author: Miller, J.

text:
    No. 12,552.
    State of Louisiana vs. William P. Nicholls.
    The nine hundred and seventh section of the Revised Statutes making it an offence for any presidents, cashiers or others in the service of chartered banks “ to knowingly and wilfully embezzle or convert to his own use the funds of the bank furnishes a complete definition of crime; embezzlement has a technical meaning; without addition is of common use, and the violation of trust or duty, the incident of embezzlement, is implied in the section by the relation it implies, if not states, between the president or cashier and the funds of the bank. Revised Statutes of the United States, Secs. 5209, 5471, 5475, 4596; Second Archbold, p. 560; 120 U. b. 334; 156 U. S. 429; 107 U. S. 866.
    It suffices that an indictment for an offence fully defined by the statute follows the words of the statute. 1 Bishop, Criminal Procedure, Sec. 356; Wharton, C. L. 1st., Secs. 334, 362; 82 An. 572; 107 U. S. 669.
    This section though from a legislative act of 1821, when all banks in this State existed under special charters, can not be restricted to such banks, but extends to all banks whether holding their franchises under special legislative act or under the general law for the creation of corporations, especially in view of the fact that since 1855 the offence has been part of the crimes code of the State extending to embezzlements by presidents and others in the service of all chartered banks. Acts 1855, No. 120, Sec. 83; Pierce & King’s Revisory Legislation of 1852, p. 192, Sec. 48; Act No. 166 of 1855; Revised Statutes, 1870, Sec. 907.
    When the charge is that the good character of the accused is testimony to be weighed and considered with all other evidence, and to have the weight to which the jury conceives it entitled, it is not error to refuse further special instructions asked on behalf of the accused that propose to instruct only as to the tendency of character, testimony to benefit the accused under hypothetical phases of the testimony; if Special instructions are given they must cover the whole law on the point, and the jury instructed that testimony of the good character of the accused is unavailing against positive testimony of guilt. 3 Rice, p. 607, Sec. 378; 1 Bishop Orim. Procedure, Sec. 489; Thompson on Jury Trials, See. 4244; 4 Mason, p. 510.
    When the charge is accurate and complete as to the presumption of innocence and its effect as evidence, the conviction will not be set aside because the court in the course of its explanation, on another point, i. e., reasonable doubt, stated the jury are not to go beyond the testmony to seek for doubts, must confine-themselves to the testimony and not resort to extraneous doubts or circumstances.
    The tendency of all authority is to sustain instructions that substantially embody the law applicable to tbe case, though not in the precise words of the statute or in the frame requested on behalf of the accused, and it is equally clear that repetition of that already substantially charged can not be exacted. 41 An. 677, 605; 37 An. 619; 35 An. 1180,1058 ; 37 An. 51.
    Instructions asked on behalf of the accused requiring qualifications are properly refused. 35 An. 769, 775.
    In explaining “ embezzlement ” used in this section, it is not error to illustrata the offence for the court to refer to the used methods of proof of general acceptance, nor can such illustrations be understood as changing the statutory embezzlement with which the accused is charged.

      The cashier of a hank, is in legal contemplation, the custodian of its funds. The Section 907 of the Revised Statutes was designed to punish embezzlements of the president, cashier or others in the service of the bank, whether or not legally charged with the custody of the bank’s funds, hence the instruction, reasonably construed, was not erroneous that in the prosecutions under that section the actual custody of the money by the accused must not be shown.
    Nor will the verdict be set aside because in explaining- the intent to constitute the offence of “ wilfully and knowingly ” embezzling and converting the funds of the bank, the trial judge stated in effect, that the embezzlement was the fraudulent appropriation of another’s property; that the intentof the accused to appropriate to his own use must have existed at the time of the appropriation charged to constitute the offence; that “ an act was wilfully done when done without reasonable belief it was lawful; ” these and similar expressions of the trial judge announcing with reasonable accuracy the criminal intent essential to the crime.
    The refusal to allow a challenge for cause is no ground to set aside the verdict when the juror did not serve and the jury is completed without exhausting the peremptory challenges of the accused. 35 An. 315; 38 An. 480; 43 An. 365.
    A PPEAL from the Oriminal District Court for the Parish of Orleans. Baker, J.

      M. J. Cunningham, Attorney General, and R. II. Marr, District Attorney, for Plaintiff, Appellee.

      Beattie & Beattie, T. Marshall Miller, Chandler C. Luzenberg, Charles Lougue and Lawrence JET. Pugh for Defendant, Appellant.
    Argued and submitted January 15, 1898.
    Opinion handed down February 23, 1898.
    Rehearing refused May 2, 1898.
   The opinion of the court was delivered by

Miller, J.

The defendant appeals from the sentence following his conviction, on the indictment under Sec. 907 of the Revised ¡Statutes, making it a crime for any president, cashier, officer or person of any bank chartered by this State -to embezzle and convert .the money belonging to the bank or deposited in it.

The indictment follows the language of the statute and charges that the defendant on the date specified, being president of the Bank of Commerce, a bank chartered by the State of Louisiana, then and there did feloniously, wilfully and knowingly convert to his own use twenty thousand dollars belonging to the bank and deposited therein. There are numerous bills of exception and assignments of error in the record, and as single propositions are made the subjects of two or more exceptions or assignments, it will be more convenient to deal with the propositions instead of attempting to discuss each bill separately.

It is urged the jury should have been charged there was no law to sustain the indictment, and on the same ground that the judgment should have been arrested. The argument is, that to embezzle and convert to his own use money belonging to the bank or deposited in it, used in our' statute or rather Sec. 907 of the Revised Statutes announces no crime. It is supposed the statute is deficient in not setting forth the ingredients of the offence, or to state it another in form, does not define the offence it seeks to create. Embezzle, with or without the usual addition convert to his use, finds its definition in the text-books and is of constant use in the statutes for the punishment of crime. The words have a technical and popular significance and plainly convey the wrongful appropriation of the property of another, by the party entrusted with, or who has possession of it, under some trust, duty or office. With this significance, couched in the appropriate technical terms, embezzle alone, with convert to his own use, is to be found in the crimes act of the United States; notably in the familiar sections of the Revised Statutes dealing with the officials of national banks, as well as in our own criminal‘code. Revised Statutes, U. S., Secs. 5209, 5439, 5453; Revised Statutes of- Louisiana, 1870, Sec. 907; Revisory legislation of 1852, p. 198, Act 1855, p. 120, Secs. 83, 131; Revised Statutes, 1855, p. 149, See. 84, of 1870, p. 179; Roscoe, p. 438; 2 Wharton Orim. Law, Sec. 1907; United States vs. Britton, 107 U. S. 666; United States vs. Northway, 120 U. S. 334; Moore vs. United States, 160 U. S. 268. If we correctly appreciate the argument in another aspect, it supposes the statute deficient in legal certainty, because it omits the words that the property embezzled came into the hands of the party in the course of his employment, or by virtue of his office, or other words to show the relation to the property of the party charged. Without these words it is claimed there is no distinction between embezzlement and larceny. The answer to this, we think, is, that the offence of embezzlement, purely of statutory creation, may be constituted without the words the argument exacts as essential. Such words as describe the relation of the party charged to the'property embezzled, i. e., that it came into his hands by virtue or in the course of his employment, used in connection with embezzlement by bank officials, could in strictness be applied only to the cashier, in legal contemplation the custodian of the bank funds. The purpose of our statute was to reach the president, or others in the service of the bank, whether or nob the custodian of the funds. Whether the funds embezzled were paid to the president by a debtor of the bank, or taken by the president, or in his hands to be used for the bank, or by whatever mode such funds were in his possession, it was the design of our statute to provide the offence of embezzling such funds by the president, or others in the service of the bank. Hence, the statute in dealing with embezzlements by presidents of banks omits the words used in other sections of the Revised Statutes, in defining the offence generally. It was enough in the view of the lawgiver, to enact, that any president of the bank who embezzles its funds should suffer the prescribed penalty. The terms of the statute necessarily imply funds in his hands as president. The statute, in our opinion, does define the offence, and distinguishes it from larceny. By the terms of the statute, giving to embezzle its recognized significance, the offence of wilfully and knowingly appropriating to his use the funds of the bank by the president, must be deemed to be created.

