text:
    No. 1158.
    Louis Delcambre vs. Charles Clere.
    A charge of a specified amount for the daily privilege of keeping a private butcher’s stand is a license or tax. Tlie power oí municipal corporations to tax or license callings or occupations must be expressly conferred by law. Such corporations may, under its police power, regulate or suppress sucb private markets, but cannot under such power impose a tax for revenue.
    APPEAL from the Twenty-ñrst District Court, Parish of Iberia. Fontelieu, J.

      F. 8. Ferry, for Plaintiff and Appellee.

      J. A. Breaux, for Defendant and Appellant:
    It is a well settled rule of construction, of grants by the legislature to corporations, that only such powers or rights can be exercised by them, or under them, as are clearly comprehended within the words of the Act. Mayor of Plaquemine vs. Both, 29 An. 26; Mayor of St. Martinsville vs. Str. “Mary Lewis,” 32 An. 1293; Mayor of New Iberia vs. Migues, 32 An. 923; Cooley, Const. Lim. p. 191.
   The opinion of the Court was delivered by

Todd, J.

The defendant appeals from a judgment against him for $141.25. This judgment was recovered by the plaintiff, as the lessee Of the public market of the Town of New Iberia and owner of the privileges and franchises pertaining thereto; among’which, he claimed, was the right to recover from the defendant twenty-five cents per day, termed a tariff or fee for keeping a private butcher stand within the corporate limits of said town. The amount of the judgment re2>resents the aggregate of such daily charges for the term of the lease.

The right of the town to impose such charge is put at issue by the 2)leadings.

There is no motion to dismiss the appeal, hut the ajqrellee’s counsel urges that it our duty to do so, for want of jurisdiction ration e materia. He contends that the contest does not involve the question of the constitutionality or legality of any tax or license, or other charge embraced-in Article 81 of the State Constitution, that can impart to it an appealable character. That Article confers jurisdiction in all cases in which the constitutionality or legality of any tax, toll, or impost whatever, or of any flue, forfeiture or penalty, imposed by a municipal co-rporation, shall be in contestation.

Wo think this language is broad enough to include the charge in question in this case.

“The name ‘tax’ means a burden, charge or imposition for public, uses.” Addison, verbo Tax. Same, verbo Impost. 7 Wall. 433; 9 R. 325.

We regard the charge in this instance as a tax or license imposed upon tlie calling or occupation of the defendant, which was that of a butcher.

Conceding that the tax was imposed by the town authorities, and the right of the plaintiff to collect the same under his alleged lease, the first question we must consider is, whether the town possessed the authority to impose such tax. It could derive such authority solely from a grant of the legislature in its charter or other act. Cooley, Con. Lim., pp. 191, 387 : 29 An. 21 j 82 An. 923, 1293.

Act. 107 of 18C8, p. 134, amending the charter of said town, confers the power to raise money (quoting) “by taxing merchants, retailers, grog shops, billiard tables, hawkers, peddlers, shows, circuses, menageries, concerts, etc.”

Wo had occasion to construe this same Act in one of the cases above referred to, Mayor of New Iberia vs. Migues, 32 An. 923, which was a suit to recover a tax or license against a drayman pursuing his hailing in said town. We held in that case, that the language of the charter quoted above did not include draymen among the classes of persons of callings authorized by the terms of the Act to be taxed.

And it is evident that neither does it name butchers, or those keeping butcher stands. And for like reasons assigned in that case, the town cannot claim the right to impose the tax now in question, from the clause in the Act cited. We held also, that the words or phrase, et cetera, in the Section cited, only referred to others pursuing like or kindred callings to those named therein. This “ enlargement ” fails to embrace in this instance, as it did in that, the class of persons or occupations now sought'to be taxed.

There being no express delegation of power to the corporation or town, to impose a tax or license on butchers keeping private stands or markets, no authority existed, under the Section referred to, to collect the tax or license in question, or to authorize its collection by the lessee of the public market or any one else.

It is, however, contended that the corporation possessed this authority under the 5th Section of said Act, which authorized the passing of such ordinances and by-laws as might be deemed proper, in relation to the public markets in said town.

Whilst this Section conferred authority, incident to police powers, to regulate private markets, or the selling at private stands of meats, etc., and the right even to suppress the same, and to impose fines and penalties to enforce its ordinances on the subject, and punish their violation, it conferred no power to levy a taxor license, or fee, tariff, or rate, as it is termed in this case, on butchers or other persons. There is a recognized distinction between the taxing power and the police power, conferred on corporations; licenses or taxes may be imposed on certain brandies as a regulation under the exercise of the latter power, but it must plainly appear that they are imposed strictlj' and exclusively in aid of such power, and not for the purposes of revenue. The rule is, that mere police power and the right to make all needful regulations under it, gives no right to tax for revenue. Dillon on Corp. 2 Vol., pp. 709, 710, Sec. 609 ; 33 N. J. Law, 280 ; 7 Ire. 406.

The power of municipal.corporations to tax, must be plainly and unmistakably conferred, lb. Sec. 605, 606.

A careful study of the Act incorporating the Town of New Iberia, and the Act amendatory thereof, fails to satisfy us that the town possessed any powerto impose ihe instant tax, or charge, or to transfer the asserted right to another, as is pretended, with the authority to enforce its collection, as is now attempted.

We are not to be understood as holding that other municipal corpo- ' rations do not possess the right to require such a license or tax, where the power to demand one is delegated and is exercised as the law ' provides. Nor do rve deny, in the present case, the power to collect dues for the use of stalls or stands in the public markets, from occupants ' thereof, which the corporation certainly possesses.

We leave out of view, in our consideration of the subject, the amendments to the charter proclaimed in 1881, by the Mayor, to have been adojitcd. They could have no bearing in matters resulting from proceedings that transpired long previous to such adoption.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and there be judgment rejecting plaintiff’s demand, with costs in both Courts.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 1163.
    Vincent Boagni et al. vs. Lizzie Gordon, Wife, et al.
    Interest, although accrued at date of suit, cannot be counted in estimating the “ matter in dispute,” as to its appealable character.
    APPEAL from the Thirteenth District Court, Parish of St. Landry. Hudspeth, J.

      Lewis & Bro., for Plaintiffs and Appellees.

      K. Baillio, for Defendants and Appellants.
   The opinion of the Court was delivered by

Fenner, J.


author: Bermudez, C. J. Fenner, J.

text:
    No. 1152.
    Michel Sallabah and Wife vs. John B. Marsh.
    TIio plaintiffs in this ease are, under the title exhibited by them, only 11 tenants at will,” and as such cannot institute the possessory notion.
    APPEAL from the Nineteenth District Court, Parish of St. Mary. Goode, J.

      G. Debaillon, for Plaintiffs and Appellees.

      D. Oaffery, for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an injunction suit coupled with a prayer for damages.

The plaintiffs substantially allege that they have been in the peaceable and undisturbed possession, use and enjoyment of a certain parcel of ground for more than five years previous to the institution of their action ; that they have the right so to continue, for the term of their life, by virtue of a certain title, attached as part of the petition, which emanates from the owner of the land, and which confers on them a life, estate; ” that said title was duly and seasonably recorded; that they have been recently disturbed in such possession, use and enjoyment, by the defendant, who threatens to eject them by force; that he has done acts which have inflicted severe injury upon them, and that they fear he will further wrong them, unless prevented. They prayed for an injunction, which was allowed. They further asked to be quieted in their possession, and claimed $5,250 as damages sustained.

The defendant answers by a general denial, charges-the nullity of plaintiffs’ averred title, alleges possession of the property in himself, and sets up title of absolute or perfect ownership. He prays that the injunction be dissolved, that plaintiffs’ demand be rejected, that he be quieted, etc.

From a judgment in favor of plaintiffs, without damages, this appeal is taken by defendant.

The deed mentioned in plaintiffs’ petition reads as follows :

Bayou Salé, Parish of St Mary, June 24th, 1875.
I do hereby grant to Michel Salabah and his wife, Lucy Salabah, the privilege of living to the end of their'days, free of rent, on a certain piece of ground, known as the Point Field, containing about seventeen arpents. The said Michel Salabah is to enclose the same at his expense. The said tract of land is to return to me, or to my heirs, at the death of the said Michel Salabah and his wife.
[Signed] J. 0. Carlin.” „

It was subsequently recorded in the proper conveyance book.

The questions presented are, simply :

1. Whether this is a possessory, or petitory action.

2. Whether the plaintiffs have made out a case. •

We will dispose of them together.

The plaintiffs aver a title in their petition, which, they claim, has conferred upon them a “ life estate. This they did for the obvious purpose of showing that they claimed possession in their own right, as owners, and not through another. C. P. 46, 47 ; 4 An. 525. They do not ask in the prayer of their petition to be recognized as owners, but merely to he quieted in their possession.

It was not necessary for them to allege by what title they were in possession, C. P. 53; 3 An. 342; 13 L. 396; 2 L. 227; 4 An. 515; 19 L. 484; 6 An. 66; but they had a right to do so, without thereby impressing upon their action the character of a petitory one. 16 L. 44.

In an action reenperandee possessions, the fact of possession alone is at issue. However, where a plaintiff himself puts at issue his right of possession, exhibiting liis title in his petition, lie does so at his risk and peril. 4 M. 625. In such a case, if the title invoked he not on its face such as confers a right to the possession, the defendant has the undoubted right of assailing it and having it so declared, although he have not that of setting up title in himself, as owner, in the same suit. C. P. 55; 7 N. S. 488; 10 L. 140; 7 L. 415 ; 6 L. 50 ; 5 An. 690 ; 10 An. 508; 11 An. 512.

The title is, however, admissible in a mixed action, in mitigation of damages. 12 L. 415.

If, for instance, the title propounded be a lease, it is manifest, that as tenants are not entitled to bring the possessory action, the plaintiff could not recover. C. P. 48.

