author: Breaux, J. Watkins, J.

text:
    No. 13,142.
    State of Louisiana vs. Allen Anderson.
    Syllabus.
    1st. The averment stated that ah information in order to negative prescription-was limited to the allegation that the defendant fled from justice.
    2nd. The affirmative of the question at issue was assumed by the State. The defendant was not bound, in order to sustain his plea of prescription, to ■ prove that he was not a fugitive from justice, as charged.
    Srd. Relative to the áverment negativing prescription on the ground that knowledge of the crime'was not given to an officer having authority to, direct the prosecution, the court heretofore held that the burden was on the defendant, who could easily prove the affirmative, that an officer was at least aware ■ of the • charge. >
    4th. As relates to the averment that defendant was a fugitive from justice, there • is no direct interchangeable expression under which a negative might be changed to an affirmative and proof required of the affirmative proposition. Hither he was a fugitive or he was not. If he was a fugitive,- it was for the State to prove it ,and not for the defendant to prove that he was not.
    On Reheabing.
    A defence being prescription, based on tke face of the indictment, the burden of proof is on the State to rebut the plea by evidence.
    Failing 'to discharge the same, the prosecution is terminated, and the defendant is released from further custody.

      ON APPEAL from the Eighteenth Judicial District Court for the Parish of Lafourche. Caillouet, J.

      M. J. Cunningham, Attorney General, and L. C. Moise, District Attorney, for Plaintiff and Appellee.

      Beattie & Beattie for Defendant and Appellant.
    Argued and submitted April 22, 1899.
    Opinion handed down May 1, 1899.
    Judgment modified and rehearing refused May 29, 1899.
   On the application for rehearing by Watkins, J.

The opinion of the court was delivered by

Breaux, J.

The accused was indicted for shooting with intent to murder. He was found guilty of shooting with intent to kill.

The serious question of the case grows out of the refusal of the ■court to charge that where the averment in an information negatives prescription, the burden is on the State to prove the averment.

As it is a matter of some importance, we copy the two bills of exceptions taken on this point, in extenso. Having pleaded that the offense charged was prescribed and that no conviction could be had upon the information here presented, for the reason that more than one year had elapsed before the filing of the information for the offense, “and it being shown to the court that no evidence” or testimony had been introduced to prove any fleeing from justice, the defendant asked the -court to charge as follows:

“Fleeing from justice is an affirmative fact, which it was possible for and incumbent on the State to prove, and not on the defendant to •disprove, as he cannot be held to prove a negative.” Which charge was refused and a bill reserved. The court rested its refusal on the authority of the State vs. Robinson, 37th Ann., 673, and charged, as shown by another bill of exception, number 3: “If the indictment on the face shows the crime is prescribed, it then becomes necessary for the indictment to set out the exception which takes it out of prescription, and if the indictment does this, then the burden of proof is on the accused to disprove this exception.”

To this part of the charge a bill of exception was reserved.

The information contains the following, inserted in order to negative the plea of prescription: “And the said Allen Anderson did, at the time of the commission of said offense, flee from justice and remained a fugitive from justice up to his incarceration in the parish jail of Lafourche on the fourth day of February, 1899.”

The foregoing averment, all that is contained in the information regarding the-plea of prescription argued, shows that the information contains no averment that any knowledge of the offense charged was ever given to any officer having authority to direct the prosecution.

The only question before the court is whether the defendant was a fugitive, and whether, from that one fact, it is to be assumed that prescription was suspended.

It follows that the fact of the suspension of prescription, as relates to a crime unknown to the officers before the information was filed, is not before us for decision.

As relates to the charge that the defendant was a fugitive from justice until a short time before the information was filed, we think that the affirmative of the issue was assumed by the State. We must hold that the State was bound by her averment to prove that the accused was a fugitive.

We have naught to- do in this case with the naked question of prescription. We only have to deal with the one fact that the State alleged that the defendant was a fugitive. We must hold that to this extent the State assumed the burden of proof. Semper necessitas prebandi incumbit illi qui agit.

In the ease of the State vs. Barrow, 31st Ann., 695, the averments were interchangeable. The court said that the State could not, under the circumstances, be held to prove a universal negative; but “if the onus is on the defendant, he need only prove that knowledge was brought to one of such officers. He need only prove a particular affirmative.”

Here it is different. The State did not have to prove a universal negative. It only had to prove that the defendant was a fugitive.

In view of this we do not think that it devolved upon tbe defendant to prove that he was not a fugitive.

There is no interchangeable expression from negative to affirmative, as relates to one who may have been, or may not have been a fugitive. If we were to make an attempt to draft a proposition in that direction, we would have to assume, in ordsr to give it the color of an affirmative, that the defendant should have proven that he remained at home during tlio whole time that he was charged wdth having been a fugitive, or that he was always prepared to vindicate his innocence. These are not interchangeable expressions; they would only be strained efforts to convert a negative into an affirmative.

We feel quite confident that, as relates to the one fact charged, flight from justice, the onus of proof was oil the State, and that refusal to give the instruction requested was error. Proof of an ■absolute negative cannot very reasonably be required. There must be evidence admitted, strong enough to establish, at least, a prima facie case of absence as a fugitive irctm justice. State vs. Foster, 7 An., 255.

It follows from the foregoing that the proceedings in this case are null and void, and that the defendant must be discharged from further prosecution under the information filed.

For reasons assigned, it is ordered, adjudged and decreed that the information filed in this case is a nullity; and it is ordered and decreed that the verdict, sentence and judgment of the court are annulled, avoided and reversed, and that the defendant be released from custody, not being subject to prosecution under the information filed.

On Application for Rehearing.

Watkins, J.

On the part of the State an application for rehearing is filed.

It stands on four propositions.

(1) That, under Act 73 of 1898, prescription does not lie when the jury finds a verdict for a lesser offence than the one charged.

We think thalT the terms of that statute do not include the case brought against the accused. The statute reads: “Nor shall the prescription and exemption hereinbefore provided apply to any case of a lesser crime or offence under an indictment for murder, robbery, forgery or counterfeitingThe accused was not charged with any of the offences before stated.

(2) That the Supreme Court has jurisdiction in criminal eases on questions of law alone.

We think that the question growing out of the refusal of the court to instruct the jury as requested, was a question of law, and not one of .fact. The question of the onus of proof in matter such as that decided by us has always been considered a question of law. The deeisions cited in our original opinion are, that it has always been so treated by this court.

The third proposition that the Supreme Court cannot take cognizance of facts relative to the questions of-preseription, we consider is included in the second proposition, and for that reason we pass it without comment.

And, lastly, as to the fourth proposition on behalf of the State, it is stated; where the question grows out of the refusal to give a special instruction, and the request is erroneously refused, “it is only an error, and the case should be remanded.”

We are informed by the recital in the bill of exception, and this is not denied by the learned judge of the District Court, that no evidence went to the jury proving that the accused was a fugitive from justice. The ruling in that respect was stated in our original opinion.

The averment of the information, that the defendant was a fugitive, was not proven. It follows that the State did not negative the plea filed by the defendant that more than twelve months had elapsed between the commission of the offence and the bringing of the information, and the accused cannot be tried for the same offence, in order to> enable the State to prove an allegation negativing the plea of prescription.

Had the onus of proof been with the defendant, instead of with the State, and he failed to prove that he was not a fugitive, he would not have been entitled to another trial.

The same rule governs the State.

In declining to remand the case, we deem it proper to state that the defendant cannot be placed in jeopardy and cannot again be prosecuted for the offence; and reiterate that the defendant is entitled to be discharged and released; and it is so ordered.

Although it is not of any practical importance, we desire to cancel and take out of our former decree the words: “that the information filed in this case is a nullity;” and we leave the remainder of the decree undisturbed, and in full force. Applications for rehearing refused both as relates to the State and to the accused.

Blanchard, J., dissents.


source: Caselaw Access Project

author: Breaux, J. Breaux, J.

license: Public Domain

text:
    No. 12,880.
    Ong, Hiller Company, Limited, vs. Fidelity and Deposit Company of Maryland, et als.
    Syllabus.
    This court being without jurisdiction, the appeal is dismissed.
    ON APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Saunders S Miller for Plaintiffs and Appellees.

      P. M. Milner for the Surety Co., Defendant, Appellant.

      J. Zach. Spearing for the Mutual Building and Homestead Association, Defendant and Appellant.

      Edwin T. Merrick as amicus curiae.

    Argued and submitted April 4, 1899.
    Opinion handed down April 17, 1899.
    Rehearing refused, reasons assigned, May 29, 1899.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff sued the defendants for building materials ■sold to builders for usé in the construction of a building for the Mutual Building and Homestead Association.

.Defendant, the Mutual Building and Homestead Association, answering, admits that it entered into a contract with Anderson and Allen, under which they undertook to construct and erect a building for it; that plaintiff served an attested account upon it. Defendant denied that it owed anything to plaintiff, and that plaintiff had any privilege on its building; that it had paid the builders, Anderson and Allen, the full amount due them under the, terms of the contract; that -to make it responsible for plaintiff’s account or to give him a privilege on its account would be to impair the obligation of its contract with Anderson and Allen, and to make it liable for the debts of a third person; that in so far as Act 180 of 1894 is invoked to hold it liable for the claim of plaintiff, the act is unconstitutional, for reasons stated by it, and, on the further ground, that the act relates to and -embraces more than one object; that they are not expressed in its title; that the act is a local and special law, and that notice of the intention •to apply therefor was not published in the locality as required by Article 48 of the Constitution; that the Fidelity and Deposit Company signed a contract of suretyship for Anderson and Allen, by .which the latter are bound to plaintiff. Defendant, the Mutual Building & Homestead Association, called the Fidelity and Deposit Com-pany in warranty. The latter filed an exception to' the call in war-rant-y on the grounds that defendant, the Fidelity Company, called in •warranty, was already a party to the suit, being sued in solido with -the Mutual Building and Homestead Association; and, moreover, had already been sued by the Mutual'Building and Homestead Association in a different court of concurrent jurisdiction and for the -same cause of action. This exception was overruled and the demand :in warranty was not dismissed.

