author: McEnbry, J.

text:
    No. 279.
    Adolph Cahn vs. S. N. Ford et als. S. Levy, Jr., Intervenor.
    An intervenor must take the suit as he finds it. He can not urge matters that would go to the dismissal of the suit; nor can he complain of the mode of procedure.
    He can not substitute himself for the defendant and make defences without his consent which are personal to himself.
    Where a party holds a note as collateral security,- and delivers it to the maker to pledge to a second party, with an obligation when it shall have performed its functions, to be returned to him to protect his indebtedness, the note is not extinguished and the pledge lost. 41 An. 878.
    APPEAL from the First District Court, Parish of Caddo. Taylor, J.

      Wise & Herndon tor Plaintiff and Appellee.

      Land• & Land for Intervenor and Appellant:
    1. The amount of indebtedness secured is the measure of the creditors’ interest in the thing pledged. 40 An. 631, 667; 27. An. 561.
    2. The pledge is lost by the failure of the creditor to retain possession of the thing pledged. C. C. 3162. Two creditors can not hold possession of the thing pledged at the same time for two different debts. When the creditor holding the pledge is to be first satisfied, and in that event to return the thing pledged to the other creditor, the first is not a possessor ad hoc holding by a precarious tenure. 39 An. 5-66; 32 An. 1252 ; 38 An. 863.
    3. The plaintiff having parted with the possession of the pledged note — which remains in the possession of the second pledgee — has no right of action therein, nor can he divide the mortgage. C. C. 3282; Dan. Neg. Inst., Sec. 1192-3; Hennen’s Digest, Vol. 1, p. 222, No. 22 (e), Nos. 2-4; 12 An. 778; 12 R. 240; 10 An. 22; 13 An. 457.
    4. Creditors have a right to attack the renunciation of their debtors and to exercise their rights when they apprehend that the renunciation or abandonment is intended to defraud them. C. C. 623-4, 1021, 1071-1074, 1036, 1037, 1989, 3466; Succession of Bauin, 11R. 314. Of course a mortgage creditor may contest the existence, validity, priority or right of action of any person claiming a superior mortgage or privilege on the mortgaged premises.
    5. Farol testimony is inadmissible to show how the parties understood a written agreement, or their intent, or what was said, or conditions and stipulations beyond those expressed in the act. Hennen’s Digest, Vol. 1, pp. 534 (<?),l, 2,3 and 4; 17 Wall. 96.
   The opinion of the court was delivered by

McEnbry, J.

The facts in this case are fully stated in the case of Levy vs. Ford, 41 An. 873.

On November 4, 1889, Oahn, the plaintiff, instituted this suit against S. N. Ford, the maker of the $7000 note which figures in the suit referred to, and against fm. Winter, the pledgee and holder of the same, for the purpose of obtaining judgment for the sum of $3610.40, with 8 per cent, interest from March 1, 1888, and attorney fees.

This amount is the sum due Oahn by S. M. Ford, for which he held his note, and to secure which the $7000 note had been pledged to him. He asks for the forecloseure of the mortgage, securing this pledged note, and the sale of the property mortgaged to satisfy the same.

The defendants made no opposition to this suit. In fact they encouraged it, and the proceedings appear to be by consent.

Simon Levy, Jr., who held a special mortgage, subordinate in aank to the mortgage securing the $7000 note pledged to Oahn on the mortgaged property, obtained judgment against S. N. Ford, and the mortgaged property was advertised to be sold. Levy intervened in the present suit, alleging the above facts, and averred that the plaintiff was not the owner and holder of said note for $7000, and had no mortgage on said property, and could not institute said suit, and that, if he had any rights, he could not exercise them until the maturity of the notes held by Winter, said notes being described in suit of S. Levy, Jr., vs. Ford, No. 2962, on the docket of the District Court (41 An. 873).

He further shows that the mortgaged property is insufficient to pay his mortgaged debt and the prior $7000 mortgage held by Winter as collateral security, and that his interest is that Winter should have a preference in said $7000 mortgage note over any mortgage claim ■of plaintiff. He alleges the prematurity of the suit, and that the pledge in favor of plaintiff of said note has been lost by its surrender to Ford, who pledged it to Winter.

" During the pendency of this suit, the mortgaged property was sold under the suit of S. Levy vs Ford, and purchased by Levy.

There was- judgment in favor of the plaintiff, decreeing that he be entitled to priority over Winter out of the proceeds of the sale of the mortgaged property and rejecting the demand of the intervenor.

The intervenor only has appealed. We are, therefore, only concerned with the judgment so far as it affects him.

The intervenor as the junior mortgage creditor has an interest in attacking the prior mortgage, either to destroy it or to reduce its amount.

There is no evidence in the record to show that the amount claimed by Oahn as due to him by Ford, for which the $7000 note was given him as collateral, is not a just debt. It is unaffected by the pleadings or the evidence. The $7000 collateral note has had its status determined by this court in the suit of Levy vs. Ford, 41 An. 873.

In that suit it was decided that it was a legal and valid note, and that Ford had a right to pledge it, as it had not been extinguished when it was returned to him by the parties to whom he had previously pledged it as collateral security. The ruling in that case will apply to this, as the evidence shows that the note was not surrendered by Oahn to Ford as an extinguished obligation, or with the intention of extinguishing it. It was given to Ford for a designated purpose, which, when accomplished, should be returned to Oahn, to protect Ford’s indebtedness to him. Oahn, therefore, never parted with his interest in the collateral, to the extent of protecting Ford’s note of $3610.40 in his favor.

It would inure to the benefit and interest of the intervenor if he could enforce the contract between Oahn and Winter in relation to the pledged note, thus forcing Winter to return the'notes of Malin and Bows and Ford until they, should be paid, and restricting the functions of the collateral to protecting Oahn’s debt due by Ford, to to the amount of $3610.40. But these matters are personal to Oahn and Winter. Winter at any time has a perfect right to surrender the collateral note to Oahn, or to waive his preference and concede it to Oahn. They can cancel their obligation to each other whenever they see proper to do so.

That, by so doing, Winter endangers his own claim due him by Ford, can in no way affect the intervenor, as he was not a party to the contract of pledge and had no interest in it.

The intervenor is not a creditor seeking to attack the renunciation or abandonment of a claim by his debtor, which is intended to defraud or injure him. But he is a debtor holding a fund to pay over to creditors, whose precedence can in no way affect him.

There are legal propositions submitted by the intervenor which if urged by the defendants might prevail. The defences which have not already been determined in the suit of Levy vs. Ford, 41 An. 873, are of such a character as only the defendants can urge. The intervenor must take the suit as he finds it. He can not urge matters that would go to the dismissal of the suit, nor can he complain of the mode of procedure. He can not substitute himself for the defendant and make defences, without his consent, which are personal to himself. Clapp & Co. vs. Phelps, 14 An. 427; Harper vs. Commercial and R. R. Bank of Vicksburg, 15 An. 136; 19 An. 462; Mayer vs. Staler, 35 An. 57.

Neither of the defendants has appealed, and we therefore can not disturb the judgment. There is no alternative except to affirm the judgment appealed from.

Judgment affirmed.


source: Caselaw Access Project

author: McEnery, J.

license: Public Domain

text:
    No. 283.
    J. J. Davis, Mayor, et al., vs. Police Jury of Bossier Parish.
    There was no compilation ol the vote for the removal of the parish seat of Bossier Parish at the election held November 23, 1888, atthe session of thepolice jury November 27,1888.
    APPEAL from the Second District Court, Parish of Bossier. Boone, J.

      A. J. Murff, Watkins & Watkins and Young & Thatcher for Plaintiffs and Appellees:
    An exception to the citation is waived by appearing for the purpose of moving to. quash the writ of mandamus without first disposing of the exception. C. P.,. Art. 338.
    A motion to quash a writ of mandamus because of defective allegations, puts in issue the sufficiency of the allegations of the petition. High on Ex. liem., 369; 9th Wis. 279; State, Boggs, vs. County Court (W. Va.), 11 S. E., 72; also found in Lawyers’ General Digest for 1890, 1111.
    An injunction restraining the canvassing board from canvassing the returns and proclaiming the result is void for want of jurisdiction over the subject matter. High on Injunctions, 823; Am. and Eng. Ene. of Law, Vol. 6, 392.
    A canvassing board having once counted the votes, completed the canvass and announced the result, is functus officio. McCreryon Elections, 3d Ed., pp. 151,. 151; Am. and Eng. Enc. of Law, Vol. 6, pp. 307, 313.
    Where the law imposes upon a police jury the duty to select an exact site for the parish seat within one mile of a certain place, at a town, to which the parish seat has been removed by law, a writ of mandamus will lie to compel the police jury to act, and provide temporary court rooms and select the site within the specified limit. High on Ex. Rem., 26, 33, 293; Lawyers’ General Digest for 1889,. 1260, 1266; 11 An. 112; 31 An. 1111; 37 An. 660; 38 An. 13; 11 An. 156; 37 An. 610.

