statute and jurisprudence silence his complaint.

The attempt to assimilate these irregularities in the proceedings of a qualified jury commission, to disqualifications of the commission Itself, is not sound. The curative effect of the statute applies only to defects or irregularities in the proceedings of the commission, not to defects in the constitution of the commission; and, therefore, in the latter ease, allegation and proof of specific fraud or injury are not required.

I.

The defendant, in this case, being unabie to employ counsel, the ■attorneys, |who represent him, acted under assignment by the ■court. They took a rule to have their fees taxed as costs of the case to be paid by the parish. The judge denied the' rule, and from' his •judgment the attorneys have appealed.

We can find no warrant for the relief asked. There is certainly no precedent for it in this State. The subject is referred to by Bishop and Wharton. First Bishop, Cr. Prac. Sec. 304, et seq.; Wharton, Cr. Pl. and Pr., Sec. 558, et seq.

They cite an Irish case, in which the Chief Baron said, in a ease of such service, “that he should certainly recommend that the fee should be paid by the crown.” It also appears that in some States_ of the Union civil actions have been maintained against counties for remuneration for such services. They refer to no case in which such fees have ever been taxed as costs in criminal proceedings, in absence of express statutory authority. It would be manifestly unjust to do so, because the parish is not a party to a criminal case, and is certainly entitled to be heard on such a demand.

There is no such statutory authority in this State. It is true, that .Section 1042, Revised Statutes, provides that “ all expenses whatever attending criminal proceedings shall be paid by the respective parishes;” but no statute includes such attorney’s fees amongst those expenses. On the contrary, Act No. 7 of 1887, entitled “ an act to regulate and limit the liability of parishes of this State for •coses and fees in criminal proceedings,” makes no reference to such fees and impliedly excludes them.

The better doctrine seems to be that followed in Massachusetts, Illinois, California, Pennsylvania, Georgia, Alab'ama, Arkansas and Montana, where, as stated by Mr. Bishop, the county is held not liable, unless made so by particular statute. We shall adopt and follow this rule until tbe Legislature shall otherwise direct.

Judgments affirmed.
      ^Absent during this term.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 296.
    State of Louisiana vs. Seymour Jefferson.
    a. In case the proof shows that the accused was the.aggressor in the affray which resulted in tlie homicide, proof of an attack made by the deceased upomthe accused on the day previous thereto, is inadmissible for the purpose of establishing the status of the accused as acting in his own right, or that ho acted at the time of the homicide under the belief that he was in imminent danger of death or of great bodily harm.
    :2. The trial judge charged the jury that “ it is incumbent on the State to prove the offense charged, or legally included in the indictment to [their] satisfaction, beyond a'reasonable doubt; and before [they] can convict the accused they must be satisfied from the evidence that he is .guilty beyond a reasonable doubt. - • *
    “A reasonable doubt, gentlemen, is not a mere- possible doubt; it should be an actual or substantial doubt. It is such a doubt as a -reasonable man would •seriously entertain. It is a serious, sensible doubt, such as you could give good reason for.”
    This is a concise and absolutely correct exposition of the law as applicable to a-easonable doubt.

      .3. The Supreme Court will not interfere with district judges in the manner of conducting their courts, or of enforcing rules of propriety and decorum on the-officers of court.
    •1. It is not good ground for an application for a new trial, that, m the course of his argument before the jury, the District Attorney made use of improper remarks, unoxcepted to at the time, which had the tendency to improperly influence tile jury against the accused.
    APPEAL from the Sixteenth District Court, Parish of Bast Feliciana. Brause, J.

      J. Henry Shepherd, District Attorney, for the State, Appellee: -

      W. F. ICernan for Defendant and Appellant:
    1. Testimony of a personal difficulty the evening previous is admissible for the-purpose.
    (а) Of establishing the status of the accused as acting, at the time of the homicide, in his own right.
    (б) And that the accused believed at the time he was in danger of death or of' serious bodily harm, and to enable the jury to determine whether or not he had reasonable grounds to so believe.
    (c) Audio determine who was the aggressor-. Whar. Horn.,2d lid., Secs. 69-1, 695;. State vs. Claude, 35 An. 14, 75; Whar. Crim. Law, 8th lid., Sec. 611.
    2. That whether the accused believed himself in danger of death or of great bodily harm, and whether he had reasonable grounds to so believe, are facts to ire determined by the jury. Statevs. Garic., 35 An 970; Whar. Crim. Law, Stli Kd., Sec. 611; Whar. Horn., 2d Kd. 517; 23 Ala. 28; 26 Ala. 31.
    That the lower court erred in refusing- to give the requested charge on “reasonable doubt,” viz.: that “The evidence should be so clear and conclusive as to-satisfy their minds to amoral certainty that the accused is guilty of the crime-charged, and'that he erred in charging the jury. A reasonable doubt, gentlemen, is not a mere possible doubt; it should bo actual or substantial doubt. It is such a doubt as a reasonable man could seriously entertain, it is a serious, sensible doubt, such as you could give a good reason for. It is not sufficient you should believe his guilt only probable. In fact no degree of probability merely will authorize a conviction, but the evidence must be of such a character and tendency as to produce a moral certainty of the prisoner’s guilt to the exclusion of reasonable doubt. The evidence should be such as to satisfy your minds to a certainty beyond a reasonable doubt that the accused is guilty of the crime charged, otherwise you should acquit.”
    That the said charge is vague, uncertain, indefinite, and left the jury to infer-that if they seriously believed the defendant guilty, they should convict. People vs. Kerry, 24 Pac. Rop. 33; The Webster Case, 190; 5 Cush. 319, 320; Bishop Crim. Prac., Vol 1, Sec. 1052; Winter vs. State, 20 Ala. 39; People vs. Bemmerly, Cal., 25 Pac. Rep. 266; People vs. Wohlfrom, Cal., 26 Pac. Rep. 236.
    The accused, being entitled to the benefit of a reasonable doubt, had the right to have it fully defined and clearly explained to the jury.
    That the trial judge erred in refusing to receive evidence on the motion of a new trial, and to have the, same reduced to writing, or to make a statement of tlie remarks used by tlie District Attorney in liis opening and closing arguments to tlie jury. State vs. Seiley, 41 n. 146; State vs. Hyland, 86 An. 88; State vs. Anderson, 42 An. 590.
    •5. Where tlie District-Attorney in liis argument appeals to tlie prejudices of tlie jury, or declares his personal belief that the defendant is guilty, it is such misconduct as will warrant a new trial. Moss vs. Sanger, Tex., 12 S. W. Rep., 608; Hardy vs. State, Tex., 18 S. W. Rep. 1008; Washington vs. State, Ga., 13 S. K. Rep. 131; People vs. Hess, Micli., 48 X. W. Rep. —; Raggio vs. People, 111., 26 X. li.Rep. —; Railroad vs. Randall, Ga., 11 S. E. Rep. 706; Brown vs. Swineforth, 44 Wis. 282, 293; Berry vs. State, 10 Ga. 511, 522; Mitelium vs. State, 11 Ga. 615; Vorsyth vs Cothran, 61 Ga. 278; Thompson on Jury Trials, Yol. 1., Secs. 963, 963.
   The opinion of the court was delivered by

Watkins, J.

The defendant was indicted for murder, convicted • ■of manslaughter, and sentenced to imprisonment in the State penitentiary for seven years, ana prosecutes this appeal therefrom on the ■several grounds enumerated in the record.

I.

