text:
    No. 10,501.
    The State of Louisiana vs. Gerassin Méche et als.
    In a trial under an indictment for burglary under tlie provisions of Sec. 850 of tlie Revised Statutes of Louisiana, as well as at common law, tbe intent with which, (lie entry was made is the essential ingredient of the crime charged. The offence is not complete without the felonious intent, without which it would be merely a trespass.
    In general tlie intent may be presumed from what the offender actually does after breaking and entering; if he commit a felony it may be fairly presumed that lie entered for that purpose. But this, like other presumptions, may be rebutted.
    Henee in the trial of a charge of breaking and entering with intent to kill, the State is restricted to proof of that intent, and tlie accused can not he convicted of any oilier felony.
    In such a ease tlie accused must be allowed to introduce testimony to show that his intent was anything else but that to kill, oven if tlie iptenfc was in itself unlawful and unjustifiable in law. The accused must be allowed to prove all tlie circumstances surrounding or characterizing liis alleged intent. A partial explanation is not sufficient, and a ruling of the trial judge excluding evidence to show the real and whole intent is erroneous. Tlie object of such testimony is not to justify or mitigate tlie offence charged, but merely to negative, or rebut the presumption of the intent to kill.
    Tlie jury should be tlie sole judges of tlie effect of such evidence as going to show tlie real intent with which the entry was effected.
    Under such a charge, if tlie evidence shows that tlie accused committed some other unlawful act, but not with the intent to kill as laid in the indictment, he can not bo convicted. In the absence of proof of intent to kill, or in ease of' proof negativing such intent, there is no burglary.

      \ PPEAL from the Thirteenth District Oonrt, Parish of St. Landry. Ijl Lewis, J.

      Walter H. Rogers, Attorney General, John N. Ogden, District Attor- • ney, O. H. Lazenberg and G. L. Dupré for the State, Appellee.

      Thos. H. Lewis & Son and E. P. Veazie for Defendants and Appel-lants.
   The opinion of the court was delivered by

Poché, J.

Under an indictment of nine persons for burglary, five of the defendants were tried, and they are now appellants from the-several verdicts rendered in the case, as hereinafter stated.

The indictment was framed in accordance with the provisions of ■Sec. 850 of the Revised Statutes, which reads as follows:'

“Whoever, with the intent to kill, rob, steal, commit rape, or any 'other crime, shall, in the nighttime, break and enter, or having, with such intent, entered in the night time, break a dwelling house, any person being lawfully therein, and such offender being at the time of breaking and entering armed with a dangerous weapon, or committing an actual assault upon any person lawfully being in such house, ■any person present aiding, assisting or consenting in such burglary or accessory thereto before the fact by counseling, hiring or procur-

■ ing such burglary to be committed, on conviction shall suffer the punishment of death.”

The appellants were tried separately, as follows:

1. Charles Arabic and Arvilieu alias Blane Beard were tried together, were convicted as charged, and sentenced to the penitentiary for life.

2. Syphroyen Méehe and Lastie Smith were tried together, were convicted under Sec. 851 of the Revised Statutes, and sentenced to •two years’ imprisonment at hard labor.

3. And Jerome Méche, who was tried alone, was convicted under ■ Sec. 854, and received a like sentence of two years’ imprisonment.

The charge against all the accused was:

'Thatthey “did feloniously and burglariously, with the intent to kill, in the night time, enter and break the house of Jean Baptiste Dupléchin, he, the said Jean Baptiste Dupléchin and his family being lawfully therein; the said Gerassin Méche (and other named accused) being at the time of such breaking and entering armed with dangerous weapons.” * * *

Although the trials were held and conducted separately, and resulted in three separate and distinct verdicts, yet the means of defence invoked are the same in each case, and the leading bills of ■exception, which it is proposed to examine in this opinion, are ■ similar. In his rulings in one case the trial judge, for the sake of brevity, and in order to avoid unnecessary repetitions, refers to his reasons in one of the other eases, and vice versa.

Hence it might prove more convenient to examine together the leading features of discussion, which apply alike to all three of the (trials.

The fundamental complaint of all the appellants is in reference to "the exclusion .of evidence which they persistently sought to introduce for the purpose of explaining their intent in going to the prosecutor’s house, and the motives which prompted their intent as means to negative the charge of their having broken into the house with the intent to kill.

They also complain oí the unwarranted restriction placed to their cross-examination of leading State witnesses, and of the resulting denial of their right to impeach or contradict the testimonj' of such witnesses on points and matters which were pertinent to the issue of their guilt or innocence of the charge brought against them.

By reference to the indictment, it will be noticed that the burglary with which the defendants were charged, consisted of their breaking and entering the prosecutor’s house in the night time, they being then armed with dangerous weapons, with the sole and restricted intent to kill. They were not charged with the commission of any crime, as a sequel or result of such entering.

Hence it follows that the defendants could not be convicted of any other crime but that of breaking and entering, while armed with dangerous weapons, in the night time, with intent to kill.

The pivotal point in the case as presented by the principal bills of exception hinges, therefore, upon the proof of the intent with which the accused parties broke and entered into the house of Dupléchin.

This conclusion flows not only from the plain text of the statute as read into the indictment, but it finds ample support from the definition of burglary at common law, and in very respectable authorities, both from judicial utterances and from commentaries on the subject.

“Burglary,” it is said, is “the name of a crime which consisted at the common law in breaking and entering into the dwelling house of another, in the night, with intent to commit some felony within the same, whether the felonious intent was executed or not. * * * The offence is not complete without the felonious intent. A breaking and entering without this is only a trespass.” Abbott’s Law Dictionary, verbo “Burglary.”

Commenting on this subject in his work on “ Criminal Practice and Pleadings,” Archbold says:

“The intent to commit the felony is an essential ingredient in burglary, without which it would be merely a trespass. * * -In •general the intent may be presumed from what the offender actually •does after breaking and entering; if he commit a felony it may fairly be presumed that he entered for that purpose. * * * Biot this like other presumptions may be rebutted. (Italics ours.) * * * If a man break and enter the house of another in the night, with intent to beat him only, and in beating him he kill him, it is not burglary; here the presumption would be that he intended to commit a murder; but the presumption is rebutted by showing what his real intent was at the time of breaking and entry.” P. 340.

In Roscoe’s Criminal Evidence, pp. 365, 366, the same principle is* illustrated, as follows:

“If it appear that the intent of the party in breaking and enter-ing was merely to commit a trespass, it is no burglary: as where the prisoner enters with intent to beat some person in the house,. even though killing and murder may be the consequence; yet if the-prisoner’s intention was i ot to kill, it is still not 'burglary. * * The intent must be proved as laid. (Italics ours.) Thus, if it be laid, with intent to commit one sort of felony, and it be proved that it-, was with intent to commit another, it is a fatal variance.”

Bishop, in his treatise on Criminal Law, still further elaborates thei rule, which is construed as requiring proof of two intents as. essential ingredients in both larceny and burglary. He says:.

“ In larceny, there must be, first, an intent to trespass on another’s, property; secondly, this not being alone sufficient, the further intent, to deprive the owner of his ownership therein must be added. So,, burglary consists of the intent, which must be executed, to break in the night time into a dwelling house; and the further concurrent-intent, which may be executed or not, to commit therein some crime-which is in law a felony. In these, and other like cases, the particular, or ulterior, intent must be proved, in addition to the more general one, in order to make out the offence, and nothing will answer as a substitute." (Italics are ours.)

See also Wharton’s Criminal Evidence, Sec. 431. 29 Iowa, State vs. Bell, 316.

Applying these principles to the case at bar it is clear that all evidence, whether offered by the prosecution or by the defence, tending-to show or prove the real intent with which the offenders broke-into the house of Dupléchin, was competent, and therefore admissible with this exception, however, that the State was restricted to proof, that the intent was to kill.

But as to the accused, a wider field was open to them, as they were • entitled to prove that their intent was anything else but that to kill, ■ even if the intent was in itself unlawful and unjustifiable in law.

In theory the principle is recognized by the trial judge, who said in his charge to the jury:

“Finally, it must be shown that the accused entered and broke with intent to kill. This intent must coexist with the entering and breaking, that is to say, the accused must be proved to have had this intent at the time of this entry and breaking, and your inquiry must be confined to that intent in ascertaining the guilt or innocence of the accused in so far as this ingredient of the crime charged is concerned. •* * * Hence the only intent you are to consider is the :intent to kill. You can not legally convict the accused unde the indictment for entering and breaking with intent to rob, to steal, to ■commit rape, or any other crime than the one charged, to-wit, the iintent to kill.”

.But the complaint of appellants is that in each of the three trials they were unjustly deprived of practical protection under the principle by the rulings of the trial judge in persistently excluding all proffered testimony tending to show the real, whole intent with which they entered the prosecutor’s house. His rulings on that point were the subjects of numerous bills in each of the trials.