This is what occurs in this case. The act relied upon to establish title to possession is neither a sale nor a donation. It is not even a lease. It is simply a permission or privilege to occupy gratuitously, which constitutes the plaintiffs “ tenants at will.” The. clause touching the fencing in of the land was not inserted as a consideration, but as a release from obligation, in favor of the' grantor. It is not a sale or a lease, as no price is iixed. R. C. C. 2439, 2670. It is not a donation, because, as its object would be a real right, an imperfect ownership of immovable property, R. C. C. 490, 492, 494, 496, it should be in the authentic form. R. C. C. 470, 471, 1536, 628 ; 23 An. 243; 27 An. 534; 32 An. 839 ; 7 An. 103.

It has been held, that where such permission has been given, whether orally or in writing, under private signature, is immaterial; it does not constitute a title to an usufruct or to the right of use and enjoyment, but merely makes the grantees tenants at will, occupying for account of the owner. 32 An. 840.

The law is clear, that those who possess in the name of another, who hold by a precarious title, such as tenants, are not entitled to the possessory action when disturbed in the enjoyment of the real estate which they possess in that quality, or even when they are expelled. C. P. 48.

Our conclusion is, therefore, that although the character of the action, as determined by the prayer of the petition, be possessory in appearance, yet the plaintiffs, by their own averments, have shown that they are not entitled to the relief which they seek. An exception of no cause of action would have justified the dismissal of the suit.

The right of the defendant to assert ownership and to recover solely on that ground, could not be averred in the present action. His right to do so, in a different suit, is recognized and reserved. C. P. 55 ; 7 L. 415; 10 L. 140.

It is, therefore, ordered and decreed, that the judgment appealed from be reversed. It is now ordered, adjudged and decreed, that the injunction issued be dissolved, and that there be judgment rejecting plaintiffs’ demand, with costs in both Courts.

Concurring Opinion.

Fenner, J.

Under the Code of Practice, the only persons entitled to bring the possessory action, are those who possess real estate as owners, or are entitled to the usufruct or use, or other real right thereupon.

Those who possess in the name of another, such as tenants, are not entitled to the possessory action. C. P. 47, 48.

The issues in a possessory action may be two-fold; 1st, the fact of possession ; 2d, the nature of the possession.

In this case, plaintiffs, in .their original petition, averred that they held possession under a “ life-lease,” and they filed with their petition the document described in the opinion just read, which is itself headed bj' the caption “ lease.”

Subsequently, after answer filed by defendant, they filed an amended petition, in which they averred that the term “ life-lease,” used by them in their original petition, was erroneous, and should have been life estate.”

It is perfectly apparent, on the face of plaintiffs’ pleadings, that their possession is exclusively under and by virtue of the document filed by them with their petition, and afterwards introduced in evidence by them.

The inquiry is, therefore, perfectly legitimate and necessary, whether such possession is that of an owner or of one entitled to an usufruct or use, or real right, or whether it is a possession in the name of another, such as that of a tenant. In the latter case, manifestly, it is not sufficient to maintain the action.

The instrument, under which the possession is held, is a mere permission to occupy the premises during life, constituting simply a tenancy at will.

We have, heretofore, held that such a gratuitous verbal permission had such effect only. 33 An. 897.

The case is not different where the permission is gratuitously given by writing sous seing privé.”' C. C. 1536, 2015.

The terms of the instrument and the evidence satisfy us that the permission was entirely gratuitous, and that the phrase therein — “ the said Salabah is to enclose the same at Ms own expense ” — was not intended to impose an obligation on Salabah, but was simply designed to relieve the donor from any duty to enclose, and from any liability for injury resulting to the tenant from non-inclosure, suggested, no doubt, by the fact that the Point Field ” lay in the middle of the grantor’s property.

The possession of a tenant at will is not such as to support a possessory action.

For these reasons I concur.


author: Bermudez, C. J.

text:
    No. 1160.
    Succession of Véronique Carriére.
    No appeal lies from an order of court commanding the administrator of a succession to present his account.
    APPEAL from the Thirteenth District Court, Parish of St. Landry. Hudspeth, J.

      K. Baillio, for the Appellee.

      B. A. Martel and H. L. Garland, for the Appellant.
   Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

From an order made in open court on an application for an account by one claiming to be an heir, directing the administrator to render an account, the succession representative has taken a suspensive appeal, of which the appellee asks the dismissal.

It is well settled that an appeal does not lie from such a. decree, which cannot cause an irreparable injury.- If an.error was committed by the Judge, it can be reviewed and corrected when the whole matter will be brought up for final decision. An appeal does not- lie even from an order imprisoning an administrator for refusing to obey a peremptory mandate to file an account within a stated delay. 10 L. 499; 12 An. 248 ; 4 M. 422 ; 28 An. 392 ; 31 An. 116.

The motion to dismiss must prevail.

It is, therefore, ordered, that the appeal herein be dismissed, with costs.


author: Bermudez, C. J. Todd, J. Bermudez, C. J.

text:
    No. 1149.
    Amelia E. Galligar vs. Jacob U. Payne et al.
    A person cannob claim the benefit of tlie homestead laws, on the ground that she has brought up and is supporting in her house orphan children, who constitute her family and are dependent upon her for such support.
    Homestead laws are to be strictly construed.
    APPEAL from the Thirteenth District Court, Parish of St. Landry. Hudspeth, J.. .

      M. 1). Kavanagh and J. N. Ogden, for Plaintiff and Appellee.

      11. Ij. Garland, for Defendant- and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an injunction suit to prevent the defendant from executing a judgment rendered on a conventional mortgage consented in 1870 and 1871. It. rests on the ground, that the land seized constitutes a homestead under the Act of 1865, E. S-; R. S. 1691.

Prom a judgment in favor of plaintiff, this appeal is taken.

It is unnecessary to pass upon all the defenses raised by the appellant. It suffices to iuquire aud determine whether the appellee has proved herself to be, in every respect, in the situation which the law contemplates, regarding the beneficiaries to the class of which she claims to belong, viz: whether she had “persons dependent on her for supporV

At the institution of this suit, the plaintiff had two daughters, one who had married several years previous, and another who married during.the pendency of this controversy. By the change in her condition since the suit-, the latter, like the former, has ceased to be dependent qn tbe plaintiff for support. Gessante ratione, cessat lex.

But it is claimed that the evidence shows the plaintiff had, besides, at that time, and still has two minor children, respectively aged eighteen and nine years, dependent upon her, whom she has raised from1 their infancy, the last of whom being still young and delicate.

It is not shown that those children have any sort of natural or legal claim for support against the plaintiff, as part of her family, within the intent and meaning of the law. 33 An. 320.

In its limited sense, the word family signifies the father, mother and children; in its ordinary acceptation, it means all the relatives who descend from a common root; in its most extensive scope, it comprehends all the individuals who live under the authority of another, including even servants. R. C. C. 3556, $ 12.

In the application of a Statute in derogation of common right, we cannot arrogate the authority to give of the word family, found in the law relied upon, such an enlarged definition as would malre it so far reaching, as to put in the power of any dishonest or unscrupulous debtor to avail himself, at his whim and caprice, of the protective provisions of a law of grace and benevolence. That law was intended solely for the relief of a few meritorious persons in necessitous circumstances, bound by nature, conscience or the law, to support persons incapable of earning a living, and necessarily, wholly dependent upon them for maintenance.

We think we are forbidden from straining the law, and that it is our duty to restrict its humane provisions to those persons only as are within its contemplation, and as are bound by some natural' or legal obligation to support others, uuable to provide for themselves, and who have, by their blood or the law, a claim against them for subsistence, which conscience or a court of justice would recognize and enforce.

Were we to give to the word family even its ordinary acceptation, that interpretation would not relieve the plaintiff. The children are not shown to be related to, or connected with, the plaintiff in any way. It appears, on the contrary, that they are strangers to the plaintiff and arc. the orphans of persons who died in her service, or that of some member of her family. •

Parties invoking the protection of the homestead laws, which are in derogation of common right and must be strictly construed, are required to prove that they come within both their spirit and letter. 21 An. 686; 28 An.'667, 594; 26 An. 610 ; 29 An. 64 ; 32 An. 805.

In such cases, it is essential that they should, among other facts, establish that the persons dependent on them are such as cannot and do not earn a living, and have a natural or legal claim for actual and necessary support. Husbaud, wife, ascendant, descendant, adopted child, donee, and possibly, destitute'and afflicted relatives, appear to us, as at present advised, to be the only persons who could come within the compass of the law. It. S. 1091; Act 52 1865, E. E.; E. C. C. 119, 229, 214, 1559, 3556, $ 12; 33 An. 320.

It is no doubt a laudable act of charity on the part of plaintiff to minister unto the wants and necessities of the children for whom she has assumed to provide ; but, however praiseworthy her conduct may be, the law, in its justice and wisdom, will not permit her to impose upon her honest creditors the burden of her bounty. She must be just before she can be generous.

It is, therefore, ordered and decreed, that the judgment appealed front be reversed, and it is now ordered, adjudged and decreed, that the injunction issued be dissolved, and that plaintiff’s demand be rejected, with costs in both Courts.

Mr. Justice Eenner recuses himself, on account of affinity.

Mr. Justice Todd dissents.

Note. — Mr. Justice Eenner having recused himself, and Mr. Justice Levy being absent, (on leave) and the remaining three members of the Court not concurring — Mr. Justice Todd dissenting — the Hon. John Clegg, Judge of the District Court for the Twenty-fifth Judicial District, was called upon by the Judges not recused, to sit in the place of the Judge recused, and to aid in the determination of the case, under the provisions of Article 85 of the Constitution; and he has done so, concurring with the Chief J ustice and Mr. J ustice Poché in the foregoing opinion and decree.

Dissenting Opinion.

Todd, J.

The exemption in this case is claimed under the Act of 1865. That Act exempts, quoting its language, one hundred and sixty acres of ground, and the buildings and improvements thereon, occupied as a residence, and bona fide owned by the debtor, having a family, mother or father, or person or persons dependent on him for support.”