The Fidelity and Deposit Company then answered plaintiff’s demand and pleaded the violation of the terms and conditions of the bond given in favor of the Mutual Building and Homestead Association.

The facts are: that plaintiff sold material to the firm of Anderson .and Allen; that a balance of three hundred and sixty-four and 20-100 •dollars is unpaid. This account was served on the owner and registered. The building was completed, and accepted, January 28th, 1896, and service was made on the surety, on the 28th day of April, 1896. The bond furnished by the contractors, in favor of the Mutual Building and Homestead Association, as security for the faithful performance of their contract, including the payment by them of their laborers, artificers employed by them, and the material men who furnished the materials used in the work, and the fee of attorney of the insured, was not recorded as required by statute 180 of 1894.

The contractor failed to pay the laborers and material men. Plaintiff, a furnisher of material to the contractor,, used in the construction and erection of a building for the defendant, the Mutual Building and Homestead Association, sued the defendant, as before stated, claiming the price of materials; also the fee of attorney employed by the Mutual Building and Loan Association.

The judge of the District Court held that the Mutual Building and Homestead Association was not bound for the payment of plaintiff’s-claim, based as it was, exclusively, on the failure to record the contractor’s bond according to Act 180 of 1894, but found that by the-terms of the bond the Fidelity and Deposit Company, regardless of the Act 180 of 1894, was liable to the plaintiff for the amount proved;This did not include the fee of attorney.

From that judgment, the Mutual Building and Homestead Association,appeals and complains of the judgment being erroneous, in so-far as it dismisses its claim for the fee.of attorney.

The Fidelity and Deposit Company also appealed.

Plaintiff, on appeal, in the brief sets forth, that Act 180 of 1894, is-constitutional, and, therefore, the judgment of the lower court should' be amended by giving plaintiff judgment against the owner as well as against the surety; but that if the act be held unconstitutional, still the surety and the owner who executed the bond in order to comply with the statute, and who thereby induced the material man to sell his goods under the belief, that he was protected by the statutory bond,are estopped as against the material man from contesting that he is-secured by law.

We have already noted that the only amendment of judgment asked' for by appellee (the Building Association) on appeal is an amendment in order that fifty dollars may be recovered by it (the Mutual Building and Homestead Association) against the Fidelity and Deposit Company called in warranty.

No constitutional question as to the fee of attorney is here involved.. Defendant asks for a fee to be paid by warrantor. The latter denies-its indebtedness on other issues. It involves a mere question of fact.. The court being without jurisdiction as relates to this claim, the appeal of the Mutual Building and Homestead Association is dismissed;

Passing to the argument of plaintiff and appellee as contained in the brief, claiming that it is entitled to judgment against the Mutual' Building and Homestead Association,-as well as against the Fidelity and Deposit Company, it is not sustained by an answer to the appeal or any application whatever, in due form for the amendment of the-judgment. This being the case no amendment of the judgment can-be made, in so far as it is concerned.

This brought us to an examination of the grounds set forth by defendant, the Fidelity and Deposit Co., appellant.

Alter an examination of these grounds we concluded that, as relates to its pleadings, the Fidelity and Deposit Company is in the .•same situation in this case as it was in the case of the Central Manufacturing & Lumber Company, Limited, vs. Mutual Building and Homestead Association.

For reasons assigned in that case, this appeal here is dismissed.

On Application for Rehearing.

Breaux, J.

Appellant applied for a revision or amendment of our -decree that it may be made abundantly clear that the court did not •pass upon the merits of the case, hut dismissed the appeal for want of jurisdiction.

In this case we wrote a complete statement and immediately after Arrived at the conclusion that this court was without jurisdiction of the question presented.

The statement of the case may perhaps on hasty reading, lead to the inference that there was some intention to pass upon the issues on the merits. The following, copied from our opinion, shows, we think, that the inference, if reached, is unfounded.

“After an examination of these grounds, we concluded that, as relates to its pleadings, the Fidelity and Deposit Co. is in the same •situation in this case as it was with the case of the Central Manufacturing & Lumber Co. vs. Mutual Building and Homestead Association.”

That case was dismissed by this court for want of jurisdiction.

Our decree in the case here reads:

“For reasons assigned in this case, this appeal is dismissed.”

The syllabus reads:

“This court being without jurisdiction, the appeal is dismissed.”

We can only state now, that which we held before, that the appeal is dismissed for want of jurisdiction.

No part of the claim was considered on the merits, as the court considered that no part of the case came within its jurisdiction.

We therefore re-state:

That the ease was dismissed because the court had no jurisdiction.

Rehearing refused.


author: Breaux, J.

text:
    No. 13,032.
    J. P. Mirandona vs. Nicholas Burg.
    1. Broken Contract. — Damages actually shown, growing out of the breach ot contract, were allowed.
    2. Claim for Interest on Money Borrowed. — Claim for interest on money; borrowed by plaintiff to carry out the contract was not allowed, for the reason, that it was not made clear that plaintiff borrowed the amount for the' purpose alleged. If it was borrowed for that purpose, it was never tend, ered to defendant; on the contrary, a large part of the money referred to. was used by plaintiff in his own business.
    3. Prospective profits. — Future profits are generally too remote to furnish at basis for .damages. Amount claimed for probable and speculative profits was-not allowed.
    ON APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      W. 0. Hart and Frank B. Thomas for Plaintiff and Appellant.

      W. 3. Benedict for Defendant and Appellant.
    Argued and submitted April 7, 1899.
    Opinion handed down April 17, 1899.
    Rehearing refused May 29, 1899.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff brought this suit against the defendant for damages, he alleged, growing out .of the failure of his vendor to complete his contract of sale in accordance with agreement.

He averred that on the 13th day of January, 1896, he entered into-a written agreement with the defendant, in which the latter bound himself to sell to him the stock in a grocery store in this city at market value, to be appraised by two appraisers, one to be selected by him, and the other by the defendant; and that he deposited one hundred dollars current money. The agreement between these parties further'shows, that the defendant was to lease the place in which he-carried on his grocery business, at sixty dollars per month, for five years, with privilege of renewal at the end of that time.

He alleges, that, on February 4th, 1896, defendant refused to carry out the terms and conditions of the agreement; that is, refused to sell his stock or lease his premises.

That he placed him in default, and brought suit to compel him to a specific performance, which resulted in a judgment, refusing to decree ' a specific performance, but giving to .him the right to claim the damages resulting from defendant’s refusal to complete the sale.

He alleges that his profits would have been large if he had gotten possession of the property, as he expected, when he made the purchase. Pie claims for the profits, ten thousand dollars.

He sets forth that he was informed by the defendant of the agreement that the stock of groceries would amount to six thousand dollars, and in order to be prepared to pay the price, he borrowed that amount at 8 per cent, interest for a term of years, upon which he will have to pay nine hundred and sixty dollars interest, and that the sum remained in deposit unused by him.

He, also, alleges that the sale put him at the expense of employing a clerk, at a cost of $150; and that the fee of attorney employed by him to advise and act for him was two'hundred and fifty dollars, making a total of $11,460.00, for which he asks judgment.

Defendant filed an exception, charging that plaintiffs petition was vague, and that it was necessary, in order to enable defendant to answer, that plaintiff should aver from whom and when he borrowed the $6,000.00; to whom and when he paid the $960.00 interest; the name of the clerk and his legal adviser. The exception was overruled.

Defendant, reserving his exception, then filed an answer pleading the general denial.

Plaintiff swears that the agreement was entered into as he alleged, and that he exerted his best endeavors to carry it out; that he made arrangements to have the funds to pay the price; that he executed a mortgage on the 12th or 13th day of February, 1896, to get the loan for which he had no use, save to complete his purchase; that he also-employed a clerk at five dollars per week and board, an employment he deemed necessary during- five months, on account of his purchase; and that the fee of counsel employed by hinl to see to his interest in the-matter of the purchase was two hundred and fifty dollars, as alleged; that defendant, at the time of their agreement, gave him an idea of the daily sales in his grocery, and that it showed a handsome return on the amount invested.

Plaintiff also swore that ten per cent, was a fair percentage of profit fin .a retail grocery business.

On cross-examination, it was said by witness that defendant had •sent him word on the third or fourth of -February, 1896, that the ■agreement was at an end, and that he would not sell.

Other witnesses for plaintiff testified that the profits of the retail grocery business are from five to six per cent.

The court a qua during the trial, ruled that defendant could show In mitigation of damages that an offer to compromise was made prior to the filing of plaintiff’s petition in the case brought for specific performance, which did not succeed. . Fwidence was admitted to prove the offer.

The District Court rendered judgment for the plaintiff against the defendant, in the sum of five hundred and thirty-seven and 50-100 dollars, with legal interest from the date of the judgment.

Plaintiff and defendant each appeals.

First. The only question, in a strict sense, now before the-court, is a question of damages resulting from the non-performance of the contract, as reserved by the Supreme Court in the case of Mirandona vs. Burg, 49th Ann., 656.