If Sec. 907 constitutes by its terms a complete offence, then the recognized rule applies, that in indictments for statutory offences it suffices to follow the words of the statute. An exception to the rule is where the common law designation of a crime is employed: then the essentials of that crime must be stated in the indictment. In this case no such designation is used. The statute, complete, as we think, in its statement of the offences, is the guide for the pleader. On this branch of the case our attention is directed to the decision of the insufficiency of an indictment, under a Federal statute, ■directed against embezzlements of public property by any person. It was held under such a statute to be essential the indictment should show the relation of the party charged to the property, he is charged to have embezzled. No such relation appeared in that statute, and without that there was nothing to distinguish embezzlement from larceny. Moore vs. United States, 160 U. S. 270. The difference between that and our statute is obvious. The relation of the bank official to the moneys of the bank is implied in our statute. The statute is directed against the bank president who embezzles the bank’s funds. The words imply the essence of embezzlement that distinguishes it from larceny, i. e., that he was in possession as president and embezzled the funds thus lawfully in his possession. In the case cited the court observed that if the statute contains all the elements of embezzlement, no addition is required in the indictment. Not expressly, it is true, but with equal if not greater force by necessary implication, our statute contains that ingredient the argument supposes to be wanting, i. e., that the funds came into the hands of the president as president. Anything more to embrace that element would be mere verbiage. Where nothing is to be added to the statutory definition, it suffices for the indictment to follow the statute, and unsafe to state the offence otherwise. It remains to add the sufficiency of an indictment in the form of that here was maintained by our predecessors. We hold the indictment sufficient. 1 Bishop Grim. Procedure, Sec. 356; 1 Wharton Grim. Law, Sec. 34; State vs. Palmer, 32 An. 572, 574.

It is strenuously insisted by the charges requested, motion to quash and the assignments of error, that Sec. 907 of the Revised Statutes has no application to the accused, because he is president of a bank not chartered by special legislative act, but under the general law. The argument is based on the fact that this section was originally an act of the Legislature of 1821, when all our banks were chartered by special acts, hence, it is argued the section must now be deemed to refer to that class of banks alone, and not to those like the Bank of Commerce organized under the ■general law. The argument confronts the plain language of the section extending to all chartered banks. But one or two banks still linger under special charters. The result of the argument is, there is no law in Louisiana to reach embezzlements by officials of State banks chartered in the only mode allowed since the prohibition of special ■charters. Const., Art. 46. We are told to meet this supposed defect in our legislation with the equanimity enforced by the aphorism that the law as written, and not the consequence, is the judicial guide. No court, however, should affirm the result exacted by the argument without the closest scrutiny of the reasoning for the conclusion. The earnestness of the argument has given to the proposition an importance far beyond that of first impression, and induced that consideration due to the zeal and research of counsel. The distinction made by our laws in reference to the modes of business,, and privileges of banks chartered under special acts, and the banks deriving their charter from the general law, have been brought to our notice: thence it has been argued that because only banks holding special charters existed in 1821, therefore the legislation of that year is to carry a limitation on Sec. 907 of the Eevised Statutes, and restrict it to the class of banks existing in 1821. Yet that section for almost half a century has been a part of our crimes act embracing all banks, whether chartered by special acts or under the general law. In this connection our attention has been directed to the decision of a District Judge that a penal section of another character ■ (now Sec. 877 of the Eevised Statutes), originally introduced in the free banking act of 1853, was to be restricted to the officials of such banks, and by the same reasoning it is claimed Sec. 907 is to be confined to banks of the earlier class of 1821 when all held by special charters. This decision, we think, entirely omits the control that should have been exerted in the determination of the question arising from the fact that although the provision of the act of 1853 was originally confined to free banks, it afterward became like Sec. 907, a part of the crimes act applying to all banks. It seems to us, in construing a penal or any statute the prominent object in the legislative contemplation must have its influence. We must suppose the Legislature in 1821, proposed to punish embezzlements by bank .officials and to provide the legislation for that purpose not only in respect to the banks then existing, but to' reach delinquencies of bank officials for all time and all .banks. In this view the act of 1821 would have applied to all banks coming into existence afterward by the changed methods of later years. But we think it entirely conclusive against the contention in this respect that this act of 1821, even if limited to one class of banks originally, was incorporated in the crimes act applicable to all banks as early as 1852, was re-enacted in 1855, and again in 1870. Pierce & King’s Digest of 1852, p. 192; acts of 1855, No. 166; Eevised Statutes of 1855, Sec. 84. We think the motion to quash and the charges on the ground that Sec. 907 of the Eevised Statutes did not apply to the Bank of Commerce were properly denied. *

It is insisted the charge of the court was not in accordance with the law in respect to the presumption of innocence. The text writers and decisions exhibit some variance in expression, but none of substance, in stating the presumption of innocence. As one puts it, the law presumes innocence, until the contrary is proved or appears from a stronger presumption; another writer states it thus: as men do not generally violate the criminal code, the law presumes every man innocent, but some do transgress it, and therefore evidence is received to repel the presumption. This legal presumption of innocence is to be regarded by the jury in every case as part of the evidence to the benefit of which the accused is entitled. 1 Greenleaf on Evidence, Sees. 84, 85; Roscoe, p. 14. At the outset of the charge we find the instruction was given to the jury.

“ All persons accused of crime are presumed by law to be innocent until they are proven to be guilty. The consequence of this rule of law is that they are not required to prove their innocence, but may rest upon the presumption in their favor until it is overcome by positive affirmative proof. It is therefore the duty of the State to establish to your satisfaction beyond a reasonable doubt every essential ingredient necessary to constitute the guilt of the prisoners of the crime charged.” We are asked to set aside the verdict in this case on the ground that the instruction did not place the defendant with all the advantage the law secured to him by the presumption of innocence. It is a serious responsibility to disturb the verdict of a jury on the ground of misdirection. It should, undoubtedly, be done when the accused has been deprived by the charge of that correct instruction as to the law to which he is entitled. But on reason and authority no court should set aside the verdict in a criminal ease because of asserted error in giving to the jury a familiar principle of law, unless the instruction is clearly erroneous. Nor when an instruction which fairly covers the legal principle has been given, should the verdict be disturbed because the trial judge declines to give the same principle in that varied form in which it is requested on behalf of the accused. In what respect does this instruction misstate, or fail to convey to the jury an adequate appreciation of the presumption of innocence? Unless we find the substantial basis to hold the instruction deficient or misleading, it is beyond the power of this court to disturb the verdict. After the trial court had thus charged, the following instruction on the same point was asked, which, the trial judge refused on the ground bis charge was sufficient, and that the instruction was calculated to mislead; “If you find from the evidence that the actions of the accused present a double aspect, one free from crime and the other criminal, and your minds are in doubt on this matter, you are bound, under the law, to lean to that construction and interpretation of the acts of the accused which would make their acts honest and non-criminal, for the presumption of innocence is a conclusion drawn by the law in favor of the citizen, by virtue whereof, when one brought to trial upon a criminal charge, he must be acquitted unless he is proven to be guilty. This presumption of innocence is an instrument of proof created by the law in favor of one accused, whereby his innocence is established until sufficient evidence is introduced to overcome the proof which the law has created,. Every reasonable doubt or presumption arising from the evidence must be construed in favor of the accused.” The requested charge is, we think, argumentative, that is, goes beyond the statement of the legal principle; proposes to guide the jury in the application of the principle they are to make of the presumption under hypothetical pháses of the testimony; but it is difficult to find in the more elaborate charge requested any clearer or fuller enunciation of the presumption of innocence than that expressed in the charge of the court. In. the argument to show the insufficiency of the charge it is urged .the presumption of innocence is not a mere shield, but a “weapon of offence,” and proves innocence until the contrary is established. But this effect of the presumption of innocence is quite as tersely stated in the charge, though the jury are not, told that the, presumption is both a “ shield ” and a “ weapon ” not apt to be understood by them. It is claimed in the argument that the defendant in a criminal ease does not rest on the mere presumption.of innocenpe, but “ by force of the law that tries him puts in evidence as part of the proof the fact of innocence,” and this, it is added, is positive evidence which the law recognizes as introduced in every case and proves innocence till-broken down by stronger proof. This is a strong presen - tation of the presumption .in the argument to a. court, but in our view would be utterly inappropriate to give to the jury. We do not recognize than the “ fact of innocence ”. is put in evidence. The presumption is not the fact, but. disappears with contrary proof. This part of the argument is not persuasive that the law as to the presumption was not'fully given, tíor does 'the argument, point ;out how the charge--could"'have been fairer-to the, accused. Rut the argument- supposes that the "error as to the presumption is made apparent by considering it in connection with the charge-as to -reasonable doubt. The-presumption of innoeence and-the principle that requires - proof beyond -reasonable doubt are totally distinct. The objection based on the charge as to reasonable-doubt supposed to aid the other objection is, that the trial judge -in charging as to reasonable-doubt excluded, it is claimed, from the jury, the-presumption'of inno’cenc'e; -In that part of the charge the jury are told-they must not go beyónd'the evidence to-seek for doubts,-but must confine themselves'' to the testimony;-and - not resort - to extraneous facts or' circumstances. Doubts - of-■ innocence could -not arise from the presumption of innocence. The -very ‘-explicit charge as to-that presumption- and ■ its - effect- already- gi-ven must' be deemed to have distinctly • impressed the jury they must-give that presumption its full weight along With all the- testimony in the case'. It-strikes us as a strained appreciation that in any part of-the instructions the jury were -told to. discard, or in any manner to exclude the presumption from their consideration. -The court, in that part of the charge which it is claimed tended'to exclude the presumption, was dealing with another subject, and not until the- jury had- been explicitly charged as to the presumption. The chárge in a criminal case must be construed, in a reasonable sense, and thus construed-, we- think the charge as .to the presumption not at all weakened-by-the.other instructions relied-on in the argument. It is claimed that a recent decision of thé United States Supreme Court aids, the contention of the, defendant. In that ease, as we read it; the verdict of the jury was set -aside, not for any error in -the charge as to the presumption,, but because none was given. While there was an elaborate direction as to reasonable doubt,-the charge was deficient in not instructing as to the presumption of innocence.’ -The court in that case-deemed it-proper-to, distinguish-, with-great elaboration, the difference • between reasonable doubt -and the.presumption of innocence. In defining the presumption of innocence; the court said it was evidence introduced by. the law-itself -on behalf of -the accused, and again, “ that it was- an instrument.of proof which- the court were bound-to consider.?’- . This language the argument emphasizes as illustrating the deficiencies in the charge in this case. The Supreme Court in that case is not defining the charge to the jury. It uses the language to show the difference between reasonable doubt and the presumption. The pertinence of the decision, too, is affected by the point at issue. ’ In that'case there was no instruction as to the presumption. Here, that instruction was given. In the opening of this charge there is the clearest statement, as we think, of the presumption of innocence, followed by an equally distinct expression, that as a consequence the accused was not required to prove innocence, but entitled to rest on the presumption until overcome by positive affirmative proof, and this is followed by the explicit language that the State must prove beyond a reasonable doubt every ingredient to constitute guilt. On the most careful consideration we are "unable to appreciate the ground for complaint of the defendant on this part of the charge, and hold that the exception to the charge on this point, and to the refusal of that requested, afford no basis on which we can set aside the verdict of the jury.