The claimant in this case is a widow, the head of a family, consisting at the time of the institution of her suit, of three minor children, one of them her own daughter, and two orphan girls whom she had raised from infancy, and who, from that period of their existence, had been members of her household, and the youngest of whom was only nine years of age. Whether we view the plaintiff as the head of this dependent family, or view her as one having a person or persons dependent on her for support, I am convinced that she comes strictly within the scope and benevolent design of the law she invokes, and nqt only within the spirit of that law, but within the strictest letter of it. To my mind, it needs only a recurrence to the policy of the law and the wise and humane purposes of its enactment, to induce the conclusion that this case comes peculiarly within its principle and intent.

The policy of this law, I take it to be, was to afford the shelter of a home to every family struggling with the adversities óf life, a permanent home, because secured against the vicissitudes of fortune and the results of improvidence. And this idea of permanency and security was wisely designed to foster a desire to establish homes, and to elevate the family by encouraging the love of home, enhanced by the safeguards and protection that the law throws around it, and so well calculated to promote the affections and virtues that are naturally associated with home and family. The object of the law was thus broad and far-reaching, designed to affect the very structure of society and advance its highest and best interests. Considering this object, I think the law is entitled to a construction as liberal as its aims and purposes are broad and humane. It is a law, however, that may be so narrowly construed as to be rendered wholly inoperative to accomplish what I conceive to be its legitimate ends. It may be made the veriest'mockery.

■ The family blessed with a strong and vigorous protection in the father, and which is meritorious from the industry and working capacity of its members, may be told, you have no need to claim the protection of the law, you are self-supportiDg.

And the weak and the helpless, with no protection but the mother, may be told that they might work, or are capable of supporting themselves, and that members of the family, though orphans, and maybe of tender years, have no claim to member ship therein, but in the charity and humanity of the widowed head of that family, and that the exercise of such humanity and charity, in the support of orphan children, was not only an imjmdinient, but an absolute barrier to the benefits of the law.

From a careful 'study of the subject, and from any standpoint that I view the case, I think the plaintiff is entitled to the exemption claimed, and that the judgment of the lower court allowing it should be affirmed. I, therefore, dissent.

On Application por Rehearing.

Bermudez, C. J.

In this case, a rehearing having been applied for, and the petition therefor having been duly considered, and their Honors, the Chief Justice, and Mr.JusticePochéand the Hon. John Clegg, who previously concurred In the opinion and decree heretofore reude-red, seeing no reason to disturb the same, it is ordered, that said petition be refused, with 'costs.

Mr. Justice Todd dissents, thinking that a rehearing should be granted. '

' The Honorable John Clegg, Judge of the District Court for the 25th Judicial District, sat for the trial and determination of the application for a rehearing, and was present in Court when the opinion and decree refusing the same was announced, acting in the place of Mr. Justice Fenner, recused.

• -It is ordered that the sum of ten dollars be taxed among the costs herein, to be paid the Hon. John Clegg, for disbursements incurred by him as travelling expenses, to aid in the determination of the case on its merits, 'and on the application for a rehearing. - •


author: Todd, J.

text:
    No. 1147.
    The State of Louisiana vs. Platte.
    In a criminal prosecution, the accused Las a right to object to the admission of an implied confession resulting from an offer to compromise, on the ground that it was not voluntary, and whore a witness has testified that the confession was not induced by promises or threats, the accused should be allowed to offer rebutting proof going to show that he was forced to malee the offer in question, and the refusal of such offer, and the admission of the confession, in spite of it, is sufficient to vitiate the verdict and cause the remanding of the case. '
    APPEAL from the Twenty-fifth District Court, Parish of Lafayette. Glegg, J.

      J. A. Chargois, District Attorney, for the State, Appellee.

      0. Debaillon, for Defendant and Appellant.
   -The opinion of the Court was delivered by

Todd, J.

The defendant is appellant from a sentence of ten months’ imprisonment, at hard labor in the State penitentiary, for the crime-of larceny. ■ .

The first matter presented to our consideration is the ruling of. the Judge a guo, refusing to hear evidence offered by the accused on the trial of the cause, relating'to the character of the alleged confession of the accused, implied in an offer to compromise the offense. '

The following are the facts on this point, disclosed by the bill of exceptions reserved to this ruling: .

■ The person whose property was charged to have been stolen, was sworn as a witness, and asked touching the alleged confession or offer to compromise. It was suggested by the defendant’s counsel, that the foundation had not been laid for the admission of such confession, or •offer by showing that it was free and voluntary. The witness was thereupon questioned.upon the subject, and stated that she had made no threats or promises to induce the confession or offer on the part of the accused, whereupon the counsel for the accused offered to prove by persons who made the arrest, among whom were the son-in-law and the grandson of the witness, the alleged owner of the property, as stated, “ that (quoting from the bill) threats, menaces, and promises were made to the defendant, and undue influences brought to bear upon him, to induce him to offer a compromise, and that it was this mental strain and pressure upon him that led to the attempted compromise.”

The court ruled, “ that the defendant had no right, in law, to show said facts,” and refused to hear any testimony going to show that this offer or confession was forced from him, and not free and voluntary.

The Judge, in so ruling, was. undoubtedly in error.

It is elementary that the confession of an accused is not admissible against him, unless it is a free and voluntary confession, and its character as such must be first shown, as a prerequisite to its admission. When the State offers to make such proof, the issue as to the character of the confession is properly raised, and both sides have the right to be heard on this issue. The inquiry, on a point of such vital importance to an accused, should be free and full, and is not to be closed at the very instant that the State manages to eke out from the prosecuting witness, that she, the witness, had made no threats or promises, and all opportunity denied to the other party to be heard.

And the Judge had no right to conclude, as he says in the bill he did do, that the testimony offered by the accused could not be sufficient to overthrow the effect of the facts shown by Mrs. Granger, the witness in question.

It might be very true that this witness did not, by violence 'or threats, frighten the accused into a confession, nor does it appear that there was any such pretense, but it was unreasonable to hold that others might not have done so, and that the influence of such violence or' threats' was not swaying the mind of the accused when the alleged offer, or confession was made.

Of course, the prisoner’s confession, thus illegally admitted, must have procured his conviction, or was calculated to do so, and from a ruling so-palpably to his injury, the accused is entitled to relief. This conclusion dispenses us from considering the several other questions raised by the appeal, except that relating to the legality of the arraignment.

In our opinion, for reasons unnecessary to state, we think the accused was properly arraigned, also, that the minutes were properly corrected to show that the information was filed, and thp date of its filing.

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


author: PocuÉ, J.

text:
    No. 1156.
    Succession of Susan E. Andrus. Opposition of Vincent Boagni et al.
    The legal representatives of a deceased married woman have the right to urge the nullity of judgments rendered against her for the enforcement of contracts entered into by her during coverture.
    A married woman will not be estopped or precluded, under Art. 61$ C. P., from demanding the nullity of a judgment, because she did not oppose the execution of the same, if such execution issued during the marriage, while she was not yet sui generis.

    A purchase made exclusively on credit hy a married woman, who is not shown to have been separate in property from hor husband, or to have separate property yielding paraphernal revenue, of which she has retained the administration, will he held as a purchase by the community, for which the wife was prohibited from binding herself or her property.
    A judgment rendered against her on promissory notes excuied hy her for such purchase price, caunot be enforced, if resisted.
    APPEAL from the Thirteenth District Court, Parish of St. Laudry. Hudspeth, J.

      Lewis <& Hro., for Opponents and Appellees.

      K. Ballio, for Defendant and Appellant.
   Motion to Dismiss.

The opinion of the Court was delivered by

PocuÉ, J.

Opponents and appellees have moved for the dismissal of this appeal, on the ground that the amount in dispute does not exceed one thousand dollars, exclusive of interests.

The contest arose over a tableau of classification of debts presented by the administrator, and which was opposed by appellees, who. complained that, as judgment creditors of the deceased for $786.66, they had been omitted from said tableau, and in which opposition they sought to he paid hy preference over other creditors recognized on the account, and whose claims aggregated the sum of $591.59.

, The amount of funds in the hands of the administrator is $2,270, and the judgment appealed from sustained the opposition pf appellees,. ordered, the payment of their claim by preference out of the proceeds of the sale of the immovable jiroperty, and homologated the tableau as thus amended.

From this statement it appears that the amount of the fund to be distributed, even after satisfaction of opponents’ claim, would yet be $1,483.34, and that, therefore, the fund to be distributed exceeds one thousand dollars ; which is, in such cases, the test of the jurisdiction of the appellate court, under the provisions of Article 81 of the Constitution.

The unappealed portion of the judgment orders the payment of $591.59, after the deduction of which from the total amount of assets, the administrator would have in his hands, subject to the control and order of the Court, the sum of $1,678.41.

It is thus manifest, that in either hypothesis, the controversy pre? Sents an issue turning upon a fund to be distributed in an amount sufficient to give jurisdiction to this Court.

The motion to dismiss is, therefore, denied.

On tiie Merits.

The controversy arises from the following facts :

In July, 1872, the deceased, authorized by her husband, purchased from opponents a certain tract of land situated in this parish, for three thousand dollars, for the purchase price of which she executed her six promissory notes of $500 each, two of which were made payable in each of the years 1874, 1875 and 1876.

In 1875, opponents took judgment against her on four of the notes, then matured, and issued execution thereon", under which the property was sold, and did not realize enough to satisfy the mortgage debt; and in 1877, the same parties obtained a personal judgment against the deceased, for the unpaid balance of their claim, which amounted to $786.66, and it is for that" amount that they seek to be recognized as judicial mortgage creditors of the succession.

Among other grounds of resistance, the administrator urges the absolute nullity of this judgment, on the ground that the notes'on-which it rests, represented a debt of the husband or of the community,’ and not of the wife, and that the latter was prohibited bjr law from binding herself or her property for the payment of the debts of her husband or of the community.

This defense suggests an inquiry into the nature of the purchase fuade-by the deceased in 1872.

This inquiry is resisted by opponents, who contend that the nullity of the judgment could be demanded only in a direct action of nullity, or by appeal. •It is now well settled, that the nullity of a judgment predicated upon a contract of a married woman, without personal service, by default, and without service of the judgment on the defendant, can be urged by her whenever an execution is taken against her. Baines vs. Burbridge, 15 An. 628; Medort vs. Famach, 15 An. 651; Bowman vs. Kaufman, 30 An. 1021. Such is the condition of this case.