      Land & Land, J. A. W. Lowry, District Attorney, Jocwmes Smith and Atocmder Blanchard for Defendants and Appellants *
    1. The writ of mandamus must show precisely what is claimed or demanded, and set forth specifically the facts upon which it is based, and no reference can be made to the petition or affidavit in aid of the writ. High on Ex. Leg. Rem., Secs. 586,537,538, and note3 to last section; Moses on Mandamus, 206-209.
    If Article 841 of our Code of Practice sanctions a different procedure, then it is-essential that a copy of the petition should accompany the writ and be served on defendants.
    2. The minutes of the police jury, annexed to and made part of relators’ petition, do not show that the police jury ever proclaimed the result of the election as provided in Section 6 of the Acts of 1888, or authorized its president to so declare. Until this was done no duty rested on the police jury, such as the relators demand them to perform.
    The evidence does show that the police jury has, since the dissolution of the injunction, compiled the vote, ascertained that Benton received a majority, and so proclaimed result. Also, that its president, duly authorized by resolution of the jury, has issued his proclamation declaring thatBenton is the parish seat of Bossier parish.
    3. The writ of mandamus can only be invoked to compel the performance of a duty purely ministerial in its nature, and so clear and specific as to leave no' element of discretion in its performance. High’s Ex. Leg. Rein., Sec. 24; State ex rel. Daboval vs. Police Jury, 89 An. 759, and numerous authorities therein cited.
    4. If the writ issues for something which defendant is not bound to do under the-law, it can not be supported, even as to those things which he is compelable to perform, and the whole writ will he quashed. I-Iigh’s Ex. Leg. Rem., Sec. 539;. Moses on Mandamus, 207.
    Act No. 33 of 1888 does not require the police jury to provide a temporary court house at the chosen parish seat. Neither does'Section 2746 of the Revised Statutes impose any such duty upon them, and no good reason can he shown why the police jury should not use and occupy, free of cost to the parish, the old! court house at Bellevue, temporarily, ufitil a new one can be provided for and! built at the proper site.
    6. Under no reasonable view of this ease could the police jury be compelled to air once provide and furnish a temporary courthouse at Houghton. They certainly would have the right to exercise some discretion as to the selection of a suitable building, the price to he paid for rent, and to determine whether it was to the interest of the parish to rent or build such temporary structure.
    Again, the writ can not issue to compel them to do an act beyond their power- and in violation of law. This would be the effect of the writ in this case, since no provision has ever been made for the payment of rent by the police jury, and if in obedience to this writ they should enter into such a contract, it would be absolutely invalid, as expressly held by this court in Destraban vs. Police-Jury of Jefferson Parish, 31 An. 179.
   The opinion of the court was delivered by

McEnery, J.

Under the provisions of Act 33 of 1888, there were several elections to locate the parish seat of Bossier parish.

At the last and third election the contest was between the towns ©i Houghton and Benton.

.The election was held on November 23, 1888, and on the 27th of November the police jury met at the parish seat, Bellevue, for the purpose of compiling the vote and proclaiming the result. On this day, in the suit of Mobley et als. vs. Police Jury.of Bossier parish et als., an injunction was served on the police jury when in session, prohib.iting them from doing any act whatever favoring the removal of the parish seat of Bossier parish from Bellevue to any other place, or declaring same removed as the result of any election.

The proceedings of the police jury on this day were as follows:

“Bellevue, La., November 27, 1888.

“Police jury met pursuant to adjournment. Present — E. S. Dortch, president; J. A. Sewall, W. M. Abney, Henry Barnacastle, J. T. Maury, F. M. Barnett and J. W. Jeter, members.

“The minutes of last meeting read and approved. When R. E. Wyche, sheriff, appeared and served a writ of injunction on the president of this body, the sheriff and the clerk of the District Court, restraining them from doing any act in relation to the removal of the parish site of Bossier. When the returns of’the election held on November 23, 1888, were taken up, and the following vote ascertained, viz:

Houghton. Benton.

Ward 1......................................................................................... 1,215

Ward 2........................................................................................... 5 1,962

Ward 3.......................................................................................... 22 371

Ward i.................................................................................... 7 126

Ward 5, precinct 1....................................................................... 95 25

Ward 6, precinct 2...................................................................... 1,718

‘1 The sheriff then made his return on writ of injunction, when the following resolution was submitted:

“Resolved, That the irregularities and frauds committed in the election to change the parish site of Bossier parish at the election held on November 23, 1888, are such as to render it impossible to ascertain the true result, and it is, therefore, declared that no result of said election can be arrived at, and said election is without any result,

“ Be it, therefore, resolved, That another election be ordered at a time to be fixed by this jury; which was rejected, as follows:

“Yeas — J. A. Sewall, J. W. Jeter, W. M. Abney, 3.

“ Wavs — E.S. Dortch, J. F. Maury, H. Barnacastle, F. M. Barnett, 4.

“ It was then resolved that the police jury compile the returns as sent in by the commissioners.

“Yeas — Dortch, Maury, Barnett and Barnacastle, 4.

“Nays — Abner, Jeter and Sewall, 3.

“Adopted.

“ When, on motion, it was resolved that all the returns and poll books be placed in the charge of the clerk of this body.”

The rest of the day’s proceedings was taken up in the disposal of ordinary business. No further action on this day was had in relation to the compiling of the vote.

Regarding this action as final and conclusive as to the vote and the location of the parish site, which it is alleged was completed by a publication of this compilation in the parish official journal and the proclamation of the president of the police jury, also published in said journal, the relator prays for a mandamus to compel the police jury at once to provide temporary court and official rooms at the town of Houghton.

It is evident that no compilation of the vote as contemplated and required by Act 33 of 1888 was made at this day’s proceeding of the police jury. The statement of the vote was informal. No result was declared or proclaimed by any order or vote of the police jury. This is made more apparent by the resolution which followed, but Which was not adopted, ordering another election, and the other resolution which was adopted, but never carried into effect, to compile the vote. Had there been a compilation and an ascertainment of the result of the election, this resolution would have been unnecessary. That the whole matter went by default is plain from the resolution which immediately followed the above, placing the returns and poll books in the custody of the clerk.

As the vote had not been compiled, the result proclaimed by vote or order of the police jury, the publication of the statement of votes and the proclamation of the president of the police jury were without effect. This view'of the case renders it necessary to notice the several other defences of the defendant.

It is therefore ordered, adjudged and decreed that the judgment . appealed from be annulled, avoided and reversed, and it is now ordered that the relief prayed for by relator be denied and the rule •discharged at his costs.


author: Breaux, J.

text:
    No. 273.
    The State of Louisiana vs. Lawrence Parker.
    An information in which are alleged all the essential elements of another offence, is. not necessarily amenable to the objection of duplicity.
    The acts charged constitute one affair and make one offence. The minor offence is • germane to the charge and is necessarily connected with and constitute but one crime.
    Two offences may be charged in one count if they constitute one crime.
    An information for feloniously shooting with intent to. murder is not double by reason of stating that the defendant did feloniously make an assault with a dangerous weapon.
    Assault is an essential element of shooting with intent to murder.
    “ The rules*of evidence in the prosecution of crime shall be according to the com- • mon law, unless otherwise provided.” Acts of 1805.
    Where an attempt has been made by the husband to murder his wife she is a competent witness.
    om the Seventh District Court, Parish of Catahoula,

      J. Henry Shepherd, District Attorney, for the State, Appellee:
    As a general rule the inclusion in one count of two separate and distinct offences, is duplicity and fatal to an indictment, but where the acts charged, even though, of themselves each & minor oftence, a.ro germane to each other and to the main,, and taken together constitute but one affair and make one offence, it is uniformly held, in letter and spirit, to be out of this general rule, and not in fact, amenable to the charge of duplicity. 2d Vol. Bishop Orim. Pro., 191,192; State, vs. Collins, 33 An. 182; State vs. Hendricks, 38 An. 602.
    Assault is an essential element of shooting with intent to murder. Therefore in an information under Section 971, Revised Statutes, using the wording of the. statute and preceding the same by a charge of an assault with a dangerous, weapon, the pleader simply alleged an essential element of shooting with intent to murder, and the insertion of the allegation is not duplicity; it is innocent surplusage. State vs. Taylor, 35 An. 837; 38 An. 448.
    The rules of evidence in the prosecution of crimes shall he according to the common law unless otherwise provided. Acts 1805, p. 440.
    Where violence has been committed on the person of the wife by the husband, she is competent to prove such violence. Wharton’s Criminal Law, p. 360; Bishop Or. Pr., Vol. 1, Sec. 1153; Berts’ Principles of Evidence, Section 176.
    D\ Newton Thompson for the Defendant and Appellant:
    Two separate offences denounced by different statutes, even of same generic class, can not be included in the same count. 32 An. 812; 35 An. 729; Bishop Crim. Pro.
    Assault with a dangerous weapon, inflicting wounds less than mayhem, and shooting with intent to murder are denounced by Sections 798, 794 and 791, R. S., respectively. The three are independent, belong to different families, and a conviction for either of the first two would not be responsive to an indictment for the latter, 35 An. 729; 37 An. 785; 40 An. 199.

