author: Breaux, J.

text:
    No. 10,594.
    Mrs. Elise Peetz, Widow, Etc., vs. The St. Charles Street Railroad Company.
    1. The failure to examine witnesses who are employes will not justify the application of the presumption of negligence, unless as in the case of Day vs. Railroad, 85 An. 694, they were present or it be made evident that they had knowledge which the employer desired to conceal. .
    The duty of municipal corporations is only to see that its sidewalks are safe for persons exercising ordinary care and prudence.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

    James Timony and Branch K. Miller for Plaintiff and Appellee:
    A street railway obligating itself to keep in good repair and condition the bridges along its line, is responsible for an injury caused a person by a breach of this obligation. 2 Rorer on Railroads, p. 1486; 1 Thompson on Negligence, p. 359.
    The fact that a defect in such a bridge is caused by a third person does not excuse the railway, which knew or ought to have known of the defect, and has negligently failed to remedy it. 48 Pa. St. 320.
    The failure of a company charged with negligence or wrongful conduct, to examine as witnesses its employes, by whom the negligence or wrongful act is charged to have been committed, raises a strong presumption that the charge of negligence or wrongful conduct is well founded. Day vs. Railroad Company, 35 An. 098; 1 Thompson on Negligence, p. 514.

      Harry H Hall for Defendant and Appellant:
    No proof has been offered to sustain the essential averment of liability in the-petition that the “railroad company or some of its agents or its employes within the scope of their employment had made and fastened down a piece of wood.”
    IX.
    The piece of plank complained of was not a nuisance or an obstruction to travel, and it was not negligence to either so place it or allow it to so remain.
    The law does not require a municipal corporation to respond in damages for every injury that may be received in a public street, nor is the corporation required to have its sidewalks so constructed as to secure absolute immunity from danger in using them, nor is it bound to employ the utmost care and exertion to that end. Its duty, generally stated, is only to see that its sidewalks are safe for persons exercising ordinary care and prudence. Dillon on Municipal Corporations} 1019; 78 Illinois 347; 14 Allen 508; 24 "Wisconsin 270, 342.

      The corporation is not an insurer against accidents upon the streets, nor is every defect therein, though it may cause the injury sued for, actionable. It is sufficient if the streets are in a reasonably safe condition for the travel in the ordinary modes. Billon on Municipal Corporations, 1039; 42 Missouri 566, 571; 45 Missouri 449 ; 32 Grattan 792; 57 Indiana 192; 21 Wisconsin 485; 20 Minnesota 117; 31 Kansas 560; 54 Mississippi 391; 6 Vermont 245; 65 Illinois 155; 6 Cushing 524, 534; 87 New York 568; 35 New Hampshire 74; 105 Massachusetts 313; 28 Kentucky 264; 8 Cushing 174; 29 Iowa 73.
    The duty of keeping the streets and highways in repair is performed when the traveled way is sufficiently level and smooth to enable persons by the exercise of ordinary care to travel with safety and convenience. Billon on Municipal Corporations 1016; 13 Gray 59.
    To fulfil an obligation to keep a street in repair, the company must keep it in such condition that the ordinary and expected travel of the locality may pass with reasonable case and safety. McMahon vs. Railroad, 75 New York 231.
    III.
    Plaintiff was guilty of contributory negligence.
    If the party injured knew of the defect or obstruction, and ought reasonably to have avoided it by going outside of or around it, and did not, he can not recover. Billon on Municipal Corporations 1022; 61 Barbour 437; 33 Ohio 246; 8 Allen 137; 32 Ohio 66; 4 Clifford Cir. Ct. 138.
    Before a recovery can be had it must appear upon the whole testimony that the person used, under all the circumstances, ordinary care to avoid danger: Billon on Municipal Corporations, II, 1019; 81 Illinois 300; 51 Vermont 131; 84 Illinois 82; 52 Illinois 270; 33 Ohio St. 246.
    IV.
    “ It is also essential to liability that the plaintiff should haveboen using reasonable or ordinary care to avoid the accident.” Billon on Municipal Corporations, II, ■ 1040.

      Onus in respect; to proving due care on part of plaintiff is upon him. 12 Peck 176; 82 Maine 46, 574; 4 Gray 178, 895, 397; 7 Gray 100; 6 Iowa 443.
    A city is not liable to one who sustains an injury by reason of a defective sidewalk, if, by looking, the injury could have been avoided, and no excuse for failure to look is given. Plymoth vs. Milner, 17 Hd. 324; 20 Northeastern 235.
    In an action for damages for personal injuries received at night by reason of a serious defect in the sidewalk, the fact that plaintiff attempted to pass over the defect when the night was fair and there were two street lamps lighted • near by, is evidence of contributory negligence. Scranton vs. Gore, 124 Pa. St. 595; 17 At. 144.
    1. Municipal corporations are only bound to keep such streets and parts of streets in repair as may be necessary for the use and convenience of the traveling public.
    2. In order to render a city liable for defects or obstructions on its streets, it must appear that under the particular circumstances of the case it was its duty to have removed the obstruction or repaired the defect, and that the person complaining was at the time in the exercise of ordinary caro; and the facts are for the jury under appropriate instructions.
    3. Although a municipality may have failed to exercise proper care in the repair of its streets, and but for such negligence the injury would not have happened, yet the party complaining can not recover if he was aware of the defect and failed to use ordinary care to avoid the accident. 63 Missouri Repts. 417; Craig vs. City of Sedalia.