This opposition is virtually an execution of opponents’ judgment, and it was competent for the administrator, in resisting its payment, to urge the nullity of the obligation on which it is predicated-.

Opponents further contend that the deceased, having suffered the execution of the judgment against her property without opposing the same, could not, if living, and her legal representatives cannot now be allowed, under the provisions of Art. 612 of the Code of Practice, to urge the nullity of said judgment. Two answers are suggested at once to this argument.

The property seized was that covered by the vendor’s privilege, and whether the property was the community’s or the wife’s, the latter could not oppose the execution of the judgment recognizing and enforcing the vendor’s privilege, as a proceeding “ in rem,'1 and not as a personal obligation of the wife.

And in the second place, the record shows that at the time of said execution, the deceased was yet under marital influence, and hence, the provisions of Art. 612 could not apply to her. 23 An. 313, Darcy vs. Martin, Cobb & Co.; 28 An. 758, Bienvenu vs. Prieur.

It is now well settled that the wife cannot be estopped by any act of recognition or ratification of her contracts, during coverture, or even by a confession of judgment, from subsequently urging the nullity of such contracts. 14 An. 165; 16 An. 11; 29 An. 600, Edwards vs. Edwards, and authorities therein cited.

We now reach the consideration of the question of the nature of the purchase from which flows the obligation now sought to be enforced against the purchasing married woman.

Under the textual provisions of our Code, all purchases made during the marriage, even when made only in the name of one of the two, and not of both spouses, are for the benefit of the community; and jurisprudence has settled, beyond the domain of discussion, that the wife, purchasing in her name, in order to avoid the operation of that rule, must show that she was either separate in property, or that the purchase was made with her own paraphernal funds, which she administers without the assistance of her husband, or in case of a purchase on credit, that she has revenues derived from her paraphernal property sufficient to pay the credit portions of the purchase Avlien they become due. C. C. 2402; 33 An. 160, Miller vs. Handy.

Now, in this case, the act of sale, and all the other evidence in the record, fails to show that the deceased was separate in property from her husband, or that she had any paraphernal funds, or separate property yielding revenues; it is not even alleged or pretended by the opponents that she was placed in any of the conditions which are requisite in law to give to her purchase the character of a transaction for her separate account or benefit.

On the contrary, the record shows that the purchase was made exclusively on credit, and that no part of the purchase price was ever paid or satisfied, otherwise than under execution, and forces the conclusion that the property thus purchased fell into the community, and that the purchase price was a community debt, for which the wife could not bind herself. It follows, therefore, that she cannot he held personally liable for the notes which she executed under those circumstances, and that the judgment rendered against her, having-the practical effect of enforcing- a contract entered into in violation of a prohibitory law, is a nullity.

In the case of Forbes vs. Layton, recently decided at Monroe, we had occasion to review our jurisprudence ou this question, and we reaffirmed this well established doctrine governing- purchases made by married women under similar circumstances.

These views of the present controversy preclude the necessity of an expression of opinion on other questions raised and discussed by counsel on both sides.

It is, therefore, ordered, that the judgment appealed from be amended, in so far as it recognizes opponents’ claim, which is rejected, and whose opposition is dismissed; and that, as thus amended, said judgment he affirmed; costs of appeal, and of the opposition below, to be paid by opponents.


author: PocirÉ, J.

text:
    No. 1161.
    Succession of Agenor Lessassier. Oppositions of Widow Victoria Gonor and Marie Josephine Lessassier.
    The rights of the minor children or of tlie widow of a deceased debtor, claiming under the provisions of the Homestead law of 1852, must be tested under their condition or situat'on as existing at the date of the death of the deceased, and not at the date of the settlement of the succession. If the widow, or any one of the minors, even though the latter be not the issue of the widow, possess in his or her own right $1000, nothing can be allowed under the homestead law.
    APPEAL from the Thirteenth District Court, Parish of St. Landry. Hudspeth, J.

      Lewis <& Bro., for Opponents and Appellants.

      H. L. Garland, for the Administrator, Appellee.
   On Motion to Dismiss.

The opinion of the Court was delivered by

PocirÉ, J.

The motion to dismiss this appeal, on the ground that the amount in dispute does not exceed one thousand dollars, cannot prevail.

The assets of the succession amount to $1,045.20, and this is the ,fund to be distributed, the whole of which is claimed by Marie Josephine Lassassier, in part satisfaction of her mortgage claim, amounting to $1,603.92, and $1,000 of which is claimed by the other opponent, thus making it clear that the case is within our appellate jurisdiction.

The motion to dismiss is, therefore, denied.

On the Merits.

At his death, Agenor Lessassier left an orphan child, Marie Josephine Lessassier, one of the opponents herein, issue of his first marriage, and the surviving widow of his second marriage, Yictoria Donor, the other opponent.

The contest is between these two parties, the first of whom, Marie Josephine Lessassier, claims to be a mortgage creditor of her father’s succession, in the sum above stated, being the amount of her mother’s paraphernal funds received by her father and former tutor.

The widow claims the sum of one thousand dollars, as a widow under necessitous circumstances, under the provisions of the Homestead Act of 1852.

Her claim was resisted by the administrator and rejected by the court, on the ground that the minor child of the deceased, possessing in her own right property to the amount of one thousand dollars, the widow can be allowed nothing under the homestead law, which reads as follows:

“ Whenever the widow or minor children of a deceased person shall be left in necessitous circumstances, and not possess in their own right property to the amount of one thousand dollars, the widow, or the legal ■representatives of the children shall be entitled to demand and receive from the succession of the deceased husband or father, a sum, which added to the amount of property owned by them, or either of them, .in their own right, will make up the sum of one thousand dollars.”

Our jurisprudence has now settled beyond controversy, that if the widow or any one of the minors possess, in his or her own right $1,000, nothing can be allowed under the law now under consideration; and that this rule applies even where the minor or minors are not the issue of the surviving widow. Succession of Elliott, 31 An. 31; Succession of Melancon, 25 An. 535; Steward vs. Steward, 13 An. 398.

Without regard to the conclusion which we might reach, if we were to interpret this Statute as “res nova,” we must be guided and controlled by the rule of “ stare decisis.”

But the widow’s counsel make the point, that since the institution of those proceedings, Marie Lessassier having been emancipated, her rights of property cannot be dealt with, and carry the same effect as that of a minor, as contemplated by* the Statute.

To this argument our courts have already answered, that the rights of the minor or minors, and the widow in necessitous circumstances, must be tested under their situation or condition, at the date of the death of the deceased, and not at the date of the settlement of the succession. 27 An. 99, Succession of Marx; 18 An. 38, Succession of Norton ; Gimble vs. Goode, 13 An. 352; Succession of Wellmeyer, 34 An., not yet reported.

We, therefore, find no error in the judgment appealed from, which is affirmed; costs of appeal to be paid by opponent, widow Victoria Gonor.


text:
    The State of Louisiana ex rel. Paul Pringle vs. John Lake, Sheriff, et al.
    In criminal oases, it is not necessary that the judgment he drawn up by the Judge and kept in the record as a separate and distinct proceeding. It is enough that it be noted and entered in the minutes tiy the clerk.
    Nor are the words: “It is considered,” sacramental and essential in such judgment.
    Nor is such judgment impaired because it provides for the fixing of the time of execution by the Governor.
    Nor it is necessary that such judgment should contain the reasons upon which it is founded, as in civil causes.
    Nor is it necessary that, such judgment he signed.
    Article 66 of the Constitution, granting to the Governor the power of reprieving, pardoning, commuting sentences, etc., is not designed to suspend indefinitely the execution of the sentence passed upon the criminal.
    ApPLICATION for Writ of Habeas Corpus.

      Hicks & Hicks, for the Petitioner.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a habeas corpus. It was filed yesterday, argued and submitted late in the evening.

The Relator complains that on the 8th of October, 1831, a year ago, ho was tried for a capital offense, convicted and sentenced to be hung, and that his execution is fixed for the Bith October, inst., three days hence.

He charges that the sentence passed upon him is an absolute nullity on its face, for the following reasons :

It is a mere, entry by the clerk on the minutes.

It does not contain the essential words “ it is considered,’’'1 which are sacramental to a common law judgment, and it is not peremptory.

It does not include the reasons upon which it is founded, and it is not signed by the Judge.

The Relator charges further, that even if the sentence be valid, it cannot be carried out, as the execution thereof was stayed by a petition which he has filed before the Board of Pardon, for a commutation to imprisonment at hard labor for life ; that his prayer for mercy has been neither rejected nor granted; that there being no Lieutenant Governor, the Board is incomplete, composed of the Attorney General and the Judge who passed the sentence, and that these have failed to agree; that the Governor has no authority to issue the death warrant, which he has, until said application has been refused.

The Relator, therefore, concludes, that there existing no valid sentence of conviction, he should be restored to liberty, or if there exist such, it should not be executed until his prayer for mercy shall have been declined.

Had it not been charged and argued that the sentence passed upon the prisoner is absolutely null on Us face, we would refrain from expressing any opinion on the sufficiency of the grounds of attack, for it is well settled, that the habeas corpus proceedings cannot be converted into a writ of error. C. P. 822, (7).

The objections made to the regularity and validity of the sentence are untenable.

It is not required that such judgments be drawn up by the Judge and kept in the record as a separate and distinct proceeding. It is enough that such be noted or entered by the clerk in the minutes of the court, which is the register in which the law requires that all judgments be recorded.

It is not essential that the words, “it is considered,” be included in the sentence.

The entry made in the minutes is in the words following:

The accused, Paul Pringle, being in open court, was asked by the court, wliy the sentence of the court should not be passed against him, and having answered, the sentence of the court was pronounced as follows : That you, Paul Pringle, be remanded to the jail from whence you came, and on such day and hour as the Governor of the State may tlx, that you be hanged by the sheriff of this parish, by the neck, until you be dead! dead!! dead!!!

It is manifest, that this is a positive, unequivocal, unconditional decree or sentence of a court of justice exercising criminal jurisdiction.