In one of the bills the District Judge makes the statement that the following facts had gone to the jury as part of the testimony given by the accuse!, testifying in their own behalf:

“That they, or a majority of them, belonged to an unlawful organization called “ regulators ” or “ white caps; ” that they armed themselves with pistols and guns, and went in a body to the house of Dupléchin about 1 o’clock, that all were masked except one, a comparative stranger in the neighborhood, named Falgout, totally unknown to Dupléchin; that Falgout, a member of this body, representing himself to Dupléchin to be a sheriff, induced him to open his window; that he demanded of Dupléchin the woman “ Filie.” Upon being asked what he wanted of her, he said it was none of his business ; that immediately thereafter Falgout jumped through the window of Dupléchin’s house, across his bed, and presenting his pistol to Dupléchin ordered him not to move, immediately shouting to his confederates ‘Break, enter! I hold him!’ That a moment afterward several members of the party having secured an entrance into the house caught and dragged the woman Filie out of the house; that about this time Dupléchin, having secured possession of his gun, snapped it at the party who were engaged in dragging away the woman Filie in his yard. The gun having failed to fire first shot he (D.) fired the second shot, which was almost simultaneously returned by the party having possession of Filie, resulting in Dupléchin being shot down in his own house, and one of the accused being wounded in the leg. That immediately thereupon the. accused fired some five or six shots in the house, after which they left.”

Conceding, arguendo, that these acts of the accused justified the presumption that the accused had gone to that house with the preconceived intent to kill, it is undeniable that such a presumption could be rebutted.

To that end was directed the efforts of their counsel, in seeking to prove that the defendants’ real intent in going to that house was to break up a state of concubinage which had long existed between Dupléchin and the woman Filie, under his own roof, in the midst of his own family, which included some grown daughters, which conduct had become a subject of scandal in the neighborhood, to such an extent that some of the “regulators” had been requested by a married daughter of Dupléchin to interfere in the matter.

The means of accomplishing that end, according to the theory sought to be proved by the appellants, was to take the woman out of the house and to chastise her. It appears from the bills of exception that the accused were allowed to prove that their object in going to the house was to chastise the woman Filie; but when they attempted to prove further that their real and ultimate intent was to force her to leave Dupléchin’s house, and thus to put an end to the state of concubinage between the two, their oft repeated efforts in that line were persistently suppressed by the trial judge, on objection by counsel for the State.

It is quite apparent from the record that the judge’s reiterated rulings on this point were predicated on a misapprehension of the object in view by defendant’s counsel in introducing that line of evidence. In one of the bills he says:

“ During the whole course of the trial of Charles Arabie and Blanc Beard, and also during the trial of the accused in this case, Syphryen Méche and Lastie Smith, a persistent effort was made on the; part of the counsel for the accused to get before the jury some evidence in regard to alleged illegitimate sexnal relations between Dupléchin and the woman Pille. Various grounds have been alleged as a basis for the admission of such testimony; sometimes to show the feeling, bias and prejudice of the witness; sometimes for the purpose of contradiction, etc. But the real and true purpose, in the opinion of the court, sought to be accomplished by its introduction, was to bring to the aid of the accused, in their defence, and a justification for the crime charged, race prejudice on the part of the jury. Granting that each of the questions propounded herein were answered in the affirmative, and even conceding that improper sexual relations existed between the prosecutor Dupléchin and the woman Pille, it would not either in law or justice constitute either a justification or a mitigation of the outrage alleged to have been committed by the accused and is not admissible for such purpose.”

Not a word can be found in the record on which to rest even an inference that counsel for the accused had the remotest intention of justifying their clients either for the acts which had been proved against them on the trial, or for the charge propounded against them in the indictment. No one can legally justify the acts which the accused themselves admitted on the witness stand to have perpetrated, even though they had been committed with the sole intent which éounsel were striving all through the trial to prove or to show.

That question was not in the case under the indictment as framed, or under the issue joined between the State and the prisoners by the plea of not guilty.

As the accused in their testimony admitted that, being armed with dangerous weapons, they had broken in the night into the house of the prosecutor, on whom they had shot in returning his fire as they were leaving his premises, the only issue left for determination was the question of their intent in going to that house under the circumstances recited by the judge, and hereinabove transcribed.

The record shows that when the State witnessess were being-examined in chief, some of them, who had turned State’s evidence, had testified as to the intent of themselves and of them co-conspirators in going to that house; others, such as the woman Pille, had explained her purpose in being at the prosecutor's house that, night. On cross-examination counsel for the accused sought to question these witnesses touching the relations existing between Dupléchin and the woman in question. On objection from the prose-ration, in such instances, counsel for the defence urged some of the reasons attributed to them by the trial judge in the language just transcribed. The admissibility of those questions will be considered in another part of this opinion.

But when defendants’ counsel were examining some of their own •clients as witnesses, and proposed to pursue that line of investigation,, they invariably contended that the testimony which they thus ^sought to elicit was admissible, “ for the purpose of showing that the entry was not made with intent to kill, as charged in the indictment.”

According to correct rules of jurisprudence, under the charge as herein made, the door was wide open to the accused for evidence to show their real intent, and to prove that it was not intent to kill; and that right could not have been denied them even if they had killed Dupléchin when they shot at him. If his death had ensued they might have been guilty of murder, and they might have been convicted of that crime under a proper charge, but under the indictment presented in this case they could not have been convicted of burglary if the proof had showed that at the time of entering their .intent was not to kill.

Under the law, as expounded by all the authorities, courts as well as text writers, the accused in this case had the right to introduce proof of their real, full and whole intent in going to Dupléchin’s’ house; and under the rulings complained of they were allowed to offer but a partial explanation.

It was their right to offer testimony to show that their real intent was to break up an alleged scandalous concubinage by taking out of the paramour’s house, and chastising, the alleged concubine; but they were forbidden to show any other intent but that of taking out with the intent of chastising, a woman, merely named, but not otherwise described, or connected by the testimony with the res gestsa.

The admitted testimony, which was to the effect that the intent was to take out and chastise a certain woman, was not evidence of itself of the alleged original and controlling intent, which was to interfere with a reprehensible concubinage. It is argued that proof of an intent to suppress a concubinage could coexist with the ulterior intent to kill, as the killing of one or both of the participants would certainly have operated the most efficient suppression of the alleged evil. The proposition may be correct in the abstract, but the means of rebutting that presumption were at hand through the rejected -testimony, which was intended to show that the real intent was to ¡suppress the concubinage, not by killing either of the parties to it, but by taking out and chastising the woman. Hence flows the legal necessity of admitting proof of the whole intent, in its two component parts. The proof of intent was not entire by the restricted proof of the intent to take out and chastise the woman; it would not have been complete with the restricted proof of an intent to put an end to a scandalous concubinage; but by the admission of proof of both of the concurring elements of the ulterior intent, as repeatedly announced by 'counsel for the accused, a rational though not a lawful intent would have thus been presented to the consider- ■ ation of the jury, who could have determined whether it was or not •sufficient to negative the alleged intent to kill, as to the motive and .at the time of entry.

The rejected testimony was therefore in law, as well as in justice, ■admissible for the intended purpose, and the jury would have been the sole judges of its effect on the point in contention. “The intent • of the parties will be gathered from all the circumstances of the ■ case,” and is] to be tested and determined by the jury. Roseoe’s 'Criminal Evidence, p. 866.

Dealing with a kindred subject, Roscoe (p. 24) also says:

“ Where it is relevant and material to inquire into the conduct of .rioters, what has been said by any of the party in the act of rioting, must manifestly be admissible in evidence, as showing their design ■and intention.”

On the same subject, Wharton’s Criminal Evidence, Sec. 691, •contains the following language:

•“ Declarations made by a defendant in his own favor, unless part ■of the res gestee, or of a confession offered by the prosecution, are not admissible for the defence. * * In any view, therefore, the extra judicial, self-serving declarations of a party are inadmissible for him, with the exceptions hereafter stated, as evidence to prove his case. It is otherwise when such declarations are part of the res gestee. It is not, however, necessary that such declarations, to be part of the res gestee, should be precisely concurrent with the act under trial; it is enough if they spring from it, and are made under •circumstances which preclude the idea of design.”

The principles thus formulated were also authority for the State to interrogate some of the conspirators, who had turned State’s evidence, as to their common design in going to Dupléchin’s house, and' the same rule should have opened the door to the counsel for the defence to pursue that line of investigation in their cross-examination of these same witnesses, but by his ruling the trial judge denied them that right.

This is the first error falling under the second ground of complaint of appellants, as indicated in the beginning of this opinion.

All the incidents embraced in the foregoing considerations apply to all three pf the cases now on appeal, and enough has been said to. justify the remanding of the three cases.

The following contention arose in the cases of Arabie and Beard,, and of S. Méche and Smith alone; it hinges upon the examination of the woman Pille, who was not offered as a witness in the other or third case, which was the trial of Jerome Méche.

It appears from bills reserved in the two first above named cases, that the woman Pille, a State witness, having stated in her examination in chief that she had promised to the late Mrs. Dupléchin, during' her last illness, to take care of her children, and that she was on the night of the incident at that house for the purpose of nursing one of those children who was sick, was asked on cross-examination, in substance, whether she had not been Dupléchin’s concubine for many years, and whether she had not had several children from him.

On objection, that cross-examination was promptly suppressed.

The sole and manifest object of the prosecution in eliciting the statement just quoted from the woman, was to negative the anticipated testimony on the part of the defence to show the existence of illicit relations between the prosecutor and the witness, and to prove that her presence at that house was due to entirely different and to very laudable causes. It was clearly inadmissible as evidence for any other purpose. The State herself having opened the door to that line of investigation, could not and should not have been allowed to close it to the defence.

This point is fairly and entirely covered by the decision of this, court in the case of Claire and Gibson, 41 An. 191.

To illustrate the principle under consideration,, it is sufficient to-quote only the following syllabus from that opinion:

“ On a trial for murder, the State having introduced evidence to> prove malice and premeditation, by the testimony of a witness from whom the accused had purchased a pistol a few days previous to the. homicide, it is competent for the accused to interrogate the same witness with a view to show that in making preparations for a combat, he was preparing for an anticipated attack to be made on him by another person not connected with the homicide on trial.”