A large portion of the discussion has been directed to the instruction given and that refused as to the character of the defendant. On this subject the court charged that good character is to be considered just as any other fact in the case; is to be weighed aud considered as any other evidence; “and to have such weight as the jury should deem it entitled to under all the evidence in the case.” The charge left to the jury the bearing and weight’ of the testimony, omitted any expression as to the deductions they should draw, and this is, we think, consonant with the spirit of our law, that submits to the jury exclusively the effect of testimony and confines the judge to instructing them on the law. R. S., Sec. 991. It is strenuously contended the court should have gone further, and defined the appropriate weight of character testimony in hypothetical phases of the evidence. We are asked to set aside the verdict on the ground substantially, that the charge denied to the defendant the benefit that would have been derived from a different instruction of the weight of character. The jury, it is insisted, should have been told explicitly the weight and effect of good character, and to give it that effect when proved. The text writers, examining the value of character testimony in criminal prosecutions, recognize its usefulness in doubtful cases, and affirm the competency of the testimony in all cases. Such testimony it is stated, may tend to create a doubt' in favor of the accused, or remove a doubt against him; but with singular unanimity the authorities are to the effect, that testimony of good character is useless against clear evidence of guilt, and any special instruction to juries as to character testimony must convey the qualification, that if the jury are satisfied by positive evidence of the guilt of the accused, character testimony is wholly unavailing. We find the principle thus stated substantially, in the text-books and Mr. Rice’s book on Criminal Evidence, may be accepted as the type of all authority on the point. Section 378 et seq., p. 607; Thompson on Jury Trials, Sec. 244, pp. 17, 99; 1 Bishop Orim. Pro., Sec. 489; and in our own reports we have, State vs. Garic, 35 An. 970. As intimated in some of the text-books, and obvious to the common mind, a special charge as to good character with the qualification that must accompany it, would be apt to impress the jury more against than in favor of the prisoner. The trial judge states he thought it fairer to the accused to give the general proposition that the jury should give to the proof of good character the weight they conceived should be attached to it under all the circumstances of the case. It is impressive too that the special instructions were not asked in that form in which they must have been given, we think, if given at all. The special instructions asked were: “ Good character when proved may create reasonable doubt and operate an acquittal, no matter what the proof. ” Again the charge was asked: “If the jury, from the evidence, are in doubt as to what the intent of the accused in doing certain acts, or a series of acts, you have a right, in arriving at a conclusion on this point, to take in consideration and weigh the character of the accused, and if you find that prior to the doing of the act charged, the accused bore a high character for honesty and integrity in the community in which he lived — you are to weigh this fact and to give the accused the benefit of it. Character, under certain phases of the case at bar, tends to create a doubt which otherwise might not have existed in favor of the accused, or.to remove a doubt already existing against him. You should look upon it as a part of the whole evidence adduced upon the trial and it is an important factor in coming to a conclusion, when you have doubt as to the innocence or guilt of the accused.” The trial judge refused both charges on the ground he had charged sufficiently as to character, and he could not give either of the requested instructions without qualification, and because they tended to mislead and confuse the jury. The first of the requested instructions, we presume, is not insisted upon. But in the argument, the last, it is contended, should have been given. It is quite true that the instruction does not assume the effect of any evidence before the jury but the hypothetical form of the statement will not of itself, make an instruction proper. This charge is not-the mere statement of a legal principle. It is argumentative; its tendency is all in favor of the accused and does not present that principle in respect to character testimony the State is entitled to insist upon. It is often that some allusion to the facts accompanies the instruction as to the law, but in all cases it is exacted that the instruction shall not assume the facts as proved or take the form of an argument. Aside from the form in which the instruction is framed, it seems to us there is the more, serious objection already stated. The instruction is not a full statement of the law. The instruction announces only the tendency of character testimony to favor the accused. No instruction as to the bearing of character testimony would be complete that did not instruct that such testimony could not avail against: positive testimony of guilt. It is, we think, too clear for discussion, that' if special instructions are given on any subject, the whole and not part only of the law is to be given, least of all, that part only that operates in favor of the defendant. 3 Rice, Sec. 378, p. 607. It is equally clear that if the requested instructions require explanation or qualification they should be refused. State vs. Riculfi and McClung, 35 An. 775; State vs. Phil. Jackson, 35 An. 769. It is our conclusion the instructions asked were properly refused. The instruction the court gave on the bearing of proof of good character was, in our view, sufficient to secure to the defendant the full benefit of that species of proof. The further instructions asked on his behalf, in our view, could not have been given with due regard to the rights of the State and settled jurisprudence.

In the discussion here, the argument has assailed the explanation of the trial judge as to the character of the reasonable doubt. Following the explicit charge that the State must prove every ingredient of guilt beyond a reasonable doubt, the court charged: “ This doubt must be a reasonable one, that is, one founded upon areal, tangible and substantial basis, and not upon a mere caprice, fancy or conjecture. It must be such a doubt as would induce nation without hesitation in an important matter by reasonable men in the exercise of an ordinary yet prudent judgment. It must be such a doubt as would make you feel you had not an abiding conviction as to the prisoner’s guilt.' If after giving a fair and impartial consideration to all the facts in the case, you find the evidence unsatisfactory upon any point indispensably necessary to constitute the prisoner’s guilt, this would give rise to such a reasonable doubt as would justify you in rendering a verdict of not guilty. You are not permitted to go beyond the evidence to seek for doubts, but must confine yourselves strictly to a dispassionate and impartial consideration of the testimony given upon the trial. You should not resort to extraneous facts or circumstances in reaching your verdict.” We have carefully considered the objection to this part of the charge. The expression is questioned in the argument, that it must be such a doubt as would induce action without hesitation in an important matter by reasonable men, in the exercise of ordinary but prudent judgment.” The comment is that the reasonable doubt is not that which induces, but that which deters action. Between the doubt that deters, and that which induces action, the difference is metaphysical. Taking this whole charge, we do not think it could have been misunderstood by the jury. We should find it extremely difficult on this ground to set aside this verdict, and the difficulty in thus setting it aside would not be as serious as giving a satisfactory reason for it.