The first question presented for consideration is whether the trial judge erroneously excluded evidence offered for the purpose of showing that the deceased beat the defendant on the head‘with a large, heavy club, causing the blood to flow freely; and that this occurred •on the evening antecedent to the homicide — this testimony being •offered for the purpose “ of establishing the status of the accused as .acting in his own right;’’ and of showing “that at the time of the homicide he acted under the belief that he was in danger of death or grevious bodily harm, and that he had reasonable grounds for such belief.”

Counsel states in his printed argument that he did not offer this evidence for the purpose of justification in killing the deceased, but that it was offered for the purpose of establishing “the status of the accused as acting in his own right; and that, at the moment of. killing, he had reasonable grounds to believe, and did believe, he was in danger of death, or of grevious bodily harm.”

This, in onr opinion, is a distinction without a difference, for the only ground upon which such evidence could be admissible is that it justified the homicidal act; and it.is a well-established rule that, in ■order that such testimony should be admissible, there must be satisfactory proof of an actual physical attack, or hostile demonstration made by the deceased at the time of the homicide. For, if such were not the case, the accused could not reasonably believe he was in imminent danger of death or of great bodily harm.

If there were a question as to whether the attack was made by the deceased or the accused in the fatal encounter, it wopld be competent to show, by prior declarations of either party, that the attack was the one he intended to make. It is likewise permissible to prove antecedent acts and declarations for the purpose of showing the quo< animo, or of rebutting the charge of malice. Wharton on Homicide,. 694 and 695.

Rut in this case it clearly appears that the accused was the attacking party, armed for the fray, and that he actually killed the-deceased while he was making an effort to arm himself for his. defense. This being the situation of the parties, the proffered evidence of the attack made by the deceased on the defendant upon the evening previous was not competent. It constituted no part of the res gestee. Instead of mitigating the crime, it would have had rather a tendency to aggravate it.

II.

• The second' question in the case is whether the judge properly charged the jury on the question of a reasonable doubt.

Defendant’s counsel requested the court to charge the jury as follows, viz.:

“ The accused is presumed to be innocent until he is proved to be guilty beyond a reasonable doubt. A reasonable doubt is not a mere-possible doubt; it should be an actual and substantial doubt, not-mere possibility or speculation. The evidence should be so clear- and conclusive as to satisfy your minds to a moral certainty that the accused is guilty of the crime charged, otherwise you should acquit.”

The court refused to give this charge as requested, but instead thereof charged the jury:

‘ ‘ It is incumbent on the State to prove the offence charged, or legally included in the indictment, to your satisfaction, beyond a reasonable doubt, and before you can convict the accused you must be satisfied from the evidence that he is guilty beyond a reasonable doubt.
A reasonable doubt, gentlemen, is not a mere possible doubt; it should be an actual or substantial doubt. It is such.a doubt as a reasonable man would seriously entertain. It is a serious, sensible doubt, such as you could give a good reason for. It is not sufficient-you should believe his guilt only probable. In fact, no degree of probability merely will authorize a conviction, but the evidence-must be of such a character and tendency as to produce a moral, certainty of the prisoner’s guilt, to the exclusion of reasonable-doubt. The evidence should be such as to satisfy your minds to a certainty, beyond a reasonable doubt, that the accused is guilty of the crime charged, otherwise you should acquit.”

The court adds: “ The court charged verbatim, all except the last sentence, and refused that on the ground that, in the written charge-in the record, it had already charged the jury fully upon reasonable-doubt, and substantially and almost in the same words of the saidl last sentence of said requested charge.”

In our opinion, the charge given by the judge was clear, concise,, and exactly in keeping with the law on the subject. In the main, it follows the language contained in the defendant’s requested special, charge, and we can not discover any well-grounded objection to it.. On the contrary, it meets our unqualified approval.

III.

The third question in the case is in reference to certain remarks-, made by the District Attorney, in the course of his argument before the jury, and to which defendant’s counsel excepted and reserved a bill of exceptions.

The remark objected to was, that “ if jurors do not convict people who have been so clearly shown to be guilty as this defendant has been in this case, you might-as well tear down the courthouse:”

This statement is a strong one, and one possibly unauthorized by the evidence; but we are not prepared to say the judge erred in not directing the District Attorney to withdraw it, or in not instructing the jury to disregard it altogether. The jury are the sole and exclusive judges of the facts given in evidence, and upon that evidence they must determine the guilt or innocence of the accused.

The judge is prohibited from charging the jury on the facts in evidence.

Had he denied the correctness of the statement of the District Attorney, he might have been understood by the jury as expressing-an opinion on the facts of the case favorable to the accused, as that ■of the District Attorney was unfavorable to him, and in thus attempting to correct one error, committed another one.

In State vs. Garig, 43 An. 365, we gave full and exhaustive consideration to a similar question, and, after making a collation of per’tinent authority, said:

“So, in this case, had the judge acceded to the wishes of the prisoner’s counsel and permitted him to have made an explanation to the jury in reference to the questioned statement of the District Attorney, they might have received the impression that the judge ■conceded its correctness and allowed such impression to have influenced their verdict.”

As we had occasion to say in State vs. Duck, 35 An. 704, “this ■court can not and will not interfere with district judges in the manner of controlling their courts, or enforcing rules of propriety and ■decorum on the officers of court;” so we repeat here.

We think the district judges can be safely intrusted with the proper control an,d management of their courts, and the conduct of business therein. In the present instance we can not say that the judge erroneously exercised his discretion.

The fourth ground of objection is that, on application for a new trial, the defendant’s counsel was not permitted to prove that the District Attorney had made, during the course of his argument, certain other prejudicial statements. The District Judge assigns as his reason for rejecting the evidence that the defendant’s counsel urged no objection to such statements at the time they were made, and reserved no bill of exceptions; and, consequently, same could furnish no ground for a new trial. In this ruling the judge did not err. If the defendant’s counsel made no objection, and retained no exception, at the time such objected statement was made, we can not perceive with what propriety same can be assigned as relievable •error in an application for a new trial.

This question does not come within the principle announced in State vs. Searley, 41 An. 146. That case relates to a question of the admissibility of certain alleged dying declarations in evidence; •and in aid of the court in determining that question it was held that the accused had the right to have the testimony reduced to writing ■and annexed to a bill of exceptions. Here the question is whether ■an isolated and independent fact, altogether disconnected from the ■evidence, and to the accomplishment of which no objection was ■urged at the time, can be proven in support of an application for a new trial. There is no similitude between the two cases.

There is no doubt of the fact that the strong and impassioned appeals •of prosecuting'officers often exercise strong influence over the minds •of jurors, but it is the duty of the presiding judge to correct any such impression as they may make, by -a concise and emphatic charge, to which all right-minded jurors will listen, and act accordingly.

We think the judgment should be affirmed, and it is so ordered.


author: Renner, J.

text:
    No. 308.
    The State of Louisiana vs. Humphrey Spillman.
    11. Tlic refusal of a continuance on tlie ground of an absent witness will not be interfered with when the testimony does not touch the issue of guilt or innocence, but only goes to impeach the testimony of an expected witness for the State, who has not testified, may not testify, and, if testifying, may admit the facts charged against him.
    :2. The exclusion of testimony entirely foreign to the issues of the case and offered to show the animus of opposing witnesses, will not be held as impairing the proceedings when the possibility of injury therefrom is remote and insignificant.

      Hicks, J. PPEAL from the First District Court, Parish of Caddo.