Here the State having attempted to prove a laudable purpose to account for the presence of the woman Filie at the house of the prosecutor, it was competent for the accused to interrogate her on the same subject with a view to contradict her, and to show that she was there for a very different purpose, and for the very reason which had prompted them in trying to take her out of that house, rightfully or wrongfully.

The record contains manj and numerous other bills, but it becomes unnecessary to prolong this discussion.

This opinion contains reasons amply sufficient to justify the following decrees:

1. In the trial of Charles Arabie and Aruilieu, otherwise called Blanc Beard.

For the reasons given'in the above and foregoing opinion, ibis ordered, adjudged and decreed that the verdict of the jury, and the sentence of the District Court rendered against the said Charles Arabie alias Blanc Beard be quashed, annulled and set aside; and it is now ordered that said case be remanded to the District Court for further proceedings according to law and to the views expressed in said opinion.

2. In the trial of Syphroyen Méche and Lastie Smith.

For the reasons given in the foregoing opinion: It is ordered, adjudged and decreed that the verdict rendered against the aforesaid Syphroyen Méche and Lastie Smith be quashed and set aside, and the judgment rendered thereon annulled, avoided and reversed. And it is now ordered that'said case be remanded to the District Court for further proceedings according to law and according to the views expressed in said opinion.

3. In the trial of Jerome Méche.

For the reasons given in the foregoing opinion: It is ordered that the verdict of the jury in this case be quashed and set aside, and that the judgment herein be annulled, avoided and reversed. And that the cause be remanded to the District Court for further proceedings according to law and according to the views expressed in the aforesaid opinion.

Dissenting Opinion.

Fenner, J.

Appreciating the great importance of these cases, I have carefully examined every ruling of the judge a quo and every one of the numerous bills of exception presented on the record.

I agree with the majority in considering that the pivotal question in the case is that which is so denominated in the majority opinion, viz : the admissibilhw of evidence to show the existence of immoral and scandalous relations between Dupléeliin, the owner of the house invaded, and a colored woman named Filie.

Repeated attempts were made to get in such evidence in various forms and under different pretexts, whicl^ were all defeated by the judge, and the records bristle with bills of exception on the point. In one of these bills the judge states at length the circumstances of the case and the grounds on which he based his ruling, and I deem it best to quote this bill almost in full.

The following question was propounded to a witness for the defence:

“ If you say you wanted to make Filie go away from the prosecutor’s house, give your reasons for wanting Filie to go away from the prosecutor’s house.” The bill proceeds: “It was declared by defendants’ counsel at the time that their reasons for asking this question were:

1. “ For the purpose of showing that the entry was not made with intent to kill, as charged.

2. “For the purpose of.showing that the entry was not made with intent to kill, steal, rob, commit a rape or any other crime set out in the statute. But his honor, the judge, upon objection made, ruled out the question on the ground that Leo val Méche, one of the co-defendants, who had been placed on the stand before Jerome Meche, another of the co-defendants, was asked the following question: £ If you say you wanted to make Filie go away from the prosecutor’s house, give your reason for wanting her to go away.’ Whereupon the court ordered the jury to retire and the question to be answered in their absence, for the purpose of determining whether it was admissible or not before it should go to the jury. The witness answered this question as follows, which was taken down in presence of accused and of all parties by the clerk of court: £ Blanc Beard told me Filie had fought with one of his (Blanc Beard’s) sisters-in-law. Also because there was bad examples in the house of Mr. Dupléchin; that Filie closeted herself with Mr. Dupléchin in the day time in a room in his house; also that one of Mrs. Blanc Beard’s sisters had told her, crying, that they were maltreated on account of Filie. Also Joseph Méche told him (witness) that Mrs. Blanc Beard told him that she would be glad if they would make Filie leave the place on account of her sisters. Also Leoval Cormier told me he went to Mr. Dupléchin and that he saw a large mulatto man in the house playing with his daughters, and he understood Filie was the cause of the mulatto being there — he, Cormier, himself thought it was a bad example. Some of the crowd perhaps did not know these reasons, but most of them did.’

“It will be observed,” proceeds the judge, “that the questions propounded to each of these witnesses are identical, and evidently asked for the purpose of eliciting the same kind of testimony as appears above. It must be evident that such testimony was intended rather for the purpose of appealing to the race prejudices of the jury than of showing want of intent to kill. That, considering the statements as true, they are inadmissible either in justification or in mitigation of the offence charged. It is composed entirely of hearsay, and would have inevitably led the court into an investigation of irrelevant matters, well calculated to mislead the jury. In other words, this was the real purpose of asking the question. The circumstances attending the commission of the offence, as detailed by all of the accused themselves on the witness stand are briefly as follows: That they, or a majority of them, belonged to an unlawful organization called Regulators,’, or ‘White Caps;’ that they armed themselves with pistols and guns, and went in a body to the house of Dupléchin about 1 o’clock in the night; that all were masked except one, a comparative stranger in the neighborhood, named Falgout, totally unknown to Dupléchin; that Falgout, a member of this body, representing himself as a sheriff to Dupléchin, induced him to open his window; that he demanded of Dupléchin the woman Filie; upon being asked what he wanted of her, said it was none of his business; that immediately thereafter Falgout jumped through the window of Dupléchin’s house across his bed, and presenting his pistol at Dupléchin, ordered him not to move, immediately shouting to Ms confederates ‘ Break, enter! I hold him; ’ that immediately afterward several members of the party, having secured entrance, caught and dragged the woman Filie out of the house; that about this time, Dupléchin having secured possession of his gun, snapped it at the party who were engaged in dragging the woman Filie away in his yard. The gun having failed to fire the first shot, he fired the second shot, which was almost simultaneously returned by the party having possession of Filie, resulting in Dupléchin being shot down in his own house, and one of the accused being wounded in the leg; that, immediately thereupon, the accused fired some five or six shots in the house, after which they left. * *

“In view of these facts, the court felt constrained to believe that the evidence sought to be elicited by this question was offered for the purpose and with the hope that the jury, acting under a sense of indignation at a supposed outrage upon the domestic relations of one of their neighbors, would, upon the impulse of the moment, forget the issues of the case and justify the commission of the offence by an acquittal.”

Under the foregoing statement, did the judge err in excluding the evidence offered?

It is the plain and reasonable rule of law, that in criminal as in civil cases evidence must be confined to the issue, and proof of collateral facts is not admissible unless clearly referable to and bearing upon the point in issue.

“This rule,” says Mr. Greenleaf, “excludes all evidence of collateral facts or of those which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute, and the reason is, that such evidence tends to draw away the minds of the jurors from the point in issue, and to excite prejudice and mislead them; and moreover, the adverse party having had no notice of such a course of evidence, is not prepared to rebut it.” 1 Greenleaf Ev., Sec. 52.

The points at issue in this case could not be more fairly and fully stated than they were by the judge a quo in his admirable charge when he said:

“To convict the accused of the crime charged, the State must show:

1. “That the defendants did enter and break.

2. “That the accused entered and broke a dwelling house.'

.3. “ That such entry and breaking was done in the night time.

4. “That there was some person lawfully in said house at the time -of such entry and breaking.

5. “That the accused were, at the time of such entry and break - -ing, armed with a dangerous weapon.

6. “That the accused entered and broke with the intent to kill. * * * You can not legally convict the accused under the indictment for entering and breaking with intent to rob, to steal, to commit rape, or any other crime than the one charged, to-wit, the intent to kill.”

It is readily apparent that the evidence excluded had no possible relevancy to any of the above points, unless it be to the last, to-wit, the intent to kill.

If the matter in dispute had been whether or not the accused went to the house of Duplechin for the purpose and with the intention of taking out and whipping the woman Filie, the evidence might have been germane to such an issue, as tending to exhibit a motive for •such intention and to make it probable. But we do not understand there was any issue on this point. The recitals of the bill, as well as the judge’s statement and indeed the whole record, and even the briefs of defendants’ counsel, abundantly show that evidence of such intention was freely admitted and that it stood, substantially,, as a

• conceded fact in the ease. The question was whether the admitted ■intention and determination to take out and punish Filie was accompanied with a coexisting intention to kill whoever might resist them ■in executing that purpose.

“It is immaterial,” says Mr. Bishop, “in a criminal ease, what ■motives may have operated on the mind of an accused, or what may have been inoperative, provided the law’s motives did or did not influence him. Suppose a man has several intents, and in pursuance •of them, together moving him, he does what the law forbids. The rule here is, that if there are the intents necessary to constitute the ■offence, and intents not necessary, the latter do not vitiate the former, which in their consequences are the same as though they stood .•alone.” Bishop, Or. Law, Sec. 889.

Admitting, therefore, that accused went with the intent to take ■out and punish Filie — an intent certainly unlawful — yet if that intent was accompanied by an intent to kill either Filie or any other person who might lawfully resist them in the accomplishment of that purpose, the crime charged would be established.

The facts stated by the judge show that the accused masked and. armed themselves with dangerous weapons, that the first one who-entered covered Dupléchin with a pistol and told his confederates, to break and enter; that while Dupléchin was thus held under-threat of death they did break, enter and seize and carry off the woman Filie; that when Dupléchin, in the exercise of his legal right and indeed of his manly duty, did resist by shooting at the invaders of his home, they fired at him and shot him down. Now, the jury was bound to determine what intent was evinced by such conduct. They had a right to consider whether covering Dupléchin with a pistol did not mean a threat and an intention to kill him if he resisted, although he had the clear legal right to resist even to the-extent o'f killing the intruders, especially when followed by the fact that when later he did resist they did shoot him down.