      An indictment must set forth with certainty and precision the commission or omission of every act, under the circumstances and with the particular intent necessary to constitute the offence. 83 An. 1217.
    "When the intent is an essential element of the offence, it must he distinctly averred hy a proper affirmative allegation, and not merely hy way of inference or argument. Waterman’s Grim. Digest, p. 315, Sec. 251; 33 An. 921; 36 An. 99; 20 An. 408.
    An indictment for shooting with intent to commit murder must charge the intent as well as the act of shooting to he toilful, felonious andwith malice aforethought. 36 An. 100; 38 An. 387.
   The opinion of the court was delivered by

Breaux, J.

The accused was tried on an information, and was convicted of shooting with intent to murder.

From the sentence condemning him to hard labor during twenty-one years he appeals, on the grounds that the information is bad for duplicity; that two or more distinct and substantive offences are charged in one count, viz: Assault with a dangerous weapon; wounding less than mayhem; shooting with intent to murder; that a verdict for either of the former would not be responsive to an indictment for the latter.

It is also alleged by the accused that the trial judge erred in admitting the testimony of the wife of the accused.

She was the person upon whom the offence was committed.

A correct appreciation of the charge presented is necessary; for the accused contends that he is also indicted for wounding less than mayhem, when it is evident that he is not.

The charging portion of the information sets forth that the accused, with force and arms upon one Susanna Parker, in the peace of the State then being, did feloniously make an assault with a dangerous weapon, to-wit: a pistol, and did then and there wilfully and feloniously shoot and wound her the said Susanna Parker, wilfully, feloniously and of his malice aforethought, to kill and murder her the said Susanna Parker.'

In so far as relates to the defence urged that the information contains the charge of wounding less than mayhem it at once fails, for the information does not contain that charge.

By no construction or implication can it be made to appear that wounding less than mayhem is one of the crimes for which the accused stands charged. The Words descriptive of that crime are not part of the information, and therefore it does not present an issue in the case.

Shooting with intent to murder and assault with a dangerous weapon are charged in the count.

The question remains for decision: Can they be included in one count ?

While it is generally true that two offences, even of the same collective or generic class, can not be included in one count, an exception necessarily arises when the greater offence charged includes a lesser, which occurred at the same time, and which is part of the same act and entirely germane.

Shooting with intent to murder includes an assault with a danger- ' ous weapon.

In proving the former charge, the latter must be proven.

The allegation of assault with a dangerous' weapon, whether omitted or inserted, is of no moment to the prosecution.

By inserting,-as in this case, the accused was not lead into the least error, nor his rights in any manner impaired, but, on the con - trary, he was more particularly notified of the offence for which he was tried.

The question is by no means res nova. It has some time since been decided that an information is not defective or vicious because it contains a description how the crime was committed, and for that purpose mentions á minor crime punishable' by law. State of Louisiana vs. Collins and Kinney, 33 An. 153.

It has uniformly been held that where the acts chax-ged are germane to each other and to the main charge, and constitute but one affair and one offence, that although included in one count, it is not amenable to duplicity. State of Louisiana vs. Vernon Hendricks, 38 An. 683; 1 Bish. Cr. Pr., Secs. 439, 449.

The charge of repugnancy is equally as erroneous.

There is a repetition of certain words in the information which does not vitiate it, and which could not create an instant’s confusion in answering to the charge as made. A bill of exception was taken to the admissibility of the wife’s testimony.

The injured person is the wife of the accused.

The common law authorities admit the testimony of the wife against the husband for the purpose of proving the crime committed by him on her person. The law’s purpose in excluding the testimony is to respect and protect relations of faith, reliance and confidence between the spouses.

When one attempts to destroy the other, the great necessity and importance of the exclusion no longer exist.

The rules of evidence in the prosecution of crimes shall be according to the common law, unless otherwise provided. Acts of 1805, p. 440.

Where a crime has been committed on the person of the wife, she is a competent witness.

The statute excluding the testimony of the wife or the husband for or against each other in civil cases is not a statute of exclusion of the wife’s testimony in a case of the character of the one at bar.

There being no direct enactment excluding the wife’s testimony when necessary to prove that her husband has attempted to taka her life, it was properly admitted. Wharton’s Criminal Law, p. 360; Bishop Or. Pr., Vol. 1, Sec. 1153; Berts’ Principles of Evidence, Sec. 176.

A jury has found the defendant guilty of shooting with intent to murder his wife.

The questions, of law presented on appeal are not such as would justify us in setting aside the verdict and sentence.

Judgment affirmed.


author: Fenner, j.

text:
    No. 274.
    The State of Louisiana vs. R. M. Mosely and George Anthony.
    In an indictment under Section 791 of the Revised Statutes, which charges a wilful shooting with intent to murder, the omission of the words “ with a dangerous weapon ” is no ground to quash, because the wilful shooting with such intent necessarily presupposes and implies the use of a dangerous weapon. Affirming State vs. Humphries, So An. 966.
    APPEAL from the Twelfth District Court, Parish of Grant. Cooo, J.

      J. Henry Shepherd, District Attorney, for the State, Appellant:
    1. Sec. 976, Revised Statutes, contemplates the simplification of criminal pleadings. State vs. Cook, 20 An. 145; State vs. Wolf, 34 An. 1153.
    2. Only essential substantive averments are required even in statutory crimes where it is best to follow the language of the statute, nevertheless an omission of words, the addition of which would convey no additional ideas already contained in an indictment will be sufficient. State vs. Flint, 32 An. 335; State vs. Schlessenger, 38 An. 566.

      3. In an indictment under Section 791, Revised Statutes, the charge of shooting with intent to murdernecessarily contains an assault without expressly setting it out in so many words. State vs. Hunco, 12 An. 625; State vs. Taylor, 35 An. 835. There can be no battery, no murder, no rape, no wounding, unless an assault bo first committed. State vs. Crittenden, 38 An. 448.
    4. The crucial test in a statutory offence is whether the omitted words jeopardize the defendant. The gist or gravamen of the offence denounced by Section 791 is the intention with which tile act of shooting is done, not with what weapon. 33 An. 921. “ It therefore follows that if the intent with which the fatal blow is inflicted is properly and sufficiently described in the indictment the end of the law is satisfied.” State vs. Bradford, 33 An. 922.
    5. “The common sense of prosecuting officers, judges and juries may be relied on to protect persons from imprisonment in the penitentiary for shooting' with pop guns or like innocent playthings. State vs. Cognovitch, 34 An. 529. All the ingredients of the crime, the wilful shooting, the murderous intent presuppose and imply the use of a dangerous weapon. The employment of those words in the indictment is not sacramental.” State vs. Johnson, 35 An. 966.
    6. It is not necessary in an indictment for assaulting with intent to murder, or wilfully shooting with intent to murder, to aver that the person assaulted or shot at “was in the peace of the State.” State vs. Simien, 36 An. 923; State vs. ■Cognovitch, affirmed in State vs. Smith, 38 An. 479.

      JR. J. Hunter for Defendants and Appellees.
   The opinion of the court was delivered by

Fenner, j.

The indictment is framed under Section 781 of the Revised Statutes, the language of which is: “Whoever shall shoot, stab or 'thrust any person with a dangerous weapon, with intent to commit murder, shall, on conviction, suffer imprisonment,” etc.

The indictment charges that defendants “did wilfully, maliciously and of their malice aforethought, shoot one Holstein, with the wilful, malicious and felonious intent, and of their malice aforethought, Mm, the said Holstein, then and there to murder.”

A motion was made to quash the indictment on the ground that it does not qualify the shooting as having been done “with a dangerous weapon” as expressed in the statute.

The judge a quo sustained the motion and quashed the indictment, and the State appeals.

If the ease were one of first impression, we confess it would be doubtful.