      J. Henry Shepherd, District Attorney for the State, Appellee:
    . 7íes gestae aro events speaking -for .themselves through the instinctive words and acts of participants; what is said or done by participants under the immediate spur of the transaction. Rest.on Evidence, See. 195; Wharton’s Homicide, Sees. "¿62 anil 268.
    What occurs after the principal aot is complete and an opportunity for fabricating an explanation has set in, is -no more a part of the res gestae, although it occurs within a very few moments after the act, than is a declaration made several days afterwards. Woods’ Practice Ev., Sec. 151.
    .rt is not error to refuse a continuance asked for because of tlic absence of witnesses, when tlic facts they could prove are immaterial and would not have constituted a defence. State vs. IJugel, 27 An. 373.

      .J. W. Jones for Defendant and Appellant.
   The opinion of the court was -delivered by

Renner, J.

The appeal stands on'two bills of exceptions.

'The first is taken to the refusal of .the judge to grant a continuance grounded on the absence of a witness, by whom the affidavit of defendant states “he expects to prove and can prove that the witness, Y. I. Dowden, said to him at different times that he would compromise the suit and not appear and prosecute the same if he would pay him fifteen dollars;' that he was the prosecutor in the case, and that he was mad at the time he made the arrest, and that if he would pay him fifteen dollars he would not appear before the grand jury to prosecute the case.”

The indictment was for larceny. It is manifest that such evidence does not bear on the material question of defendant’s guilt or innocence. The utmost effect it could have would be to impeach the testimony of the State witness referred to. The same facts, if true, might have been proved by that witness himself. If questioned, he may have admitted them, which would have rendered the testimony of the absent witness superfluous. The record does not advise us whether the State witness referred to was questioned on the point and what his answers were. We can not interfere with the large discretion vested in the trial judge in refusing a continuance on such a ground, where the evidence of the absent witness does not touch the question of guilt or innocence, but only tends to impeach the testimony of another witness who had not yet testified, might never testify, or, if testifying, might admit the facts charged. If injury did result to defendant from the absence of his witness, it might have been made to appear on a motion for new trial.

The second exception arraigns the exclusion by the judge of evidence of a witness, to the effect that he was arrested by two of the State witnesses while on the road in charge of a loaded wagon and team, and that they refused to allow him time to provide for the wagon and team, but brought him away leaving them standing on the road. The evidence was offered to show the animus of the witnesses and to weaken the effect of their evidence. The testimony is utterly foreign to the issues of the case, and the possibility of injury from its exclusion is too remote to demand consideration. People who arrest a man for stealing their property are not usually animated by very kind feelings toward him.

Judgment affirmed.


text:
    No. 309.
    The State of Louisiana vs. George Oliver.
    1. 'When the question is one of a previous threat having been made by the accused against the deceased, it is perfectly competent for an isolated and complete sentence containing a threat to he given to the jury in evidence, notwithstanding the witness did not hear, and could not relate, the whole of the conversation on other subjects in the same conversation.
    2. It is not competent for proof to he made of the purport and effect of the testimony of absentees from the State who were present and testified on a former trial.
    A PPEAL from the Second District Court, Parish of Webster. lx Booney J.

      J, Henry Shepherd, District Attorney, and Drew & Stewart for the State, Appellee;
    1. It is competent for the State, on a trial for murder, to prove prior threats on the part of the accused against the deceased. Prior threats by defendant against the deceased are relevant. Bishop, Cr. Pr., 2, 629; State vs. Birdwell, 86 An. 829
    2. Recent threats on part of accused are always admissible to show malice, and they give rise to presumption of law as to guilt. State vs. Edwards, 84 An. 1012, with numerous authorities there cited.
    3. Evidence of what witness testified to at a previous trial between the State and accused is an exception to the general rule of the common law, ancient or modern, and must be confined to cases in which a proper foundation has been laid by proof of due diligence to secure the witness, and then only in cases in which the witnesses are shown to have died, became insane, or are prevented from attendance by the adverse party. Stephens’ Digest of Evidence with notes by May, Art. 32, pp. 79 and 80; Bishop Cr. Pr., Yol. 1,1194,1195; 36 An 923; State vs. Riley, 42 An. 994.
    4. Motions for new trials on the ground that the verdict is contrary to the law and the evidence, are not entitled to any notice by the Supreme Court. 33 An. 810; 35 An. 901; 38 An. 301; 89 An. 671.

      Watkins & Watkins for Defendant and Appellant:
    1. It is a well settled proposition of law that a confession or a dying declaration ] can not be admitted in evidence unless the whole declaration is given; one part may explain or qualify another. 3 An. 359; 29 An. 514;-Whart. Or. Ev. 688; Bishop, Cr. Pr. 1241; 1 Greenleaf Ev. 218; 11 An. 49; 30 An. 536; 26 An. 622; 1 Green-leaf Ev. 200,201; 28 An. 653; 18 An. 45; 1 Greenleaf, 159; Bishop Cr. Pr. 1213; Wh art Cr. Ev. 299; 26 An. 582; 32 An. 1086. The same rule of law applies equally to threats made by the accused.
    2. If it is shown on the trial of a criminal case that a witness, whose evidence has been talcen down in writing on the preliminary trial of the same case, is absent from the State, or is dead, or can not be found, the testimony had on the previous proceeding can be used in evidence either for or against the accused 41 Ail. 1070; 37 An. 6S6; 34 An. 523; 28 An. 105; 42 An., State vs. lialey, 005; 33 An. 1332, State vs. McXeil; 34 An. 0, 523, 1037 and 1088.
    3. If the absent witness gave testimony in a former trial where there resulted a mistrial, and no evidence was taken down, witnesses may be called to testify what the absent witness’ previous testimony was, if the substance of it can be ' given by them. 23 An. 347, State vs. Cook; ISisbop, Or. I’r. 1105,1106,1100; AVhart Or. Kv. 231; 1 Greenleaf, 163 to 168.
    4. A continuance will not be granted in a case because of the absence of a material witness, if it appears from the returns of the sheriff that the witness is absent from the State; nor will an attachment issue for such a witness under the case stated where service has not been made at all on him. 34 An. 1037; 14 An;708.
   (The opinion of the court was delivered by

Watkins, J.

The defendant is appellant from a conviction of the crime of murder without capital punishment, and a sentence to lifetime imprisonment in the State penitentiary, relying on three bills of exception.

L

The first bill of exceptions relates to the alleged illegal reception on the part of the prosecution of proof of previous threats made by the accused against the deceased.

The judge states that the witness said he heard the beginning of the conversation and could repeat the substance of it; that he said that he left the parties standing together, but did not know what they said after he left them; that he further said “that Maria Roan walked up to where the accused and others were standing and asked: ‘ Have you heard the lies George Sikes (deceased) told on his wife?’ Defendant said yes, and if he owned it to him to-day £ I’ll shoot the top of his head off.’ ”

The objection urged by defendant’s counsel was, that the witness was not able to repeat the entire conversation, and that it was not competent for the court to admit an isolated phrase or part of a conversation; that the accused was entitled to have the whole of it, or to have the whole excluded from the jury.

The objection is grounded on a general and well-recognioed rule of evidence, but we are of opinion that the language quoted by the judge, as the testimony of the witness, constitutes a distinct threat which was admissible, and that was the sole object of the District Attorney introducing the evidence. It may be true that much more may have been said in the course of the conversation between the accused and the persons mentioned by Maria Roan- upon different topics, which she did not hear. That is immaterial. But if more was said on the same subject, it was the duty of defendant’s counsel to have introduced those other persons and proved that fact and not left it open to inference. We regard the testimony competent.

II.

The second bill relates to the rejection of parol proof of the purport and substance of the testimony of certain absent witness, who, since the former trial of this cause, have permanently removed from the State.