In such a case, how could it possibly avail defendants, under any-legal aspect of the ease, to show that the reasons why they determined to commit the unlawful act of taking out and punishing ■ Filie were the existence of shameful relations between Dupléchin, a white man, and Filie, a colored woman;. he keeping her as a concubine in the house with his white children, to the scandal of the neighborhood, and to the injury of his family? I can discover no possible light which such facts could throw upon the question, whether or not the purpose to remove and punish Filie, was accompanied by the coexisting determination, evinced by the facts stated, to kill whoever might resist them in carrying out their unlawful! designs. Indeed, it rather appears that the proof of such atrocious, and scandalous relations, as the motive of the crime, would tend more to render probable, than to rebut, the intention and determination to carry out their purpose, at all hazards, even though involving the sacrifice of human life.

I fully agree that the accused were entitled to prove their intention, and their whole intention, in breaking and entering the house; but the intention referred to means what they intended to do, and. not the reasons or motives why they intended to do it, unless such motives were such as made the act lawful, which is not here pretended. The law deals with acts and with intentions to act. When. the majority opinion affirms their right to prove that their intention-was “to break up the concubinage between Dupléchin and Filie fey taking out and whipping Filie,” it presents a compound idea,, embracing, first, the intent, viz: to take out and whip Eille; second, the motive for that intent, viz: to break up the concubinage. As the motive had no tendency to legalize the act intended, it was not admissible, unless it tended to rebut or disprove the accompanying intent to kill, alleged in the indictment. It is very clear that this motive is not, in the slightest degree, inconsistent with the intent to kill. On the contrary, if their motive was to break up the concubinage between Dupléchin and Eille, the killing of either one, or both, would certainly be the most effectual and conclusive method of accomplishing that purpose. I have wrestled vainly in the attempt to discern any legal or possible aspect in which such evidence could throw any light upon the question of intent to kill vel non.

We are not here concerned with the sufficiency of the proof of intent to kill or of the qualities which must characterize such intent in a prosecution like this. The jury was fully charged that the intent to kill was absolutely essential, and that the breaking-entering must have been done with that intent, which imports that the intent must have existed at the time of the' breaking, and would not be established by proof showing that such' intent 'only originated out 6f emergencies arising in course of execution of a'different thing at first intended. The authorities quoted to that effect are good law, but I do not see their bearing on this case. ■ If the' accused had privately and secretly entered Dupléchin’s house to take out the woman; seeking to avoid conflict, and had made their demonstrations threatening his life, only because unexpectedly surprised by Dupléchin, in such case the intention to be deduced from'- such demonstrations might be held as arising only subsequently to the breaking and entering, and therefore not'within the purview of the statute. But here the hostile demonstrations were the first acts of" the accused, done deliberately at the moment of entry, and certainly whatever intent the jury attached to them was’ ah intent directly applicable to the entry and breaking. ' ' :

The testimony excluded being, in my opinion, utterly irrelevant to any legal issue in the case, I feel bound to give my unqualified approval to the firmness and courage with which the judge a quo resisted every effort or device to bring it before the jury.

The case belongs to a class of cases to which the reasons underlying the rule excluding such irrelevant testimony peculiarly apply.

In the language of Mr. Greenleaf, it would have “tended to draw' away the minds of the jury from the point in issue, and to excite prejudice and mislead them.”

The opening of the door to evidence of this kind in such cases increases the difficulty, already great, of vindicating the law.

I think the judge rightly concluded that the purpose, so persistently pursued, of getting in such evidence, could only be to appeal to a “higher law” in the prejudices of the jurors, under which they might, in violation of their oaths, acquit, however clearly satisfied that the accused were guilty of the crime charged in the indictment, and denounced by the statute.

It is the first duty of the judiciary charged with the enforcement of the legislative will as expressed in the statute law, to discountenance and exclude all foundation for such appeals. Says Mr. Bishop:

‘ ‘ A man can not make defence in court that there is a higher law than the one there administered forbidding him to obey the law, further than it may tend to shake the legal validity of the latter. Upon this point Baron Hume observes: ‘ The practice of all countries, is agreed.’ The rule necessarily lies at the foundation of all jurisprudence.” Bishop Cr. L., Sec. 344.

To admit such evidence at all is to give an implied sanction to the jury’s weighing it as material to the case, and they are not likely to understand or be controlled by nice distinctions as to the purposes and effects to which it is to be confined.

I have scrutinized every bill in all the cases, and though some of them may exhibit trifling technical irregularities in the rulings of the judge, the matters involved are trivial and the errors too insignificant to affect the substantial merits of the case or to justify interference with the verdict and sentence.

I therefore respectfully dissent from the opinion and decree herein..


source: Caselaw Access Project

author: Poché, J. Poché, J.

license: Public Domain

text:
    No. 10,473.
    Mrs. Mina Paland vs. The Chicago, St. Louis & New Orleans Railroad Company et als.
    Interests accrued on a demand wlien judgment is rendered, form part of the judgment, and must he secured as such in a bond for a suspensive appeal. But interests which date only from the rendition of the judgment, arc not to be calculated in fixing the amount of a suspensive appeal bond. Nor is it necessary to include costs of suit in making up the amount of such a bond.

      Costs and future interests are considered as secured by tlie half in excess of the amount for which the judgment was given.
    On the Mebits.
    The Supreme Court is bound to take cognizance of its own decisions, and of facts which were proved in such decisions.
    Hence, in a suit for damages resulting from an accident, a fact proved in the case,* and bearing on a subsequent case growing out of the same cause, will be noticed in the latter case, in which the testimony is reticent on*the point.
    Under such circumstances the second case will be remanded for testimony on the' point, in furtherance of substantial justice.
    APPEAL from the Civil District Court for the Parish of Orleans^ King, J.

    Buck, Dinketspiel & Hart for Plaintiff and Appellee:
    1. Every act whatever of man, that causes damage to another, obliges him by whose fault it happened, to repair it. R. O. 0., Art. 2315.
    2. Every person is responsible for the damage he occasions, not merely by his own act, but by his negligence, his imprudence or liis want of skill. R. O. 0., Art. 2316.
    3. The right to sue for damages suffered by or killed through an accident, survives’ to his wife, who likewise has a right of action for damages suffered by her by reason of the death. R. O. 0., Art. 2315; Acts of 1884, page 94.
    4. A trespasser must be awrong-doer; without an injury, or an intent to do injury, • there is no trespass. Bouvier's Law Dictionary; R. S. of La., Secs. 817,818, 819.
    5. When one is allowed to come upon the land of another, by sufferance or invitation, he is not a trespasser, and the owner is bound to exercise ordinary care and prudence toward him. Beach on Contributory Negligence, pages 54 and 55; Second Law and Equity Reporter, page 608; 48 Am. Reports, page 727; 43 Am. Reports, page 740; and more particularly as directly in point, Kay vs. Pennsylvania R. R. Co., 3 Am. Reports, page 625.
    6. No one has a right to erect death traps on his premises even to injure a tres-' passer or thief. 35 Am. Decisions, page 96; 18 Am. Decisions, page 18; 6 South-Rep., page 81.
    7. The owner of a building is liable for an injury caused by the falling thereof, whether the cause of the fall was due to his neglect or to the act of third persons done without his knowledge. 38 An. 280, and authorities there quoted. See also Tucker case, just decided.

      Giraiilt <& Farrar for Defendants and Appellants:
    1. It is a legal absurdity to overrule an exception of no cause of action, and at the same time to suggest amendments, without which the petition could not stand. Hart vs. Bowie, 34 An. 323.
    2. No amount of evidence can have any effect in determining an exception of no cause of action. Bouligny vs. Gary, 21 An. 642.
    8. It is bad practice for the court to allozo amendments to a petition after trial is gone into, much more to sziggest such amendments of its own motion. Raymorid vs. Palmer, 35 An. 276; Hart vs. Bowie, 34 An. 823; Burbank vs. Harris, 82 An. 395.

      4. A trespasser upon property, being a person of full agé of majority, can recover only for wilful injury inflicted upon him by defendant. Beach on Contributory Negligence, p. 54; Bishop on Non-Contract Law, Secs. 845-854; Whittaker’s Smith on Negligence, pages 61, 62, 68.
    5. The Civil Code and the decisions of this court do not recognize any “ rights ” of l] espassers, except the right of immunity from wilful and malicious acts. See authorities in brief.
    •6. Tn order to make out a case it is not suflicient to allege that defendant was neg- , ligent, but it must appeal' that plaintiff’s negligence was not contributory. : l)oikman vs. R. R. Co., 40 An. 787, 792.
   On Motion to Dismiss.

The opinion of, the court was delivered by

Poché, J.

The proceeding, thus qualified, which we are about to review, is properly an- appeal by plaintiff, in whose favor the judg-r ment on the merits wa's rendered below, from a decree which denied her motion to set aside the appeal taken by the defendant corporation, and is predicated on the following grounds:

1. That the surety on the appeal bond, was not good or sufficient for the amount for which he had bound himsélf. •

2. That'the amount of the bond furnished was insufficient to sus-' tain a suspensive appeal.

' The relief prayed for was in the alternative, either the absolute -dismissal of the appeal, or to declare it devolutive only.

. .Aftei* heading evidence and argument of counsel the District Judge ■discharged the rule taken by plaintiff, and her présent appeal is from that judgment

In this court she coupled her appeal to a motion to hence dismiss defendant’s appeal from the judgment on' the merits, but the only question legally before us is the appeal from the judgment on plaintiff’s rule in the lower court for the dismissal of the appeal taken by defendants.