In the cited case, the court concluded that no redress eould^e had by plaintiff save for damages, and that for reasons stated, it was not proper to compel the defendant to perform the contract. A' second examination into the facts, as made to appear in the case now before us for decision, confirms us of the correctness of the views expressed; there were facts connected with the negotiations between the parties, that would have rendered difficult the enforcement of a judgment requiring specific performance.

Passing to the question of the amount of damages, we find that the sum allowed was more than should have been allowed for damages actually shown. It covers the hire of the clerk whom plaintiff employed and the fee of plaintiff’s attorney.

There were mitigating circumstances in the case, and, for that reason, we think that the damages awarded should be forty-five dollars for clerk hire; one hundred and fifty dollars fee of attorney.

Second. The claim made by plaintiff for interest, we think, was properly rejected by the court.

"While there was, perhaps, no absolute necessity that plaintiff should have informed the defendant that he had borrowed the amount to pay ■the price of his purchase from defendant, yet, it is not entirely without significance that no mention was made by plaintiff of money that he had borrowed, when plaintiff was informed that the contract looking to defendant’s sale to plaintiff would not be consummated by -delivery.

Ivkueover, the loan of the amount of six thousand dollars was made to plaintiff by one of the banks, a few days after defendant had informed plaintiff of his unwillingness to continue the negotiations. No •one would readily infer that money would be borrowed to pay the price oí a sale after the seller’s recall of his promise, unless to make certain his position regarding the sale, he desired it to make a tender and deposit of the amount. Here, nothing of the kind was ■done.

Not only was no tender or deposit made, but, it appears that the amount borrowed, or a goodly portion of it, at least, was used by plaintiff in the course of his own business.

Defendant could scarcely be held for interest on money used by plaintiff, or not actually deposited, or in any manner tendered to complete the sale.

Third. This brings us to a consideration of the claim for profits he would have made, if the defendant had carried out his agreement, and sold his business to plaintiff.

This court has, not long since, in a well considered case, in substance ‘held, that the profits upon a contract depending upon uncertain future results, could not be with any degree of certainty, fixed, inasmuch as fhe calculation would, necessarily, be conjectural.

There was uncertainty as to whether plaintiff would have succeeded at all in realizing profits. The defendant and his son swore that no profit was realized from the business for a year after the «dato of the asserted sale made by defendant to the plaintiff.

It would be difficult to believe that such was, in fact, the case; at the sanie time, it would not be possible to find the amount of profits realized, without any evidence showing how much it was.

In Schleider vs. Dielman et al., 44th Ann., 462, the syllabus, indicating the .principle passed upon, reads:

“As a general rule, the future profits of a contract cannot be included in the injury suffered by its breach; mainly for the reason that they depend' upon so many and various contingencies that it is impossible for a court or a jury to arrive at any definite determination of the actual loss by any trustworthy method. They are open to thaobjection of remoteness, as well as of uncertainty.”

Plaintiffs claim for damages, based on future profits of the business-he. would have realized, is as uncertain as it was in the case cited.

“Anticipated profits cannot always be recovered.” United States vs. Behan, 110 U. S. Rep., 344.

At be'st, defendant’s profits, we infer, were small. Plaintiff was-not acquainted with the former’s customers, and with the business as conducted in the locality in which defendant’s grocery'was. There was great uncertainty and contingency as to whether gain would have-been derived at all.

The questions presented were orally argued. No briefs were filed.

For reasons assigned, the judgment appealed from is amended by-reducing the amount of damages to one hundred and ninety-five dollars, making with the “earnest money,” the sum of two hundred and ninety-five dollars, with legal interest thereon from October 19th, 1898, and as amended, the judgment is affirmed at the cost of plaintiff in the Supreme Court; i. e., plaintiff pays costs of appeal.

Monroe, J., takes no part.


author: Rreaux, J.

text:
    No. 13,161.
    State of Louisiana vs. Annie Harris.
    Syllabus.
    1. Tie authority of tie trial judge to control tie examination of jurors on their voir dire, as relates to the mode of examination, has always, when apparently reasonable, been recognized.
    2. Tlie court, as relates to the character of the Questions propounded to a juror;, is vested with a large discretion, with which an appellate court will not interfere, save in case of manifest disregard of the rights of the accused.
    3. Under repeated rulings, the statement of the trial judge incorporated in the-bill of exception, is accepted as correct in the absence of evidence showing that it is not correct.
    ON APPEAL from the Fourth Judicial District Court for- the Parish of Grant. Machen, J.

      M. J. Cunningham, Attorney General, and A. B. Hundley, District Attorney, for Plaintiff and Appellee.

      ■IF. 0. Roberts for Defendant and Appellant.
    Submitted on briefs May 6, 1899.
    Opinion handed down May 15, 1899.
   The opinion of the court was delivered by

Rreaux, J.

The accused, Annie Harris, and her husband, were charged, each as principal, on the 24th day of September, 1898, with the murder, on the 18th day of the month of May, 1898, of Jessie Brown.

On her motion, the court granted her a severance in the trial.

She was tried, found guilty of manslaughter, and sentenced to serve at hard labor in the penitentiary for ten years.

From the verdict of the jury and the sentence of the court, she appealed.

The defendant excepted to the court’s refusal to permit her counsel in cross-examination of six of the jurors on their voir dire to propound the following questions:

“If the evidence in the trial should establish that the accused on trial and Andy Harris, who was indicted jointly with her, who had been tried, are married, and that they were both present and participated in the act which caused the killing, and if the evidence should establish that whatever the wife did, was done under the direction and' coercion of her husband, and if the court should instruct you if you should so find, you should acquit her; would you do so?”

The jurors-to whom this question was propounded, were peremptorily challenged by the defendant. They had answered that they knew nothing of the case.

The narrative of the bill of exception, made part of the bill by the judge, sets out that the question only had a tendency to confuse or mislead, and to take up the time of .the court uselessly.

It is well settled that the juror’s incompeteney may be proved upon examination on his voir dire, and every question needful to show his disqualification, may be propounded; but, it is, also, equally as well settled that the trial judge may, in his discretion, decline to permit the examination to be extended indefinitely and uselessly.

The examination of a juror, both as relates to time and mode, is to be exercised under the supervision of the district judge.

Messrs. Thompson & Merriam in their book on “Juries,” say: “The -court must be vested with considerable discretion in determining the -character of the questions to be proposed and the limits of the examination. The questions must be pertinent, and from their nature, calculated to show that the person offered is not sufficiently free from bias to sit as an impartial juror.” Sec. 243.

The judge, in the exercise of proper discretion, may see that the ex-amination is properly limited, and that the questions are not such as ¡to mislead or confuse the juror.

The trial judge further stated in an incorporated statement in the -same bill of exception, as the one just referred to, that the State, in the examination of the jurors, asked the following:

“If you should be selected as a juror, you will be instructed by ther -court, and it is your duty to take the law from the court and the testimony from the witnesses, and from that you will make up your verdict ; will you do that ?”

That the answer was in the affirmative.

We understand that the accused, through counsel, propounded similar questions to the jurors as that which had been propounded by the State, as just mentioned.

To meet the objection of defendant, the trial judge states that similar questions having been propounded by counsel for defendant to the jurors, the court declined to permit them to answer them. The court thought the matter had already been sufficiently passed upon.

We deem it sufficient to say that, here again, we have not found in. the ruling any denial of a right. The question had been propounded ¡and answered, and it was not one which should give idse to an extended examination of a juror, for under their oath they were, in the nature of things, if in other respects competent jurors, bound to receive the law, and to construe the facts as just stated.

The second bill of exception relates to an asserted ruling of the District Court permitting a witness to testify over defendant’s objection, that the defendant had had some trouble some time prior to the homicide, with, other persons than the deceased. The defendant contended that this evidence was not part of the res gestae; but the judge of the District Court informs us by the statement incorporated in the bill of exception that the evidence was taken out of the hearing of the jury. It appears that the court did rule that the evidence relating to the previous difficulty, as well as the threats made to the witness in question, was-admissible for the purpose of showing malice, but after the jury had returned in accordance with the court’s order, the witness was-not examined; the State did not press the question. It follows that the ruling was of no effect. It was the decision of a question in the abstract, as the prosecution did not avail itself of it to introduce testimony. The court directly states “that the jury returned from, their room of deliberation. The witness was not asked anything, about the previous difficulty or threats, nor did the evidence go before-the jury. This being' the case, the defendant could not, in any manner, have been prejudiced.”

As relates to the-statement of the judge, it has been repeatedly decided that it must control, even if it conflicts with the statement of' counsel for the accused. We, therefore, take this statement as entirely correct, the testimony was never heard by the jury, and that renders it unnecessary to pass upon the question of law that would have arisen if it had gone to the jury. State vs. Broussard, 39th Ann., 671; State vs. Young, 40 Ann., 483,

The verdict, sentence and judgment are therefore affirmed.


text:
    No. 13,115.
    State ex rel Frank Greco vs. The Honorable N. H. Rightor, Judge.
    Syllabus.
    1. Proceedings of foreclosure were pending when the mortgage debtor sold the-property mortgaged to relator who sued out a writ of mandamus to 'compel the district judge to grant him an injunction on grounds already passed upon by the District Court and from which no suspensive appeal was taken.
    2. During the pendency of foreclosure proceedings, the debtor cannot convey the property mortgaged to the prejudice of plaintiff in the proceedings. The injunction prayed for, if granted, would be prejudicial to plaintiff’* rights.
    3. Relator was without a right of action, as he was not a third person, and, consequently, the refusal of the injunction was within the discretion of the-District Court. 4áth Ann., 1081; State e® rel. Kenner vs. Judge, 50th Ann. 995.
    ON APPLICATION for writs of certiorari, mandamus and prohibition.