The objection urged to the competency of the proffered testimony is that it is hearsay evidence. While it is true that Greenleaf lays down the general proposition that the testimony of deceased persons given in a former trial, between the same parties, may be proven by other persons who were present, and who may testify - from their recollection of what it was; and that the same author says, 1 ‘ it is also receivable, if the witness, though not dead, is out of the jurisdiction of the court, or can not be found after diligent search, or is insane, or sick and unable to testify,” etc. (1 Gif., See. 168) ; and that “ in all cases when the party has, without fault or concurrence, irrevocably lost power of producing the witness again, whether from physical or legal causes, he may .offer the secondary evidence of what he testified in the former trial.” Id., Sec. 168. Yet this rule — possibly, a ferfectly safe one in civil cases — can not with propriety, in our opinion, be extended to criminal trials. We are aware of no case in our jurisprudence in which this has been done.

Mr. Bishop, after discussing the question very exhaustively, and citing a number of English cases and precedents, says:

“This principle applies, not only to these formal depositions, but likewise to the evidence of what a witness testified to orally at a previous trial. It moreover prevails, not only in civil cases, but in criminal; and,.in general, in the United States as well as in England, * * * But the admission of the evidence is limited, or nearly so, to the ease in which the witness is deceased; and in this case, it is the general American doctrine to receive equally the deposition taken, as before mentioned, and evidence of the formal oral testimony. * * * But when the witness is * * * merely in another State, or otherwise beyond the power of the court, this is not sufficient.” 1 Bishop, Crim. Prac., Sec. 1098, 2d Ed.; Ibid, Secs. 1149 and 1195, 3d Ed.

We think this is the safe and conservative doctrine, and, while operating injuriously in exceptional cases, it will operate as a mutual safeguard to the State and accused persons generally. But it is proper to observe that this expression of opinion is limited to the sole question of the reproduction, by this means, of the parol evidence of absentees, and,'on this ground, we approve of the judge’s ruling as correct.

III.

The third bill of exceptions relates to the judge’s declination of the motion of the defendant for a new trial.

As it relates exclusively to the sufficiency of the evidence to justify the verdict, the allowance vel non by the district judge of a new trial is a question that is addressed to his sound legal discretion, and with which this court can not deal.

Judgment affirmed.


author: Breaux, J.

text:
    No. 294.
    The State of Louisiana vs. Robert West and Gabe Curtis.
    1. The judge, in his charge, may diyest the ease of all irrelevant matter found in arguments or in thepleadings.
    2. The charge objected to, whether correct or incorrect, had no bearing on the guilt or innocence of the accused, and did not prejudice him, and therefore offered no ground of relief from tile verdict and sentence.
    3. An instruction by the court, in the trial of a ease of larceny, that the issue was not whether a verdict would be a victory for or against a corporation, but whether the accused was guilty, was not a charge updn the facts. It only cautioned the jury to direct their attention to the real issue, which the line of argument might otherwise becloud.
    4. The admissibility of the statement of a witness of information received, which led to the arrest of the fugitive from justice, will not afford ground of relief, although part of the statement be hearsay.
    5. A witness who has testified in chief as to the good character of the accused, may, upon cross-examination, be examined as to a common report affecting his good character.
    APPEAL from the Eleventh District Court, Parish of Sabine. Pierson, J.

      D. C. Scarborough, District Attorney, for the State, Appellee.

      W. G. McDonald, Ponder & Sorelle and T. C. Armstrong for Defendant and Appellant:
    In charging the jury in criminal cases the judge must limit himself to giving them a knowledge of the law applicable to the case. Rev. Stat., See. 1968.
    The jury in all criminal cases shall be the judges of the law and the facts on the question of guilt or innocence, having been charged as to the laws applicable to the case by the presiding judge. Art. 168, Const. 1879.
    Under these statutes the judge should carefully avoid giving the jury any indication of liis own opinion touching the facts of the ease or the guilt or innocence of the prisoner. 11 An., State vs. John Melvin, p. 587.
    ** * * But it is requisite that whatever facts the witness may speak to, he should be confined to those lying in his knowledge, whether they be things said or •done, and should not testify from information given by others, however worthy of credit they may be. For it is found indispensable as a test of truth and to the proper administration of justice, that every living witness should, if possible, be subjected to the ordeal of a cross-examination, that it may appear what were his powers ol‘ perception, his opportunities for observation, his attentiveness in observing, the strength of his recollection, andhis disposition to speak the truth. Greonleaf, Yol. 1, p. 181.
    * * * But particular good or bad acts, or the reputation of having done them, can not be shown in proof or rebuttal of good character.* Bishop on Crim Procedure.
    * * That on a trial fora particular crime, the State can not aid the proofs against the defendant by showing him to have committed another crime; even after he has put his character at issue, this can not be done. Bishop on Crim. Procedure, Sec. 1120. * * * Yet, not even on cross-examination, can his cause be prejudiced with the jury by testimony to any irrelevant guilt. Bishop ■on Crim. Procedure, Secs. 1128,1121.
   'The opinion of the court was delivered by

Breaux, J.

The*defendants were tried upon a charge of larceny. West was convicted and Curtis acquitted.

West appeals and presents three bills of exceptions.

In the first bill he excepted to certain expressions in the court’s charge to the jury.

In the second bill he objects to certain evidence to prove flight as hearsay.

In the last bill of exception, he states that there is error in the court’s ruling in admitting a question to a witness who testified as to good character propounded on cross-examination by the District Attorney, as follows, viz.:

If it Avas not generally reported that the accused Avas an ex-convict?”

The language of the charge objected to in the first bill is:

“ Any verdict you may render will not be a victory for or against any corporation or person.”

The court states as part of the bill, “ that, in order that the line-of argument by counsel before the jury might not prejudice the jury,, or obscure the real issues, the jury were admonished that they should: determine the question of guilt or innocence, and should lay aside any prejudice that they might have against corporations or negroes;. that corporations had the same property rights as individuals; that a negro should not be convicted upon less cogent evidence than that required to convict a white man; and that the issue was not, whether-a verdict would be a victory for or against a corporation, but whether the accused stood guilty of stealing the two bales of cottoni with which they were charged.”

The charge objected to Avas not damagingly argumentative nor-such as to influence a jury to find an illegal verdict.

The comments were fair to the accused and not in the least such, as to occasion bias on the part of the jury.

They contain no reference to the evidence and do not trench on matters of fact.

The second bill discloses that a witness had testified “ that the-prisoner had not only left the whereabouts of the crime and his. home, but that he was informed that he had gone to Vanceville and, Tyler, Texas, after leaving-the scene of the crime, under an assumed, name.”

After this evidence had been written it was objected to as being’ hearsay.

Granted that the objection can nowbe heard, the evidence is competent.

The perpetrator had fled.

The witness, as explanatory of his pursuit, stated Avhat information he received at the various places, by which he was enabled to follow up and capture the accused.

The flight is made evident by the action of the accused in leaving home immediately after the crime.

The effect of the evidence and not its admissibility was a proper-subject for consideration.

The third bill of exception relates to the cross-examination by the-State of a witness for the defense, who had. testified in chief to the good character of the accused. He was asked if it was not a general report that he was an ex-convict.

The question was not propounded for the purpose of establishing a particular fact, but to test the knowledge of the witness as to what the neighbors said of the accused and to put in evidence his bad reputation.

In order to grant anew trial on the ground of the improper admission of evidence, the application must establish a ground which ■ operated to the prejudice of the accused. Stephens’ Digest of the • Law of Evidence.