It is urged in support of one of the exceptions that the court erred in defining the offence. The court instructed that the indictment was based on Sec. 907 of the Revised Statutes, embodied in his charge: that embezzlement was the fraudulent appropriation of property by the person to whom it was entrusted; that the intent must be fraudulent; that by criminal intent, the law means the intent to do an act forbidden by law; that this intent imparts to the act the character of an offence, and that an act was wilfully done when done without reasonable belief it to be lawful. It is contended that as the offence was statutory, the charge was erroneous in not instructing that the evidence must show defendant was one of the persons mentioned in the statute, and had knowingly and wilfully converted to his own use the money of the bank, and the argument insists that the trial judge defined not the offence for which the defendant was on trial, but some other. It seems to us that the recital to the jury of the entire Sec. 907 of the Revised Statutes: the statement the defendant was on trial for that offence, and that the State must prove every allegation of the indictment which reproduced the statute, must be deemed to give the jury full instruction that the evidence should show the defendant was president of the bank, and had knowingly and wilfully converted its funds. We can not appreciate that this verdict is to be set aside because the jury were not expressly told they must find that the defendant was president of the bank, nor on the ground they were not sufficiently instructed that to convict they must find he wilfully and knowingly embezzled and converted its funds. While embezzlement is a statutory offence, it has -the significance generally accepted of the appropriation of the property of another by the person to whom it is entrusted, with the intent to appropriate,‘or as it is sometimes expressed, for the purpose of applying it to his own use. This is the aubstance of the definition we find in all the books, accompanied by such adjectives as felonious, wrongful, or fraudulent. If the trial judge defined embezzlement at all, in our view he must have given substantially the definition we find in this charge. We therefore can not appreciate that the charge is erroneous in its definition, but seems to us to convey with substantial accuracy the elements of the offence with an apt explanation of embezzlement, the leading word in the section. It is strenuously urged that “ fraudulent,” used in the charge, is not the equivalent of the adjective employed in the section. The reading of the section and the statement that was the offence for which the accused was on trial apprised the jury the act must have been committed “knowingly and wilfully.” It seems to us “ wilfully and knowingly ” appropriating another’s property might well be qualified as “ fraudulent” or wrongful without misleading the jury or varying the issue they were to try. Again, it is claimed that “wilfully” was not correctly stated to the jury. The word is often used in the sense of the commission of an unlawful act, with knowledge it is unlawful. “With- . out reasonable ground for believing the act to be lawful” is one of the definitions given by Abbot, taken from a Wisconsin decision. This knowledge and a purpose to do wrong is given in one of the cases. The trial judge stated that to do an act forbidden by law without reasonable belief it was lawful, was to do it wilfully. Between doing an unlawful act,'knowing it to be unlawful, and doing it without reasonable belief it is lawful, is a difference of words. We do not perceive that in this respect the accused has any cause to complain of the charge. It is insisted, too, that the trial judge erred in referring to the usual proofs of embezzlement in defining the offence.' The examples of these proofs given by the trial judge were those found in the text writers in illustrating embezzlement, i. e., false accounts by the party charged, his refusal to account, or his concealment of the funds entrusted to him. 2 Ai’chibold, p. 455. We find no error in the references by the trial judge to the proofs usually administered to support the charge. It is contended, too, that the court erred in its instruction that to constitute the offence under Sec. 90.7 the actual custody of the funds by the bank officer charged was not essential. The law deems the cashier the custodian of the bank’s funds. Morse on Banks and Banking, p. 156. The idea conveyed by this part of the charge is that the section extends to every officer of the bank who embezzles the bank’» funds, whether or not the legal custodian. Whether the president- or any officer of the bank comes into the possession of the bank’» funds by payment from the bank’s dpbtor, or takes the funds or obtains possession in any other mode, and appropriates the funds to his own use, he is brought within the scope of this section. Hence, the omission in the section of the words “ which he shall receive in the course of his employment,” to be found in Sec. 905, applicable to embezzlement or other fiduciary relations. We think the trial judge' was correct in thus explaining the nature , of the offence created by ' Sec. 907. The State vs. Palmer, 32 An. 565. We have thus given attention to the supposed omissions- and misdirections in the charge defining the offence. The law denouncing embezzlements by bank officials was fully stated; the jury were told the intent to do the act forbidden without reasonable belief it was lawful, wa 5 the intent required to convict; were further instructed that'the intent to appropriate at the time of the appropriation must have existed to constitute the offence. In addition to the general instructions we find the charge: “If you are convinced the accused embezzled or wrongfully converted to their own use the money of the bank, it will be your duty to convict,” -accompanied with the direction adapted as we gather from the bills to affirm the defence proved, relied on by the accused if in the opinion of the jury that defence was maintained by proof thus. “If, on the other hand, you find that though the money of the bank was taken by the accused, or either, that it was not embezzled or wrongfully converted, but was drawn for the benefit of the bank, and was so used, it will be your duty to acquit.” We can not resist the conclusion that these instructions as to the character of the offence were all the accused could reasonably expect. Our courts have repeatedly affirmed that the charge in its entirety and not isolated parts is the test of its sufficiency. If verdicts were to be set aside under that rigid criticism that finds fault with a word or phrase, not the precise adjective or form of expression used in the statute creating the offence, few verdicts would stand. If the instructions to juries fairly construed according to the appreciation of reasonable men to whom they are supposed to be addressed are substantially correct, the law is satisfied. On the fullest examination of this part of the case we find no basis to disturb the verdict.

Another exception was reserved to the refusal to charge: “ If the jury are satisfied that the accused concealed the fact of the withdrawal of the funds of the bank from the directors or any of them, but still used the funds for the benefit of the bank, they are not guilty of embezzlement or conversion.” The court in refusing this charge stated: “ This charge was requested by the attorney for J. A. DeBlanc. I think it fully covered by the general and special charges given. To have given it as set forth in the bill, would have narrowed the issue before the jury to a question of concealment. The only question was whether the defendants had used the money for their own benefit, or for the benefit of the bank. I think the charge confusing and misleading. ” The objection to the .requested charge is well stated by the trial judge. Ooncealment is usually the accompaniment, but is not itself crime. The requested instruction tended to confine the attention of the jury to one only of the elements of the offence. The reason assigned for the requested instruction was that the judge had virtually instructed that concealment of the drawing of the money proved guilt. We do nob so understand the instructions to the jury. The part of the charge supposed to call for the requested instructions is, we presume: “ The usual evidence given of the embezzlement is, that having received the money he denied the receipt of it, or did not account for it when he ought, or accounted for other money and not for it, or rendered false accounts dr practised some other deceit in order to prevent detection, from which the jury might fairly infer that the defendant either actually disposed of the mouey or withheld it from his employer with intent to do so, which seems to be the meaning of embezzle. In order to constitute the crime it is necessary there should be criminal intent. No man should be punished as a criminal unless his intent is to do wrong.” We do not understand that these .general references to the usual proofs ” laid down in the main in the text-bo.oks as ordinarily administered in prosecutions for embezzlements had any tendency to announce to. the jury that concealment in itself proved guilt.

Our attention is directed to the exception to the overruling of the defendant’s challenge for cause to a juror on the ground that he had formed a fixed opinion in respect to the charge against the defendant. The juror was subjected to a long examination both by the State and by the counsel for the defendant, stated that he had heard the subject discussed, had a prejudice against bank officers arising from the then recent bank troubles, would carry that prejudice with him into the jury box, first said he would require the accused to prove their innocence, but changed that statement; the juror made other answers, some favorable and others unfavorable to his competency, but on his final examination by the judge stated he could try the case impartially and give his verdict on the testimony. The whole tendency of our jurisprudence is to test the fitness of the juror, not by his expression in auswering one or more questions, but by his answers in their entirety, and great influence in determining his competency is exerted by his final answer to the trial judge. State vs. Jones, 38 An. 792; State vs. Jackson, 36 An. 96. We should be inclined to hold the ruling correct, but even if not, it would afforcj the accused no ground of complaint. The judge states in signing the bill that the juror did not serve, because challenged peremptorily, that when the juror was challenged the accused between them had twenty-three peremptory challenges left, and that no complaint was made afterward that either was compelled to accept an obnoxious juror. The judge adds that many of the juror’s answers were due to his confusion caused by his lengthy cross-examination, but the examination of the whole satisfied the judge the juror was competent. The fact, however, the juror did not serve, and the panel was obtained without any complaint afterward of other juroi;s, and, as we understand the statement of the judge, without exhausting the peremptory challenges, removed any cause of complaint against the ruling. State vs. Farrar, 35 An. 315; State vs. Melton, 37 An. 77; State vs. Egan, 37 An. 368; State vs. Redmond, 37 An. p. 774.

The trial judge stated to the jury that the accused under our law had the right to testify in their own behalf, but if they do not avail themsel.ves of this right their failure shall not be construed for or against them. This is the substance of Act Np. 29 of 1886, which adds “ the judge shall so charge the jury.” It is insisted the judge had no right to allude in any manner to the fact the defendant did not.testify, and because he did so, we must reverse the verdict. We can not take that view. We find in the briefs two decisions, one by the New York Court of Appeals that the presiding judge has no right to allude to the fact the prisoner had not availed himself of testifying as permitted by their statute; another of the Supreme Court of Illinois, that no presumption against the prisoner arises from his failure to testify under their statute, and the trial is to be conducted on the same presumption as if the statute had not been passed. We doubt, however, whether in either State such an allusion as that made here would vitiate the verdict. In Wilson vs. United States, 149 U. S. 60, the prosecuting officer in the course of his address to the jury commented with great severity on the fact the defendant did not go on the stand though entitled to do so under the act of Congress. 149 U. S. 60. We do not think that decision sustains defendant’s contention directed against the statement of the judge. The directions in the act of 1886 “■ the judge shall so' charge” were designed to exclude from the minds of the jury any inference unfavorable to the accused arising from his not testifying. In our view the statement of the judge in this respect furnishes the accused no basis for complaint.