It has the complexion or characteristic features of a judgment of the greatest solemnity. It is as. absolute and peremptory as it was possible to make it.

Prom the fact that it provides for the fixing of the time of execution by the Governor of the State, it cannot be inferred that the judgment is vague and uncertain, and, therefore, void on that score.

The form used is that commonly followed. The words having reference to the fixing of the time were unnecessary, and may be considered a superfluity.

It is made the duty of the Governor to cause to he carried out sentences of death. Had not the words been used, it would not have been the less his duty to have had the judgment executed. In the performance of that stern function he cannot he arrested, unless by the granting of a recommended pardon.

The rules prescribed by the Code of Practice, and invoked by the petitioner, for the rendition and form of judgments, obtain in civil, hut not in criminal cases.

It is not necessary that sentences passed upomprisoners, after verdict, by Judges of criminal courts, should contain the reasons upon which they are founded. The constitutional requirement, in this particular, applies to judgments rendered by the Judge alone, and not to those rendered by him upon verdicts of juries, specially in criminal cases. It is sufficient that it appear from the proceeding that a legal verdict was rendered, justifying the passing of the sentence. Neither is it required that such judgments or sentences he signed. It is not customary that they he. At common law, judgments are not required to be signed. The judgments of this Court, either in civil or criminal cases, require no signature.

We, therefore, conclude, that the sentence is valid on its face, and we will now proceed to consider and determine the other branch of the case, namely, whether the execution of the sentence is suspended by the petition for commutation.

Article 66 of the Constitution reads as follows :

tl The Governor shall have power to grant reprieves for all offenses against the State and, except in eases of impeachment or treason, shall, upon the recommendation in writing of the Lieutenant Governor, Attorney General and presiding Judge of the court before which conviction was had, or any two of them, have power to grant pardons, commute sentences, and remit fines and forfeitures, after conviction.”

The Article does not confer on prisoners convicted of offenses the right of petitioning for pardon or commutation. That right was not required to be conferred. It is an inalienable right, which can neither be abridged nor bartered away. The Article tacitly recognizes its existence and regulates executive action over it when it is exercised.

The Article was not designed to give to the exercise of that right the effect of suspending indefinitely the execution of the sentence against the supplicant for mercy. It was intended as a check on the prerogative of the Executive to grant pardons or commutations, mere quia sie placet, a prerogative the abuse of which has been previously most keenly felt by the good people of this State.

Where judgments are rendered and become final, that is, sovereign, so that they cannot be disturbed, the rule is, that they become executory and produce their effect.

The Governor’s duty was to cause to be executed the judgment or sentence passed upon the petitioner, without unnecessary haste, after it had become executory.

The record unmistakably shows that the Governor, in the exercise of a sound discretion and animated by laudable motives of charity, has allowed the prisoner most ample time to pray for mefcy before the competent authority. He has already granted him three rex>rieves, and it is only after waiting nearly a year, and after the application for commutation had been practically rejected, that he has determined to issue the death warrant, under which the life of the Relator is to terminate.

We do not propose to determine whether there is or is not a Lieutenant Governor of the State.

Conceding arguendo that there is no such officer in existence, and that the Attorney General and the District Judge who presided over the court before which the convictiou was had, have agreed for mercy, the Governor was under no legal obligation to grant a pardon or commutation, and had legal authority to sign the death warrant which he has issued.

The Article of the Constitution is clearly to the effect, that the Governor shall have no power to pardon or commute, unless the Board or a majority of its members shall recommend the same. A recommendation would not have been binding upon him.

The people, by their Constitution, have imposed upon him the moral obligation and grave responsibility of deciding for himself, before God and men, what the cases are in which pardons or commutations being recommended, lie should exercise sovereign clemency. He must he left untrammelled.

For those reasons:

It is ordered, adjudged and decreed, that the petition for a habeas corpus he refused, and that the prisoner remain in legal custody.


author: Poché, J.

text:
    No. 81.
    The State of Louisiana vs. Lee Vines et al.
    The proviso or last clause in Section 986, Revised Statutes, which, reads: “ Nothing herein contained shall extend to any person absconding or fleeing from justice,” is intended as a means of interrupting prescription, when pleaded in bar of a prosecution for certain offenses; and is not intended to apply to the status of the accused at the time that-it is proposed to prosecute, try or punish him.
    It is not necessary that he should be absconding or a fugitive from justice at the moment of the prosecution. It suffices that he should have absconded or fled after the commission of the deed charged against him.
    The act of a juror, sitting in a capital case, who leaves the jury box during a recess of the court, and crosses the courthouse for the purpose of consulting a physician about his health, said juror being sick, and having permission for such consultation under the eyes of the sheriff, does not constitute a separation, or such misconduct as will vitiate the verdict.
    A juror who swears that he is opposed to capital punishment, is not competent to sit on the trial of a murder case.
    A juror who swears that he has formed an opinion, but that the same is based on mere rumor, and that it will readily yield to the evidence, is competent.
    APPEAL from the Eleventh District Court, Parish of Sabine.. Pier-son, J.

      J). S. Scarborough, District Attorney, for the State, Appellee:
    Under an indictment for murder, the prisoner may be convicted of manslaughter, and such conviction will be good, though the evidence may convince the Judge that the crime amounted to murder, otherwise a conviction of manslaughter, in such a case, would amount in effect to an acquittal, for a conviction of manslaughter is an acquittal of the graver crime of murder. 7 An. 40 and 41.
    A juror who lias formed an opinion, wholly based upon rumor,. which will readily yield to evidence, who has no prejudice or bias in the case, who does not know either of the parties, is a competent juror. 34 An 186; 8 R. 535; 4 An. 505; 6 An. 653; 14 An. 673 ; 14 An. 651; 22 An. 43; 27 An. 692; 23 An. 148; 39 An. 642; 27 An. 375 ; 14 An. 642; 28 An. 632; 33 An. 889.
    Proof of threats is not admissible, “unless proof first be given that there was an overt act of attack, and that the defendant, at the time of the collision, was in apparent imminent danger.” W. C. E., Secs. 757; 33 An. 1087; 64 Mo. 358.
    A momentary stepping aside, by one of the jurors, but remaining in the court room, in sight of the other jurors and under the charge of the deputy sheriff, to speak to a physician about his health, after having been specially permitted so to do by the court, is nota separation in law, and does not vitiate the verdict. 30 An. 921; 10 An. 501.
    A juror who has conscientious scruples against capital punishment is not a good juror; and whore he is so ignorant as to render it difficult to determine whether ho has scruples or noc, he is not a.good juior, for want of intellectual qualifications. Besides, the excusing of a juror is a matter addressing itself to the sound discretion of the court, and cannot he reviewed hy the Supreme Court. This is now the settled law of Louisiana. 33 An. 1410 ; State vs. Shields, B, C. P,, Sec. 926; 18 Mo, 435.
    The principle, asked to he given in charge hy the counsel for accused, found on pages 52 and 54 of Transcript, is not the law of Louisiana, but the law is given and found in the Judge’s written charge. W, C. Law, Vol. 1, Sec. 487; 30 An. 340, G79: 33 An. 1087; 6 An. 420.
    Proof of desperate character of deceased, was not admissible, under the facts of this caso, as disclosed from T., pp 39 and 40, W. C. N., Sec. 756; 33 An. 1087.
    It has now ceased to be any longer an open question that a court has the right to have its minutes corrected to correspond with the facts. 33 An. 10L8 $ 34 An. 369.

      Wm. H. Jack and J. F. Smith, for Defendant and Appellant:
    “No person shall be prosecuted, tried or punished for any offense (wilful murder, arson, robbery, forgery and counterfeiting excepted) unless the indictment or presentment for the same be found or exhibited within one year next after the offense shall have been made known to a public officer having tho power to direct theinvestigafion or prosecution, etc. Nothing herein contained shall extend to any person absconding or fleeing from justice.” B. S. 98G.
    The voluntary abandonment of an original prosecution for murder, under a bill containing no averment negativing prescription, .and •which has pended for eight years, bars a conviction for manslaughter on a subsequent bill, charging only in general terms that the accused “ have absconded and fled from justice,” irrespective of the fact whether the first bill was void or valid. 31 An. 20; 30 An. 1134; 30 An. 3014, and other authorities.
   The opinion of the Court was delivered by

Poché, J.

Lee Vines having been convicted of manslaughter under a charge of murder, urges on apiroal, by motion for new trial and in arrest and bill of exceptions, numerous grounds for relief from the sentence of the court, condemning him to hard labor for twenty years.

I. In Lis motion ill arrest of judgment he sets up the plea of prescription of one year, in bar of the prosecution under which he was convicted, based on the ground that the indictment under which he was tried was found on January ID, 1832, charging an offense that was committed on June 6,1873, or more than eight years preceding the date of said indictment.

From his motion and the bill of exceptions taken from the Judge’s ruling we gather the following facts bearing on this point:

On the 28th of August, 1873, the defendant was indicted for murder, alleged to have been committed on June 6, 1873, and besides the issuing of a bench warrant, no proceedings were taken until the 19th of January, 1882, when the sheriff returned, that he had on that day arrested the accused, who had voluntarily surrendered himself to that officer. On the same day the District Attorney entered a not. pros, on tlie indictment of August 28, 1873, and on the same day he presented the indictment of January 19, 1882, under which Vines was tried, and convicted of manslaughter.

The last indictment contained the following averment: “ and that the said Lee Vines * * had absconded and fled from justice.'1'1

The first ground taken by the defendant is, that prescription was not interrupted by the first prosecution, because it had' been voluntarily abandoned by the State. This ground must be readily conceded as resting on a principle sanctioned by several decisions of this Court. State vs. Thomas, 30 An. 301; State vs. Baker, Ib. 1134; State vs. Curtis, Ib. 1166; State vs. Morrison, 31 An. 211.

As a defective prosecution, when it is annulled, or a prosecution voluntarily abandoned by the State, must be considered as having neyer taken place, as. an absolute nullity; and as such a prosecution cannot be invoked or used by the State as an element for the interruption of prescription, we shall, therefore, eliminate that indictment from discussion, and treat tire question as though such an indictment had never been found or exhibited.