But it is impossible to discriminate this case from State vs. Humphries, 35 An. 966. In the latter the indictment was laid under Section 790 of the Revised Statutes, which denounces a like offence in identical language, with the additional circumstance that it he committed “while lying in wait, or in the perpetration or attempt to perpetrate any arson, rape, robbery or burglary.” The indictment omitted the words “with a dangerous weapon,” expressed in that section as in the one now before us, and on that ground it was claimed to be defective. But we said: “Shooting a person wilfully, while lying in wait for the victim, with intent to kill him, can not be done without a dangerous weapon. All the ingredients of the crime, the wilful'shooting, the waiting for the opportunity, the murderous intent, all presuppose and imply the use of a dangerous weapon. The use of those words in the indictment is not sacramental.”

The ground of the decision is, that the charge of wilfully shooting a person with intent to murder him necessarily implies the use of a dangerous weapon, and therefore obviates the necessity of adding those words, though expressed in the statute, .because they would convey no idea not already fully embraced by the language used. Tautology is useless, and, even if used in the statute, need not be perpetuated in the indictment. It is sufficient if the offence be described in words clearly conveying the full meaning of the statute, embodying every constituent of the offence, and sufficiently definite to apprise the accused of the charge he has to answer. State vs. Munce, 12 An. 625; State vs. Porte, 9 An. 106; State vs. Richards, 33 An. 1294; State vs. George, 34 An. 261; State vs. Samuels, 38 An. 457; State vs. Flint, 32 An. 335; State vs. Schlessinger, 38 An. 566.

We are quite satisfied that, had the offence described in Section 791 been confined to shooting, the words “with a dangerous weapon’ would have been omitted. They were used only because stabbing, thrusting, cutting and striking were also covered by the statute, which acts might have been committed with instruments not weapons,, and not in themselves dangerous.

This view is confirmed by the verbiage of the following Section 792, which punishes the offence of “wilfully shooting at” another. Of course it means shooting with a dangerous weapon, as we held in State vs. Cognavitch, 34 An. 529, saying: “The common sense of prosecuting officers, judges and juries may be relied on to protect persons from imprisonment in the penitentiary for shooting with pop guns or like innocent playthings.” But the law maker did not find it necessary to use the words “with a dangerous weapon.”

On the whole, we are content to maintain our decision in the Humphries case as applicable at least to cases in which the offence charged covers shooti/ng only, which, we think, can not be done in the manner and with the intent described in the statute, otherwise than with a dangeous weapon.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that this case be remanded to be proceeded with according to law.


author: Fenner, J.

text:
    No. 275.
    The State of Louisiana vs. R. M. Mosely and George Anthony.
    A PPEAL from the Twelfth District Court, Parish of Grant. Co co, J.

      J. Henry Shepherd, for the State, Appellant.

      R. P. Hunter for Defendants and Appellees.
   The opinion of the court was delivered by

Fenner, J.

The points involved in this case are identical with those disposed of by our decision in the case of the State vs. same defendants, No. 274 of our docket, just decided, and for the reasons there assigned—

It is adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that this case be remanded to be proceeded with according to law.


text:
    No. 281.
    The State of Louisiana vs. Calvin and Wiley Stanley.
    1. Though the offences denounced by Section 794, Revised Statutes, viz: first, inflicting a wound less than mayhem with a dangerous weapon; and second, inflicting a like wound with intent to kill, are separate and distinct offences, yet it is settled that they may be conjunctively charged in the same count of indictment without duplicity. 33 An. 1294.
    2. A verdict of guilty of one o£ said offences so charged and silent as to the ot her, operates as an acquittal of the latter, and is responsive to the indictment.

      APPEAL from the Sixteenth District Court, Parish of East Feliciana. Brame, J.

      J. Henry Shepherd, District Attorney, for the State, Appellee:
    1. nn indictment which charges that the defendants, with a dangerous weapon, and with intent to kill, did inflict a wound less than mayhem, is not had for duplicity because the statute employs the disjunctive “or” instead of “and.” 33 An. 1294.
    2. Under Section 794, Kevised Statutes, a count alleging that the defendant inflicted a wound less than mayhem with a dangerous weapon, and with intent to kill, is not double. 33 An. 1294.
    3. Where a statute makes two or more distinct acts, connected with the same transaction, indictable, although one of the acts be sullieiont to constitute the crime, the offences may be alleged cumulatively; the rule that the defendant mustnot be charged with two or more offences in any count does not apply to cumulative offences denounced in the same statute. 15 An. 498.
    4. In an indictment upon a statute which denounces two or more cumulative offences there may be alleged in a single count that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction and where the statute has or, and it will not be double, and it will be established at the trial by proof of any one of them. Bishop’s Crim. Proc., Vol. 1,486. Bishop on Statutory Crimes, Sec. 244. Several offences, distinct in kind and degree, can not be inciuded in the same count; but this rule does not apply to cumulative offences denounced in the same clause or section of a criminal statute. Such a clause may, and often does, enumerate several offences to the same act, and in such cases they may he charged cumulatively in one count. State vs. Pont, 2 An. 887; State vs. Bogan, 2 An. 838; State vs. Banton, 4 An. 32; State vs. Puller, 14 An. 668; State vs. Markham, 15 An. 498. The extract cited above from State vs. Adam et al., 31 An. 717.
    .5. If a statute makes it a crime to do this or that, mentioning several things disjunctively, the indictment may, as a general rule, embrace the whole in a single count, usingthe conjunction “and” where “or” occurs in the statute. Bishop’s Crim. Proc., Sec. 586, Vol. 1; Archhold’s Crim. Proc., 283, 298.

      W. F. Kernan an$ J. D. Wall for Defendant and Appellant:
    In all prosecutions for the violations of tlie laws of this State, the utmost strictness of pleading and construction of the provisions of thepenal statutes are required. 32 An. 565; 89 An. 906.
    1. Two distinct offences can not be charged in the same count. 35 An. 53; 89 An. 959; 37 An. 382; 31 An. 487; 30 An. 61, 311; 32 An. 812; Bishop’s Crim. Proc., Vol. 1, 2d Ed., Sec. 444-5-6; Archbold, Vol. 1,'95; 295,297, 8th Ed; Wharton, Vol. 1, Sec. 382, 7th Ed.
    2. Two offences that grow out of the same act may he incorporated in separate counts. 30 An. 61; 32 An. 812; 38An.9l; 31 An. 487; 85 An. 53; 37 An. 382.
    3. Kev. Stat., Sec. 794, denounces two separate and distinct offences. 81i. 549; 41 An. 775.
    4. Where two offences grow out of the same act and are cumulative, they may he charged, and then only, in the same count. 2 An. 837; 15 An. 498 ; 31 An. 717; 82 An. 565; B7 An. 218, 662, 779; 38 An. 458; 39 An. 214; 41 An. 775.

      5. Tliese defects are of substance, and not of form, and therefore may be urged in arrest of judgment. 10 An. 30; 32 An. 565; 40 An. 744 ; 30 An. 1242; 21 An. 442; 35 An. 565; 5 An. 327; 10 An. 229; 20 An. 147; lb., 408.
    Several offences, distinct in kind, can not be included in the same count unless cumulative and denounced in the same clause or section of a criminal statute. 32 An. 565.
   The opinion of the court was delivered by

Fenner, J.

The defendant, Wiley Stanley, was indicted on the-charge that he did “feloniously, with a dangerous weapon, namely,, a shot gun, and with intent to kill, inflict a wound lest than mayhem upon one Broaden,’.’ etc., under Section 794, Revised Statutes, which reads: “Whoever shall, with a dangerous weapon, or intent to kill, inflict a wound less than mayhem upon another person, shall, on conviction,” etc. He was found “guilty of inflicting a wound less, than mayhem with a dangerous weapon.”

He filed a motion in arrest of judgment on two grounds, viz: first, that the indictment charges two sep rate and distinct offences in one and the same count; second, that the verdict is not responsive to-the charge in the indictment.

The first ground is conclusively disposed of by our decision in State vs. Richards, 33 An. 1294, where a like objection urged on the same ground against the indictment similarly drawn under the same section of the Revised Statutes was overruled by us.

The second ground has no merit. The verdict is responsive to one-of the two distinct charges, conjunctively joined in the indictment, and its silence as to the other operates an acquittal thereof. State vs. May, 42 An. 82; Wharton’s Crim. Law, Sec. 3180.

Judgment affirmed.


author: Watkins, J.

text:
    No. 295.
    The State of Louisiana vs. Will Harris.
    Ownership o£ a particular person is not an essential ingredient oí the crime oí larceny, which is simply the felonious tailing and carrying away of the personal goods or property of another.