1. The judgment on the merits below, was in favor of plaintiff in the sum of $5000, with legal interest from the date of its rendition, -and for costs of suit. ■ • ■

The record shows to our satisfaction, as it did to the District Judge, that the surety on the appeal bond is good for the amount in which he proposed to bind himself. He owes no debts, except taxes 'exigible' at the end of the • current year, and he owns property assessed at §7500, and appraised ,by a competent expert at §8000 as. its present market value. Hence we consider Mm a competent surety on a bond of §7500.

2. But plaintiff’s second point is that the bond itself is not of an amount sufficient to sustain a suspensive appeal, , and the contention is that it does not cover interest and costs of'suits.

The requirement of the Code as to a suspensive appeal from a. moneyed judgment is that the appeal bond be .“.for a sum exceeding by one-half the amount for which the judgment was given.’.’ Ó. P., Art. 575. ...

,. No mention is made in terms either of interests or costs, and hence it would not be a violent presumption to conclude that, the law maker, did not intend either to figure as elements m making up the amount, of the bond. The law maker doubtless considered that both were protected in the half required in excess of the amount for which the judgment was given. And if the matter was res nova that.conclusion would strongly commend itself to such a judicial construction.

But it has been held in several eases that in making up a suspensive appeal bond, — interests which had accrued on the demand or claim previous to, and up. to the date of; the judgment should be included as part of the judgment. Ross vs. Pargoud, 2 La. 85; Brown vs. Brown, 9 An. 310; Jorda vs. Judge, 29 An. 776. Lienee that rule can be considered as settled, and we have no desire to disturb it.

But it has no application to the bond now under discussion, because the judgment appealed from covers.no pre-existing Mterests and contemplates none but future accruing interests, to ‘date only from the rendition of the judgment. It stands to reason that interests, which had no existence previous to the judgment from which alone they are to spring and to derive their being, can have no effect, to swell the amount of the judgment at the very moment that the decree is rendered. Hence it follows that in this case the interests to accrue in the future formed no integral or computable part of the judgment at the date of its rendition. As they had yet no actual being they could produce no present effect.

As to the costs, our conclusion is that they are not to be .included in the amount Of the appeal bond. . '. .

The direct question came up but once in our judicial history and it was settled in harmony with our views as herein expressed.. It was. in the case of Brown vs. Brown, 9 An. 310, in which the court said that a different interpretation had up to that time never prevailed or even been contended for.

It was there said: “A bond being required, exceeding by one-half the judgment, including interest accrued to the date of its rendition, the appellee is well secured under that interpretation for the costs and all future interest.”

Indeed no other interpretation affords a legal reason for the exaction of a bond exceeding by one-half the amount of the judgment .appealed from.

We therefore conclude with the District Judge that the amount of the bond furnished in this case is sufficient to sustain a suspensive appeal.

It is therefore ordered that the judgment of the District Court overruling plaintiff’s motion to dismiss the appeal taken by defendants in this case be affirmed at her costs in both courts.

On the Merits.

Poché, J.

The Railroad Company appeals from a judgment of ■$5000 in favor of plaintiff as damages for the sufferings and the death .of her husband by the falling on him of certain sheds owned by the defendant company.

The death of Paland resulted from the same accident which caused that of John H. Tucker, the circumstances of which are recited in our opinion in the case of Widow John H. Tucker vs. the same defendant, recently decided, which are the same here, with this difference that Tucker was killed while walking by the sheds on the sidewalk, while Paland met with his death while he was under the sheds on defendant’s premises.

Under our understanding of the issues involved in the present case, it becomes important to ascertain and to judicially determine the circumstances under which Paland, the deceased, entered the premises, and found himself under the sheds of the defendant at the time that the accident occurred.

Now in Tucker’s case, it was in proof that for some time previous to the fall of the sheds, Paland had been employed by the company’s .agent’ to keep trespassers off the premises, a circumstance which would have, in our opinion, a very material bearing on the issue herein involved. And strange to say, the record in this case contains no ■testimony whatever on this point.

We deem it our duty to take cognizance of facts proved in a case ■submitted to our review, which have a direct bearing on another case also under submission before us for adjudication. Hubbs, Administrator, vs. Kaufman, Executrix, 40 An. 320; V. & A. Meyer vs. Tax Collector, 40 An. 440.

But that cognizance in the present case is not of itself sufficient to' shape our decree. Hence we feel constrained to reman'd this case for proof on this important point.

It is therefore ordered that the judgment herein rendered be annulled, avoided and reversed. It is now ordered that the case be remanded to the District Court for the purpose and taking evidence ■ on the point herein stated and of determining whether or not the deceased, Herman Paland, was employed as keeper for the defendant’s sheds at the time that the accident which caused his death happened. All costs to abide the final determination of the cause.

Fenner, J., absent.

Rehearing refused.


author: Fenner, J.

text:
    No. 10,573.
    The State of Louisiana vs. Edward Baden.
    1. In an indictment for larceny, description of thing stolen as “ One beef of the value of fifteen dollars, of the property of A. B.” is sufficient.
    '2. Proof of attempts by accused to intimidate a witness for the prosecution is admissible as tending to establish a presumption of guilt; and such admissibility is not destroyed by the fact that on a trial for the crime of intimidating the same witness accused had been acquitted.
    APPEAL from the Twenty-fifth District Court, Parish'of Vermillion. Edwards, J.

      Walter H. Rogers, Attorney General, and R. G. Smedes, District Attorney, for the State, Appellee.

      R. P. O’Bryan, W. A. White and A. & G. Eontelieu for Defendants .and Appellants'.
   The opinion of the court was delivered by

Fenner, J.

The indictment charged defendant with larceny of- “ one beef, of the value of fifteen dollars, of the property of A. T. Broussard.” A motion to quash was made, and overruled on the the ground of insufficiency of description of the thing stolen.

Indictments presenting precisely the same features have been frequently sustained in this State and elsewhere. State vs. King, 31 An. 179; State vs. Garter, 33 An. 1214; 2 Bishop Cr. L., Sec. 709; 2 Archbold (Pomeroy’s Notes), p. 1160, and numerous authorities there cited.

State vs. Hoyer, 40 An. 744, is apparently hostile, but it is,, perhaps,, distinguishable, and, at all events, does not purport to overrule the above authorities, which exactly cover this case.

The only other error assigned is presented on a bill of exceptions to the judge’s ruling, admitting proof that the accused had made threats to a State witness in order to prevent him from testifying in this case, to which accused objected on the ground that he had been tried on the charge of. intimidating the saíne witness, and had been acquitted, and that the State was debarred from showing the commission of any other offence than the one on which he was then being tried.

The defendant was not on trial in this case for' intimidating the witnesses, and the evidence could have no effect in convicting him of such offence to^which his former acquittal would have been a bar. But we can see no-ground on which such acquittal could operate as a bar to evidence offered simply to establish a presumption of guilt of the crime for which he was .then being tried. Non constat that' the evidence. adduced had been heard on the -former trial, or had been passed:on by that- jury.. The defendant - was entitled, and was allowed to' offer; the 'record showing'his trial and acquittal, and the the whole_ went to the jury for what it was worth. This ,was not error. ' ■ ”'

Judgment affirmed.


text:
    No. 10,527.
    Succession of P. J. Boudreaux.
    ' 1. Where the beneficiary heirs are all minors, their tutors are entitled by prefer- : ■ eneo to be appointed as administrators; and the terpt tutors, as used in Art..l(i4i embraces a duly exualified female tutor as well as male tutors.

      2. In such case where two tutors of different beneficiary heirs apply, the judge is rested with a large discretion in deciding between them, and unless manifestly wrong his conclusion will not be disturbed.
    APPEAL from the Twentieth District Court, Parish of Lafourche.. Guión, J.

      O’Sullivan cfc Knobloeh for the Appellant.

      Knobloeh & Moore for the Appellee.
   The opinion qf the court was delivered by

Fenner, J.

The decedent, P. J. Boudreaux, left two sets of minors, beneficiary heirs, viz: (1) A son by his first marriage represented by his grandmother and legal tutrix; (2) three children of the second marriage represented by’their mother and natural tutrix, the surviving widow.

' The case presents a contest between the two tutrices for the administration of his succession. ■'

The judge a quo decided in favor of the tutrix of the elder minor, whom he appointed as administratrix, from which judgment the other tutrix appeals. ''•••■

The appellant assigns error on two grounds:

’ 1. -That the legal tutrix' being a woman and only a grandmother,’ is not capable under the law to fill the ’office of administrator.

• 2c That, if both were capable, the judge erred in'not giving the-preference to appellant. ' ■ ■

I.

‘ Art." 25 of the'Code provides that"“ Women can not be appointed’ to any public office nor perform any civil functions “excejpt .those' which the law specially declares them capable of performing.”

Art. 302 specially declares the mother and grandmother of minors to ,be capable of being appointed as.theif’ tutrices.

^.rt, 1042 declares, that.“ip the choice .of administrators, .the preference should be given to the beneficiary heir oyer every "other per-, son, if he"be of age and "present in the State.”

Art. 1044 provides that “if all the beneficiary heirs be minors, their tutors can claim the preference for the administration and it shall be given them, under the charge of their being personally responsible for their acts of administration, etc.”

It is not necessary to refer to Art. 3556 of the Code, which says: i “The masculine gender comprehends the both sexes, whenever the provision is not one which is evidently made for one of them only.”