The witness in answer having stated.that he only knew the prisoner as a servant, the question propounded does not vitiate the judgment.

Judgment affirmed.


author: McEnery, J.

text:
    No. 297.

    The State ex rel. J. J. Davis, Mayor of Haughton, vs. Police Jury of Bossier Parish.
    Where, in the selection of a parish seat, the Police.Jury is authorized to ascertain the result of the election, and make a mere informal statement of votes, a mandamus will not issue to compel them to take this informal statement as the true result of the election.
    This would be divesting them of a judicial discretion devolving- upon them by legislative act.
    After this informal statement, when the Police Jury compiles the vote and declares the result, it will he presumed they did their duty. The disregarding and setting aside of the informal statement is not in itself evidence of fraud. The Police Jury being authorized to declare the result of the election, it is vested with the power to investigate and to eliminate fraud, and this court, in the absence of legislative authority, has no power to review the findings of the Police Jury.
    A PPEAL from the Second District Court, Parish of Bossier. Boone, J.

      Watkins & Watkins for Relator and Appellee:
    . The parish seat of a parish can not be changed until an act of the Legislature has been passed for that purpose, and this act adopted at a special election “ by a majority of the votes of th,e parish cast at such election.” Const., Art. 230.
    2. Under this constitutional provision Act 83 of 1888 was passed, granting tile people of Bossier parish the right of hold mg a special election for the removal of their parish seat from Bellevue to one of the several designated points. By tills act it was the duty of the Police .Jury of the parish to order the election, to 2’eceive the returns and'proclaim the result of said election. Act 33 of 1888, Pecs. 2, 4, 5, 6.
    5. Under this act the duties of the Police Jury were specific and purely ministerial, giving them no discretion and conferring on them no judicial powers, and hence a mandamus proceeding may be resorted to “to compel them to fulfill the duties attached to their ofiice, or which may be legally required of them.” O. I’,, 40 An. 393. State ex rel. Patton vs. Judge; 36 An. 828; 15 An. 334; 35 An. 637; 41 An. 851, Woodruff et al. vs. Police Jury et al.; 32 An. 173 and «579, «State ex rel. Harbin vs. Secretary of «state; Dillon on Municipal Corporations, Vol. 2, pp. 8.32, 841;Oooly Const. Limitations, 623; McOrary on Elections, Secs. 151, 350, 226,229.

      4. In this act it is stated as the plain duty of thePolice ,)nvy to receive the returns of the commissioners of election and to proclaim the result. And “ if they have made the compilation and promulgation upon other returns than those prescribed by law, they must make them over again, in a way to conform strictly to the statute. The writ of mandamus lies to compel them so to do.” Quoted from .32 An. «573, State ex rel. Harbin vs. Secretary of .State; .32 An. 17.3; 40 An. .303 to .397. state cx rel. Patton vs. «Judge; 43 An., pamphlet 1, p. 95, State ex rel. Dennis et al. vs. Mayor.
    5. ('anvas^ers of election “ can not go behind the returns for any purpose.” Mc-(Tary on Elections, 227, 229, 226, 350; Am. and Eng. Ene of Law, Vol. 6, p. 310; (’ooley (’oust. Limitations, 623; 32 An. 173, 579.

      J. A. W. Lowry, District Attorney, Land & Land, Alexander & Blanchard and Joannes Smith for Respondent and Appellant:
    1. The proceedings of the Police Jury of the parish of Bossier of the date Novemher 27,1888, under Aet 33 of 1888, have been adjudged inoperative and without legal effect. lienee such proceedings are not conclusivo on the jury and can not be made the basis of a mandamus. 42 An. 968; 43 An. 125.
    2. The Police .fury having ascertained and proclaimed the result of the election held under said act, and their decision having been carried into effect by the removal of the parish seat to Benton, mandamus will not lie to undo what has been done. High, Sec. 49.

      i. All authority over said election was vested in the Police Jury by the act. The duties of the jury involved the exercise of discretion and the courts will not in - terfere with its decision. 41 An, 851; 43 An. 125; High, Sec. «57.
   The opinion of the court was delivered by

McEnery, J.

Act 88 of 1888 authorized the voters of the parish of Bossier, by election to select a parish site. The claims of the several towns to" be recognized as the parish site, under the election held in pursuance of said aet, have been frequently before this court. The facts are fulty reported in the cases of Woodruff et als. vs. Police Jury, 41 An. 851; Davis vs. Police Jury, 42 An. 968; Police Jury vs. Judge, 48 An. 125. Under the Act 33 of 1888, the Police Jury was invested with power to order the election, to appoint commissioners, to receive the returns and to ascertain and proclaim the result of the flection. The President of the Police Jury was required to issue a proclamation declaring the place which had been selected as the parish seat.

On November 27, 1888, the Police Jury made an informal statement of the vote, but no result was ascertained, as no compilation had been made, as was required by Act 33 of 1888. This was so determined in the case of Davis, Mayor, vs. Police Jury, 42 An. 968, and Police Jury vs. Judge, 43 An. 125.

The present mandamus proceeding is a sequel to the suit of Davis vs. Police Jury, above referred to.

The petition for the mandamus recites the proceedings of the Police Jury on November 27, 1888, and alleges “that the table, or a list-of voters, as returned to them and received by them, did show, as they, the said Police Jury of Bossier parish, La., declared on the 27th day of November, 1888, they ascertained to be the vote as cast at the election which was held on the 23d day of November., 1888.”

The relator further alleges that “ said table, as made by the Police Jury, t-he result of said election, was in favor of the town of Haughton, which town is legally entitled to be declared the parish seat, and it is the duty of the Police Jury of Bossier parish, under Act 33 of 1888, to compile the returns as sent in by the commissioners, as ascertained and as shown by their proceedings to be as above stated.”

The prayer of the petition is that “ the Police Jury be required to meet on or before the 24th day of November, 1890, and then and there to compile the returns of the election held on the 23d of November, 1888, as sent into them by the commissioners of election, as shown by their proceedings of November 27, 1888, to be as stated in the above petition, and to proclaim the result as that compiled.”

There were exceptions filed to the jurisdiction, and no cause of action. These were referred to the merits.

In the case of Davis vs. Police Jury of Bossier, we held that the pretended .compilation of the vote of the parish of Bossier cast for the selection of a parish seat was barren of results. ‘ ‘ The statement of the vote was informal. No result was declared or proclaimed by any order on the vote of the Police Jury.” 42 An. 968.

And again, in Police Jury vs. Judge, 43 An. 125, in referring to that case, we said that “ said proceedings ” (viewing the statement of votes) “were inoperative, and did not constitute an ascertainment or proclamation of the vote.” 4

We are, therefore, asked to divest the Police Jury of that discretion vested in them by Act 33 of 1888, and to compel them to declare the result of the election from a designated statement of votes, in no way authentic, so far as the record discloses. This case, in its present aspect, is similar, to that of Woodruff et a vs. Police Jury, 41 An., where the Police Jury, it was declared, had ascertained and promulgated the result of the election in favor of the town of Haughton. The town of Benton proceeded, by mandamus, and asked that the true result of the election be ascertained by going behind the returns, and eliminating the alleged frauds from them.

We said, in this case, that “ the court is not asked, in this case, to .compel officers to discharge ministerial duties. It was asked to take from them duties involving discretion, to discharge these duties itself, and to compel them to make formal declaration of its result.”