      Theo. Ootonio for Relator.

      D. Howard McOaleb and Dinhelspiel & Hart for Respondents.
    Submitted on briefs March 25th, 1899.
    Opinion handed down April 3rd, 1899.
    Rehearing refused May 29th, 1899.
   The opinion of the court was delivered by

Breaux, J.

The respondent judge having refused to grant a writ of injunction to relator, and having also refused to grant an appeal, the relator applies for writs of certiorari, mandamus and prohibition, to compel the judge to grant him the application -for an injunction, and fix the amount of the bond for an injunction; or, in the alternative, to compel the judge to grant to relator an appeal from the order refusing to grant the injunction suspensive, upon relator furnishing bond according to law.

He also prayed for a writ of prohibition to restrain and prohibit the judgment creditor from proceeding further in foreclosing her mortgage.

Relator sets .forth as some length that Mrs. Mary Stempel, guardian, had caused relator’s property to be seized, and that she had no right to proceed with the seizure. The relator asserts that he bought this property on the 15th of August, 1898, by act before Theodore Cotonio, notary, from Edward Eulton et al. He avers that his vendors, Edward Fulton and others, received their title from Elizabeth Flynn, from whom they inherited. Relator alleges that the judgment of Mrs. Stempel, guardian, obtained against Edward Fulton and others, was never recorded, and that she never recovered any judgment against Edward Fulton; but that, on the contrary, her claim against Edward Fulton has been dismissed; that his interest exceeded half of the ownership of the property, and that, in addition, he was the usufructuary of the remaining portion; that in matter of Mistress Stempel against J. C. Fulton, William F. Fulton and Edward Fulton, the appeal has been taken by the latter, and that it is still pending; that the claim of Mistress Stempel, guardian, is prescribed; and, finally, that the judgment was null and void, because rendered without citation.

On the other hand, the respondent judge, in his return, sets forth, in substance, that the relator’s statement of facts is not correct; and he states specifically that the application for an injunction was frivolous, and made only for delay, and, for that reason, he refused to grant an injunction; and, after the refusal, he declined to sign an order for appeal; that every one of the grounds urged by the relator, has, in one way or the other, been litigated, and has been decided against the position taken by relator; that the only remaining issues to be heard {because it may be that they have not heretofore been finally disposed -of) are those now pleaded in the case pending upon a devolutive appeal; that in order to obtain delay, relator pleaded for the injunction to which we have just referred.

First. The grounds set forth by the relator are manifestly not tenable, and, in our view, the District Judge properly refused to grant the injunction.

The record shows that citations were duly served and judgment rendered against relator; and that the plea of prescription was heretofore passed upon also. It appears from this that relator’s application is not sustained by the facts. Relator sought to avoid the effect of the decision heretofore rendered contradictorily » between Mistress Stempel, guardian, and the Fultons (the latter, we have seen are the relator’s authors), Stempel vs. Fulton; In re Fulton applying for certiorari, or writ of review, 51st Ann., 468.

When relator bought the property from the mortgage debtor proceedings to foreclose the mortgage had already been instituted against the mortgage debtor.

The law prohibiting a sale made with a view of thwarting legal proceedings, as here attempted, is quite plain. This case, we think, falls within the terms of the law which reads: “* * * Nor shall it be lawful for debtors or third possessors of property, subject to mortgage of any kind, to transfer or alienate such property pending an action to enforce the mortgage; and any transfer or alienation made in contravention of the provision of this article, shall have no effect. * * *” Statute 3 of 1878.

Second. If an injunction were granted in this case as prayed for ' by relator, the only result would be, that, temporarily at least, effect would be given to an act which the statute provides shall have no ■ effect.

If there was any doubt about the character of the litigation, there might be some room to grant an injunction, but not the least question arises in this case which has not been, in one way or another, heretofore urged by relator’s authors and passed upon. Where it is manifest that an injunction has no sufficient grounds to stand upon, it is-within the discretion of the trial court to refuse to grant it. Citizens’ Bank vs. Marie Webre, 44th Ann., 1081; State ex rel Kenner vs. Judge, 50th Ann., p. 995.

Third. Belator is not in law a third person; it is as if defendants themselves in the foreclosure proceedings were attempting to sue out an injunction and thereby obtain delays in matter of foreclosure proceedings.

It is, therefore, ordered, adjudged and decreed, that the rule nisi heretofore issued in this case and plaintiff’s demand, as set forth in his application for writs of certiorari, prohibition and mandamus, is-rejected.


author: Blanchard, J.

text:
    No. 12,968.
    A. R. Bagnetto vs. R. S. Bagnetto.
    Syllabus.
    1. The rule that the finding oí the trial Judge on a question of fact will be reasonably followed unless clearly shown erroneous, reaffirmed and given application herein.
    2. The mere filing of a suit seeking dissolution and settlement of a partnership does not ipso facto operate its dissolution.
    3. It is the duty of a partner in charge of a valuable partnership asset, when dissolution is sued for, to preserve it, to prevent its deterioration or destruction, and in this behalf he may make reasonable expenditures on behalf of the partnership.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Frank Zengel for Plaintiff and Appellant.

      Charles F. Claiborne for Defendant and Appellee.
    Argued and submitted March 22, 1899.
    Opinion handed down May 15, 1899.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiff and defendant, brothers, conducted, as-partners, an eating house and coffee stand at Stall No. 69 in the Poydras Market, New Orleans, under the firm name of “Sam Bagnetto”-— the name of defendant, who managed the business.

This partnership began in 1892.

Prior to its formation, defendant, in his own name and for his own account, had conducted the same business at the same stall for seven or eight years.

lie had purchased the stall and business in 1883 from one Collac, for the price of $1630.

When he associated his brother (plaintiff herein.) witli him in 'the business, the latter put in no capital, though he was admitted to a full partnership.

For some years after the formation of the partnership the business was profitable, but latterly it had not been.

About the time they became associated in business these brothers purchased, and likewise held in common, some real estate.

In February, 1898, this suit was brought. The petition sets forth the partnership and the ownership in common and in indivisión of the real estafe-, describing it.

The allegation is made that plaintiff is not willing longer to continue the business, desires the partnership terminated and liquidated, and wishes to have the real estate sold to effect a partition thereof. Defendant was averred to be in possession of the business and it was-suggested that pending the settlement and liquidation • a receiver should be appointed.

An inventory of the partnership effects, as well as of the real estate held in common, was prayed for, and a rule was taken on defendant to-show cause why a liquidator and receiver should not be appointed to carry on and conduct the business pending its settlement.

Judgment was asked dissolving and liquidating the partnership, and ordering the sale of its effects, as well as the sale of the real estate owned in indivisión.

-An inventory and appraisement was ordered and taken.

No order was ever made for the appointment of a liquidator and receiver.

Instead, some five weeks after the suit was filed, on the joint application of the parties litigant, defendant agreeing to dissolution and liquidation, the court erdered the sale at auction of the stand in the Poydras Market, its contents and good will, and also of the real estate.

The order, at the instance of the litigants, directed that the proceeds of the sale be placed in the hands of the notary for division between the partners after the differences between them should have been determined and settled by the court.

At the sale which followed, the Poydras Market stand brought $502. It was purchased by the plaintiff, who continued the business. The real estate brought $4500 — making a total of $5002, subject to liquidation, settlement of debts and distribution.

Of the debts which showed up against the concern, there was no dispute as to the larger portion thereof being liabilities of the partnership.

The claims thus admitted to be debts of the partnership aggregated $1508.45.

Plaintiff took a rulé on defendant to show cause why this amount of $1508.45 should not be decreed to be the only debts due by the partnership and to be paid out of the partnership funds, and why the remaining bills should not be decreed to be the individual liabilities of ■ defendant, subject to payment only out of the balance found to be due '.him after settlement of the partnership debts and the expenses of the liquidation.

Defendant, answering the rule, set out a list of bills aggregating $990.70, which he averred to be debts also due by the partnership and which should be paid out of its assets.

The trial of this rule resulted in a decree adverse to plaintiff, and he appeals. - •

Of the disputed claims, $811.10 represents money borrowed by defendant from P. B. Collac.

Both defendant and Collac testify to the loan, and the former swears that he used the money in the payment of debts which had been incurred in the conduct of the partnership business. All the hills were made out against defendant. But this is explained by the fact that his was the firm name, and that he managed the business and made the purchases.

The trial judge, who saw and heard the witnesses called to the stand in regard to this indebtedness, came to the conclusion it was a claim for which the partnership should be held.

The question was one of fact as to whether the money was used for the partnership or not. Our examination of the evidence does not justify us in disturbing his finding.

The remaining items on the disputed list represent claims for • wages due assistants and waiters around the coffee stand and furnishers of supplies.

The contention of plaintiff is that these liabilities having been incurred Subsequent to the filing of the suit, defendant alone and not the plaintiff should he charged with the same.

lie insists that the partnership must he held dissolved from the time of service of citation upon defendant in this suit, and that after dissolution one partner cannot incur liabilities chargeable against the partnership assets.

True it is that after dissolution one of the parties to the defunct partnership may not contract ordinary debts binding upon the others who had been associated with him, or upon the assets of the partnership. But the error of plaintiff’s position is in not discerning that this partnership was not dissolved at the moment this suit was filed. He would have defendant,-in charge of the coffee stand, closes it up and quit business altogether as soon as service of process was made upon him. This necessarily would have resulted in injury and loss to both partners, for the evidence shows that if this had been done, the market lessees would have disposed of the stall to other parties, and, later, when the sale of the partnership effects was ordered there would have, been no going concern — stall, coffee stand and eating’ honse — to dispose of.