    APPEAL from the Second District Court, Parish of Webster. Ellis, J.

      J. Henry Shepherd, for the State, Appellee:
    1. An application for a new trial on the ground of newly discovered evidence must not only show duo diligence to obtain the testimony after its discovery, but. must also contain a showing of diligence to discover the existence of the testimony. State vs Woodworth, 28 An. 89; State vs. Crowley, 33 An. 782; State vs. Young, 34 An. 346; State ys: Decker, 35 An. 46; State vs. Sweeney, 37 An. 1.
    2. A new trial will not be granted on the ground of newly discovered evidence, when such evidence isnot likely on another trial to produce a different result on the merits. If such is the opinion of the trial judge, the Supreme Court will reverse a judgment denying a new trial. Wharton’s Or. PI. and Pr., Sec. 854;32 An. 1227; State vs. Crowley, 33 An. 44; 33 An. 898; State vs. Young, 34 An. 346; State vs. Lamothe, 37 An. 43.
    .3. In an indictment for larceny it is sufficient to allege ownership of proport stolen in the ostensible or apparent owner. State vs. Everage, 33 An. 120; State vs. Kane, 33 An. 1269.

      Watkins & Watkins for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

The accused was charged in the indictment with stealing a horse, the property of Alonzo Early. On the trial he was convicted, and his counsel made a motion for a new trial, principally on the ground that the horse was not the property of Alonzo Early, but was the property of James Crichton. This motion was denied by the judge, who assigned as his reason therefor that “ the only evidence adduced on this point was that of Alonzo Early, who swore on the trial that the horse was his;” and that while it was “sufficiently shown that * * * the legal ownership may be in Crichton, (yet) the possession and equitable ownership may be in Early,” which, in his opinion, was sufficient basis for the conviction.

The ruling of the judge was correct. The ownership in a particular person of the property stolen is not of the essence of the crime of larceny, though it is of its essence that it should be alleged and proven to have been the property of another than the accused.

In Hanks’ case, 89 An. 284, we decided that the ownership of a particular person is not an essential ingredient of the crime of larceny, which is simply the felonious taking and carrying away of the personal goods of another; and even if the owner be unknown, the offence may be properly charged and sustained.

“The essentialÍacts constituting the crime of larceny of a particular specified horse are not in any manner affected by the question whether the horse was the property of Sevrigne Duhon or Cecile .Duhon. It is sufficient if the horse was the property of another. The identity of the horse charged to have been stolen is the important thing in determining whether the offence proved is the offence charged.”

Whether the horse in question was the property of Alonzo Early or of James Crichton, it can make no difference to the accused. It was confessedly the property of another than himself.

Judgment affirmed.


text:
    No. 288.
    The State ex rel. N. H. Boyet vs. J. T. Boone, Judge.
    In this case the plaintiff in a justice court sued for $12.40 on account. The defendant before suit filed tendered $7.28, and in his answer admitted this amount as due plaintiff. The difference is $5.12. The District Court had no jurisdiction of the appeal ratione materia.

    PPLIOATION for Prohibition.

      Watkins & Watkins for the Relator.

      Drew & Stewart for the Respondent.
   The opinion of the court was delivered by

McEnery, J.

This is an application for a writ of prohibition restraining and prohibiting the respondent judge from taking further jurisdiction in the cause of S. H. McCrary vs. N. H. Boyet, being suit No. 97, on the appeal docket of the Second Judicial District Court for the parish of Webster.

The plaintiff, McCrary, sued the relator in a magistrate’s court on an open account for $12.40. The defendant Boyet answered that he owed plaintiff only $7.28, and that said sum was offered and tendered to the plaintiff, which he refused to receive. It was proved on the trial that the tender had been made, and the justice gave judgment for the plaintiff for the sum of $7.28, and taxed thá costs to plaintiff, as 'the tender had been made before suit.

The suit was appealed by plaintiff to the Second Judicial District Court for the parish of Webster.

The judge of said court, on his motion, dismissed the appeal, but on a rehearing asked for by the plaintiff and appellant-, the case was-reinstated and the former ruling set aside.

The case being called for trial, counsel for defendant moved to dismiss the appeal for want of jurisdiction in the District Court, ratione materise, as there was in controversy only $5.12. The court overruled the motion.

The amount in dispute is the difference between the indebtedness-judicially acknowledged and admitted by defendant and the amount claimed by plaintiff. The amount in dispute therefore can not exceed this difference, $5.12. Had there been judgment against defendant for the whole amount sued for, he could not have appealed, as contended by defendant’s counsel, as the amount in dispute would still he the difference between the amount judicially admitted and the sum claimed by plaintiff. The District Court was therefore without jurisdiction ratione materise. Girardey & Co. vs. New Orleans, 26 An. 291; Denegre vs. Moran, 35 An. 346; Miller vs. Gildiere and Marmande, 36 An. 202; Stubbs vs. McGuire, 33 An. 1089; Guidry et als. vs. Garland, 41 An. 756.

It is therefore ordered, adjudged and decreed that the relief prayed for by relator be granted, and that a peremptory writ of prohibition issue restraining and prohibiting the respondent, judge of the Second Judicial District Court for the parish of Webster, from further proceeding in the cause of S. H. McCrary vs. H. H. Boyet, being suit No. 97 on the appeal docket of said court.


text:
    No. 289.
    William Bomar vs. Louisiana North and South Railroad Company et al.
    Contributory negligence is the want oí ordinary care and prudence without which the injury would not have occurred.
    It is the employer’s duty to provide suitable appliances.
    If they are defective, and the employé is injured because of the defectiveness, the company is responsible in damages.
    When defective oars belong to another company from which they have been received, the company receiving and using them will be held liable in damages if the injury be owing to their defectiveness.
    The employe will not be held guilty of contributory negligence when it was not shown that he was aware of the defectiveness and he has been ordinarily careful.

      APPEAL from the Second District Court, Parish of Bienville. Boone, J.

    Young, Drew cfc Stewart and Watkins & Watkins for Plaintiff and Appellee:
    3. A railroad company is responsible for injury resulting from a defective condition of its apparatus when such defect could have been discovered on careful inspection. 2 Woods’Ry. Law, Sec. 300; King vs. Ohio R. R. Co.; 14Fed. Rep. 277.

      o, It will be held liable for its negligence, even when the defective car belongs to another company from which it has received it. 4 Am. and IS. Ency. 421; 94 Mo. Rep. 468; 100 N. Y. 462.

      ?>. The master is responsible to his employe for damages resulting from defects in the apparatus or machinery they are required to work with. Woods’ Master and Servant, Sec. 675-8; 87 An. 634, 653; 41 An. 964.
    4. The law imposes the duty on the master of furnishing reasonably safe and suitable implements for the business, and makes him responsible for such damages as result from his failure to perform this duty. 3 Woods’Ry. Law, .Sec. 370, et seq; 8 Allen Man. 441; Van Amburg vs. R. R. Co., 37 An. 653; Towns vs R. R. Co., 37 An. 634; 4 Am. and E. Ency. 417-26.
    5. The conductor is the superior of the engineer, and has authority over him. Van Amburg vs. R. R. Co., 37 An. 651; 112 TJ. S. R. 377; Towns vs. R. R. Co., 37 An. 630.
    O. The master is required to furnish a sufficient number of hands — and these with sufficient skill — to carry on the business safely. Johnson vs. Ashland Water Co., 5 Am. St. Rep. 243; Flike vs. Boston, etc., R. R. Co., 53 N. Y. 549, 554; 13 Am. Rep. 545; Hayes vs. Western R. R. Co., 3 Cush. 270; Mad River R. R. Co. vs. Barber, 5 Ohio Rep. 541, 563; 67 Am. Dec. 312; 29 Am. Rep. 97; Jones vs. Old Dominion Mills, 3 Am. St. Rep. 92; Pierce on Railroads, 372, note; 85 Am. Dec. 720; 02 111. 401-
    7, It is primafacie negligence on the part of themasterto attemptto operate dangerous machinery with an insufficient number of hands. 3 Woods’ Ry. Law, Sec. 381; Jones vs. Old Dominion Cotton Mills, 3 Am St. Rep. 105; Pierce on Railroads, 369; 17 Wall. 553.
    9.It is not negligence on tlxe part of a brakeman to rush between the cars to make a coupling without stopping to examine tlie drawheads to see if they are in a safe condition. King vs. Ohio R. R. Oo., 14Feb. Rep. 277; 4 Am. andE. Ency. 428 ; 3 Woods’ Ry. Law 1457; Woods’ Master and Servant, Sec. 330; Towns vs. R. R. Co., 37 An. 630; 38 An. 777; 4 Am. and E. Ency. 34.
    9. Burden of proof is on defendant to show contributory negligence. Bagley & Oo. vs. Jenevon, 24 An. 288; 4 Am. and E. Ency. 16-18; Woods’ Master and Servant, 777-8.
    10. Special plea of contributory negligence waives the general issue and restricts defendant to the proof of his special defence. Sherman vs. City of New Orleans, 18 An. 660; 3 An. 326; 9 An. 119; 19 An. 484; 22 An. 75; 20 An. 306; 32 An. 966; 31 An.81; 14An.54,869; 6 N. S. 226; 3 N. S.75; IN. S. 172.
    11. In Prn'i Materia — Am. and E. Ency. of Law, Vol. 4, p. 18, note 1: “There can be no contributory negligence, except when the defendant has been guilty of neg ligence to which the plaintiff’s negligence could contribute.”
    12. It is the master’s duty to provide suitable appliances (Am. and E. Ency. o Law, Vol. 4, p. 62, note 1), also to inspect and repair them (p. 63, note 1).