So, in this case, the relator, taking the informal statement of votes made by the Police Jury, on the 27th November, 1888, as the actual returns of the election, asks this court to compel the Police Jury of Bossier to treat them as the true and actual statement of votes, and to declare the result, as ascertained by their compilation, thus depriving the Police Jury of that quasi judicial discretion vested in them by the Act 33 of 1888.

The Police Jury of Bossier, however, has ascertained and declared the result of the election. The town of Benton, under the election b3’ virtue of said Act 33 of 1888, is declared to be the parish seat. That they disregarded the informal statement of votes on November 27, 1888, is no evidence of fraud. In the absence of evidence of fraud, we must presume that the Police Jury of Bossier did its duty. They were authorized to declare the result; they had a judicial power of investigation to ascertain it, and to eliminate fraudulent votes from the returns. In the exercise of this power, we have no authority to review their finding. The Legislature invested them with it, and it belongs to the political power of the government to rectify the wrong, if any has been inflicted upon the town of Haughton or the inhabitants of Bossier.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled and reversed; and it is now ordered that the relief prayed for by relator be denied, and the mandamus pro-eeeding be dismissed, with costs.


text:
    No. 298.
    S. J. Zeigler vs. A. R. Thompson, Tax Collector.
    ■ Act 33 of 1879 constituted Bossier parish a sub-levee district and authorized the Police Jury to discharge the duties of levee commissioners.
    Under this authority it levied a tax of ten mills for the erection and repairs of levees.

      Held, that this power was withdrawn from the Police Jury by the adoption of the Constitution of 1879, and has never been restored to it, with the exception of the power to repair and protect completed levees.
    'That Art. 214 of the Constitution did not authorize the Police Jury of Bossier to levy-the tax, as the Police Jury could not act as a Board of Levee Commissioners.
    A PPEAL from the Second District Court, Parish of Bossier. .t\ Boone, J.

      Land & Land for Plaintiff and Appellant:
    .1. All powers of levee taxation vested in Police Juries by Act 88 of 1879 were abrogated by the Constitution of 1879.
    2./ Article 211 of the Constitution vests in I^evee Commissioners, to bo appointed or elected, the supervision of the erection, repairs and maintenance of public levees, and the power to levy taxes for that purpose. Since the adoption of that Constitution the power of Police Juries has been restricted to police supervision of completed public levees.
    • 8. Police Jurors are not levee commissioners, appointed or elected as such, and sub-districts are not levee districts. The restrictions on the taxing power of Police Juries, contained in the Constitution, can not be annulled by calling or styling them Boards of Levee Commissioners.

      J. A. W. Lowry, District Attorney, for Defendant and Appellee:
    The Police Juries of the various sub-levee districts constitute Boards of Levee Commissioners in and for their respective parishes, and are vested with the same duties and powers, within the limits of their parishes, that pertain to the Boards of Levee Commissioners in the general levee districts of the State, and, for levee purposes, have power to levy a tax of ten mills on all the real estate and taxable property within the alluvial portions of their respective parishes, without regard to the general tax levy authorized for ordinary parochial purposes,' and without submitting same to a vote. Act 88 of 1879, Article 214, State Constitution, 'svith amendment; Act S of 1888; Charnoek vs. Levee Company, 38 An. 323; Planting and Manufacturing Company vs. Tax Collector 39 An. 435; Munson ot als. vs. Board of Commissioners, 48 An. 13; Minor amt Cage (consolidated) vs. Sheriff, 48 An. 837.
   The opinion of the court was delivered by

McEnery, J.

Act No. 33 of 1879 established certain levee districts in the State. The parish of Bossier was not put in any district, but the act provided that it should be a sub - district, and that the Police Jury should discharge the duties incumbent upon the levee commissioners in the districts established by the act.

The Police Juries in the several districts were charged with the care and the preservation of completed levees.

Under the act, 33 of 1879, the Police Jury of Bossier parish levied a tax of ten mills, for the year 1890, on the property situated in the alluvial portion of said parish, to construct and repair levees.

Real and personal property, owned by the plaintiff, was assessed and advertised for sale, to enforce the collection of said tax.

He enjoined the sale of his property, on the ground that the tax was illegal and unconstitutional, violating Articles 209 and 214 of the Constitution of 1879.

Under Act 33 of 1879, police juries had no power to build levees. They were only intrusted with the care and the preservation of levees constructed by the State and turned over to them. A fair construction of the act, conferring upon the Police Jury of Bossier the duties of levee commissioners, would confine their duties to the care and preservation of completed levees.

In the case of Surget vs. Ohase, Tax Collector, 33 An. 838, we said: “ Previous to the legislation contained in Act No. 20 of 1866, and Act 115 of 1867, the police juries in this State were vested with all powers touching public levees. But from that time to the date-of the adoption of the Constitution of 1879, their power was absolutely withdrawn from them, and was never restored to them, with the exception of the power to repair and protect completed levees. No greater powers on the subject are conferred by Act 88 of 1880.

And in the same case we said “that any legislation which would have attempted to confer on police juries the power to build public levees and to levy special taxes for the costs of building levees, would be glaringly unconstitutional, and could not be enforced by the courts unless the authority be found in Article 209 or Article 242, on which we express no opinion now.”

It is necessary that police juries exercising the taxing powerhould point to some authority to justify them in" so doing. This levy is a special tax of 10 mills, under Article 214 of the Constitution of the State. This article authorizes the commissioners of the levee districts to levy that tax. It does not give the power to police juries. Police juries are subordinate political corporations of the State. Their duties and powers are specially limited by the Constitution of 1819, and their powers can not be enlarged beyond the • limitations therein expressed. They can not be made levee commissioners, because it would destroy their organization as police-juries, and be conferring upon them a dual capacity totally in violation of the spirit, if not the text, of the Constitution.

It was contemplated by Article 214 of the Constitution that levee districts should be distinct corporations, with special powers, entirely separate from the political coporations of the State. They are - administered by commissioners, who have the power alone to levy the district levee tax, and who alone have the authority to build levees under legislative sanction. We do not intimate that the • levee districts have such control of the levees as to exclude the paramount control of the State, nor do we intimate that the Legislature can not make one parish a levee district, under Article 214 of the Constitution.

We therefore conclude that the Police Jury had no legal mandate to levy this tax, and that all its proceedings in attempting to levy and collect the same were without legal authority, clearly unconstitutional, null and void.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed; and it is ■ now ordered that the ordinance of the Police Jury of Bossier parish, levying a special tax on the property situated in the alluvial portion of said parish, be declared unconstitutional, null and void, and that the defendantTax Collector be perpetually enjoined from collecting said tax, and that he be condemned to pay the costs of both courts,.


text:
    No. 301.
    D. W. Pratt, Tax Collector, vs. J. J. Holmes.
    In the absence in the pleadings, when the amount is less than $2000, of any suggestion as to the legality or constitutionality of a tax, the appeal will be dismissed.
    APPEAL from the Second District Court, Parish of Webster. Boone, J.

      Watkins & Watkins for Plaintiff and Appellee.

      Drew & Stewart tor Defendant and Appellant.
   The opinion of the court was delivered bv

McEnery, J.

The defendant is sued for a license tax for carrying on the occupation of broker. He answers, denying that he con- • ducts a brokerage business.

There is no issue, suggested by the pleadings, in any way involving the legality or constitutionality of the tax. There is only a question ■ of fact at issue, whether or not the defendant' conducts and carries on the business for which the license is demanded. Art. 81 of the Constitution, as amended. Breazeale et al. vs. Wyoming Frank, 43 An. 225.

The amount involved is less than $2000.