This course, which is a natural consequence of the theory just adopted, and which is a corollary of one o.f the most strenuous arguments of defendant’s counsel, disposes summarily of all the relief which they claim under that indictment, and under its abandonment by the State. It is, therefore, perfectly immaterial for the purposes of this investigation that this original indictment contained no averment that the accused liad fled from justice, and that in abandoning the prosecution for murder under that indictment, the State had also, and consequently, abandoned the prosecution for manslaughter, which, 'under our criminal jurisprudence was included, and could be considéred at the trial under the charge of the greater offense of murder, resulting from the same act. Defendant’s counsel contend with apparent earnestness, that the last sentence of Section 936, Revised Statutes, which provides for a bar by the prescription of one year against the prosecution, trial or punishment of persons for certain crimes and offenses, and which sentence or proviso reads as follows: “ Nothing herein contained shall extend to any person absconding or fleeing from justice,” was not intended as an element of interruption of the prescription provided for in the statute, but because the words are not used in the past tense, they must be construed as referring to the accused at the time or moment that it is proposed to prosecute, try, or punish him. •

Hence, they argue, that as the accused was not a fugitive from' justice, bnt was, on the contrary, in legal custody, and present in court when the indictment of January, 1882, was presented against him, his plea of prescription could not be defeated or met, by alleging and proving that he had absconded and fled from justice, and- it is confidently asserted that any other construction would involve a “ murder of the king’s English in cold blood.”

A careful analysis of the statute, with the assistance of several decisions of our predecessors, compels us to undergo that risk. While it is- true that a person may be indicted while he was absconding or fleeing from justice, it is equally true that he cannot be arraigned, tried or punished, unless he be present, in legal custody. -Hence, in drafting this statute, the law maker lias been careful to use the disjunction, in providing that “ no person shall be prosecuted, tried or punished, for any offense,” etc.

Now, what is meant by the words, that “ nothing herein shall extend to any person absconding or fleeing from justice ? ” and what is herein provided? It is provided that no one shall be prosecuted, etc., for certain offenses, unless the charge shall be made against him within one year next after the offense shall have been made known to a public officer having the power to direct the investigation or prosecution. The proviso, therefore, denies that protection to the offender who absconds or flees from justice, or in. other words, denies him the right of pleading the prescription established by that statute; hence, in his case it becomes immaterial to consider the time when his offense was made known to a public officer, and in his case the plea' of prescription is fully met by averring and proving that he had absconded or fled from justice.

Such was the construction given to the statute by this Court in several cases, as conceded by defendant’s counsel, when they say in their brief: “We have failed to find a single case when this (their) view of the statute has been directly urged on the Supreme Court, and hence, in the absence of all questions as to the true meaning and intent of this clause, some of the decisions seem to favor the idea, that absconding or fleeing from justice is a'cause interrupting prescription.” State vs. Foster, 7 An. 255; State vs. Same, 8 An. 290 ; State vs. Bilbo, 19 An. 96 ; State vs. Morrison, 31 An. 211. From the latter opinion we quote the following terse and significant language : “ And in such prosecutions, unless the State shows a previous indictment of the same person for the same offense, found within the year, or cause-why such indictment was not found, such as the absconding of the offender, * * the conviction will not be sustained.”

To the argument that the averment “ that the said Lee Vines had absconded and fled from justice ” was too vague, in not connecting the act of absconding or fleeing, with the offense charged, or specifying the time or length of such absconding, we answer that the objection comes too late, and should have been urged at the trial when the State offered proof in support of the averment. But even a timely objection would not be tenable, for the averment is a textual compliance with the words of the statute, which must be construed as meaning, that the absconding or fleeing has reference to the charge under which the party is prosecuted, tried or punished. Hence, in this case, we hold that the averment in the indictment has reference to a flight from justice by the accused, in view, and on account of the offense committed on June 6, 1873. While it would have been more satisfactory or more regular for the indictment to have mentioned the date of the flight of the accused, and the length of its duration, yet we find nothing in the statute, as interpreted in our jurisprudence, which would have required that provision as sacramental to the binding effect of the averment.

If, instead of charging murder, which is an imprescriptible crime, the District Attorney had merely charged manslaughter, and had incorporated this identical averment and no more, as a necessary element of pleading to admit of proof of interruption of prescription, it is clear to our minds that a motion to quash the indictment on such a ground could not have prevailed. 19 An. 76, State vs. Bilbo.

The record shows that the averment was established by the evidence, and our conclusion is, that the motion in arrest was properly overruled.

2. The defendant also moved for a new trial, on the ground of the alleged misconduct of one of the jurors, who, during a recess of the court, left the jury box, and crossing over through an aisle, spoke to a physician, whom he consulted about his health, as he was then sick. The record shows that special permission had been given to the sheriff by the Judge, to allow a consultation between the juror arid his physician, in the presence of the sheriff, who should not allow the two to speak of any other subject. This circumstance does not present a case of separation or misconduct, as contemplated and reprobated by the law. This is now well settled in our'jurisprudence. State vs. Turber, 10 An. 501; State vs. Johnson, 30 An. 921.

3. The juror who swore on his voir dire that he was opposed to the infliction of capital punishment, was properly rejected as a juror to sit on a trial for murder. This is elementary, and requires no support at this stage of our jurisprudence, either by argument or authority.

4. The Judge did not err in refusing to entertain the challenge for cause of the juror who stated that he had previously formed an opinion as to the guilt or innocence of the accused; but that his opinion, which was based merely on rumor, would readily yield to evidence, and that he had no bias in the case.

This point has been considered at great length, and Anally settled in keeping with the Judge’s ruling in a recent case by tiiis Court. State vs. DeRancé, 34 An. 184, and authorities there cited.

• 5. We find no error in the Judge’s refusal to admit the evidence of threats of the deceased against the accused, and of the contents of anonymous letters writteil by the deceased to the accused, and dropped in the latter’s yard.

Such evidence is not admissible in justification of a homicide, unless the threats were first shown to have been followed, at the time of the killing, by some assault or hostile demonstration by the deceased. The record in this case shows, on the contrary, that when killed, the deceased was unarmed and in the custody of a law-officer, to the knowledge of the accused, who was one of the parties who had procured his arrest. State vs. Jackson, 35 An. 1087, and authorities therein cited; State vs. MeNeeley, decided at Monroe, not yet rexiorted.

0. We have carefully examined the full, exhaustive, and very able charge of the District Judge to the'jury, and his impartial exposition of the law of self-defense, and find both correct and sound in every particular and, therefore, approve of his refusal to give the charge requested by the defendant’s counsel.

7. For the same reasons that the Judge had for excluding evidence of previous threats of the deceased against the accused, he was justified in excluding evidence of the desperate character of John Pye, the deceased.

8. The objection of counsel to the correction of the minutes, so as to make them conform with the true state of facts and incidents of the trial, must, in the presence of recent and repeated adjudications of this Court on that point of jurisprudence, be considered as trivial, and not worthy of serious consideration.

We have been at great pains to closely examine and carefully weigh the numerous defenses which have been suggested in this trial by the ingenuity and zeal of defendant’s very able counsel, who have left no stone unturned for .the purpose of saving the life and. the liberty of their unfortunate client, and we have no hesitation in saying that he has had a fair, just and impartial trial. Hence, we can afford him no relief.

Judgment affirmed.


text:
    No. 80.
    The State of Louisiana vs. Lee Vines et al.
    AVhat identity of the offenses charged is necessary to support the pleas of autrefois convict and of autrefois acquit.

    Proof of a different crime from the ^ono charged, though generally objectionable, is admissible when both offenses are closely linked or connected, especially in the res qestce, and also when such proof is pertinent and necessary to show intent.
    When parties are engaged in the commission of a crime with malicious intent, and in the execution thereof perpetrate another criminal act not originally intended, the unintended act derives its character from the intended crime, and the original malicious intent affects both acts.
    APPEAL from the Eleventh District Court, Parish of Sabine. Pier-son, J.
    D. G. Scarborough, District Attorney, for the State, Appellee:
    Where a person, or two persons, acting in concert, kill two persons at the same time, whether by one and the same, or two distinct acts, the two killings constitute two
    . different crimes, for which they must he prosecuted in two different indictments. W. P. P., Sec. 468.
    The test in a plea of autrefois acquit and convict is, whether proof of the facts, in the second bill, would have sustained a conviction on the trial of tire first; if it would, the plea is good; if it would not, the plea is bad. B. ~V ol. 1, Secs. 831, 832; W. C. P. P. Sec. 471; W. O. 25. Sec. 579; W. C. P. P. Sec. 456; B. Vol. 1, Sec. 836; 23 P.25, and P. Sec. 816; Arch-bold, Vol. 1, Sec. 112.
    In the imüciment in Bo. 188, four prisoners were jointly indicted for the murder of John Pye.
    In the indictment in Bo. 187, the same prisoners were indicted for the murder of W. T. Smith, a person killed at the same time. Bow, under the legal test, a plea in bar is not good, for the reason that on trial of the prisoners, in Mo 188, proof of the killing of W. T. Smith would not have supported a conviction, for the reason the indictment did not charge th í
    , killing of Smith, hut of Pye, a different person ; hence the proof of the facts alleged in 187 would not have supported a couviction on the trial of Bo. 188, and hence, the plea is not
    • good. B. Vol. 1, Secs. 831, 832; W. C. P. P. Sec. 471; W. C. 25. Sec. 579; W. 0. P. P. Seq. 456 ; B. Vol. 1, Secs. 112, 113.
    AH that occurs at the time of the killing, in homicide cases, is admissible as a part of the res gestee- W. O. Evidence, Secs 262, 263,263, 364, 265, 266.
    When tlio'commission of both offenses are closely linked or connected, evidence of the whole transaction is legal, although two distinct felonies have been committed. 16 An. 379 ; B. C. E. p. 82.
    Proof may be administered of a different crime than the one for which the parties are being tried, when such proof becomes necessary to shosv intent. 16 An. 377; 3 An, 512 ; 12 An. 382.
    Under the state of facts disclosed by the T , pp, 55, 56. as given hv the Judge, in his reasons for overruling’ the objections to evidence, it was competent to show malice against Pye. 10 A n. 377 3 An. 512; 12 An. 382.
    When an intent exists to commit a crime, and an unintended priminal act flows from it, the unintended criminal act derives its character from tho intended criminal act; on this principle, therefore, it was competent to prove malice against Pye, and that the prisoners laid in wait to murder him, and that in order to do so, they found it necessary to murder Smith, his son-in-law. W. C. 23. Vol. 1, Sec. 120.
    The proof admitted of the time at which the ease was fixed for trial, was admissible, for the reasons assigned by the Judge, T. p. 28, the proof previously introduced showing a consi>iracy between Lee and Geo. L. Vines.