      John A. Richardson for Defendant and Appellant:
    The plea or allegation of contributory negligence is not a special defence.
    A special defence is one set up in avoidance or extinguishment of an obligation admitted or proved to have once existed. 31 An. 84; 6 L. 457; 9 L. Ill; 5 R. 486.
    When an employe is out of his place, the relation of master and servant no longer exists. Woods’ Ry. Law, p. 1490.
    'The only test by which it can he determined whether care has been used or omitted in any particular ease is the test of negligence in general.
    There is negligence where the party injured “where under all the circumstances and surroundings of the case something lias been done or omitted that ordinarily careful and prudent persons so situated would not have done or omitted to do.” Am. and IS. Ency. of Law, Vol. 4, p. 22, See. 9.

      ■“ When the defect or injurious contrivances is equally known to or alike open to the observation of both employer anti employe, both are upon common ground and the employer is not liable for the resulting injury.” Am. and E. R. R. eases Yol. 28, pp. 308, 382, 546, and notes, 397; 11 Am. and E. R. R. C. 644.
    “ Brakesmen and other persons employed by a railroad company within the freight stations and the yards of the company, where they accept the employment, assume the risks arising from s * * the construction of the cars used by the company, and they are bound to exercise the care and caution which theperils of the business demand.” Am. and IS. 8; Am. and E. 98.
    A servant or employe assumes the risk of all dangers in his employment however they may arise, against which he may protect himself by the exercise of ordinary observation and care. 5 Am. and E. 508; 21 Am. and E. 637.
    If the instrumentalities furnished by the master for the performance of the servant’s duties are defective and the servant is aware of this, though not aware ■of the degree of defectiveness, he is bound to use his eyes; and if he fails to do so, he can not charge the consequences upon his master.” 2 Am. and E. R. R. c. 144; 17 Am. and E. R. R. C. 592; 12 Am. and 15. R. R. O. 217; 11 Am. and 15. R. R. C. 201; 8 Am. and E. R. R. C. 184, 225.

      “ To recover damages for injuries from a railroad company it is necessary for plaintiff to prove that the accident in consequence of which the injuries were received was caused by the negligence of the railroad company, and that the plaintiff was not guilty of any negligence which created or aided in the accident.” 40 An. 787 ; 31 An. 490.
    A person can not recover for an injury to which he has contributed by his own want of ordinary care. 39 An. 796.
    “ When one of the two persons either innocent or mutually negligent must suffer, the one who knew of the cause which occasioned the injury, and who could have avoided it and did not do so, must hear the loss.” 34 An. 180; 33 An. 154; 32 An. 615.
    If aparty does not act as aprudent and careful person should do, he must bear the consequences. Woods' Ry. Law, p. 1461, Sec. 372.
    “ Cars received from other roads for transportation, the company has a right to assume that they are in proper repairs and condition.” 37 An. 630, Towns vs. V., S'. & P. R. R.
    Where the employe knows that no suitable regulations have been adopted and that a custom to violate them has grown up by remaining in the service, he is regarded as waiving the defects and assuming the risk incident thereto. Woods’Ry. Law, 3 Vol., p. 1488, Sec. 382.

      To maintain an action by a servant against a master for an injury resulting from defective appliances, two elements must concur, viz: Fault or knowledge on the part of the master; innocence of fault or ignorance of the danger on the part of the servant. 41 An. 500, Carry vs. Sellers & Co.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff moves to dismiss this appeal on the ground alleged that it should have been made returnable to this court at this-place last year; also, on the ground that this court was opened on the second Monday of October, 1890, and each day subsequent to. and including the 29th day of October, 1890, at which time the transcript was filed.

The appeal was granted on the 17th day of October, 1889, too late, to be made returnable to this court’s session last year.

The judicial day of the present session commenced on the 2d inst. From the second Monday to that time the court was opened and closed by the sheriff as duly directed. They were not judicial holidays.

This objection has been passed upon in a number of cases. It no. longer admits of discussion. The appeal was filed in time; the motion is overruled.

On Bill of Exception to Introduction of Evidence.

The defendant offered to prove that plaintiff was not in the employ of the defendant company at the time he was injured.

The object of the evidence was in support of defendant’s allegation in his answer. The plaintiff objected to the introduction of the evidence on the ground, viz: “The answer being a general denial, followed by a special plea of contributory negligence, such plea waives the general issue.”

The court maintained the objection.

It is held that there can be no contributory negligence on the part-of a plaintiff, except in cases where there has been negligence upon the part of defendant. Contributory negligence exists only when the negligence of both parties has combined and concurred in producing the injury. Am. and En. Encyclopedia of Law, Yol. 4, p. 18. In alleging contributory negligence, defendant admits that there is an issue of negligence between it and the plaintiff; not between plaintiff and a third party.

The defendant has accepted the issue as presented and has chosen in its defence to plead contributory negligence.

On trial, evidence offered for the purpose of showing that another was the party who should be sued was properly excluded. The railroad’s ownership was not at issue.

On the Merits.

The present action is brought to recover damages for an injury to plaintiff, inflicted by the cars in the use of the defendant company and resulting in permanent injury to his right hand and arm.

The facts are substantially:

The plaintiff was in the employ of the defendant company, which owns and operates a railroad a distance of eighteen miles, from Gibbs to Homer.

It received its cars from the Vicksburg, Shreveport & Pacific R. R. Co., and made up its trains on the latter’s side track.

At the Gibbsland junction the two companies had the same depot agent and freight clerk, who had control of the switches, side tracks,, freight cars and freight of both companies.

The employés in the movement and transfer of freight and cars, were under the authority of this agent.

The trains of the company were under the control of the conductor.

On the 8th day of October, 1888, the plaintiff attempted to couple-two cars.

The drawhead of one of the approaching cars being out of repair and forced under the car, in attempting to direct the link into the drawhead of the stationary car, his hand was caught between the-bumpers and severely injured.

He was employed as locomotive engineer in the service of the defendant.

The road having been lately constructed and being a short roady owned by a company recently organized, the number of employés; was limited, and at times an officer or hand was called upofi to do-other work than that belonging to his charge.

The conductor testifies that on the morning the accident occurred,, being sick, he asked the plaintiff to make up the train for him.

This request, direction or order, as the case may have been, was; complied with. There was a brakeman, but no inspector of cars.-

It is not an easy matter to determine what were the duties expected of the officers of this road.

The superintendent at times acted as conductor; the engineer as brakeman, the fireman as engineer, and the conductor frequently performed that duty. It was often unavoidable.

Immediately after the plaintiff had assumed the duties of the 'conductor he attempted to make the coupling, and met with the distressing and painful accident for which damages are sued.

In the haste of the moment, when there was but an instant for thought, seeing that the draw head had been forced under the car, he attempted to pull it to its proper place.

The spiral spring being broken, the drawhead was heavy; it had no elasticity, and could not in an instant be drawn out.

If the spring had not been out of repair it would ha^e been possible tbc pull it out and complete the coupling and avoid the accident. The ibrakeman, evidently not a man to arrest attention, said, to the plaintiff, just previous to the accident, that he had attempted to .make the coupling, but had failed.

'The plaintiff directed him to get on the roof of the car and loosen the brakes.

It is-not stated that the brakeman informed the temporary conductor that the drawhead was out of repair.

.He had failed, that .was all.

Not knowing of the broken spring, the conductor hastily advanced .between the cars. There was a possibility of his being crushed to ■death if the drawhead continued ineffective.

These cars, in coupling, may telescope or collide without check by the buffers, if it happens on account of the inequality in the height of the car that one buffer is above the other. It became necessary to act at once in coupling. It is admitted by the defendant that the ■appliance was defective, that is, that the drawhead of one of the cars ’was crippled.”