The use of the term tutrix to distinguish a female from a male tutor is conventional. The terminology of the Code recognizes no such distinction of sex in tutorship. A tutor is a tutor whether the person be man or woman. Although, in some articles, the Code refers to a female tutor as a tutrix, yet in all the articles prescribing the nature, powers and duties of tutorship, it uses simply the terms, tutor and tutor-ship, and those provisions, of course, apply equally to female as to male tutors.

So when the law gives to tutors of beneficiary heirs the right and preference to be appointed administrators it embraces any tutor, male or female. Indeed it is obvious that the preference is given out of consideration to the rights and interests of the beneficiary heirs themselves, and is given to their legal representatives only, because, owing to their minority, the heirs are not capable of exercising it.

Our jurisprudence has constantly recognized the right of female tutors of beneficiary heirs to be appointed administrators, and even their right to administer, without such appointment, in the interest of the heirs whom she represents, when creditors do not object. Succession of Forstall, 39 An. 1052; Succession of Gusman, 36 An. 299; Succession of Delerno, 34 An. 40; Succession of Penney, 10 An. 290; Succession of McKinley, 4 An. 25.

The fact that, in some of the cases quoted, the applicant was married and that the husband, as her curator, joined in the application, ■ does not affect the principle.

We therefore hold that the tutrix who received the appointment was fully capable.

II.

In selecting which of the two applicants should be appointed, the judge was invested with a legal discretion which should not be interfered with unless manifestly misused.

The Code, Art. 1043, provides: “ If there be two or more beneficiary heirs of age and present in the State, the judge shall select one or two whom he shall consider the most solid, for the administration of the succession.”

The same rule is evidently applicable to the case where different tutors of beneficiary heirs apply.

We have held that in such a contest “ a large discretion is vested in the judge who makes the appointment, and unless manifestly wrong, his conclusion will not be disturbed.” Succession of Chaler, 39 An. 308.

It does not appear that the appellant is more “ solid ” than the appointee, or that the latter is in any way deficient in solidity or in any qualification for the administration. The judge has evidently exercised careful consideration in the matter and we discover no good reason for disturbing his decision.

Judgment affirmed.


author: Waticins, J.

text:
    No. 10,574.
    The State of Louisiana vs. Polly Richmond.
    An indictment reciting that the accused “ did kill and murder a female child whose name is to the said jurors unknown,” contains a sufficient description of the deceased.
    a. Expert testimony is inadmissible for the purpose of proving that puerperal mania is of common occurrence, at child-birth, in the absence of all proof tending to show any mental derangement in the mother at the time she gave birth to the child.
    Proof of a separation of the members of the jury during the time of their deliberations — some of them sleeping in a room and some in an adjoining hall; some remaining in the room, while others walked out on a gallery — is insufficient to vitiate their verdict, because such a separation is not such as to have necessarily or reasonably prejudiced the rights of the accused.
    A juror is an incompetent witness by whom to impeach the verdict of the jury of which he was a member.
    APPEAL from the Twenty-fifth District Court, Parish of Vermillion. Edwards, J.

      Walter B. Bogers, Attorney General, and B. O. Smedes, District Attorney for the State, Appellee.

      A. & G. Eontelieu for Defendants and Appellant.
   The opinion of the court was delivered by

Waticins, J.

The accused was indicted on the charge of murder, convicted of manslaughter and sentenced to ten years’ imprisonment at hard labor; and from the judgment and sentence has appealed. The causes assigned for relief are, that the judge erred: first, in overruling his motion to quash the bill of indictment; second, in disallow - ing certain testimony; and third, in refusing a new trial.

I.

The indictment charges “that one Polly Richmond * * unlawfully, wilfully, feloniously and of her malice aforethought, did kill and murder a female child whose name is to the said jurors unknownand the ground of objection is thatthe description of the deceased was insufficient. In counsel’s brief his contention is that “the deceased being a new-born babe, and the offspring of the accused, it was necessary that the indictment should have set out the name of its mother.”

The objection is not a good one. It was so decided in State vs. Bayonne, 23 An. 78, and that decision is in keeping with common law authorities. Wharton’s Grim. Pleas and Prac., Secs. 104, lil.

II-

The accused offered a physician as an expert witness, by whom to prove that puerperal mania, or insanity, was a common disease after child-birth, and o'ften took on the form of homicidal mania, and the trial judge disallowed the testimony, because no proper foundation had been laid, for its introduction. In support of his ruling he states that, while it was in proof that the accused occasionally had spasms, they were not' shown to have occurred at the time of the birth of the child, nor to have been referable to it. That, outside of the statement of the accused, there was no satisfactory proof that she was alone and unassisted at the birth of her child. We can not perceive any analogy between the evidence introduced and that which was offered and refused. In the absence of all proof tending to show any derangement of the mind of the accused at the time she gave birth to the child, or, indeed, even tending to show what was her condition at the time, or that she was alone and unattended, expert testimony, like the one in question', could serve no valuable purpose, and was inapplicable and inadmissible, and properly rejected. It was irrelevant.

III.

The grounds assigned for a new trial are (1) that the jury separated after they had retired to their room to deliberate on their verdict, and in so doing were guilty of misconduct that vitiates their verdict, which was subsequently rendered, and (2) that the verdict rendered is null and void, because the jury, in the course of their de- . liberations, drew plans and maps of the situation of the residence of the defendant, and of the distance from her house to that of her nearest neighbor, whereas no such evidence was adduced on the trial,” and same was greatly to her prejudice.

a. The proof of a separation of the jury is that, on one occasion, some of the jurors slept in a room, and the others in an adjoining hall, notwithstanding the room was amply large to have accommodated all. That on another occasion two or three of the jurors were in a room of the building occupied by them, out of the presence of an officer, while the remainder of the jury were on the gallery, which fronted the street.

That separations will not vitiate a verdict unless it be of such a character that prejudice to the complaining party may be expected to have resulted therefrom, is a proposition well supported by authority. State vs. Vines, 34 An. 1073; State vs. Johnson, 30 An. 921; State vs. Fraque, 28 An. 657; State vs. Turner; 25 An. 573; State vs. Forney, 24 An. 191; State vs. Tucker, 10 An. 501.

• Such a separation as those described in the evidence are not such as would necessarily or reasonably have prejudiced the accused. There is no proof of the building having been occupied at the time by other persons-than the jury and sheriff with whom any member of their body could have come in contact. The judge entertained a proper appreciation of the evidence and held the separation insufficient to vitiate the verdict.

b. it has been repeatedly'decided that a juror is an incompetent witness by whom to impeach the verdict of a jury of which he was a member; and that a court must derive its information, in reference to the misconduct of a jury, from some source other than members of that body. 3 An. 435; 6 An. 652; 15 An. 557; 28 An. 657; State vs. Beatty, 30 An. 1266; State vs. Wallman, 31 An. 146; State vs. Nelson, 32 An. 842; State vs. Chretien, 35 An. 1031; State vs. Price, 37 An. 216; State vs. Bates, 38 An. 491; State vs. Bird, 38 An. 497. This is the common law rule. Whar. Crim. Plead., Sec. 847; Whar. Crim. Ev., Sec. 510; Bishop Cr. Prac., Sec. 1270.

As it was upon evidence to be obtained from members of the jury alone that the defendants’ counsel relied, it was properly refused. The judge correctly overruled the motion for new trial.

Judgment affirmed.


author: Watkins, J.

text:
    No. 10,566.
    Mrs. Emma Snyder, Tutrix, etc., vs. Natchez, Red River and Texas Railroad Company.
    1. The railroad company, for its convenience and that of shippers, had constructed’ at the termination of its track at Black River, an elevator, or platform car, which was used in lowering and raising freight, on an incline track extending from its depot on the bank, to the water’s edge; and the plaintiff’s husband, having prepared for shipment a small cargo of fish, and placed same on the platform of the elevator, undertook to ride thereon without defendant’s consent up to the station, when the wire rope, by means of which the car was operated, sud- ' denly broke, while the ear was ascending, and caused the injury and death of deceased. Held: plaintiff can not recover, because the deceased was not a passenger, and no contractual or quasi contractual relations existed between him and the defendant — he being amere stranger, or a trespasser on the company’s property.
    2. If a person by his own solicitation or consent, is carried on a vehicle or conveyance which is not used for tliepurpose of passenger carriage, there can he no presumption that ho is a passenger, although the owner be a common carrier of passengers by other and different means of conveyance.
    3. The carrier is not under the same degree of obligations as to care and diligence to guard against injuries to strangers as he is in case of those against passengers.
    I-Iis duty to the former is governed by the general principles of law, that every one is obliged, upon considerations of humanity and justice, to conform his conduct to the rights of others, and, in the prosecution of his lawful business, to bise every reasonable precaution to avoid their injury.
    A railroad company has no right to inflict wanton injury upon even a trespasser on its location and property.
    APPEAL from the Ninth District Court, Parish of Concordia. Young, J.

      C. J. <Sc J. S. Boatner and Conner & Son for Plaintiff and Appellee:
    1. A railroad company is negligent in providing machinery and equipments not suflieient for the .safety of its employees and [other parties using same; and in failing to keep same in proper repair. 40 An. 132; 37 An. 684; 14 Howard 468; 112 IT. S. 383; Itorer on Railroads, p. 935; Patterson, Railway Accident Law,, pp. 232, 235, 236, 237, 288, 240; American Encyclopaedia of Law, pp. 62, 68.