Besides, the petition served on defendant notified him that a liquidator and receiver of the business had been applied for.

Thus confronted with a suit for dissolution and liquidation, and for the appointment of another to conduct the business pending the litigation, what was the duty of defendant under the circumstances? Why, to continue the business, keep it going. The stall, the business conducted there, its good will, was a valuable asset of the partnership. It was incumbent on defendant in charge of this asset, to preserve it, to prevent its deterioration or destruction, and to do this he must keep the stall open, its business conducted as usual. In this behalf he is considered as having had authority to make reasonable expenditures on behalf of the partnership. The stall could not he run without cooks and waiters and without supplies. These were had and must be paid for, and the debt is that of the partnership and not of the one partner.

After the filing of the suit, these partners came together and agreed on a dissolution and sale of the partnership effects. A time was fixed for the sale and it took place then. Until this sale the partnership is-considered not to have been dissolved. The sale and transfer of the coffee stand and its business to plaintiff ended the partnership. Up to that time the stand, its business and fixtures, remained assets of the partnership, and the debts contracted in behalf of the same partnership liabilities. The court a qua was correct in so holding.

No books, it seems, were kept in conducting the business of the' coffee stand. Plaintiff was aware of this. Defendant could not,, therefore, render an account of receipts and disbursements, but enough is gathered from the record to support the conclusion that plaintiff has not been injured by this. During the time intervening between the filing of the suit and the sale of the coffee stand the business was conducted at a small loss — as it had been for some time prior to the suit.

It is not considered that the question of the inability of a commercial partnership to buy and sell real estate arises in this case.

Nor the question that the partners, being joint owners of the real estate purchased, one cannot alienate or encumber the properly without the assent of the other.

All the effects — real estate and all — held in common by these litigants were, by consent, sold, the proceeds placed in a notary’s hands, there to await the action of the court in determining the question of liability of these partners inter se, and after such determination settlement to be made accordingly.

Agreements have the force of law on those entering into the same.

The judgment appealed from does substantial justice between these brothers, is supported by the law, and is affirmed.


author: Monroe, J.

text:
    No. 13,145.
    R. R. Webster vs. The Police Jury of the Parish of Rapides.
    Syllabus.
    Article 202 »f the Constitution of 1879, whilst properly construed to mean flhat' the taxing power was to be exercised by the General Assembly, for State-purposes, by parishes for parish purposes, and by municipal corporations for the purposes of such corporations, is also to be construed with Article ■ 103 of the same Constitution, which provides that “the General Assembly shall make it obligatory upon each parish to support all Infirm, sick and disabled paupers residing within its limits,” etc. And — when so construed did not affect the power of the General Assembly, by the adoption ot Act No. 1Ó7, of the Acts'oi 1804, to require the parishes to pay the expense of treatment, at tho Keely Cure Institute, of persons contemplated by said act and as therein provided.
    ON APPEAL from the Tenth Judicial District Court for the Parish of Rapides. Thornton, J. ad hoc.

      J. 0. Blackman and J. 0. Ryan for Plaintiff and Appellant.

      .Andrews and Hackenyos for Defendants and Appellees.
    Submitted on briefs May 2, 1899.
    Opinion handed down May 15, 1899.
   The opinion of the court was delivered by

Monroe, J.

Plaintiff, proceeding under Act 157, of 1894, obtained .an order from the judge of the court a qua, that “Robert Webster be -treated for drunkenness, and the expenses of his treatment, at the Keely Institute at New Orleans, La., be paid by Rapides parish, provided said expenses do not exceed one hundred dollars, and said institute will receive and treat him with this understanding-, as provided by Act No. 157, of the acts of 1894.”

It appears that Robert Webster was the plaintiff’s brother and that, after obtaining this order, plaintiff applied to the Keely Institute to receive aiid treat him, but was informed that the $100 must be paid in advance, whereupon he borrowed, from different persons, amounts ♦ aggregating- the sum required and paid the same to the institute, and his brother was received, treated and discharged as cured, and the claim of the institute, if any it had, was assigned to plaintiff, and by him presented to the police jury for payment, and, payment having been refused, plaintiff brought this suit to recover the amount. It also appears that the judge of the District Court having recommended the police jury to make the payment, was recused, and J. R. Thornton, Esq., a member of the bar, was selected to act in his place.

Several matters were set up by way of exception, and answer, which were overruled, or decided adversely to the defence, and the final judgment, in defendant’s favor, was based upon the ground that Act No. 167, of 1894, is unconstitutional, for the reason: That, under Article 202 of the Constitution of 1879, “the taxing power may be exercised by the General Assembly, for State purposes, and by parishes and municipal corporations, under authority granted to them by the General Assembly, for parish and municipal purposes”; from which it is deduced that the General Assembly has no constitutional authority to impose upon a parish an obligation requiring the expenditure of funds derived from taxation levied under parish authority; such expenditure, it is said, being a matter entirely within the discretion of the parochial authorities, and beyond the control of the General Assembly.

From, this judgment the plaintiff appealed to this court, under that piovision of Article 86 of the Constitution of 1898, which gives jurisdiction where a law of the State has been decreed unconstitutional, and declares that “the appeal on the law and the facts shall be directly fiom the court in which the case originated to the Supreme Court.”

Act 157, of 1894, is entitled “An act to provide for the treatment and cure of habitual drunkards or inebriates, or other persons addicted to the intemperate use of alcohol, morphine, cocaine or other narcotics; and to provide for the payment thereof by cities, parishes- and municipalities in this State.”

It provides, in substance, that any relative or friend of a drunkard, joined by three taxpáyers, may petition to the court- to have him sent to an institution for treatment, and if it appears to the judge that the facts are as stated, and that the person named is an inebriate, and has been a resident of the parish or city for a year, and is willing to-be treated, and that neither he nor his petitioning kin are able to bear the expense, the judge may order that the expense of such treatment, not to exceed $100, “shall be paid out of the treasury of the parish or city in the same manner that other claims against such parish or oily for the administration of justice are paid.”

The learned judge ad hoc reached the conclusion that this act is unconstitutional with reluctance, and, he states, under a sense of obligation to be guided by the opinion of this court in the case of The Town of Mansfield vs. Police Jury of the Parish of DeSoto," 47 Ann., 1244. A comparison of that case, however, with the instant case, vill, we think, disclose such a difference in the purpose and effect of the respective statutes under consideration as to render the opinion mentioned inapplicable here. In that case the questions to be determined were, whether Article 202 of the Constitution of 1879, should be construed as authorizing the parish to collect taxes for the purposes of tlie parish and also for the purposes of municipal corporations within the parish, or whether that article meant that the parish should levy and collect parish taxes for parish purposes alone. And the court having reached the conclusion that the article meant that the parisa should collect taxes for parish purposes alone, the next and only remaining question was, whether it was competent for the General Assembly, in view of such a constitutional ^provision, to require that parish taxes, thus collected, for parish purposes, should be turned over to a municipality for municipal purposes; which question was decided in tlie negative.

Whether the General Assembly could require that taxes levied and collected by a parish, for parish purposes, should he devoted by the parish to the discharge of obligations imposed upon the parish by the Constitution itself, or which the General Assembly was required by the Constitution to impose upon the parish, was not involved in the ease, and was not decided. That question is, however, presented in the ease, under consideration and must be determined. Article 163 of the same Constitution in which the Article 202, which has been quoted, is to be found, reads as follows, to-wit:

“The General Assembly shall make it obligatory upon each parish to support all infirm, sick and disabled paupers residing within its limits; provided, that in every municipal corporation in a parish where the powers of the police jury do not extend, the said corporation shall support its own infirm, sick and disabled paupers.”

It would be an extreme case which would justify a court in reading such an article, or any article, entirely out of the Constitution, and yet, if it be held that Article 202 precludes the General Assembly from exercising any control whatever over funds collected by a parish by means of a taxing power vested in such parish by the General Assembly, and derived from no other source, Article 163 is stricken with nullity — a result unnecessary, and therefore inadmissible, according' to the familiar canon of construction, that a law should be so construed as to give the greatest possible effect to all its provisions.

Tong before the Constitution of 1879 was adopted, we had, upon our statute books, laws imposing upon the different parishes and municipalities the expense of the judicial inquiry necessary to send &n insane person to the asylum, .and to provide for his transportation (E. S. 1768-9); and imposing upon the parishes and municipalities, these very criminal expenses, which are referred to in the opinion in the case of The Town of Mansfield vs. Police Jury. (Act 92 of 1878).

It has never, however, been thought that Article 202 of the Constitution of 1879, in providing that the taxing power should be exercised by parishes, for parish purposes, “under authority granted to them by the General Assembly,” had the effect of relieving the parishes of these obligations, and there is no reason that we have been able to discover, why such obligations should be distinguished from the obligation to make provision with regard to a person who, in the language of the statute, “has acquired the habit of using spirituous, malt or fermented liquors, cocaine or other narcotics, to such an extent or degree as to deprive him of reasonable self-control.” He is equally a weakling, as a lunatic or a criminal, and may become either the one or the other. This view of the matter has been taken by the Supreme Court of Maryland in Baltimore vs. Keely Institute, 31 Md., 106, (27 L. R. A., 646). And we think it not only correct as a matter of interpretation, so far as the Constitution of this State is concerned, but also humane and reasonable.