      When two persons are jointly indicted for a crime, both being present, aiding and abetting at the time, it is competent, on trial, to prove any fact going to show malice on the part of one, as it was in this case, competent to show that Lee Vines had, on the day previous, made an affidavit against Pye, and it was also competent to show that at the hour fixed for the trial, that Lee Vines, instead of. going to the office of the Justice, had gone several miles in an opposite direction, and at the hour set for the trial, he and liis son, Geo. L. Vines, were laying in wait on the side of the road along which the prisoner would have to pass, in going from his home to the office of the Justice, and that while so laying in wait, they both acting in concert and in furtherance of a common criminal design, murdered the deceased. Geo. L. Vines was not convicted, because of bis having been one of the conspirators, hut for the fact that he was present at the time of the killing, and was one of the principal actors; he was convicted on what he did himself, and not on what others did, by reason of his being bound by their acts as a conspirator. 12 An. 390 ; 7 An. 531; 10 An. 743. ' '

      Win. JI. Jack and J. F. Smith, for Defendants and Appellants :
    It is a principle of the common law that no person is to he brought in jeopardy more than once for the same offense, and this principle is expressly embodied as a provision in the Federal Constitution and in the Constitution of our own State. (Con. TJ. S., Amendment to Art. 5; Con. of La., Art. 5 )
    “One trial and verdict must protect the accused against a subsequent accusation for the same offense, whether the verdict be for oragainst him, and whether the courts are satisfied with the verdict or not. When the legal bar has once attached, the Government cannot avoid it by varying the form of the charge in a new accusation: — if the first indictment or information were such that the accused might have been convicted under it, on proof of the facts by -which the second is sought to he sustained, then the jeopardy which attached on the first must constitute a protection against a trial on the second." (Cooley Con. Limitation, Sec. 325.)
    Under our jurisprudence the plea of a/utrefois acquit and autrefois convict presents a mixed aspect — it blends with an imperative and inhibitory Constitutional provision, declaring that no person shall he twice put in jeopardy of life or liberty for the same offense; and consequently, should a case arise where the plea should prove unavailing for purely technical reasons, a court should not hesitate to oppose its authority to such a violation and grant the relief intended by the Constitution.
    An acquittal or a conviction for an offense, which, in its nature and effect, involves every element and part of one continuous and entire transaction, is an effectual bar to another and subsequent prosecution for any of its constituent parts or cognate incidents. WhartonTs Cr. 3?. <fc P., Secs. 472 and 474.
    Conspiracy, whether it he the whole offense or only an element of the crime, has the legal effect of making all the individuals one person and all acts common to each, as regards the objects of the common design. Greenjeaf, Vol. 3, Sec. 91; Ibid. 94, 95 and 97. "Wharton’s Or. P. & P. Secs. 301 and 312; Wharton’s Cr. Ev. 8bh Ed. Secs. 700-1.
    In. a case involving the principal and culminating act of a conspiracy on the part of two persons should the verdict be several and of a nature to repel malice, it would stand as full proof as against conspiracy in tbe prosecution of an ancillary or incidental act growing out of that transaction. Greenleaf, Vol. 3, Sec. 97.
    In a conspiracy, where malice is conceived and directed against one alone, whose death thus compassed creates and consummates a transaction in which another is incidentally and simultaneously killed, there is quoad the conspiracy, hut one offense in law, although compounded in fact with another that would otherwise he separately actionable, and consequently a verdict in the case involving the conspiracy and particular malice concludes the State on the whole transaction. Wharton’s P. & P. Secs. 472-4, and other authorities.
    In every aucli case, it would be perfectly competent to cumulate both acts in the same hill, and even better, to charge them in the same count: they are equally unified in law and in fact. Archbold, 6th Ed. Vol. 1, Secs. 95 and 96; Poscoe, 214j Bishop, P. F. & P. Vol, 1, p. 264, Sec. 437; State vs. Mally, 30 An. 61; State vs. Depass et al., 31 An. 487; State vs. Cazeau et al., 8 An. 109.
    “Whenever an unlawful act has two aspects, under either of which it is indictable, and the evidence of either of which would sustain an indictment for the other, then an indictment for one aspect absorbs the case and there can be no further prosecution for the act. In other words, where the evidence necessary to support the second indictment would have supported the first, the second is^barred by a conviction or acquittal on the first.” Wharton’s Or. Ev., 8th Ed. Sec. 580.
    “ If a transaction is set on foot 'by a single impulse and operated by an unintermittent force, it forms a continuous act, no matter how long a time it may occupy. And when inculpatory facts rapidly succeeding each other are put in evidence in one case by the prosecution, it cannot bring a second indictment for a part of these facts, relying on evidence which was introduced on the first trial.” Wharton’s Cr. P. & P. Secs. 472 and 474.
    Whilst the onus is on the defendant to show the identity of the offense tried with that charged in the second prosecution, the similiter will be assumed where there is no replication or countervailing proof. Wharton’s Cr. P. & P. Sec. 483.
    The identity of the offense means simply and purely the identity of the matter charged"in the two several bills, and it suffices in all cases that the two acts be substantially the same and that the defendants be the same parties in each case. Bishop P. E. & P. Vol. 1, par. 323. Archbold, vol. 1, Sec. 114; American Notes, State vs. Cheevers, 7 An. 40; State vs, Honsby, 8 It. 584; State vs. Shaw, 5 An. 342; State vs. James Augustine etal., 20 An. 119,
   The opinion of the Court was delivered by

Fenner, J.

Briefly stated, the facts essential to an understanding of the points of law raised, are the following :

The defendants, Lee Vines and George L. Vines, in execution of a conspiracy to kill one John Pye, lay in wait upon a road along which Pye, who had been arrested upon the affidavit of one of them, was conducted, in official custody, to the office of the magistrate. Pye was accompanied by his son-in-law, W. T. Smith.

On the approach of the party, Lee Vines shot and killed John Pye, and, in the course of the affair, George L. Vines, it is charged, shot and killed W. T. Smith.

Separate indictments were filed against both: one charging them with the murder of Pye; the other, with the murder of Smith.

The case for the murder of Pye was first tried, and resulted in a verdict convicting Lee Vines of manslaughter, and acquitting George L. Vines.

The case now before us is for the murder of Smith.

In bar of the prosecution, the defense interposes the plea of autrefois convict in behalf of Lee Vines, and autrefois acquit in behalf of George Vines.

Error is assigned in the ruling of the court setting aside these pleas.

The principle of the law underlying such pleas is, that the law will not suffer a man to he twice put in jeopardy for the same offense. 1 Archhold’s Cr. Pr. and PI. 111.

The principle is .embodied in our Constitution, in the following language: “nor shall any persoh be twice put in jeopardy for the same offense.”

Identity of the offense charged is an essential element in support of the plea.

By this is not' meant, formal, technical, absolute identity, but only such substantial identity that the evidence necessary to support the second indictment would have been sufficient to procure a'legal conviction upon the first. People vs. Barret, 1 Johns, 66; Com. vs. Cunningham, 13 Mass. 245 ; Hite vs. State, 9 Yerger, 357; Wharton’s Cr. Pr. and Pl., §471 ; 1 Archbold’s Cr. Pr. and Pl., p. 112.

In the instant case, it is clear that the indictment for the murder of Smith might have been supported by evidence not including proof, even of the killing of Pye, and, therefore, utterly insufficient to sustain an iudictment for the murder of the latter.

. The conspiracy and the malicious intent may have been common elements of both crimes, but this is not sufficient to constitute identity of the crimes themselves, which comprise not only those elements, but also objective acts.

The killing of: Smith by George Vinos is a totally distinct and different offense from the killing of Pye by Lee Vines, although both acts were done in execution of the same conspiracy. They are not different grades of the same crime. They are not two felonies resulting from the same identical act. They are not different aspects of the same unlawful act. They bear no relation to each other, in which one of them can be said to be merged in the other. They are included in none of the hair-splitting distinctions which have involved this subject: in the language of Mr. Wharton, in a labyrinth of subtleties.”

Tiie corpus delicti in each is, in every respect, distinct and independent.

We are not concerned, and it is not necessary to reconcile the con-> elusions of the juries in the two cases on the fact of the conspiracy. The verdict against George Vines, at least, might rest without any proof whatever of conspiracy, if Smith was killed by his hand; which is alone sufficient to show the unsoundness of the plea, so'far as based upon the element of conspiracy. But holding that the pleas of twice in jeopardy were properly overruled, the jury -was vested with the power of deciding all questions involved.

, Three bills of exception are found to rulings of the court upon reception of evidence:

1. Tiie first exception was to permitting the State’s witness to narrate the whole occurrence, as it took place at the time of the killing of Smith,” the objections being that this included the killing of Pye, which, being a distinct felony, was not admissible; and because conspiracy was not expressly charged.

The court overruled the objections, because the evidence was admissible as part of the res gestee, and because the accused were all charged as principals.

The ruling is fully sustained by authority. As a general rule, all that occurs at the time and place of the killing, in homicide cases, is' admitted as res gestee. Wharton’s Cr. Ev., Sec. 262 et seq.

Proof of á different crime from the one charged, though generally objectionable, is admissible when both offenses are closely linked or connected, especially in the res gestee, and also when such proof is pertinent and necessary to show intent. State vs. Mulholland, 16 An. 377; State vs. Patza, 3 An. 512; State vs. Rohfrischt, 12 An. 382; Wharton’s Cr. Ev., Sec. 262 et seq.