      2. A railroad company is negligent in employing a drunken engineer to run its machinery and .equipments. Rorer on R. R., pp. 1178, 883,834.
    3. A railroad company is liable for the negligent acts of its servant witliin tbe scope of his regular employment, although done in disobedience to the express orders of superiors. La. C. 0., Art. 2320; 40 An. 91; 100 XT. S. pp. 217,223; Cooley on. Torts, p. 536; Rorer on R. R. pp. 820, 821, 822; Patterson, R, A. L., p. 106; Leering., Law of Negligence, p. 346.
    4. A shipper of freight, in order to deliver same, getting upon the car of a railroad company, with the express or implied invitation or permission of the company, is not a trespasser, and is entitled to the same care due to a passenger. 15 American and English Railroad Cases, 496; 30 A. & E. R. R. C., 172; 32 A. &E. R. R. C., pp. 37, 55, 56; Patterson, R. A. L., pp. 143, 144, 181,199, 200. Rorer on R. R., p.851.
    5. The burden of proving the contributory negligence of plaintiff rests on the defendant. 15 Wallace, pp. 406, 407 ; 93 XT. S. 291; 40 An. 417.

      Percy Roberts and Steel & Pcigg for Defendant and Appellant:
    1. One not an employe of a carrier or a bailee, who claims to have been lawfully on board of a car of the latter, which is exclusively constructed and used for hoisting freight, and which is manifestly not apassenger car,must show affirmatively that he was there either by the consent or the fault of the carrier or bailee.
    2. When it appears that the carrier had issued to its agents stringent orders to prevent all passengers and third persons from riding on such a car, and those orders were generally known to the public, and especially known and brought home to a particular third person, who had been the agent of the carrier, and to whom those orders had been expressly communicated, coupled with instructions to enforce them, no implied consent of the defendant to ride on the car, quoad such third person, can be deduced from the fact that in a few isolated instances otlierthird persons had violated the order and ridden on the car.
    3. Xo such third person can claim that he was made a compulsory passenger on such car (even though it appears that he was lawfully on it while the car was stationary) when the .testimony shows that sufficient warning was'given before the car started to enable the person to disembark before the car was in motion j
    4. Such third person can not claim that he was lawfully on the car at some specia point on the voyage, even though ho conmenced the voyage as an involuntary passenger by the fault of the carrier, if, before reaching that point, the car stopped long enough to enable him to get off without peril.
    5. To such person the carrier is under no obligation except to do him no malicious injury. 7 Cowen 278; 11 Wend. 25; 60 N. Y. 279; 40 Yt. 300; 38 Me. 50; 3 Lana. 204; 64 Penn. St. 201; Eield’s Lawyers5 Briefs, Sec. 520*.
    6. The carrier is not bound by a consent given by a servant in respect of a matter outside the sphere of his functions and in violation of its orders; more particularly when those orders were known to the person to whom the unauthorized consent was given. Rorer on Railroads, 661 and 1114; 57 X. Yr382; 22 Barb. 91, 574; 23 X. XI. 275; 16 Howard 469; 91 Penn. St. 458; 92 Penn. St. 21; 70 Me. 65; 2 A. and E. R. R. Cases, 1; 88 An. Ill; 40 An. 32, 87; Hutchinson on Carriers, See. 661; 10 A. L. A.'385; 41 A. L. A. 330; 17 Pod. Rep, 671,

      7. Carriers are not liable even to passengers for injuries caused by defects in their machinery, vehicles or other appliances, when it appears that those defects were not visible or discoverable by such examination and tests as are customary and reasonably practicable. 86 Mich. 546, 548; 85 111. 80; 64 Rcnn. St. 225; 44 X. Y. 478; 58 X. Y. 126; Hutchinson on Carriers, Secs. 497, 499, 508; Patterson on Railway Accident Law.
    8. A carrier may carry on a business in connection with and helpful to its main occupation, yet separate from it; quoad which business it is not a carrier, but a mere ordinary bailee.
    9. The weight given to the finding of facts by a jury, where there is a conflict in the testimony, is seriously impaired when it appeal's that the jury were divided.
   The opinion of the court was delivered by

Watkins, J.

On or about the 1st of October, 1887, John A. Snyder received serious personal injuries by means of a fall from a descending freight elevator .of-the defendant, at .the western terminus of its railroad track on Black river, in the parish of Concordia; and from the wounds and bruises inflicted he suffered great pain and agony. One of his legs was subsequently amputated, and he thereafter died; ■and his widow, in her own right'and as tutrix of the minor children of deceased, brought this suit for the recovery of $20,000 as damages • — $10,000 for the pain and suffering of the deceased, and $10,000 for the loss of his love, society and support.

■ The jury awarded the sum of $5000, without interest, to the plaintiff, and in this court she has filed an answer and prayed for an amendment of the judgment, so as to increase the allowance to §10,000, with legal interest from judicial demand — the defendant having appealed.

After pleading a general denial, the averment of defendant’s answer is that it owns and operates a line of railroad, “and at its depot on Black river has erected a steam incline, or elevator, which it uses during a Short portion of each season in moving freight up and down the bank of said river, to and from steamboats, when the stage of water is very low; but defendant specially denies that said incline or elevator was constructed or intended for the purpose of 'carrying persons or passengers, or that persons or passengers were carried or permitted to ride on said elevator with the consent of the defendant company, or of its employés or agents. That said elevator ■was only supplied with a small flat car, without seats, railings or ■other protection for passengers, and was understood'to bé a very dangerous place for persons to attempt to ride; and all persons were warned and strictly prohibited and forbidden to attempt to get on or ride on said car.”

It further specifically avers that the plaintiff’s husband was not killed or injured through any fault, negligence or carelessnes of the company, its employés or its agents.

That the deceased was frequently at the said depot, and was -well aware that all persons were strictly forbidden from attempting to ride on said car, was personally present, on an occasion recently, previous to the accident which caused his fatal injuries, and heard other persons ordered off the elevator by the company’s employés, and on that. occasion due notice was timely given, and before the elevator car started up the incline, warning all persons to get off, and other persons did get off, in compliance with the warning, but the deceased did not, and remained on the ear. That at the time, the deceased was a trespasser on the property of defendant, and guilty of most reckless carelessness, and contributed thereby to his own injury; and that, had he used ordinary care and not exposed himself to unnecessary risk and danger by persisting in riding on the said elevator, in violation of orders of the defendant’s employés, the unfortunate accident would not have happened.

The final averment is, that there are suitable and convenient approaches to its depots and cars for the accommodation of persons and passengers; its engineer, who was in charge of the elevator, was competent, careful and faithful in the discharge of his duties, and the company used all possible care and prudence in the operation of their railroad and elevator for the safety of the Dublic and its -employés. Within the scope of these pleadings a brief resume of the facts will suffice.

At the western terminus of defendant’s road on Black river, there is a depot on the crest of the bank, from which there is an incline track extending to the water’s edge, a distance of about 210 feet. On this incline track, a platform car was. operated in receiving and discharging freight, by being lowered from the top of the bank and drawn up again by means of a wire rope, one end of which is attached to the car, and the other is passed around a revolving drum, by means of a small engine. The platform of this car is eighteen feet in length and eight feet in width. Underneath it is a frame, to which the trucks are attached, and whereby the platform is elevated to a height of three and one-half feet above the incline track, at the end next to the river bank, and to nine and one-half feet at the rear, or other end, so that its horizontal position is, at all times, preserved during the transit of the car up or down the bank. This platform is provided with no seats, caboose, or other accommodations for persons or passengers; and it had no railings, or protectors of any kind, adapted to the protection of passengers.

The engine by which the elevator was. moved up and down the incline was placed in position on the top of the river bank, adjacent to, but not connected with, the depot in any way; and the station of the engineer who operated it was also on the top of the bank. This, elevator was owned and operated by the defendant as an accessory of its railroad in receiving and discharging freight, which had been transported on or was intended for transportation by its trains. It was not designed for passenger accommodation or travel. For several years this railroad only extended eight miles west of the town of Yidalia, on the west bank of the Mississippi river; but in 1886 it was extended seventeen miles further, to Black river. After this, extension was made quite a considerable industry'sprung up in that locality, in the way of the shipment and- sale of fish, proving alike profitable to the fishermen and the railroad company.

The fish are taken from boats and thrown upon the platform of the elevator car, and the fishermen mount upon it and put them in salted boxes, and nail down the tops preparatory to their transportation. The car is then drawn up to the top of the river bank, and the boxes of fish are then transferred to the defendant’s, east-bound train for-shipment.

The deceased was engaged in this industry at the time the accident in question happened, and, on the morning it occurred, he, and his associates and assistants, had just completed the boxing of a cargo of fish, and were on the platform, when the engineer of the elevator moved it slowly up the incline, in the usual manner, to a point within about twenty-five feet of the top of the bank,, when, altogether,' without admonition to any one, the wire rope parted in twain, and the car ran rapidly down the track, coming- in sharp collision with the bow of a steamboat lying ashore, causing the deceased to be hurled, with great violence,, against a hog-chain,, whereby his thigh was broken, and death resulted. Thus far there-seems to be no practical difference of opinion among the various, witnesses who were interrogated; but there is serious discrepancy, first, as to whether the employés. gave timely warning of the starting of the train; second, as to- the existence óf an established custom on the part of shippers and other persons, to ride up and down the incline without protest on the part of defendant’s employés and agents; and, third, as to the existence- of defendant’s orders and notices forbidding such use thereof..