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


text:
    No. 299.
    A. Lattier et al. vs. W. M. Abney, President Police Jury, et. als.
    A writ of injunction having issued, the defendant filed, a motion to dissolve it on bond.
    It being evident that the apprehended injury is compensable in money, and not irreparable, the application is granted, and the court a qua directed to accept bond and security dissolving the injunction.
    APPEAL from the Second District Court, Parish of Bossier. Boone, J.

      Watkins & Watkins for Plaintiffs and Appellees.

      J. A. W. Lowry, District Attorney, and Laud & Laud and Joannes Smith for Defendants and Appellants:
    1. An appeal will lie from an order refusing to dissolve an injunction on bond. 32 An. 394; 38 An. 50.
    2. An injury is not irreparable when it can be made good or repaired by money. The sworn allegation of plaintiff in injunction to tile contrary is not conclusive. 32 An. 1192; 33 An. 930; 37 An. 110.
    3. Order of dissolution is proper when the injury is compensable by money, and the bond covers the sum fixed by the plaintiff as damages. 36 An. 772.
    4. Right of Police Jury to dissolve on bond is tlie same as any other litigant, and has been recognized. 32 An. 1192. Any person bound by law or a judgment may execute a legal or judicial bond. C. C. 3064.
   The opinion of the court was delivered by

Breaux, J.

Plaintiffs allege that they are taxpayers of Bossier parish, in which they reside and own property, and as such have a ■common interest exceeding $2000 in preventing the illegal expenditure by the Police Jury of the money of the parish in building a jail.

They also aver that the town of Benton is not the parish site of Bossier parish, but is the temporary place for holding courts pending a litigation to determine where the parish site shall be, and that provision has been made for the safekeeping of prisoners during the pendency of the suit.

They also allege that, under Act 33 of 1888, an election was held to determine the location of the parish seat, but that the Police Jury has failed to make legal compilation of the returns and to promul.gate the result. They allege that the proceedings of the Police Jury favoring the recognition of Benton as the parish site are illegal and null, and they supplement the issues presented by a statement of the facts involved in the mandamus suit of Davis, Mayor, vs. Police Jury, decided diming the present term of this court. They enjoined the Police Jury and the Pauly Jail Building and Manufacturing Company from entering into, executing, or carrying out a contract for the construction of a jail at Benton to cost $7580.

The defendants admit that the Police Jury has made a contract for the construction of a jail, as alleged. They allege that Benton is the parish seat.

The District Judge granted the order for writs of injunction to issue as prayed for.

The defendants filed a motion to dissolve the injunction on bond.

An order was entered refusing motion to bond.

Defendants appealed.

Plaintiffs move to dismiss the appeal on the grounds that the order of refusal to permit the defendant to bond was not signed, and that it will not cause irreparable injury.

It is not needful that interlocutory judgments be signed to be appealed from when they cause irreparable injury. Klotz vs. Macready, 35 An. 596.

The court judicially notices its prior decrees and evidence in these cases pertinent to the issue in a pending case. Mower vs. Kemp, 42 An. 1007.

The decision of this court in case of Parish of Oaddo vs. Parish of Bossier, 42 An. 939, shows that the latter parish has been without a jail for six or seven years.

It is admitted in plaintiffs’ pleadings, that there is no jail in the parish at this time.

The statutes of the State make it the duty of the Police Jury to provide a jail.

Delay will occasion irreparable injury. Public order and the proper administration of justice require that a good and sufficient jail be constructed within a reasonable time.

The defendants have a right to an appeal on their petition to dis- i solve the injunction on bond.

On the merits the questions no longer present great difficulty.

Avoiding to decide the injunction on its merits, we, notwithstanding, must take notice of the fact that the parish seat of Bossier parish is definitely settled, and that the necessity of delaying the construction of a jail at Benton, on the grounds alleged by plaintiff, no longer exists.

The issue is limited to the right to bond.

The sole purpose of the injunction was to prevent the expenditure of $7580 of parish funds to build a jail at a place not definitely settled as a parish seat.

That question being decided, the injunction, can be dissolved on bond.

The allegations of plaintiffs, and all the issues, make it evident that any apprehended injury is coihpensable in money.

Plaintiffs aver that they have a common interest exceeding $2000.

A bond will protect them from all injury.

The conditions of the bond and the sureties will amply protect plaintiffs.

It is ordered, adjudged and decreed that defendants’ motion to dissolve the injunction in this ease be granted, and that the Judge of the District Court cf the Second Judicial District, in and for the parish of Bossier, accept a bond from the Police Jury and security to secure plaintiffs from injury; that this case be remanded, at plaintiffs’ costs, to be further proceeded with according to law.


author: Fenner, J.

text:
    No. 303.
    W. A. Martin vs. E. O. Walker and S. Herold.
    I. All homestead exemptions acquired -since the adoption of the Constitution of 1875) must conform to the conditions and requirements imposed by that instrument.
    2. While the Constitution x>reserved intact homestead rights acquired under prior laws before thedate of its adoption, as to future homesteads, it repealed those laws in so far as they were inconsistent with the requirements of the Constitution.
    The conditions of bona fide ownership and actual residence are essential to the creation and maintenance of any homestead exemption since the date of the Constitution, and when such conditions cease to exist the exemption falls, and this applies equally to homestead entries on the public lands of the State under Acts 21 of 1871 and (¡4 of 1888.
    4. Dennis vs. Gayle, U) An. 28(5, affirmed, holding that a judgment sustaining a claim of homestead exemption is no bar to subsequent action to subject the same property to execution, on allegation and proof that the essential conditions on which the judgment Avas based have been changed and lost. *
    APPEAL from the First District Court, Parish of Caddo. Taylor, J.

      J. Henry Shepherd for Plaintiff and Appellee:
    1. The foundation of public policy is common honesty. “ Tlio fallacy lies in siijj' posing the property to be that of the family.” The property of a debtor is the common pledge of all Iiis creditors. Nugent vs. Caruth, 32 An. Hi.

    2. The words in any event can receive not greater force than the word permanent, and to construe these words to mean forever would bo void on the ground of public policy. Supreme Court Reporter, U. S., Vol. 10, p. S16.
    3. Homestead laws are inoperative against prior debts, because such exemptions . impair the obligations of a contract by destroying the remedy. Edwards vs. Keazy, 96 U. S. 600; Martin vs. Kilpatrick, 80 An. 1214; Pool vs. Cook, 84 An. 382; Succession of Eurniss, 84 An. 1013; Kinder vs. Lyons, 8Ó An. 718; Taylor vs. Saloy, 33 An. 63.
    4. The debtor who claims must combine in him at least three conditions: he must occupy it as a residence; he must own the property, and must have a family dependent upon him for support. A judgment declaring property as his homestead, based on these conditions, will cease to have effect and become inoperative against judicial mortgages as soon as any one of these conditions cease to exist. The judicial mortgage which has been properly inscribed against the owner of property recognized as his homestead and which were dormant, become executory against the property even in the hands of a third possessor by •virtue of a sale from the original owner. Dennis vs. Gayle, 40 An. 286; Herbert vs. Mayer, 42 An. 839.
    5. It is immaterial by virtue of what law a homestead is acquired; to maintain it the three essential conditions of ownership, occupancy, and some member of his family dependent on him for support, must coexist continuously.