The facts have been found against the defendant by both the judge, whose duty it was, first, to inquire into the matter, and (ho judge ad hoc, by whom the ease was tried, and we think that finding fully sustained by the evidence in the record. The suggestion that the plaintiff is not entitled to recover because he is not the person who was treated, we presume, is not seriously urged. The plaintiff is shown by the evidence to be a poor man, who did all that the law required should be done in order to impose upon the Parish of Eapides the obligation to pay this $100. He had the right, under the circumstances, to place his brother in the Institute for treatment, and to look to the parish to pay the bill, and if, as between himself and the institute, and in order that the purpose of the law might not be defeated, he borrowed the money and paid the fee required by the institute, in advance, he still has the right to look to the parish to pay the bill.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that there be, now, judgment in favor of the plaintiff, E. E. Webster, and against the defendant, The Police Jury of the Parish of Eapides, in the sum of one hundred dollars, together with all the costs of this suit, the same to be paid in the same manner as other claims against said parish for the administration of justice are paid.

Mr. Justice 'Blanchard dissents.'


text:
    No. 13,134.
    State of Louisiana vs. Jennie and Carl Ackerman.
    Syllabus.
    1. Act No. 94 of 1890 does not embrace more than one object, within the meaning of Aitiele 29 of the Constitution of 1879.
    2. An information will not be held insufficient for omitting to state the time at which the offence was committed, or for stating a time impossible, when time is not of the essence of the offence; nor, in such case, for omitting to state the time of the doing of anantecedent act upon which the offence is made to depend: nor, for omitting to state the place of the doing of such antecedent act where proof as to the place is unnecessary.
    R. But the fact of the doing of such antecedent act must be set forth, and where a reference to averments contained in a preceding count, is relied on for that purpose, such averments must be sufficient, and" the reference must be so full and distinct as. in effect, to incorporate the matter going before with that in the count wherein it is made — otherwise, such count cannot be held to be good.
    ON APPEAL from the Fifth Judicial District Court for the Parish of Ouachita. Potts, J.

      II. J. Cunningham, Attorney General, and J. P. Madison, District Attorney, for the Plaintiff and Appellee.

      Stubbs & Bussell, for the Defendant and Appellant.
    Argued and submitted April 22nd, 1899.
    Opinion handed down May 15th, 1899.
   The opinion of the court was delivered by

Monroe, J.

This ease is similar to that of State vs. Carl Ackerman, No. 13,135, this day decided — with the exceptions:

1st. That in this case the information was filed against Ackerman and his wife, whereas, in the other case it was filed against Ackerman alone. The wife was, however, acquitted and discharged and is not before this court.

2nd. The charge in the first count here, is that the offense was committed on the 8th and 17th days of November and December, 1898, whereas in the other case the offence was alleged to have been committed on the--day of December, 1898.

3rd. The defendant, Carl Ackerman, -was convicted and sentenced,, in the instant case, on both counts, whereas in the other case a motion in arrest of judgment was sustained as to the conviction on the second count.

The reasons given, in the ease referred to — (State vs. Carl Ackerman, No. 13,135 of the docket of this court, this day decided— in so far as relates to the sufficiency of the charges as to time and place, and in so far as relates to the constitutionality of Act 94 of 1896, are equally applicable to those questions, as presented here, and are adopted as the reasons for the judgment, upon those questions, which is to be here rendered.

The only question remaining to be determined in this ease is as to the sufficiency of the language used in the second count of the information — to which the following propositions, taken from the brief of the defendant’s counsel, apply, to-wit:

“That each count in the bill is, in so far as its special averments and allegations are concerned, separate and distinct; and that all the averments in each count, except the caption and close, should be complete charges in themselves, containing every element of the crime, with the averments necessary to sustain each of them.” “We contended,” say the counsel, “that each count, except as to the caption and closing', should be able to stand alone, else a defective count, having some element of a legal charge, though absolutely rejected, might be relied on to sustain a defect in another:”

In order to consider this proposition intelligently it is necessary to-reproduce the information, which reads as follows, to-wit:

“State of Louisiana vs. Jennie and Carl Ackerman. No. 3,530. Information. Filed January 21st, 1899. State of Louisiana. Pai’ish of Ouachita. Fifth District’ Court. Now into court comes J. P. Madison, District Attorney for said district, on this the 21st day of January, 1899, and who prosecutes on this behalf in the name and By the authority of the State of Louisiana, and, with leave of the court first had and obtained, gives the court to understand and be-informed that Carl Ackerman and Jennie Ackerman, late of said parish and State, and within the jurisdiction of said court, on the 8th and 17th days of Rovember and December, 1898, did then and there wilfully and feloniously hypothecate, pledge and otherwise dispose of, out of the usual course of business, and with a wilful and felonious intent to cheat and defraud the creditor and seller, S. G. Dreyfous & Company, of Shreveport, Louisiana, bills of merchandise bought on credit from said company, consisting of hats, caps and sundry other dry goods and notions of the value of two hundred dollars ($200.00). That they did so cheat and defraud said company, said goods never having been paid for, contrary to the form of the statute of the, State of Louisiana, in such ease made and provided, in contempt of the authority of the State of Louisiana and against the peace and dignity of the same.

“And the said Madison, in his capacity aforesaid, further presents that said Jennie and Carl Ackerman did then and there wilfully and feloniously secrete themselves and abscond from said State of Louisiana with the wilful and felonious intent and purpose of cheating and defrauding the seller and vendor of said goods, said S. G. Dreyfous & Company, contrary to the form of the Statute of the State of Louisiana, in such ease made and provided, in contempt of the authority of the State of Louisiana and against the peace and dignity of the same.”

“(Signed)

J. P. Madison,

“Dist. Atty. 5th Dist. of La.”

The rule upon the question presented is thus stated by Mr. Bishop r

“The orderly form is to put each count into one paragraph, having a separate commencement (not caption) and conclusion, the same as though it constituted, alone, the indictment. But in strict law, the question of paragraphs is immaterial, and the court will determine from the matter in the indictment, how much of it and what of it constitutes a count. In practice, the commencement is generally abbreviated, after the first count, to read: ‘The jurors aforesaid, on their oaths aforesaid, do further present,’ etc. * * * It has been laid down in broad terms that each count in an indictment must be sufficient in itself, and averments in one cannot aid defects in another. But- * * * * *-»***«*• "to some extent the pleader may avoid repetitions by referring from •one count to another, ‘as/ says Chitty, ‘to describe the defendant (or another person) ‘as the said/ etc. And, although the first count .should be defective, or be rejected by the Grand Jury (or the defendant should be acquitted on it), this circumstance will not vitiate the residue. But if the other count refer to a writ or warrant improperly .set forth in the first, the whole indictment will be invalid..

“The reference must be so full and distinct as, in effect, to incorporate the matter going before with that in the count wherein it is made. To illustrate: A first count charged an assault on ‘Esther Ricketts, an infant above the age of ten and under the age of .twelve years, with intent to carnally know her/ the second charged a different form of attempt on ‘the said Esther Ricketts.’ Whereupon, this reference was held not to carry with it the allegation, in the first count, that Esther Ricketts was ‘an infant above the age of ten and under the age •of twelve years.’ So, where a first count set out a larceny of goods •of a stated value and the second a receiving of ‘the goods aforesaid/ th.e averment of value was adjudged not to be incorporated in the second.”

Bishop’s New Crim. Pro., Vol. 1, 420-431.

Applying the legislation of this State, adopted with a view of simplifying criminal proceedings, this court has held, among other things, that it is not necessary that each count in an indictment should ■conclude with the formula — “Contrary to the form of the Statute,” etc., but that it suffices if these words appear at the end of the bill, in which case they are held to apply to all of the counts.

Where, however, distinct offences are charged in, and conviction is asked upon, separate counts, we do not think that the latitude in pleading allowed under our law, would justify the omission from a count of any averment necessary to "make out the charge of an of-fence, saving references such as are indicated in the excerpt given above. In the last case, in which it was held that the formula mentioned need not follow each count; (being the case of State vs. Wesley Thompson — not yet reported), the following language will he found in the opinion, to-wit:

“Each count in the bill states and charges unmistakably and with certainty the offence with which it deals. So that the accused was thoroughly and distinctly informed and advised why and to what extent he was in jeopardy.” This language was not intended, it is true, to apply to the exact situation presented in the instant case, but. it is a fair statement of what a person charged with crime has a right to expect.

Reverting then to the immediate question before us. An analysis of the language of the second count in the information upon which . the defendant was convicted fails to disclose anything which can reasonably be construed as an averment of the purchase by the defendant of goods on credit, or as an averment that the defendant absconded in order to cheat the seller out of the pric-e of such goods. And without such averments no offence is charged. “Au indictment under a statute ought, with certainty and precision, to charge the defendant with having committed or omitted, the acts under the circumstances and with the intent mentioned in the statute, if any one of the ingredients is missing the indictment is not good. State vs. Stiles, 5th Ann., 324; State vs. Read, 6 Ann., 227; State vs. Delerno, 11 Ann., 648; State vs. Johnson, 42 Ann., 559.

For these reasons it is ordered, adjudged and decreed that the judgment and senteuce rendered and pronounced against Carl Ackerman,, the defendant herein, upon the first count of the information filed against him, be affirmed; and it is further ordered, adjudged and decreed that the judgment and sentence rendered and pronounced against said Carl Ackerman upon the second count of said information be avoided, reversed, and annulled, and that said information as to said second count be quashed as insufficient in law to charge the ■ offence of which the defendant was convicted.


text:
    No. 13,135.
    State of Louisiana vs. Carl Ackerman.
    Syllabus.
    i. Act No. 94 of 1896 does not embrace more than one object, within the meaning of Article 29 of the Constitution of 1879.
    2. An information will not be held insufficient "for omitting to state the time at which the offence was committed, or for stating a time impossible, when time is not of the essence of the offence; nor, in such case, for omitting to state the time of the doing of an antecedent act, upon which the offence is ■ made to depend; nor, for omitting to state the place of the doing of such-antecedent act, where proof as to the place is unnecessary.