In considering this case, it must be borne in mind that the elevator and incline formed no part of the railroad proper, but were entirely distinct and separate therefrom. They were operated independently of each other, though both were owned by defendant. The elevator-was designed exclusively for carrying freight, and not for the transportation of passengers or persons, and the absence of notice or warning against its use for passenger traffic, if such was the case, did not have the effect of establishing between such persons as might use it and the company, contractual or quasi contractual relations,, as between carrier and passengers.

In using the car, as did the deceased, a presumption is raised against him of being an intruder or trespasser on the defendant’s property without consent, and the burden is on the plaintiff to rebut it. The fact that the deceased had dealings with defendant does not. prove that there existed between them the relations of master and servant. At most, their relations were those of shipper and carrier of freight. But, from the evidence, it is clearly established that the entry of the deceased upon the elevator platform was both voluntary and gratuitous, and done at his own risk and peril", even if it-was not forbidden by the company and its employés expressly.

But we think it is fully established by a fair preponderance of the testimony that the superintendent and other employés had expressly and repeatedly prohibited and forbidden persons and shippers from riding on the elevator. That the deceased was only six months prior-to the accident employed as engineer of the company in operating-the elevator, and as such, had personal knowledge of defendant’s, orders and instructions in this respect; and his knowledge did not. cease with his employment. Whatever may have been the custom and, usage in this regard, it can not b.e invoked by the heirs and legal representatives of the deceased, as he acted under his own personal knowledge of the company’s disapproval of it and its orders to the •contrary.

We think it also fully proven that on this particular occasion the engineer did give timely warning of his intention to start the train. Though the deceased may not have heard the warning, he had a good opportunity to have done so, and other persons similarly situated did hear it and heed it, too. A strong circumstance favoring the theory that warning was given, is that, after the car had ascended the incline a short distance, it was halted for a moment in its ascent and two persons who were on the platform stepped off and only the deceased and his brother remained until the rope subsequently broke and the casualty occurred. This fact is admitted by all the witnesses, and there is no explanation of their conduct acceptable to reason, other than that they had received warning and heeded it, and that the deceased and his brother did not.

At the time the elevator car was started, the deceased had completed the packing of his ñsh, and all that remained for him to do was to go up on the river bank to the depot and obtain a bill of .lading. But, if.it had not been completed at the time of starting, it certainly had been at the time the halt was made, and his associates' • and assistants got off.

The plaintiff’s theory is this, quoting from her brief, at page ■ 31, viz;

“ It is clear that John A. Snyder, in mounting the car, and there filling with his fish, the empty boxes, and nailing them up, was not ■■a trespasser, nor a licensee, but was lawfully engaged in a business, mutually profitable to Mm and the railroad company; was shipping his freight in the manner expressly authorized by the company, and was entitled to all the care due a passenger.”

During the course of the trial, her counsel requested the judge to .so charge the jury, but the latter declined, and the former excepted. In support of their contention, counsel quote from the notes found at page 462 of 1 Thompson on Negligence, and which read as follows, viz:

“The general rule is, that to persons who are lawfully upon the •tn-ach, engaged in labor, the railroad company owes a duty of active vigilance, and such persons have a right to become ingrossed in their labor to such an extent that they may be oblivious to the approach, of trains, relying upon the railroad company with reference to them. A person] having business with the railroad company — e. g., in loading or unloading freight — has a right to occupy a position designated by the company’s agents, hazardous though it may seem, relying upon the company’s diligence to protect him in such position. Such a person has a right to still presume that the railroad company will act in accordance with its duties, though it has once failed to do so.”

But the deceased was not engaged in any kind of labor on the defendant’s track, and was not its employé, and although he did have business relations with the railroad company, relating to the shipment of freight, his sole duty was to box his fish and place them oa the platform. The contract of safe carriage and delivery of thpfreight on the part of the company was complete, and its risk fully-undertaken at that moment of time. No position was designated by the defendant for the occupancy of the deceased while he was engaged in the preparation of his fish for shipment, and that situation, only became hazardous when the ear was started up the incline.. He was notified that he was unauthorized to occupy that position any longer, and he could not any longer rely upon the railroad company to protect him. After due warning had been given, and the car had moved from its stationary position, and commenced its ascent, of the incline, all quasi contractual relations between the deceased personally and the defendant ceased eo instanti, and his continued occupancy of the platform converted him into a trespasser, taking the risk of his own safety and not relying on the company’s protection,.

Hutchinson on Carriers, in treating of “who (is) entitled to be considered a passenger,” says:

“Every person being carried upon a public conveyance, usually employed in the carriage of passengers, is presumed to be lawfully on it as a passenger. But if a person, by his own solicitation or. by his own consent, is carried upon a vehicle or conveyance which is. not used for the purpose of passenger carriage, and this be known to him, there can be no such presumption, although the owner be a common carrier of passengers by other and different means of conveyance.” Pages 447, 448. Reary vs. Railroad Company, 40 An. 82.

In such a ease the contributory negligence of the injured party being shown, the railroad company is only liable, if, by the exercise, of ordinary c.are, it could have prevented the accident. But this liability has been interpreted as arising, if, by the exercise of reasonable care on the part of the company, after its discovery of the danger in which the injured party stood, the accident could have been prevented and was not; or if the company failed to discover the danger by reason of the recklessness, carelessness, or inattention of its ■employés, when the exercise of ordinary ■ care on their part would have led to the discovery of the danger, and averted the calamity. Such is the purport of a decision of the Supreme Court of Missouri—Harlan vs. St. Louis, etc., Railroad Company, 65 Mo. 22—which Thompson considers to be the most complete statement of this doctrine he has met in his examination of it.

To the same purport are other authorities: Railroad Company vs. Norton, 24 Penn. St. 465; Hill vs. Glanding, 42 Penn. St. 493: Jeffersonville Railroad Company vs. Goldsmith, 47 Ind. 43; Lafayette, etc., Bailroad Company vs. Huffman, 28 Ind. 287; Pittsburgh, etc., Railroad Company vs. Collins, 7 Rep. 153; Cincinnati, etc., Railroad Company vs. Eaton, 53 An. 310; Evansville, etc., Railroad Company vs. Wolf, 59 Ind. 89.

Mr. Thompson, in treating this question, says: “ Under the rule, conceding the right of a free track to a railway company, in the event of an injury to a trespasser upon its line, it can be held liable only for an act which is wanton or gross negligence in the management of its line, which is equivalent to intentional mischief.” Thompson on Negligence, p. 449, citing: Carroll vs. Minnesota, etc., Railroad Company, 13 Minn. 30; Green vs. Erie Railroad Company, 11 Hun. 333; Herring vs. Wilmington Railroad Company, 10 Ind. 402; Kenyon vs. New York, etc., Railroad Company, 5 Hun. 479; Donaldson vs. Milwaukee, etc., Railroad Company, 21 Minn. 293.

Various other authorities and text writers may be collected to the same effect.

In Beach on Contributory Negligence, we find the principle announced thus, viz:

11 But on the other hand, it may be urged that a passenger, voluntarily in a baggage car, When he might just as conveniently be in the car provided for his transportation, is a quasi trespasser. He plainly has no business in that car, and toward trespassers a carrier is not hound to exercise ihat high degree of care and circumspection ■due to his regular passengers.” Page 160.

In Pierce on Railroads we find the rule formulated thus, viz :

‘! The company has no right to inflict wanton injury on persons who are unlawfully on its location, and when human life and limb are concerned, the injury may well be treated as wanton, subjecting the company to damages, when, although able to do so, they neglect to arrest the engine, which they have good reason to believe will, without an effort to stop it, result in injury to the wrong-doer.” Page 330.

In Hutchinson on Carriers the rule is thus carefully stated, viz:

“The carrier is not under the same degree of obligation as to care and diligence to guard against injuries to strangers, as he is in case of those against passengers. His duty to the former is governed by the general principle of law, that every one is obliged, upon considerations of humanity and justice, to conform his conduct to the rights of others, and in the prosecution of his lawful business to use every reasonable precaution to avoid their injury. But to his passengers is due thatn-tmosi care and diligence which can be bestowed by human skill and foresight, and consequently that which would be culpable negligence in the case of the passenger, would not be necessarily so in the case of one to whom the carrier was under no such peculiar obligation. Page 447; Late vs. Railroad Company, 37 An. 337; Reary vs. Railroad Company, 40 An. 32; Railroad Company vs. Stone, 17 Wall. 657.

In Patterson’s Railway Accident Law the rule is stated to be “that carriers of passengers are not answerable as insurers for the safety of their vehicles and appliances, but that they are liable only for such accidents as may happen from any defect therein which might have been prevented by the exercise of due care on their part; and that the duty to take due care, however widely considered, or rigorously inforced, will not subject the (company) to the plain injustice of being compelled by the law to make reparation for a disaster arising from a latent defect in the machinery which they are obliged to use., which no human skill or care could either have prevented or detected;'” (p. 234) quoting from Readhead vs. Midland-Railway, L. R. 2 Queen’s Bench, 412; 4 Ibid. 379.

This being the rule in reference to passengers, it is more liberal with regard to strangers and trespassers.

We think the foregoing authorities are conclusive on this question; -and, under the evidence recited, the act <of the defendant was in no sense wanton. The accident was the result of the sudden breaking of the wire rope, of the latent defect of which the employés were apparently ignorant. Nothing in the situation ■ or surrounding circumstances indicate a necessity for greater care and caution than was exercised. The verdict and judgment appealed from are erroneous. It is therefore ordered and decreed that the judgment appealed from be reversed; and it is now ordered that the plaintiff’s demand be rejected at her cost in both courts.