      Wise & Herndon for Defendants and Appellants:
    1. The action of a creditor to have a judgment recognizing a homestead in favor of his judgment debtor declared inoperative and vcMd, for the reason that the conditions which were the motives of the judgment have ceased to exist, rest on the principle that something lias happened since the rendition of the judgment which destroys the effect of the judgment. Dennis vs. Gayle et al., 40 An. 286.
    2. A judgment cannot beset aside and declared of no effect when a suit is brought for that purpose, when the same conditions exist when suit is brought; when judgment was rendered it is res ad judicata.' Burcluird vs. Parker, 24 An. 33; 32 An. 535.
    3. Prescription of one year is applicable to suits brought to have judgments declared null and void.
    4. A judgment between same parties, same causo of action and same facts, is res adjudicata, and when plead should be sustained. .Sue. of McDonogh, 24 An. 33; Burchard vs. Parker, 32 An. 535; 35 An. 553, Sewell vs. Scott. '
    5. State of Louisiana has a right under the act of Congress to dispose of its public domain.under any condition it may see proper, when the act of Congress making the grant to the State so provides. R. S. 1870, p. 569, Sec. 2.
    6. Acts No. 21,1871, and 64 of 18S8. To secure homestead to actual settlors on public lands.
   The opinion of the court was delivered by

Fenner, J.

Plaintiff is the holder of a judgment against defendant, E. O. Walker, rendered and recorded as a judicial mortgage in 1885.

In 1889 plaintiff issued a fi. fa. on his judgment, under which a tract of land belonging to Walker was seized.

Walker thereupon brought an injunction suit to restrain the sale, averring in his petition that he ichad acquired the property by homestead entry under the laws of Louisiana, as shown by his patent; that said land is now owned and occupied by him in good faith as a homestead, and he has a family, and has complied with all the requirements of law to obtain a homestead from the public domain of the State,” etc.

Issue was joined and trial had, resulting in a judgment perpetuating the injunction and decreeing the property “to be free from any incumbrance resulting from said judgment or debt or from the recordation thereof.”

Some fifteen months after the rendition of above judgment, Martin instituted the present action, in which he seeks to have the said judgment decreed to be inoperative and of no effect, on the ground that facts upon which the judgment of exemption was.based had ceased to exist, the said Walker having sold the property therein claimed as a homestead and having also removed therefrom and ceased to occupy it. The alleged purchaser, Herold, was joined as a party.

Herold filed an exception of misjoinder and of prematurity, based on the ground that, as a third possessor, he was entitled to the demand and notice required by law in the hypothecary action. This is not the hypothecary action. It does not invoke the seizure or sale of tLe property. It simply seeks to move out of the way a judgment which stands as an obstacle to any proceedings whatever for the enforcement of the creditor’s right or claim of right. If plaintiff should succeed in his present action he would still be remitted to his hypothecary action, and Herold would be entitled to all his rights as a third possessor. We agree with the District Judge, that he has no cause to complain of being made a party, and thus allowed to contest the present suit the claim in which vitally affects his interests. The plea of res adjudieata based on the former judgment was rightly overruled. The issues in the two cases are radically different. In the first, Walker claimed a homestead exemption based upon the allegations, amongst others, that he was the bona fide owner and occupant of the property claimed as his homestead; and, under that state of facts, the judgment decreed the exemption. Now Martin alleges that he has since parted with both ownership and occupancy, and the issue is whether the homestead exemption continues or has been lost. We have so recently considerecl the nature and effect of such judgments, that nothing more is necessary than to quote our former language:

“Plaintiff does not, in any manner, question the correctness of the judgment in its disposition of the issues then tendered to the court for solution, hence he does not put to issue the right of Gayle to his homestead as therein ■ recognized under the conditions and circumstances then existing. His contention is simply that the reasons on which the judgment was founded, and from which it derives its vitality, having ceased to exist, the judgment itself has become extinct, without force, or effect, or life. The issues which he now tenders had no being or existence at the time the judgment was rendered, hence they were no elements in the consideration of the cause, and, therefore, the judgment could not be res adjudícala as to his present cause of action.” Dennis vs. Gayle, 40 An. 288; Calvitt vs. Williams, 35 An. 322; Lemennier vs. McCearly, 37 An. 133.

The same authorities equally dispose of the plea of prescription against the action of nullity, and establish that this is, in no sense, an action of nullity of the former judgment.

This brings us to the issues of fact and of law.

So far as the facts are concerned, we content ourselves with the statement that the evidence in the record conclusively sustains the findings of the judge a quo, and establishes that Walker has sold the land in controversy, with a pact of redemption, and has abandoned his occupancy of, and residence on, the place.

If the homestead exemption claimed by defendant is governed by the Constitution of 1879, and the laws passed in pursuance thereof, there can not be a shadow of question that it is lost and destroyed. We can not express our view of the law more tersely7 than by quoting from a recent decision: “Under the plainest rules of construction, the debtor who claims the exemption must combine in himself four indispensable conditions:

“ (1) He must be the bona fide owner of the land; (2) he must occupy the premises as a residence; (3) he must have a family or person or persons dependent'on him for support; (4) the property must not exceed in value 82000. Numerous adjudications of this court are authority for the assertion that the absence of any one of these conditions will defeat his claim for exemption, and that to entitle him to the homestead all the conditions must coexist at the very time that the claim is propounded. Tilton vs. Yignes, 33 An. 240; Gallagher vs. Payne, 34 An. 1057; Bossier vs. Sheriff, 37 An. 263. Hence it follows, that if, subsequently to the judgment which recognizes the exemption, any one or all of the conditions which were required to justify its rendition' should cease to exist, the right to the homestead must fall.” Dennis vs. Gayle, 40 An. 290.

Defendant, however, claims that the homestead exemption claimed in this case is not governed by the Constitution of 1879, but arises under, and is governed by, the provisions of Act 21 of 1871, and Act 64 of 1888, amending and reenacting the former, whicli is entitled “An act to secure homesteads to the settlers on the public lands of the State;” and they rely on the following section contained in both acts: “ That no lands acquired under the provisions of this act shall in any event become liable ,to the satisfaction of any debt or debts contracted prior bo the issuing of the patent therefor.”

We do not find it necessary to express any opinion upon the original validity of this provision; nor on the question as to whether, upon consideration of the whole act, the exemption was to continue beyond the term of the settler’s ownership and occupancy; ñoras to the rights of patentees under the act of 1871, under patents issued prior to the Constitution of 1879. In this .case the entry, settlement and patent were all made, and the homestead acquired, after the adoption of the Constitution of 1879. We hold, with the District Judge, that this fact subjected the homestead to the provisions of that instrument, and to all the conditions imposed thereby as essential to the creation and maintenance of a valid homestead exemption. We are perfectly clear that the Constitution intended to make exclusive provision for the nature and extent of future homestead exemptions, and the conditions on which they should exist. This conclusively appears from the following clause of Article 220: “ Rights to homesteads, or exemptions under laws or contracts, or for debts existing at the time of the ' adoption of this Constitution, shall not be impaired, repealed or affected by any provision of this Constitution, or any laws passed in pursuance thereof.” It could not have been necessary thus carefully to protect rights acquired under prior homestead laws, and existing at the date of the adoption of the Constitution, if it had intended that such laws should continue operative for the future, and authorized the continued creation of homesteads, independent of the constitutional regulations. It is apparent that prior laws, in so far as they were inconsistent with the provisions of the Constitution, and as to future-homestead exemptions, were repealed. If, therefore, the acts referred to of 1871 and 1888 dispense with the conditions prescribed by the Constitution as to future homesteads, they are, to that extent, in conflict with the Constitution, and inoperative and void. If they do not dispense with those conditions, the latter must be complid with. On either hypothesis, the defendants’ case is untenable,, and the District Judge did not err in rejecting their pretensions.

Judgment affirmed.