      ON APPEAL from the Fifth Judicial District Court for the Parish of Ouachita. Potts, J.

      M. J. Qunninghain, Attorney General, and J. P. Madison, District Attorney, for Plaintiff and Appellee.

      Stubbs & Bussell, for Defendant and Appellant.
    Argued and submitted April 22nd, 1899.
    Opinion handed down May 15th, 1899.
   The opinion of the court was delivered by

Monroe, J.

Defendant having been prosecuted under Act No. 94 of 1896, was convicted, and sentenced by the district judge, without a jury, agreeably to the provisions of Article 110 of the Constitution, and he has appealed, and asks that the judgment against him be reversed, on the following grounds, which were presented to the court a qua in motions to quash, and in arrest of judgment, respectively, to-wit:

1st. That the charge against him is too vague and indefinite; that the offence is charged as having been committed on the ■— day of December, 1898, and is, therefore, so indefinite as to render it impossible for him to plead thereto.

2. That the information is defective, in that the time and place at which the purchases were made, are not set forth, and, therefore, the court is without ■ jurisdiction.

3. That no offence is legally charged against him.

4. That the statute under which 'the charges are brought is in conflict with Article 29 of the Constitution of 1879, in that it embraces more than one object.

The information reads as follows, to-wit:

“J. P. Madison, District Attorney of the Fifth Judicial District of the State of Louisiana, who prosecute in this behalf, in the name “ and by the authority of the State of Louisiana, comes in person, into the Fifth Judicial District Court, in and for the parish of “ Ouachita, State of Louisiana, and, with leave of the court had and c‘ obtained, on the 23rd day of the month of February, Anno Domini, “ eighteen hundred and ninety-nine', gives the court herein to under- ‘‘ stand and be informed, that Carl Ackerman, late of the parish “aforesaid, in the Fifth Judicial District of the State of Louisiana* “ on or about the — day of the month of December, in the year of •“our Lord, one thousand eight hundred and ninety-eight, in the “ parish, district and State aforesaid, did then and there, wilfully “ and feloniously sell, hypothecate, pledge, and otherwise dispose of, “ out of the usual course of business, and with the intent to cheat and •“defraud his vendor and seller, lY 2-3 dozen pairs of pants, of the “ value of one hundred and sixty-one and 50-100 dollars, said pants “having been bought by said Ackerman on a credit, from B. J. Wolff “& Sons, of New Orleans, La. Contrary to the form the statute of “ the State of Louisiana in such case made and provided, in con- “ tempt of the authority of the State of Louisiana, and against the “ peace and dignity of the same.

“And the said Madison, in his capacity aioresaid, further presents •“ that the said Ackerman did then and there, wilfully secrete himself “ and abscond from the State of Louisiana, with the wilful intent of “cheating and defrauding his said vendors, B. J. Wolif & Sons, cou- “ trary to the form of the statute of the State of Louisiana in such “ case made and provided, in contempt of the authority of the State of “Louisiana, and against the peace and dignity of the same.”

The defendant was found guilty and sentenced upon the first count, and, with respect to the second count, the motion in arrest of judgment was sustained.

The title and text of Act No. 94 of 1896, read as follows, to-wit: .

“An act to amend and re-enact Act 166 of 1894, approved July 13, “ 1894, entitled, ‘An act to define and punish certain misdemeanors in “trade and commerce, and to define the crime of purchasing goods, “ wares or merchandise, under an assumed name, with intent to cheat “ or defraud the vendor or seller; also, to make it a crime for anyone “to purchase goods, wares, or merchandise, on credit, and sell, hy- “ pothecate or dispose of the same, out of the usual course of business, “with the intent to cheat or defraud the vendor or seller; and, also, “to make it a crime for anyone to purchase goods, wares, or merchan- “ dise on credit and then to abscond from the State or secrete hims.elf, “ with the intent of cheating or defrauding, the vendor or seller; and, “ also, to make it a crime for anyone, wilfully and knowingly to pur- “ chase, in block, goods, wares, or merchandise, unpaid for, from “ anyone without exacting from the seller a written affidavit that said “goods, wares, or merchandise has been paid for; and making the “failure to exact such affidavit, and the failure of the seller to pay “ over the whole of such purchase price to his creditors, in proportion “ to the amount of their respective claims, evidence of the fraudulent “ attempt, within the meaning’ of this act, and to fix the punishment “ of said offence/

“Be it enacted by the General Assembly of the State of Louisiana, “that Act No. 166, of,the session of 1S94-, be amended and re-enacted “ so as to read as follows:

“Section 1. That whoever shall purchase goods, wares, or merchan- “ dise under an assumed or fictitious name, and with the intent to “ cheat or defraud the seller or vendor, shall be guilty of miscie- “ meanor, and, on conviction thereof, shall suffer fine in the discretion T’ of the court, and be imprisoned not less than six, nor more than “ twelve months.

“Sec. 2. Be it further enacted, etc. That whoever shall purchase “goods, wares, or merchandise on credit, and shall hypothecate, “pledge, or otherwise dispose of same, out of the usual course of “ business, and with the intent to cheat or defraud the seller or “ vendor, shall be guilty of a misdemeanor, and, on conviction thereof, “ shall suffer fine in the discretion of the court and imprisonment, not “ less than six nor more than twelve months.

“Sec. 3. Be it further enacted, etc. That' whosoever shall pur- “ chase goods, wares, or merchandise on credit, and shall secrete him- “ self or abscond from the State for the purpose, and with the intent “ of defrauding the seller or vendor, shall be decreed guilty of a mis- “ demeanor and, on conviction thereof, shall suffer fine in the discre- “ t-ion of the court and imprisonment for not less than six nor more “ than twelve months.'

“Sec. 4. Be it further enacted, etc. That whosoever shall wilfully “ and knowingly purchase in block, goods, wares, or merchandise, un“paid for by the seller, without exacting from said seller a written “ statement, sworn to, showing that said goods, wares, or merchandise “ have been paid for, shall be guilty of a misdemeanor, and, on conviction, shall be fined an amount in the discretion of the court, and “suffer imprisonment for not less than six nor more than twelve “ months.

“See. S. Be it further enacted, etc. That the failure #f the “ vendor, under Sections 1, 2, and 3, to pay over to his vendor or “ vendors, the price of such goods, wares, or merchandise, in porpor- “ tion to their claims, or to return' the same; and the failure of the “ purchaser, under Section 4, to exact a signed or sworn statement “ from the seller required in said section, shall be such prima facie “ evidence of fraudulent intent within the meaning of this act, as to “ warrant both criminal and civil proceedings.”.

I.

As to the failure to set forth the time at which the offence is said to have been committed.

It is well settled that, unless time is of the essence of the offence, the proof need -not correspond with the charge. Nevertheless, the general rule is, that:

“The day and year of the offence should be stated, except in those “states whose statutes have made the allegation of time unnecessary, .or permitted it to be less specific.” Bishop’s New Crim. Pr., Vol. 1, §386-7.

Louisiana is within the exception. Section 1063, Revised Statutes, reads:

“No indictment for any offence shall be held insufficient * * for omitting to state the time at which the offence was committed,. u in any case, where time is not of the essence of the offence, nor for “ stating the time imperfectly, nor for stating the offence to have been committed on a day subsequent to the finding of the indictment, or- “ on an impossible day, or on a day that never happened,” etc.

II.

As to the failure to set forth the time and place at which the" purchase was made.

The most that can be claimed as to the purchase is, that the offence'’ under the second section of the statute, consists in disposing of” goods, bought on credit, and hence, that it is necessary to charger that the goods sold or hypothecated, etc., with intent, etc., were-bought on credit. But it is clear that no greater exactness as to timéis required with respect to the purchase than with respect to the sale or other disposition.

As to the place of purchase, it would be immaterial, as a matter of’ proof, and is so made, by statute, as a matter of averment. Revised Statutes 1062, reads:

“It shall not be necessary to state any venue in the body of any in- “ dictment, but the State, parish, or other jurisdiction named in the “ margin thereof, shall be taken as the venue for all the facts stated “in the body of such indictment, etc.

“See. 1063. No indictment for any offence shall be held insufli- “ cient for want of the averment of any matter unnecessary to be “ proved * * * nor for want of a proper or perfect venue.”

III.

As to. the suggestion that no offence was legally charged.

The charge in the first count- — upon which alone the defendant was sentenced — follows the language of the statute and- is sufficient.

IV.

It is said that the act, under which the State prosecutes, embraces more than one object, and is, therefore, repugnant to Article 29 of the •Constitution of 18t9, which reads as follows, to-wit:

“Art. 29. Every law enacted by the General Assembly shall embrace but one object and that shall be expressed in the title.”

No complaint is made that the title fails to express the object or objects of the act, the objection being confined to the proposition that the act embraces more than one object.

The purpose in the adoption of constitutional provisions, such as the one here relied on, was very clearly stated by Chief Justice Eustis in Walker vs. Caldwell, 4th Ann., 298, and his exposition of the matter was subsequently adopted by Chief Justice Slidell, in Succession of Lanzetti, 9th Ann., 329, as it has also been adopted by Sedgwick, in his work on The Construction of Statutory and Constitutional Law. (Pomeroy’s Edition, p. 519.)