We presume the bill we find in the record bringing up a newspaper article, attributing to the District Attorney remarks on the trial of the case in the lower court, is not pressed. For obvious reasons we could not notice the bill, and the District Attorney states, in addressing the jury, he made no remarks beyond the line of his duty.

The bills of exception are numerous. There are assignments of error besides. The discussion has not followed or dealt with the bills of assignment separately, but rather with the ..issues raised • The case has received close and earnest attention at our hands. We believe the case in all its aspects has b.een fully .considered; that, at least, has been intended by us. The restricted.province,of this court is to deal only with the questions of law, and they have been ably discussed by counsel. Bub with all the aid of the argument in support of the contentions on behalf of defendant, the conclusion we reach is the record shows no ground to reverse the sentence. •

It is therefore ordered, adjudged and decreed that the sentence of the lower court be affirmed.

Rehearing refused.

Watkins, J., concurs.

Breaux, J., dissents.

Nicholls, C. J., took no part.


source: Caselaw Access Project

author: Watkins, J. Breaux, J.

license: Public Domain

text:
    No. 12,725.
    Joseph D. James, for use Paul Anthony Calvit James, vs. Rapides Lumber Company, Limited.
    On application por Rehearing.
    It is the duty of the master to give warning o£ danger to an inexperienced employee, not informed of the danger, who is placed in charge of dangerous machinery.
    The facts found by the verdict are sustained by a presumption of correctness, until error is shown.
    It is the negligence of the foreman of a steam saw-mill to call on one of its employees suddenly, and on the spur of the moment, to take a position in the mill that is dangerous, without giving him any instructions or explanation whatever, of the movements of the machinery, or the risk and hazard of the employment, with which the employee had neither a previous knowledge or acquaintance. For such negligence, the proprietor is responsible to the servant.
    APPEAL from the Tenth Judicial District Court for the Parish of Rapides. Hunter, J.

      H. H. White for Plaintiff, Appellee.

      Howe, Spencer & Cocke and B. P. Hunter for Defendant, Appellant»
    Argiied and submitted February 10, 1898.
    Opinion handed down March 7, 1898.
    Rehearing refused April 18, 1898.
   The opinión of the court was fiélivered'by

Watkins, J.

This action was institutbd by the plaintiff for four thousand dollars" damages for the use óf his minor son, Paul Anthony Oalvit James, against the defendant company' for' the injuries he suffered for the deprivation and loss of his left hand,"'which'was cut off at the wrist by a diminutive saw in its mill,-through the fault'and negligence of the company, its officers and employées. " '

The defendant answered at length and in detail, and also'filed a plea of no cause of action, which was considered with the merits.

The cause was tried by a jury, who found a verdict for the plaintiff in the sum of three thousand seven hundred and fifty dollars; and after an unsuccessful effort to obtain a new trial the defendant prayed for and obtained this appeal..

The plaintiff’s demand is for three thousand dollars general damages and for one thousand dollars insurance.

He represents that-on the 17th of September, 1897, his minor son was working in the employment of the defendant company as watchman and lumber grader, and that while so employed he was ordered to go to work at one of their machines known as an edger; and that upon going to work at the edger, and upon taking hold of the first piece of lumber from it, his left hand was cut off at the wrist by the edger.

He shows that his son was a minor; that the edger is an exceedingly dangerous machine, and that it was situated in an exceedingly dangerous position. That its appliances were not properly protected so as to prevent the happening of accidents; and that, consequently; only skilled and well-trained workmen should be employed to work there. That at the time his son was assigned to duty at the edger the defendant well knew that he was a minor; -that he was not a skilled workman; that he knew nothing about working at the edger; and that he had been theretofore employed at work which was not dangerous. That, notwithstanding all that, the defendant’s foreman called upon him suddenly, upon the spur of the moment at a time when the mill was in full operation,-to assume that part of danger; and that bis son, being called upon to make a sudden and unexpected election whether he would undertake the employment, or by declining it run the risk of a discharge, he chose" the foi’iner — not having been warned by the foreman of the'defendant; Or any officer of the company, of the danger there wás óf working at the edger,’‘nor given any instructions as to the character of the work he was expected to perform, or of the means of guarding against accident.

He shows that when he was employed by the défendant the amount of seventy-five cents per month was exacted from his son by the company, and deducted from his wages, as premium on accident insurance, the policy representing which the company had obtained from the Union Casualty and Surety Company, of St. Louis, Mo.

He shows that no policy was issued to him, and that none was applied for in his name; but that samé was applied for by, and was issued in favor of, and made payable to the defendant company.

That notwithstanding the aforesaid monthly exactions of insurance premiums from his son, as an employee, the conditions of the insurance were never explained to him. That since the' accident he has made demand of the defendant first and afterward of the insurance company for a statement of the insurance, but was refused information by both of them — the latter only admitting that i,t carried.an accident policy indemnifying the defendant company against loss or damage they might sustain, or had to pay their employees.

It is on this score that the plaintiff claims one thousand dollars; and it was at this demand that the defendant’s plea of no cause of action was leveled.

In this court the plaintiff and appellee filed an answer to the appeal and requested an amendment of the judgment so as to award him one thousand dollars insurance money against the defendant.

This demand, as we understand it, is, that his son is entitled to the sum of one thousand dollars of the insurance money which is ultimately recoverable from the accident insurance company on the policies of insurance which were issued payable to the defendant company, because he had paid the premiums which bought the insurance.

Or in other words, the insurance premiums having been exacted from its employee and used to keep in force a policy guaranteeing the defendant against loss,'or damage it may have to pay said employee on account of an accident, the amount of said insurance when realized by the defendant from the insurance company should be-paid over to his son in diminution of the full amount of the damages due him.

That is to say, the insurance policies should inure to the benefit of an employee who has kept up the premiums which give life to the policy.

The defendant for answer pleads a general denial, and then admits that defendant was injured 'in the hand by its mill, but avers “ that if in any event respondent was liable for damages, which is expressly denied * * * then respondent avers that the damages claimed. * . * * are out of all proportion to the injury done,” etc.

It denies any knowledge of the minority of the plaintiff’s son, and affirms that from his size and appearance it was believed that he was a grown man several years past majority.

It avers that he came to the mill several months prior to the accident, sought employment and was employed in several capacities, especially as night watchman, and had received his wages in his own name without disclosing his minority.

That after having been,employed as a night watchman for several months, the plaintiff’s son sought work at the mill, “ expressing to the defendant’s foreman and superintendent, his capacity to .ñll, and his desire to fill, any place to which he might be assigned,” etc.; and that at his request he was put to work in the mill at day work, and had worked in the mill- for several days . in . different capacities in plain view of the machine and saw, where he was finally hurt in his hand.”

“That on the morning of the accident, (the plaintiff’s son) was by the foreman of the mill hands requested to fill the place of one of the men who was sick and.absent, and whose dnty and work were to take plank which had been sawed and planed off .a table and .platform, to lay them on a machine about eight or ten feet away from the saws (which were) so placed (as) to cut off square both ends of the plank; and which machine was operated by steam power and worked rollers and dogs, so that after the plank was laid on the rollers, it was not necessary for a workman to follow the planks, or to remove from his safe and remote position with reference to the saws.

“It avers that the machine was first class,of its kind, and in perfect working order; and that it was so placed, and all of its appliances were so arranged as to furnish the best possible protection to the men engaged in operating it.

“That it required no particular skill, or knowledge to safely and properly perform the labor required of the workman at the machine; that any man who could lift, with other men at the other end, one or several planks and lay .them on the rollers, c.ould perform the work required of the plaintiff’s son.

“ That instead of maintaining the position he was told to take, at a perfectly safe distance from the saw which was intended to cut off the ends of the planks, at the end of which he was put at work, as soon as he had put the plank on the rollers he immediately began to follow them up the incline and in the direction of the saw. That the other workmen warned him by calling to him in a loud voice, but he continued to follow the planks until they had reached the saw, which was in plain view of him; and that he reached his hand forward until it touched the saw and was injured by it.”

Under the foregoing statement of facts, the answer charges the plaintiff’s son with contributory negligence which exonerates the company from liability for damages, and its averment is that he voluntarily and knowingly assumed all of the risks which were incident to his employment, and for that additional reason there can be no rt covery.

In the answer there is no mention made of the plaintiff's demand for the payment of insurance money; consequently it must rest on the general issue.

From the evidence it appears that youug James was assigned to work at the trimmer, which is a small circular saw situated near the edger, a much larger machine.

From the parol evidence, as well as the photographs which were taken of the locus in quo while the machinery was in operation, it appears that there is visible to the eye not more than one-fourth of the saw, which is, apparently, of but a few inches in diameter.

As stating defendant! s view very succinctly, we make the following quotation froni counsel’s brief, viz.:

“ That on the day of the accident the plaintiff’s son was requested to take the place at the trimmer of the regular workman who was sick and temporarily absent. That the duties required of him were to take the planks, after they had been sawed, from a table or platform and lay them on the apron of the trimmer several feet from the saws, and were taken thence to the saws by machinery for the purpose of having their ends squared — so that it was not necessary for the workman to follow up the planks or to move from his safe position, remote from the saws,” etc.