2. Exception was taken to a question propounded by the State tea witness, asking if he knew of any ill-feeling existing between Tines and Pye, which was objected to, on the grounds that it was res inter alios, and not admissible to discover malice as to deceased, Smith.

The Judge, in overruling the objection, recites that the evidence had established the facts, already substantially stated by us in the beginning of this opinion, and admitted the evidence as tending to show upon what malice the accused lay in wait and acted, holding that whether the malice was against Pye or Smith, was immaterial, if the killing of Smith was the result of such malice.

This is sound law; the principle being, that when parties are en- ■ gaged in the commission of a crime with malicious intent, and in the execution thereof, perpetrate another criminal act not originally intended, the unintended act derives its character from the intended crime, and the original malicious intent affects both acts. 1 Wharton’s Cr. L., Sec. 128.

3. The last bill of exceptions as to the admissibility of evidence showing when the trial of Pye, upon the charge on which he was under arrest at the time of the killing, was fixed, seems to us immaterial and frivolous.

Judgment affirmed.


author: Manning, J.

text:
    No. 96.
    The State of Louisiana vs. Levi Thomas et als.
    It is not the duty of the court, nor is it proper to announce to the jury, abstract propositions of law not involved in the pleadings or evidence of the case.
    There is no reason to make the motion for a new trial, when overruled, the subject of a bill of exceptions.
    There is no objection to the Judge’s reading from the book, from which he is quoting, ia delivering a •written charge to the jury.
    It is notrequired that talesmen should be summoned only from the bystanders.
    In criminal cases, the judgment needsnot be signed, nor need reasons be given for it.
    APPEAL from the Tenth District Court, Parish, of DeSoto. Logan, J.

      W. P. Hall, District Attornej^ for the State, Appellee.

      J. 0. Pugh, for Defendants Appellants.
   The opinion of the Court was delivered by

Manning, J.

Levi Thomas, Lewis Thomas and Anthony Woods were convicted of murder by a qualified verdict, “ without capital punishment,” and were sentenced to hard labor for life.

There are six hills of exception :

1. The Judge refused to charge an abstract principle of law, wliicb, though correct in itself, was inapfilicable to the case. The charge requested is inserted in the bill, but not the facts to which it was to be applied. The Judge assigns as reason for his refusal, that it was in no way applicable. It is not the duty of the court, nor is it proper to announce to the jury abstract propositions of law not involved in the pleadings and evidence, however correct those propositions may he, and the defendants have not enabled ns to judge whether the charge requested was applicable. Bishop’s Crim. Proc., §978; Wharton’s Crim. PI. and Prao., §712; State vs. Stouderman, 6 An. 287, not in the syllabus.

. 2. The defendants’ motion for a new trial was overruled, the ground of the motion being that the verdict was contrary to the law and the evidence. There was no need to make this the subject of a bill. Tlie motion was the usual and necessary formality.

3. The Judge wrote his charge as requested, and read from the manuscript, but he had occasion to quote from Wharton, and read the passage from the hook. He says he “ could see no difference between reading from the printed pages of Wharton, and copying from the book, and reading the copy.”

Nor can we.

4. The court charged that one cannot invoke the law of self-defense in a case where malice is shown to have existed against the party’ killed before the personal difficulty commenced, even though the defendant be placed in the attitude of great personal danger by the assaulted party after the defendant had made the first attack.”

The charge is obscurely worded, but could scarcely mislead the jury. As we interpret it, it is not error.

5. This is similar to the first bill, the abstract principle to be charged being different, but the reason of refusal the same.

6. The court directed the clerk to transcribe from Wharton the passage read to the jury, and incorporate it in his charge. The defendants appear to suppose that it was rigorously sacramental that the Judge should transcribe from the law book, and read the. passage from his manuscript, and not having transcribed it, but having read it from the book, that neither Judge nor clerk could then insert it in the charge.

We do not think it necessary to do more than state the objection to show its frivolousness. Without the incorporation of the printed passage in the transcribed charge, it would have been incomplete in the record.

There is also an assignment of errors, containing two points of objection:

1. The verbal order to the sheriff to summon talesmen did not instruct him specially to summon them from the bystanders or men jrresent in the court room.

It is not required that talesmen should be summoned from the bystanders, and sometimes there is the best of reasons why they should not be.

2. The sentence is alleged to be unconstitutional, because the Judge-refused to assign any reasons for his judgment, and did not sign it.

Judgments in criminal proceedings are not required to be signed. We do not understand what is meant by the Judge’s not assigning reasons for his judgment, unless the defendants’ counsel imagined it was needful in sentencing a criminal, to have any other reason than a verdict of conviction by a jury, after a trial-regular in form.

. Judgment affirmed.


text:
    No. 85.
    E. J. Woods vs. Jones, Cowan & Knowlton et als.
    When an injury would not have happened, except for the culpable negligence of the party injured, concurring with that of the other party, no action can be maintained.
    A Railroad Company is not liable to apassenger for an accident which.be might have prevented, by ordinary attention to his safety, even though the agents in charge of the tiain are also remiss in their duty.
    ApPEAL from the First District Court, Parish of Caddo. Taylor, J.

      J. L. Hcvrgrave and J. 8. Young, for Plaintiff and Appellant:
    On the bill of exceptions to the refusal of the Hon. Judge a quo to charge as requested. T.' 85 Thomp. on Neg. 383; M'ks End. on Torts, 283, 286, 287; Thomp. on Carriers, 441, 241, 243 j Red. on Carriers, 256; Pierce on Railroads, 327.

      'Alexander & Blanchard, J. R. Shepherd, and Wise (& Eerndon, for Defendants and Appellees:
    When contractors are engaged in building a railroad, and running construction trains, consent to take a passenger for hire, on their train, they are private carriers for hire, and hound to use only such care and skill in the running and,management of the train, as prudent and cautious men would use under such circumstances, and the passenger in such case, takes upon himselfthe risk of such conveyance. 12 Wallace, 369.
    The evidence shows that defendants in this ease were not negligent or unskilful in the running and management of the train at the time complained of.
    Even if the defendants were at fault, the plaintiff cannot recover, if it is proved that the injured party was negligent, and by his own carelessness contributed to the disaster. 17 L. 362; 18 L. 339 ; 1 An. 374; 3 An. 48, 441; 6 An. 495; 9 An. 441 ¡ 11 An. 292; 23 An. 264, 462, 492, 729; 27 An. 53 ; 28 An. 320, 710 ; 30 An. 15; 31 An. 490; 32 A n. 615; 33 An. 154;' 34 An. 180; 5 Otto 439, 697; Angelí on Carriers, Sec. 556; Redfield on Railways, Yol. 2, p. 268; 13 Central Law Journal, 371; 14 Central Law Journal, 13 and 156; 15 Central Law Journal, 171 and 154.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action by a mother, to recover from the defendants ten thousand dollars damages, alleged to have been sustained by her son, in consequence of Iris suffering inexpressible agony and terror at the prospect ofhis impending death, which occurred in September, 1881, by the gross negligence and wanton misconduct of the • defendants.

The defense is, that the defendants are not common carriers, and that even were they such, they are not liable, because the plaintiff’s son is chargeable with contributory negligence.

The case was tried by a jury, who returned a verdict for the defendants. From the judgment thereon, the plaintiff has appealed.

Our attention is called to a hill of exception, taken to the charge of the District Judge to the jury, which is attacked as illegal. We will ignore the bill, as, even if tbe charge had been illegally given, we would not remand tbe case, all tbe evidence of which it is susceptible being in the record.

. We will also pretermit deciding whether the defendants were common or private carriers, as that issue is not necessary to arrive at á conclusion in this litigation.

. The evidence shows, that the victim of the unfortunate accident had considerable experience in railroad construction, and was aware that the road in charge of the defendants for construction, and on which he proposed to travel, was rough and unballasted, and that trains were apt to run off the track. The evidence shows they often did so.

On the day that Woods, the victim, took passage on the train, the same -was composed Of the engine, an empty coal car and a caboose, ip which seats had been placed for train men, and for the convenience of persons willing and allowed to travel on the unfinished and dangerous road. It appears that Woods; instead of seating himself in the caboose, as be securely could have done, took a seat on tbe coal car.

It is not material whether or not he did so on the side hoard, or indulged too freely in copious draughts of a good or had intoxicating beverage. The fact is, that at a given point, the train ran off the track, Woods was dashed from the car on which he stood, and was-run over; that his head was crushed, instant death probably following. Persons who had taken seats in the caboose, escaped uninjured.

As soon as the car had jumped the track, the engineer reversed and plugged his engine, sanded the track, whistled for the brakes, the brakesmen responding. But, however promptly and efficiently this was done, the accident had happened, and no human aid could then have repaired the injury inflicted on the reckless and adventurous traveller.

It is clear, that had Woods taken a seat in the caboose, a< ordinary foresight prescribed, and the example of all others dictated, the deplorable occurrence would not have made him the victim of his audacity. - .

As he could not have ridden safely on the coal car, he was hound to have taken a seat in the caboose.

Even if some negligence could be imputed to the defendants, it is difficult to perceive how recovery against them, could he had in this case.

The equitable rule by which liability in such cases is to ho tested, is so universally recognized and applied, that there can be no escape from its operation.

That rule is, that: where one of two persons, either innocent or mutually negligent, must suffer, the one who knew of the cause which-could have occasioned and did occasion the injury, and who could have avoided it, and did not do so, must hear the loss. 34 An. 180; 33 An. 155; 5 Otto, 441; 6 McLean, 242, and authorities in the cases.

In R. R. Co. vs. Aspell, 23 Pa., the Court distinctly held: that where it can be shown that an injury would not have happened, except for the culpable negligence of the party injured concurring with that of the other party, no action can be maintained. A railroad company is not liable to a passenger for an accident which the passenger might have prevented by ordinary attention to his safety, even though the agents in charge of the train are also remiss in their duty.

In such ruling we formally concur.

The jury did not err in finding for the defendants, and the Judge was right in giving judgment accordingly.

Judgment affirmed, with costs.

Fenner, J., takes no part in this decision.