In the case last above mentioned, the question was, whether “An act to provide a homestead for the widow and children of deceased persons,” which provided for the payment of a thousand dollars in money, was not repugnant to Articles 118 of the Constitution of 1845, and 115 of the Constitution of 1852, (which articles were practically the same as that now under consideration). Chief Justice Slidell said, concerning the attack upon the constitutionality of the act:

“We think the argument invokes an interpretation of the eonstitu- “ tional clause, too rigorous and technical. If, in applying it, we “ should follow the rules of a nice and fastidious verbal criticism, we “ should often frustrate the action of tlie legislature without fulfill“ing the intention oí the framers of the Constitution. That inten- “ tion has been repeatedly the subject of judicial comment. It was “ mainly to prevent that loose legislation which disgraced our statute “books. As was remarked by the court in Walker vs. Caldwell, 4th “ Ann., 298: ‘The title of an act often afforded no clew to its con- “ tents. Important general provisions were found placed in acts, pri“vate or local in their operations; provisions concerning matters of “practice or judicial proceedings were sometimes in the same “statute with matters entirely foreign to them; the result of which “ was that, on many important subjects, the statute law had become “ almost unintelligible, as they whose duty it has been to examine, “ or act under it, can well testify. To prevent any further accumula- “ tion to this chaotic mass, was the object of the constitutional provision under consideration.” In carrying out this intention, as wo “ are bound to do, our inquiry shold be, whether, in the particular “ case, there has been a substantial compliance, by the legislature, “with the command of the Constitution, according to its fair and “ reasonable intendment.”

The conclusion reached was that the act was constitutional.

In Lafon vs. Labrocq, 9th Ann., 350, it was held that an act entitled “An act to amend the several acts relative to the police and government of the town of Baton Rouge,” was not repugnant to Article 118 of the Constitution of 1845, though it contained provisions conferring legislative and judicial powers, and the plaintiff was arrested and fined for violation of an ordinance adopted and enforced under its authority.

In State vs. Henry, 15 Ann., 297, it was held that an act entitled “An act relative to slaves,” was not repugnant to Article 115 of the ■Constitution of 1852, although the act treated of crimes committed by ■slaves, and prescribed penalties; declared the duties of the Justice of the Peace and District Attorneys in relation to the same; regulated the trial and punishment; provided for the compensation of the owner, when the slave was executed; treated of runaways; declared who might be witnesses in certain cases, and provided for their compulsory attendance. The court, through Chief J ustice Merrick, i n deciding the question, and in referring to the classification mentioned, said: ■

“This classification of the various provisions of the act shows that by analysis and subdivision, we may discover more than one object in the act, if we attend to each separate provision of .the same instead, of its general scope. No act could be passed on any subject, however simple, if it contained more than one single provision, which . might not be obnoxious to the same charge. And to give this inter-, pretation to the Constitution, would require as many distinct acts of the Legislature as there are paragraphs and provisions in any one act.

“Suppose the statute had been subdivided, and the first sixteen sec- “ tions had been grouped under a statute entitled: ‘An act relative “ to crimes committed by slaves.’ It could then have been objected “ with equal propriety that the statute embraced more than one object because it embraced the crimes of murder, poisoning', arson, bur“glary, etc.

“If a statute were passed upon any one of these heads, in any mau- “ ner recognizing any distinctions or grades in the offence, that again would be obnoxious to the same objection. It is thus seen “ that it could not have been the intention of the framers of the “ Constitution to restrict the Legislature to a single provision on each “ object of legislation.

-* * -x * * * * * x . .*■ * -x-

“If duties are imposed by the act upon Justices of the Peace, the “ Sheriff, or the District Attorney, it is only with relation to slaves. “In like manner every other section of the statute has a distinct relation to the object specified in the title of the act. Then, when we-“look to the body of the act, to see whether it contains more than “one objlct, we must observe its general scope, and not the subdi- “ visions introduced by the statute itself. Testing the present act “ by this rule does not enable us to say that it violates the Constitu- “ lion, in the particulars complained of.”

This reasoning is familiar, as applied to the well established rule of criminal procedure, which is thus stated by Mr. Bishop, to-wit:

“See. 417. 2. Crimes Within Crimes. — Under many circumstances, “ a charge of one crime includes within itself and constitutes also a- “ charge of others. If, for example, it is murder, the indictment, “ drawn in due form, contains an accusation of a simple assault, a “ simple battery, an aggravated assault, manslaughter, and sometimes “ other offences, as parts of the murder, etc. Though here, a single “ allegation constitutes, in the aspect thus stated, a charge of one or “ more crimes, yet, as the law of pleading looks at it, there is hut one “ crime, however many minor ones thus airpear.”

******** * * * *

“See. 488. Many acts, if together they constitute one offence, may' “ be laid in one count, thus

* * ******* * * *

“8. Assault, Battery, and False Imprisonment may be charged in “ one count, because, ‘though,’ said Potts, J., “in themselves, separately’ “ considered, they are distinct offences, yet collectively they constitute '“ but one offence.’ ” Bishop’s Mew Orim. Pr.

In the work of Mr. Sedgwick on The Construction of Statutory and Constitutional Law, (Pomeroy’s Ed., 1815), the editor has collected a large number of authorities which support the general proposition that — -“When all the provisions of a statute fairly relate to the same “ subject; have a natural connection with it; are the incidents or the “means of accomplishing it, then the subject is single, and if it is “ sufficiently expressed in the title, the statute is valid.”

And, inter alia, the following:

“The charter of a railroad company may contain provisions for “ municipal subscriptions in aid of it. Supervisors vs. People, 25th “Ill., 181. * *' * In an act chartering a college, a in'ovision for- “ bidding the sale of liquors within four miles thereof was held ger- “ mane to .the subject and valid.” O’Leary vs. The County of Cook. 28th Ill., 534.

“A clause in a bank charter allowing all parties on any bill ne- “ gotiated in a bank to be sued in one action is also germane to the “subject and valid.” Davis vs. Bank of Fulton, 81 Ga., 69. “An “ act to suppress murder, lynching, assaults and batteries,” deals with but one subject, though in different grades. Gunter vs. Dale Co., 44 Ala., 639; see also State vs. Bowers, 14th Ind., 195; Farley vs. Dowe. 45 Ala., 324.

“An act. to simplify and abridge the rules, practice, pleadings and “ forms in civil cases, in the courts of this State, to abolish distinct "“forms of action at law, and to provide for the administration of “justice in a uniform mode of pleading and practice, without distinction between law and equity; held, that a provision giving me- “ ehanics a lien is germane to the subject expressed in this title.” Hall vs. Bunte, 20th Ind., 304.

In this State; in State vs. Taylor, 34th Ann., 978, the question presented was, whether Act No. 8, of the extra session of 1870, was repugnant to Article 114 of the Constitution of 1868. The title reads: “An act relative to crimes and offences.” The body of the act denounced a number of crimes of different kinds — such as mutilating indictments, severing produce from the soil or gates from houses; killing or wounding hogs or sheep; selling produce by short weight;, conspiring to .commit murder, rape, robbery, burglary, arson, perjury, etc. It is true that Article 114 of the Constitution of 18(38, merely-provided that every law should express its objects in its title. The language used in disposing of the case, however, indicates the impression as to the unity of the purpose of the statute. Mr. Justice McEnery, as the organ of this court, said:

“As indicated in the title, the object of the Legislature was to “ provide for certain crimes and offences and that object is carried out “ in the body of the Act. * * * The act treats of no other subject “ than crimes and offences, and that is covered by the title.”

In State vs. Crowley, 33rd Ann., 782, it was claimed that Act 98 of 1880, (providingTfor the organization of the Criminal District Court) was in violation of Article 29 of the Constitution of 1879, and it was-held that the provisions for the appointment of jury commissioners,, for the drawing and empannelling of jurors, for said court, for the division of the court, into sections, and for everything else necessary to its full and complete organization and for the regulation of the proceedings therein, were all germane to the subject.

In State vs. Dubois, 39th Ann., 676, State vs. Breeden, 47th Ann., 374, the decision in State vs. Taylor, 34th Ann., 978, was affirmed, though it is proper to say that in both cases the constitutionality of the act seems to have been tested, as it was in the Taylor case, by Article 114 of the Constitution of 1868, and not by Article-29 of the Constitution of 1879.

In the cases to which we have b: en referred by the learned counsel for the defendant, either there were other questions involved, than the one which we are here considering, or else it was found, in particular cases, that there were embraced, in the statutes attacked, more objects than one, without a common purpose to weld them together and make them in the purview of the Constitutions, means to the same end, rather than distinct and independent subjects of legislation.

Thus, in Walker vs. Caldwell, there was involved the question of the amendment of a law, by reference to its title; in State vs. Henderson, 32d Ann., 780, the constitutionality of the statute was upheld; in Klein vs. Treasurer, 42 Ann., 176, there were four distinct appropriations for totally different objects in violation of Article 52 of the Constitution of 1879; in State ex rel. Lewis vs. Judge, 44th Ann., 90, the title and context of the act indicated that its purpose was to punish a violation of labor contracts; whereas one of the sections undertook to make offences of violations of contracts not connected with labor; in State vs. Heywood; 38th Ann., 689, the court found that four separate crimes were denounced, that there was no common object to be accomplished, and that the title failed to express the different objects aimed at.

In the instant ease, considering the title and text of Act 94 of 1896, we are of opinion that it fairly appears that the law makers had but one object in view, which was to check or suppress the practice of doing away with goods bought on credit, in fraud of the vendor’s claim for the unpaid purchase price; and the penalties denounced, and other provisions of the act, are to be regarded as the means to the attainment of that object. If in the application of the act, it should produce the injustice or inconvenience which is suggested, as a possibility, the legislature will, ño ’doubt, repeal or amend it.

We find no error in the judgment appealed from, and it is therefore affirmed.