It only remains to ascertain whether or not the plaintiff was guilty ■of contributory negligence.

He only complied with the directions of those superior in authority to him. The superintendent said to him that he must obey the (.orders of the conductor. The latter directed him to take charge.

This order he complied with. The conductor says it was a request. A request from one superior in authority is equal to a command.

When the plaintiff assumed charge he was pressed for time. The-hour for leaving, as fixed by the time table, was approaching, and. there was barely time to make up the train for the departure. That there was haste is evident, but it does not appear that there was imprudent haste.

The defendant company had a time table. On short notice the employés were expected to have everything in readiness to leave, in accordance with the time fixed.

The employé naturally hastened in his work, thinking that the appliances were in order. If they were not, his knowledge will not be presumed..

The defendant company should have had an inspector, or, at any rate, some one in charge to prevent the imposition of defective cara upon employés. Pierce on R. R. 872'.

This duty of inspecting the cars having been overlooked or neglected, it can not be presumed that the plaintiff was aware of the-, defect.

The employés were required to run these cars on time and satisfactorily. The employer is responsible to them for damages resulting-from defect. 37 An. 634, 653; 41 An. 964.

The superintendent testifies that he notified the plaintiff, if it. came within his knowledge or notice that any defective cars were.being put in his train, not to take them.

He also states “that it was part of the duty of the conductor, by his special instructions, to -inspect all cars on the road.”

As to the first part (of these instructions) he was to act in case it came to his knowledge or notice.

There is no evidence showing that he ever had such knowledge or-notice. As to the second, he was not the conductor, except temporarily on the day of the accident.

This defective car was received from another company and' placed for use before he became temporary conductor. He can not be held responsible for acts of others of which it is not shown that he had any notice.

Having concluded that the plaintiff is not guilty of contributory-negligence, we now have to fix the amount of damages.

We can not agree with the jury in this case.

The usefulness of plaintiff’s hand is not entii’ely impaired.

His suffering has been great; nevertheless justice requires where the negligence of the company has not been wanton and malicious, that damages allowed be within reasonable limits. Plaintiff is 43 years of age. His salary at the time he was wounded was $60 a month. It is not probable that it would have increased much. His hand and arm are not completely disabled, although badly injured. He has had charge of an engine since the injury with aid furnished him for the heavy work. The defendant company has been organised not long since, evidently with limited means. The amount allowed as damages is not a profit nor an advantage. It is fixed at what is deemed to be reasonable under the circumstances.

After considering the evidence carefully, we fix the amount of damages at $2000.

It is therefore adjudged and decreed that the verdict and judgment of the court a qua be amended, reducing the amount from $15,000 to $2000, and that as amended the judgment be affirmed without intei’est, except 5 per cent from date of the amending judgment.


author: Eenner, J.

text:
    No. 286.
    Mrs. Kate A. White and Husband vs. Vicksburg, Shreveport and Pacific Railroad Company.
    1. In a suit for damages for injuries caused by alleged negligence of defendant, recovery requires that the record should establish first that the defendant was guilty of no contributory negligence, but for which, notwithstanding defendant’s negligence, the injury would have been avoided.
    2. Under the evidence in this case, which is fully discussed, the record fails to show satisfactorily the negligence alleged against defendant, and clearly establishes contributory negligence on part of the injured pa2’ty.
    .3. While railroads are held to strict observance of all precautions necessary for the protection of the public in crossing the crowded streets of cities, there is also an obligation on the part of the public to be vigilant and attentive when passing such crossings.
    d. A claim for damages for an injury done to a married woman living under the regime of the community is an asset of the community, on which suit must be brought in the husband's name, and the wife is not a competent witness in such a suit.

      APPEAL from the First District Court, Parish of Caddo. Hieles, J.

      J. W. Jones for Plaintiff and Appellee:
    1 Masters and employers are answerable for the damages occasioned by their employes, in the exercise of the functions in which they are employed. C. 0., Art. 2320, 17 An. 19 and 166; 23 An. 180; 15 Wall. 649.
    2. No exact computation can be made for the damages due the plaintiff, and in eases of this kind much discretion is left to the jury in the assessment of damages. C. C. 1934, par. 3; 17 An. 19; 18 An. 26; 19 An. 362.
    3. Plaintiff’s taking risk is not necessarily negligence. Pierce on Railroads, p. 328.
    4. Acts and omissions of employes of the company which are deemed negligence. Pierce on Railroads, 356.
    3. This is a question of negligence rel non by the employe of tlie railroad company.
    6. It is negligence to omit any reasonable duty necessary for the safety of the public, particularly crossings in cities, where there are frequent passage and traffic. 40 An. 816.
    BILL OF EXCEPTIONS OF DEFENDANT.
    1. Bills setting up want of legal citation. T., p. 3. We deem it unnecessary to do more than to refer the court to the judgment of the court a qua and reasons assigned for overruling the same, and authorities cited. T., p. 4.
    2. Idea to jurisdiction. T., p. 3. There is nothing in this plea. See Art. 165., par 9 C. P., and authorities. This case is for a trespass or tort sounding in damages, not for a passive violation of a contract. This plea to jurisdiction was overruled by Judge Taylor, and on his own motion the case was referred to a jury. T., pp. 8 and 9.
    We will also call particular attention to three bills of exceptions of the plaintiff:
    1. The ruling of the court as to Mrs. White’s testimony on purely a technicality of law. This bill deserves the maturest consideration of tlie court, and is entitled to have great weight attached to it. T., pp. 77, 78 and 79.
    2. We contend the refusal to make the charge was erroneous. T.,p. 80.
    3. This evidence was improperly refused and should have g’oqo to the jury as to its effect. T., pp. 81 and 82.

      Wise & Herndon for Defendant and Appellant:
    1. Por an injury resulting from the frightening of a horse in the proper operation of a railway no damages are recoverable. Wood’s Railway Law, Vol. 2, p. 1332; Pierce on Railroads, p. 348.
    2. It is the duty of a person crossing a railway track, or approaching it with intent to cross, to exercise ordinary care and prudence to avoid injury. It is the duty of a person approaching a railroad crossing to exercise care, diligence and caution in looking and listening for approaching trains. It is his imperative duty to exercise all reasonable care, and his failure to exercise such care will be such neglect on his part as will preclude a recovery by him for a personal injury. Wood’s Railway Law, pp. 1302-1312; 42 An. 682.
    3. The allowance of excessive damages by juries for personal injuries must be discountenanced. Peyton vs. Railroad, 41 An. 861.
   The opinion of the court was delivered by

Eenner, J.

The allegations are that, while Mrs. White was driving in a buggy with three young children in the streets of Shreveport, and as she approached, in a moderate gait, the crossing of the defendant over Jordan street, a locomotive of defendant came dashing across at unusual speed without blowing whistle or ringing bell, or giving any other precautionary signal, which frightened her horse ' and caused him to run away, upsetting the vehicle and inflicting upon her the damages for which claim is made in this suit.

The defence is a general denial and a plea of contributory negligence.

It has been ruled with such frequency and uniformity as to make its iteration here merely formal, that, to sustain recovery in such a ease, it must appear from the record, first, that the defendant was guilty of negligence; second, that the party injured was guilty of no contributory negligence, i. e., negligence but for which, notwithstanding defendant’s negligence, the injury would have been avoided.

I.

The proof of negligence on the part of defendant is by no means satisfactory. As to the rate of speed, several witnesses express the opinion that the train was going at the rate of about fifteen miles an hour; but nothing is more uncertain than the estimation of rates of speed by mere unskilled observers. The engineer and other employees state positively that the rate did not exceed six miles an hour. What impresses us most, however, on this point is the uncontradicted fact that one of the employees, on seeing the accident, stepped off the train as it ran, without difficulty, and went to the lady’s assistance, which certainly indicates a moderate speed. There is no statute or ordinance prescribing any particular rate.

As to the precautionary signals, defendant’s employees positively state that bells were rung and the whistle was blown. Several witnesses who were in the vicinity state that they did not hear either bell or whistle, but none of them pretend that they were noticing or paying any attention to the matter, or had any concern to do so. Their evidence is robbed of value by the positive proof that the whistle was blown and was heard by the only person, except plaintiff, who had occasion to notice. This was a Mr. Laughlin, who was riding on horseback in the sapie direction and just in advance of Mrs. White, who says that he heard the whistle of the approaching train, and, quickening the speed of his horse, rode across the track in advance of it; that after crossing he chanced to look back, and saw Mrs. White driving unconcernedly toward the track; that he stopped and called out to her and waved his hat, but failed to attract her attention; that she drove right on until she came near the track, when she stopped, and he saw a negro boy jump forward and take hold of the horse; that then the passing train intervened, and he saw no more until it had passed, when he saw the horse running away down the street. This witness is unimpeaehed, uncontradicted and entirely disinterested. We think his testimony must be taken as full proof' that the whistle was duly and timely blown. He says he did not observe whether the bell was ringing as the engine approached, because his attention was absorbed by the danger of the lady. If plaintiffs’ witnessec did not hear the whistle which was blown, they might equally have failed to hear the bell, although it was rung; and their evidence does not suffice to overthrow the positive statements of the employés that the bell was rung.