And he further places the defendant’s charge of contributory fault on the part of young James on the ground stated in its answer, “ that it charges specially that he did leave his position and follow up the timber until it and his hand reached the saw, and this carelessness caused the accident,” etc.

Before analyzing the evidence, or stating our conclusions thereon, we may just as well disembarrass the case of young James’ minority, as he testifies as a witness that he was nineteen years of age at the time of his engagement in the defendant’s service; and there is no evidence tending to show that the defendant was aware of his minority.

And it is shown that the young man was very well grown for his years and justified the assumption of his being a major, resulting from the fact which was pointed out by the witnesses — that he had made his contract with the company, and collected and receipted for his monthly wages.

Counsel for the defendant claim that after young James had served the defendant for several months in the capacity of night watchman, and afterward of lumber grader, he was assigned to duty in trucking lumber as it came from the trimmer, and in doing this work he was about ten steps from the trimmer saw which afterward hurt him * * * and, consequently, had the opportunity to observe the machinery and know the danger of the situation.”

They take the further position that young James subsequently worked at the “ live rollers,” an automatic contrivance to carry boards away after they have been trimmed; and that while thus engaged he was only about five steps from the trimming saw, by means of which he lost his hand; and that, in this way, he had become familiar with the position and movement of the saw, and knew of the danger of the employment to which he was thereafter assigned.

With these statements kept in view, we will make some extracts from the evidence and apply same thereto.

Young James testifies, in speaking of the incidents which occurred just previous to the accident, that he went to the mill to work loading trucks, but that he continued in that occupation about ‘ ‘ three hours and was then changed to the live rollers.” That he worked at that employment one “ evening and the next day until about four o’clock.”

Then occur the following interrogations and responses, viz.:

“ Q. Then what did you do?
“ A. The next morning I went up to go to work. Did not know what to start at, and stayed around expecting to take my same place at the live-rollers.
“ Q,. What occurred then?
“ A. The foreman hallowed at me — Mr. Chester was the foreman —telling me to take the place behind the edger at the trimmer.
“ Q. On what day was that?
“ A. On the 17th of September.
“ Q. What occurred when you took your place behind the edger at the trrimmer?
“ A. I got back there; had not been there a minute, I suppose, when two pieces of two-by-four came through the edger, and I took hold of them. They were crossed so I could not see the ssws; and to uncross them I gave them a push, and pushed my hand through the saw^
“ Q. The saw then cut off your hand?
A. Yes, sir.
“ Q,. Out it entirely off?
“ A. Except a little skin.
“ Q,. Up to that time had you ever been employed in working about the machinery of the saw-mill?
“ A. No, sir.
“ Q. Did you have any skill or knowledge about working about machinery?
“ A. None at all; no, sir.
Q,. Did any one instruct you about the duties you were about to perform at the time you were behind the edger?
A. No, sir.
Q. Did any one warn you that it was a dangerous place, or explain the machinery there to you?
“ A. Not that I remember. No, sir.
“ Q,. Well, you do remember, don’t you?
“ A. I do remember that no one told me.
“ Q,. You say Mr. Chester, the foreman, called you there?
“ A. He passed by. He was on one side of the rollers. He pointed his finger at me, and told me to go back there. That was all that passed — all he said.
“ Q,. What is the custom of the mill about obeying orders?
“ A. If I had not gone there, I guess I would have had to go home.”
Again:
“ Q. How far was the saw that cut your hand from where you were put to .work?
“ A. I don’t know exactly. T never saw the saw — never moved out of my tracks — only gave the planks a little push.
“ Q. Are you sure you did nob follow up the planks?
“ A. Quite sure.
“ Q. When you started to put your hand out to follow it up * * * did anybody say anything to you?
‘ A. If they did, I did not hear it. I could nob have heard a shotgun behind that edger when it was running.
Q. Anderson was just the length of the plank from you, on the same side, and working at the machine?
“ A. Yes, sir.
“ Q. You did not hear him hallow at you and warn you to let the plank alone?
“ A. No, sir.”
Again:
“ Q- Mr. James, I will ask you this question. If you had been warned and instructed about that machine would you have put your hand where it could get cut off?
“ A. I would not; certainly not.”
Another witness testimony is as follows, viz.:
“ Q- Mr. Morris, were you an employee of the Rapides Lumber Company when this accident occurred ?
“ A. I was.
“ Q. How long had you been working there ?
A. Well, I have been working there, off and on, about four years.
Q. Do you know this trimmer-ab which Mr. James got hurt ?
“ A. Yes, sir; I do.
“ Q. Mr. Morris, state whether you would consider that a dangerous machine at which to place an unskilled workman ?
“ A. I consider it quite dangerous; I did not like to work there myself; I call it quite dangerous.
"Q. As a saw-mill man would you consider it necessary o instruct and warn the new men that were put there ?
“ A. I would; yes, sir.”

This question was objected to and the answer of the witnes thereto as eliciting an opinion; and same having been overruled the defendant’s counsel reserved a bill of exceptions thereto.

In our opinion, the testimony sought to be elicited of this witness is not exclusively a matter of opinion, as it is predicated upon the facts about which he had been interrogated, and upon which he was requested to express his judgment. He had in the previous question been asked whether he considered a trimmer saw a dangerous machine, and replying thereto without objection he said he considered it quite dangerous.

The present question is, being by you considered a dangerous machine, “ would you consider it necessary to instruct a new man,” to that effect ?

Taken in that connection it was a proper question.

In the further interrogation of this witness he stated, in confirmation of the testimony of young James, that Mr. Chester, the foreman, said to him when assigning him to duty at the trimmer “You work over that way,” pointing in the direction of the edger. Pie states that this was the direction which was given to young James in his presence.

On cross-examination this witness was asked the following question, and thereto made the following replies, viz.:

“ Q. Well, are not those two saws on the trimmer in plain view from almost anywhere around the mill?
“ A. I always saw the saws. I knew where they were. I did not run into them. At the place where this man was working this board covers the saw, and might worry a person who did not know the saw was there-
Q. Well, is not that saw in plain view of a man standing in the proper place- — there when James was put to work?
“ A. I do not think it is. These planks may be rather in the way. A man not knowing where to look for the saw might not notice it. But you can see the saw from where he works.
“ Q,. The plank is high enough up to see under it?
“ A. He can see under it or over it, either one. If he undertakes to look for the saw he can see it.”

The board referred to by this witness is the swinging board that is exhibited in the photographs, and is shown by the testimony to be employed as a protection to the employees against injury from the small ends of the planks which are cut off by the trimmer saws.

“ Q,. What particular skill or experience does it require for a man to go there and do that work — to put the plank on the trimmer?
“A. It requires a man who knows something about it. He must know something about it, or he might do like this man and get his hand out off.”

Mr. Julius Levin, a saw-mill proprietor of large experience, was also interrogated with the following result, viz.:

“ Q. If you should place a green hand (at work) at the machinery would you not consider it your duty to instruct him as to his danger and duties?
“ A. I would have him instructed.
Q. State whether or not you consider that position I have just mentioned — at the trimmer — a dangerous position, particularly for a green hand?
“ A. All positions behind any saw are dangerous if a person is not very careful.
“ Q. It requires a good deal of skill and activity?
“A. A great deal of care and watching.”

The foregoing is a fair summary of plaintiff’s evidence; though there are some general statements of the defendant’s witnesses which differ therefrom in minor particulars.

The testimony of Mr. Chester, foreman of defendant’s mill, is of the following tenor, viz.:

“ Q. How long had had you been working at this mill of the Rapides Lumber Company when this accident happened to Mr. Tony James?
“A. I had not been there but a short while, probably a month or six weeks. I went to work on the 28th of July,” but he was foreman at the time of the accident.
Again:
“ Q. When you told Mr. James to go in there — i. e., to the trimmer machine — and take Boone’s place did he make any objection to it?
“A.' He did not.
“ Q. Was it done suddenly, or hurriedly, or in such a way that he was obliged to?
“A. I simply told him to take that position, and he just walked in, and went at it. I went back into the fire room, etc.

In conclusion we will refer to the statement of Mr. Anderson, who was the associate of young James and saw the accident, and thus describes it, viz.:

“There were two two by fours and Mr. James and I caught hold .of a piece of lumber — he caught one end and I caught the other— and we carried it and put it on the trimmer- chains; and one of the two by fours got on top of the other two by four and Mr. James undertook to shove one off the other, and carried his hand up on to the other, and carried his hand up on the saw.”

He then stated that in making this movement young James moved just a little from his position in’the effort tó push the planks, and that as he did so “ he hallooed as loud as he could to let it alone — that he just screamed — but he followed the timber until it got to the saw.”

In so doing young James was attempting the performance, ignorantly, of an office which the machinery was provided to do without his aid — and this was evidently the result of his inexperience and want of information as to his duties.