II.

We are bound to hold that Mrs. White did not exercise that degree of care and caution which the law exacts of persons approaching the crossing of a railroad track with intent to cross. She was unquestionably bound to look and listen, and to exercise care and caution to avoid the possible danger suggested by the very fact of the crossing-

Mrs. White was a resident of Shreveport, and,' as the evidence shows, in the habit of frequently driving herself about the city.

Had she been looking and listening, had her attention been on the alert, we can perceive no reason why she should not have heard the whistle of the approaching train, why she should not have heard its noise as she- approached nearer, why she should not have heard and seen the signals of danger given by Mr. Laughlin in full view across the track. Yet it appears that she heard and saw nothing, but drove recklessly forward and might have passed on the crossing itself and been run over by the train had not the negro boy called to her as she was very near it and warned her of the approaching train. She then stopped and asked the boy to hold her horse, which he did ; but the frightened animal jerked away and did the injury.

It is quite evident that the lady’s attention must have been diverted and otherwise occupied, probably with the three small children which she had in the buggy with her.

While we exact great care from railroad companies in the observance of all requirements necessary to protect the public at a crossing where persons and vehicles are constantly passing, yet, as we have heretofore said, “ there is also an obligation on the part of the public to be vigilant and attentive when passing over a crossing where passing trains may be frequently expected. Deikman vs. Railroad Company, 40 An. 790; Deikman vs. Railroad Company, 42 An.; Wood’s Railway Law, pp. 1302 to 1312.

We have been disposed to give the plaintiff the benefit of a liberal construction of the evidence in support of the claim, because the evidence of the wife who suffered the injury could not be heard in the case; but, if she had been heard and had testified aceordingto the terms of the statement embodied in the bill of exceptions taken to the exclusion of her testimony, it would not have availed to alter our conclusions. Of course, we have not given any effect to her statement, but only mention this to illustrate the spirit in which we have considered the legal evidence in the case.

The bill of exceptions itself has no merit. Of course the claim for damages is a community right and could only be asserted by the husband as head and master’ of the community. ■ The prayer of the petition is fora judgment “ in favor of George A. White, the husband of Kate A. Wliite,” and the husband was heard as a witness iu the case. In a suit by the husband for a judgment in his own favor on a community claim certainly the wife can not be heard as a witness.

There are other bills which are of no moment to our conclusions in the case.

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


text:
    No. 290.
    The State of Louisiana vs. Matt. Riley.
    3. The officers charged with service of subpoenas are proper witnesses to prove the reason of non-service in laying a foundation for introduction of testimony taken on preliminary examination.
    2. When the witness can not be found and the search and inquisition for him leads the officer to the conclusion that he has left the State, the deposition on the preliminary trial may be admitted.
    3. While the acts and sayings of participants in the transaction at the time of the homicide form part of the res gestee, and, as such, may be proved by third persons, the comments and criticisms of mex*e obsexwers can not be so proved, but such persons must themselves be called and examined.
    APPEAL from the Twenty-second District Court, Parish of Rich-land. Williams, J.

    J. Henry Shepherd, District Attorney, for the State, Appellee:
    1. It is not necessaxy that the evidence of witnesses taken at a preliminary trial be signed by them. Sec. 1010, Rev. St.; 37 An. 685, State vs. Allen & Carter.
    2. Evidence that a witness for whom a subpoena has issued has left the State, or is absent therefrom, may be received, showing that he has left and is absent from the parish. The retuxrn on subpoena is not the exclusive evidence. State vs. Allen & Carter, 37 An. 685.
    3. Such evidence lays the foundation for the introduction of the testimony of the witness taken on the preliminary trial. State vs. Carter, 37 An. 685.
    4. gestee are events speaking for themselves through the instinctive and spontaneous words and acts of participants. While it is true that what was said and done by persons other than the participants may be part of the res gestee, the declarations made by observers and not participants in order to be admissible must be proven by themselves. The true rule is the evidence offered that of the event speaking through participants, or that of observex's speaking about events. In the first case what was said can be introduced without calling those who said it; in the second case they must he called. Wharton Or. Ev., 262, 263; Rosco’s Cx\ Ev., 221; Greenleaf, 99,100; State vs. Moore, 88 An. 66.

      Todd & Todd for Defendant and Appellant:
    1. The return of the sheriff is the best evidence of his official acts in subpoenaing witnesses and the like, and pax’ol evidence should not be admitted to prove same.
    '2. Testimony taken ata preliminary examination can not be introduced in evidence on part of the State, unless it is shown that the witnesses whose testimony is sought to be introduced are either dead or absent from the State. 33 An. 1332; 34 An. 9523.
    3. t Everything that is done or said by the participants, or any one present at the time of a homicide, is admissible in evidence as apart of the res gestee, and is not heax'Say. 33 An. 289; 34 An. 1083; 38 An. 381, 969; Wharton’s Or. Ev., See. 262 et seq. 270; 38 An. 66.
   The opinion of the court was delivered by

Fenner, J.

The first bill is taken to the ruling of the court in admitting the testimony of the sheriff and his deputy to show why service of the subpoenas had not been made upon certain absent witnesses, the ground of objection being that the returns on the subpoenas were the best evidence, and the-testimony was irrelevant. The evidence was relevant, being offered, as the proceedings show, to lay the foundation for the introduction of the testimony of the absent witnesses taken on the preliminary examination. We can conceive of no better evidence to show what efforts had been made to summon the witnesses, why service has not been made, than that of the officers who were charged with the duty of serving the subpoenas.

The second bill is to the admission of the written evidence of the-same two witnesses taken on the preliminary examination, on the ground that the proper foundation had not been laid.

The testimony of the sheriff and his deputy had shown that the subpoenas had not been served for the reason that they could not be found in the parish, and that they learned that one of them, Williams, was in the adjoining parish, and that the other, Dorsey, had gone to Natchez, Miss. Conceding that the absence of the witness Williams in an adjoining parish was not sufficient ground for the introduction of his testimony taken on the preliminary examination, under our decision in State vs. Hague, 41. An. 1070, the error is robbed of all significance by the judge’s statement that his testimony was not offered and did not go to the jury. Counsel contends that the subsequent action of the District Attorney in failing to avail himself of the erroneous ruling of the judge by offering the testimony, does not cure the error. That may be true; but we do not sit here to pass upon abstract questions. An erroneous ruling, which has not been acted upon, and has in no manner injured or prejudiced the rights of a party, is matter of entire inconsequence and’ furnishes no ground for relief. i

The foundation for admitting the testimony of the other witness was sufficient under our ruling in Condier’s case, 36 An. 291, where we held, as announced in the syllabus: “Where a witness can not be found, and the search and inquisition for him lead the officer to the conclusion that he has left the State, the deposition on the preliminary trial was properly admitted.”

The third bill has no merit, and is not pressed by counsel.

The fourth bill was taken to the exclusion of questions by counsel for accused on cross-examination of a State witness. The witness had stated on his examination in chief that he was present in the cabin at the time of the homicide, but did not see the shooting; and on cross-examination he was asked, “ What was said at the time of the killing by the people who were present? Did they say that the accused was attacked with a knife at the time he fired?” The questions were objected to and ruled out. Counsel contends that the evidence sought was admissible as part of the res gestee.

The rule of law is well settled that, while the acts and sayings of participants in the transaction at the time of the homicide form part of the res gestee, and, as such, may be proved by third persons, the comments and criticisms of mere observers can not be so proved, but such persons must be themselves called and examined. Wharton Cr. Ev., Sec. 262; Roscoe’s Cr. Ev., p. 23; 1 Bishop Cr. Ev., Sec. 1087; State vs. Oliver, 39 An. 470; State vs. Moore, 38 An. 66.

As said by Mr. Wharton, “the question is, is the evidence offered that of the event speaking through participants, or that of observers speaking about the event? In the first case what was said can be introduced without calling those who said it; in the second case they must be called.”

The questions here clearly seek .to elicit a statement of the comments and criticisms of mere observers, and they were properly excluded.

Judgment affirmed.