No particular analysis of the foregoing testimony is deemed necessary. That the employment to which young James was assigned was dangerous we make no doubt, We think the dangerous character of the trimmer-saw is made clear by the testimony, and is made apparent by the photographs.

To our thinking, the mere recital — even as it is related in the defendant’s answer — of the occurrence, discloses a prima facie case of negligence on the part of the defendant.

The proof discloses a total want of knowledge on the part of young James of the situation, and of the duties he was expected to perform; and of which he was vouchsafed not a word of information or instruction by the defendant’s foreman.

Suddenly called upon by the company’s foreman to undertake the performance of a delicate and important duty, in a saw-mill in full operation, and supply the place of a sick man who had been engaged thereat for about two years, without warning or precaution, young James was unwittingly cast into the teeth of a small saw which cut his left hand off within twenty seconds after he had assumed its performance.

Plaintiff’s counsel graphically describes the situation thus:

“ Into this trap of flying wheels, machinery, belts and whistling saws, noise, dust, plank and rollers, Chester thrust, without a moment’s warning, advice, instruction or preparation, a boy, a minor, who knew nothing of its dangers.”

It is quite out of the question for us to affirm, under these circumstances, that young James had assumed the responsibility of the dangers of the position to which he had been assigned.

In our opinion his right to recover damages of the defendant is very clear, under the provisions of the Code. R. C. 0. 2315, 2317 and 2820.

And likewise under the construction of the general law applicable to master and servant, which is given in the decisions cited in Stucke vs. Orleans Railroad Company, 50 An'., omitting those appertaining to fellow-servants as not pertinent to the issue.

Under all the authorities, it is the recognized and bounden duty of the master to provide a reasonably safe place at which his servant is to work; and to see to it that he is not exposed to unnecessary risks in the course of his employment. And in order that a dangerous service be intelligently undertaken by his servant, it is the duty of the master sufficiently to acquaint him with its risks and ■dangers, and give him a fair knowledge of the situation at the time of his employment. Failing in either of the foregoing particulars, the master will be held liable for whatever injury results to the servant. Cooley on Torts, Sec. 550; Ryan vs. Fowler, 24 N. Y. 410; Perry vs. Marsh, 25 Ala. 659; Horner vs. Nicholson, 56 Mo. 220; Wheeler vs. Wason Manufacturing Co., 135 Mass., 135; Mason vs. West, 73 Maine, 253.

•In Smith vs. Sellers, 40 An. 527, this court said that the servant “ assumed the risk only of such hazards as are apparently incidental to an employment intelligently undertaken.”

In Brslew vs. Railroad Company, 49 An. 86, we held that if an employee of a steam railway company knew or ought reasonably to have known the precise danger to him of the guy wire of the electric street car company in the course of his employment, and saw fit, notwithstanding, to continue in.it, he might be held to have assumed the extraordinary risks, as well as the ordinary risks of his service. But this consequence must rest upon positive knowledge, or reasonable means of positive knowledge of the precise danger assumed. Meyers vs. Railroad Company, 49 An. 21; Myhan vs. Electric Light and Power Co., 41 An. 964; Buswell, Law of Personal Injuries, Secs. 202, 203; Tutrix vs. Sellers & Co., 39 An. 1011; Helen vs. O’Rourke, 46 An. 178.

See Buswell on Personal Injuries, p. 338. And we take following extract from 146 Mass. 190, Civiac vs. Woolen Company, viz.:

“The duty of the defendant would be sufficiently discharged by pointing out to the plaintiff the situation of the machine, and the rapid revolution of the wheels when in operation, and explaining the effect of touching them under these circumstances.”

This statement of the law we accept as perfectly accurate; but when it is applied to this case, it is made evident that the defendant’s foreman was greatly in fault, in that he gave young James no explanation or instructions of any kind.

Indeed, the foreman had, necessarily, an imperfect knowledge of the situation, as he had been in charge of defendant’s mill only for a few weeks at the time of the accident.

With regard to the plaintiff’s demand for insurance money, but little need be said. The demand is made of the defendant as a negotiorum gestor; and not on a claim arising ex eontraetu, against the insurance company, as being liable for a loss sustained on its policy.

We do not think that his demand against the company is well founded, as he avers that it has not yet recovered from the insurance company, and the plaintiff could not, in any event, recover from the insurance company, because his name does not appear as a beneficiary in either one of the policies which were written in favor of the defendant exclusively.

That the defendant had made exactions of young James monthly, from his wages, in order to keep up the premiums, can not have the effect of establishing in his favor a beneficial interest in the insurance policy.

The contrary doctrine was maintained by this court in Putnam vs. Insurance Co., 42 An. 740.

We are of the opinion that so much of the plaintiff’s demand as relates to the insurance must be rejected and disallowed, and the amount of the demand for damages be reduced to three thousand dollars.

It is therefore ordered and decreed that the judgment appealed from be so amended as to reject and disallow the plaintiff’s demand for one thousand dollars insurance, and thus reduced to three thousand dollars, same be affirmed with costs of appeal to be taxed against the plaintiff and appellee — vith the reservation of whatever rights he may have against the defendant upon a quantum meruit for an interest in the insurance money when same has been collected.

The opinion of the court on the application for reheariug was delivered by Breaux, J.

On Application for Rehearing.

Breaux, J.

Three witnesses for the plaintiff, men of experience in the management of saw-mill machinery stated that there was danger, if one without experience or instruction of any sort undertook to work as a band at the machine known as the trimmer.

That it is unsafe to place one at that work who is a green hand without warning or instruction. That the danger should have been explained to him; that it was an act of imprudence to call the plaintiff, who had been engaged elsewhere in the mill, and at once give him in charge the work necessary to be done at the.end of the trimmer in transferring the lumber from the edger to the trimmer.

■On the other hand, three witnesses for the defendant testified that the work was not as hazardous as represented; that men without experience and warning sometimes were placed to work at trimmers.

The jury and the trial judge who saw and heard the'witnesses believed the former.

Great weight, it is clear, should be given to their finding as relates to the facts of the case.

It does seem that the act of the plaintiff in putting his hands on two pieces of timber, 2x4 (crossed one over the other), as they were about to pass the trimmer saws, was an act of the greatest imprudence ; that one with the least experience or warning would not have thus exposed himself. The plaintiff, it appears, was not deficient in intelligence. Had he been made aware of the danger, it would be proper to hold that he had assumed the risk of the dangerous employment. It must have been evident to the jury he had not had sufficient opportunity to become familiar with his duties nor had he. been, it appears, sufficiently instructed. It was not, the jury found, an ordinary danger. It was not, their verdict implies, a danger known to the employee, and one which he, without warning, should have appreciated. The defendant in the brief asserts, in opposition to the position that the plaintiff should have been warned and instructed before placing him at the trimmer, that the only instruction which could have been given him would have been not to pub his hand on the saw, and that this would have added nothing to his knowledge.

This contention, as stated by defendant as relating to visible danger, is supported by several well considered decisions of courts of other States. From the point of view just stated they recommend themselves as eminently just and correct.

But the jury here, substantially, found a different state of facts. They must have concluded, in order to arrive at their verdict, that the instruction which could have been given him would have been given had it not escaped attention; that is, the instruction not to put his hands on the pieces of lumber after having placed them on the trimmer, and particularly after they were being carried on the endless chains to the saws.

We have no hesitation in saying, if the facts were as the verdict implies, the judgment was correct and legal.

The evidence before us did not disclose that the facts were not as found by the jury.

There is no good reason to infer that the foreman of the mill did not have a proper knowledge of the situation, and that he was not, in every respect, a well qualified and competent foreman. But the ability of the foreman is not of itself ground to discredit the return of the jury. Under the most careful and experienced foreman an accident may happen for which the employer must be held in damages.

It may be stated, also, as related to the lumber mill, that the situation was not more grave and dangerous than it is in all factories in which there are many fast revolving circular saws with white steel surface a few inches above the horizontal line of their-shafts.

It is not negligence to own and operate such machinery — the demands of commerce require effective, improved machinery. In the ease here it was not defective and not unavoidably dangerous. The fact remains that it was not properly handled, due, as the jury thought, to the want of notice and instruction which should have been given to an inexperienced hand. Under our jurisprudence,, until it clearly appears that such a finding is erroneous, we are constrained to accept the conclusion as correct.

Lastly: our decision held that claim for insurance can not be recovered in this case. Defendant asserts that reservation in the decree invites new and troublesome litigation. In order to put that matter at rest, we here state that the judgment here includes and settles the amount of all claims plaintiff is entitled to for injuries received by him as alleged. When this amount will have been paid it will be in satisfaction of all claims, and we, "in consequence, recall all reservation heretofore made.

It is therefore ordered, adjudged'and decreed that onr original judgment remain undisturbed, save as to anything reserved to plaintiff,- after he will have been paid. There is no further right reserved to plaintiff.

Rehearing refused.


text:
    No. 12,791.
    Mrs. Mary Beaulieu vs. Mrs. Mary V. Monin et als.
    The prohibition of our Code of donations inter vwos of all the property of the donor, leaving him destitute, is not removed by the promise or engagement of the donee to support the donor during life. Civil Code, Art. 1497; 11 Rob. 302; 12 An. 204.
    The owner who recovers his property owes to the party evicted the taxes paid and the value of useful improvements made by him which have augmented the value of the property. C. C., Arts. 508,.3453; 16 La. 314; 33 An. 744.
    The evicted party in bad faith owes rents from the beginning of his possession. 7 N. S. 112; 12 Rob. 256; 3 An. 258; O. C., Art. 3453.
    The possessor under a title void on its face, because violative of a prohibitory law, can not claim the protection accorded by law to purchasers and mortgagees who acquire on the faith of the title conveying ownership placed on record by the owner. 8 N. S. 227; 19 La. 332; 1 An 286; 47 An. 49.
    A PPEAL from the Nineteenth Judicial District Oourt for the Parish of Iberia. Voorhies, J.

      Foster & Broussard for Plaintiff, Appellee.

      Weeks & Weeks for Defendants, Appellants.
    Argued and submitted May 2, 1898.
    Opinion handed down May 30, 1898.
    Rehearing refused June 28, 1897.
   The opinion of the court was delivered by

Miller, J.

The plaintiff sues to annul a donation by her to her children, and to annul, also, the transfer by the donees to the Jeanerette Building Association, plaintiff claiming besides the rents of the property from the date of the donation. The ground of the nullity of the donation demanded by the plaintiff is that it divested her of all her property, in violation of our law, hence is null; and it is averred the building association acquired no title by the transfer of the donees, hence is liable for the property and its revenues at ten dollars per month. The children, the donees, in their answer aver that the acts, in form donations by their mother to them, were, in fact, the partition of the property, the subject of the acts, owned by them as heirs of their deceased father and by their mother, his widow, in community; that one of the defendants in consideration of his mother’s transfer agreed to support her; that this and other stipulations of the children, in respect to their mother giving to her acts of transfer the effect of operating a partition and settlement of the succession of their father, were, by error, omitted by the notary, and it is insisted the acts should be construed in connection with the omitted stipulations deemed to vary their character; the answers further aver the transfer to the building association, and that valuable improvements have ■ been put on the property by the defend - ants, the children, and the association. The building association answers that they acquired the property for a full price and in good faith, and that since the purchase the association and the children have paid taxes and made useful improvements on the property. All the defendants unite in the reconventional demand, in the event plaintiff recovers, that their claim for taxes paid and for the value of useful improvements be recognized and enforced. From the judgment, annulling the transfers of plaintiff to her children, decreeing that the building association acquired by the transfer to it only a mortgage on the one-half of the property, i. e., the half owned by the children, and rejecting the reconventional demands of the defendants, they appeal.

It is undisputed the property in controversy was acquired during the marriage dissolved in 1864 by the death of plaintiff’s husband, hence was owned in eqnal parts by plaintiff and her children; that in 1889 she conveyed to them her share of the property for no consideration, the word donation being used in the act with other words of conveyance, but in our view the acts are to be deemed donations manifested on their face; that subsequently the children conveyed to the Building Association, the acts importing that the association paid the price, but that the vendors owning shares of the stock of the association had borrowed an amount from the association equal to the price, which they stipulate to pay with six per cent, interest, according to the charter of the association until payment to be vested with the title. We think it established that when the plaintiff made the donations she divested herself of all her property, and we think it is also established that the property has been improved and taxes have been paid on it by defendants.

During the trial the defendants offered testimony for the purpose of showing that the defendants, or one of them, had agreed to support the plaintiff during her natural life, and that this agreement was the real consideration for her transfer of the property. The testimony was excluded on the grounds that it tended to contradict the acts, and no such issue was made by the pleadings. Another ground of exclusion, more serious, occurs to us; whether it would have aided the defendants, if admitted.

The purpose of the article of the Code, prohibiting donations that embrace all the donor’s property, would seem to exclude that dependence for support implied by the agreement the defendants sought to prove. Oivil Code, Art. 1497. Is such an agreement to be deemed the equivalent of the reservation by the donor exacted by the Code, of enough of his property to live? Is the donation that leaves the donor nothing, Withdrawn from the very explicit prohibition of the Code, merely because the donee engages or promises to support the donor? It must seem that construction does not accord with the article of the Code on the subject. In the very early case of Vick vs. Deshautel, 9 Martin, 85, arising under the old Code, such a donation as that it is supposed would be shown by the excluded testimony was sustained. In the later case, Lagrange vs. Barre, 11 Rob. 302, the court commenting on the fact that the Vick case arose under the old Oode, held that the donation of all the donor’s property, though on the condition inserted in the act of full support of the donor by the donee, was null. “ He must reserve enough for his subsistence,” as required by the Oode, the court held was not fulfilled by the agreement of support contracted by the donee. Again, in the case of Bourgeat vs. Dumoulin, 12 An., p. 204, the court; sustained the donation, embracing nearly all the donor’s property, when in the act the donor reserved besides an annuity as a charge on the property for a sum deemed adequate for all the wants of the donee, and as we gather by the sequel of that case in Porche vs. Moore, 14 An., p. 238, there were also debts for which the donee was bound. We have no such case here, and the court in the Fourteenth Annual ease drew the distinction between that and the earlier decision in 11 Rob., which it affirmed. We think the 11th Robinson case announces our law. Hence our conclusion is that the alleged agreement of the donees, even if it had been proved, would not have removed the transfers of the mother from the prohibition with which we are dealing. Nor can we accept the suggestion the acts were not donations, but were designed to effect a partition of the property. It is quite true, the acts state, that partition was intended, but it is manifest from the acts and all the testimony that no partition was proposed or effected, except among the children. As to the mother she gave all she had and received nothing. It is our conclusion the acts of transfer from the mother to the children are brought clearly within the prohibition of the Code of donations that strip the donor of all he possesses.

The Building Association invoke the protection accorded by law to purchasers and mortgagees acquiring on the faith of recorded titles. Miles vs. Odeu, 8 N. S., p. 227; Blanchard vs. Castille, 19 La., p. 362; Richardson vs. Hyams, 1 An. 286; Thompson vs. Whitbeck, 47 An., p. 49. But the principle of these decisions can have no operation in this case, because the title from the mother, violating a prohibitory law, carried its uullity on its face.

But though the title of the Building Association as against plaintiff can not be sustained, its claim for taxes and useful improvements, whether the demand is by the association or the children, rests on a different basis. The right of the evicted party to recover ftsr such improvements, taxes or other charges for the preservation of the property, and add to its value, rests on the principle that the real owner can not profit at the expense of him who, during his possession under a title, though void, has by his expenditures improved and thereby augmented the value of the property. Civil Code, Arts. 508, 3453; Pearce vs. Frantum, 16 La., p. 414; Heirs of Wood vs. Nicholls, 33 An. 744. The record shows with reasonable certainty that these expenditures on the property were made with the money obtained from the Building Association, by the children, the donees of their mother. We appreciate, as suggested in the briefs there can be but one recovery for these expenditures unless part were incurred by the association, and part by the children to whom the association made the loan. In the condition of the record we can not adjust the amount of the expenditures, or to whom the amount is due. We think it best, therefore, to comply with the suggestion in the briefs and remand the case to ascertain the amount paid for improvements, taxes and other charges for the preservation of the property, whether by the association or the other defendants. The defendants on the other hand are liable for the rents of the property from the date of the acts of donation under the void title conveying to all notice of its nullity. O. C., Art. 3453; Donaldson vs. Hull, 7 N. S. 112; Williams vs. Booker, 12 Robinson, 256; Hill vs. Bowden, 3 An. 258. The liability of the defendants can also be adjusted under our order to remand.

The plaintiff claims that the property should be decreed free from any mortgage in favor of the Building Association, the mortgage having been recognized by the judgment of the lower court on tne one-half of the property belonging to the children. The question of the title or right conferred on the Building Association by their contract so far as that title affects the interest of the children to property acquired during the marriage of their mother, it is not necessary to determine. Our law annuls the donation in its entirety. 0. 0., Art. 1497. The mother is restored to all her rights as they stood before the donation, subject to her liability for the taxes and improvements. The nullity of the donation, the liability of plaintiff for improvements and taxes, and the accountability of defendants for rents are the only questions we determine.

It is therefore ordered, adjudged and decreed that the judgment of the lower court, in so far as it decrees the nullity of the acts by which the plaintiff conveyed to her children the property in controversy, be affirmed — in other respects the judgment is annulled; and it is now ordered and adjudged that this cause be remanded to the lower court for the determination of the liability of plaintiff for improvements, taxes and other charges, if any, for the preservation of the property, and the accountability of defendants for rents, all other questions being reserved, and that plaintiff pay costs.