      The argument that defendant’s employes must or should have known of this obstruction because they were at dinner in the house, twenty feet off, in range of view, at the time when it was placed, comes with little grace from plaintiff, who, being a person of sound sight and unimpaired faculties, ran over the same obstruction in broad daylight without seeing it. Ackerly vs. Sullivan, 84 An. 1157.
    In the recent decisions of this tribunal, which hold a railroad company responsible to persons injured, the injury, in each case, was due to a defect in the street, caused by the company’s act. Vide Cline vs. R. R., December 2,1889, South. Rep., Yol. 6, p. 851; vide Dominguez vs. R. R., 35 An. 751. And this distinction has, I consider, been fully recognized by this court.
    In a suit to recover duos by a wharf lessee it was urged that “ the lessee has not complied with the obligations of the contract by neglecting to place check-posts, repair wharves, etc. The contract is therefore null and void.”-
    The court answered this objection by saying: “If the lessee has failed to place check-posts and to repair the wharves as required by the contract, the council has the right, under said contract, to annul the lease. * * * Rut how can the defendants expect to be heard when they complain of the non-execution of a contract to which they are no party. They have mistaken their remedy, and the council of Jefferson City is the source from which they must seek redress.” Swartz vs. Platboats, 14 An. 244.
    At common law an agent is personally responsible to third persons for doing something which he ought not to have done, but not for not doing something which he ought to have done; the agent, in the latter case, being liable to his principal only.
    Dor non-feasance or mere neglect* in the performance of duty, the responsibility therefor must arise from some express or implied obligation between particular parties standing in privity of law or contract with each other. No man is bound to answer for such violation of duty or obligation except to those to whom he has become directly bound or amenable for his conduct. Delaney vs. Rochereau, 34 An. 1128. And in the same cause, in a full and learned exposition of the authorities, this court held that such was likewise the rule of the civil law. Vide also Thompson Neg. I, 237.
    A company, organized to supply the inhabitants of a city with water, contracted with the municipal authorities to supply their hydrants, but, failing to do so, the fire department wore unable to extinguish a fire in the city.
    Held, that the company were not liable in damages to the owner of the property destroyed. 83 Am. Rep. 1, Nickerson vs. Bridgeport Hydraulic Company.
    If mere strangers may enforce the contracts by actions on the ground of benefits flowing therefrom to them, there would be no certain limit to the number and character of actions which would be brought thereon. Davis vs. Clinton "Waterworks Company, Supreme Court of Iowa, June 15,1880.
    A mere contractor, though, upon a public work, who is not a public officer, is iiot liable to third person for damages occasioned by the non-performance of the obligations of his contract.
    There is a material and plain distinction between obligations or duties imposed by laws — as upon public officers — and those created by contract merely. In regard to the former, they are created for the benefit of and are due to every one who has occasion for or an interest in their performance; and hence, any •one who sustains an injury which is peculiar to himself, by reason of their non-performance or their improper performance, may maintain an action against him who owes the duty, to recover the damages thus sustained. But as to the latter, they rest between the contracting parties alone, and none but parties or privies can enforce them, or maintain an action to recover damages-for a neglect or refusal to enforce them. Accordingly held, that one who had entered into a contract with the State to keep a section of the Erie canal in-repair, was not liable to an individual who had sustained damages in consequence of his neglecting to perform that duty. 38 Barbour, X. Y., Supreme Court Reports, p. 163, Pish et als. vs. Bodge.
    To hold defendant liable herein it must have had actual or implied knowledge of the dangerous character of the defect.
    “ Where streets have been rendered unsafe by the direct act, order or authority of the municipal corporation, * * * * * no question has been made or can reasonably exist as to the liabilityof the corporation for injuries thus produced when the person suffering them is without contributory fault, or was-using due care. * * * * * Where the duty to keep its streets in safe condition rests upon the corporation it is liable for injuries caused by its neglect or omission to keep the streets in repair, as well as for those caused by defects 'occasioned by the wrongful acts of others; but, as in such cases, the basis of the action is negligence, notice to the corporation of the defect which caused the injury, or facts from which notice thereof may reasonably be inferred, or proof of circumstances from which it appears that the defect ought to have been known and remedied by it, is essential to liability.” v Billon on Municipal. Corporations, II, Secs. 1024 (790), pp. 1046-7-8.
    “A suit for damages resulting from falling over apiece of scantling which stretched, across the banquette of a street, with one end resting on the door-sill of a house-in charge of the defendant, can not be sustained in absence of proof that defendant or his employes placed the scantling there, or knew of its being so-placed.” Ackerly vs. Sullivan, 34 An. 1156.
   The opinion of the court was delivered, by

Breaux, J.

Plaintiff alleges that she was injured on the night of the 26th of November last, between the hours of 8 and 9 o’clock, by a fall occasioned by a plank nailed on a bridge at the intersection of Baronne street by Euterpe street; that in the fall she broke her left arm between the elbow and the wrist, and that she was bruised on her side and hips; that she suffered pains, mental and physical, and was confined to her house about one month under medical treatment.

She claims damages in the sum of $10,000.

The answer is a general denial.

The case was tried by a jury and a verdict was rendered in favor of the plaintiff for the sum of $750.

From this judgment the defendant appeals.

The facts are that plaintiff, who is about forty-five years of age, and who was, at the time, in the enjoyment of good health, received injury in a fall caused by stumbling against a plank nailed on a bridge, which the defendant company obligated itself to keep in good repair, in a contract dated the 11th day of April, 1881.

On the 12th day of December last she notified the defendant of the accident, and of the amount she claims.

There are two parallel bridges over the gutters crossing Baronne street from the sidewalk to the railroad bed.

The gutters covered by the bridges are the continuation on Baronne street of the gutters on each side of Euterpe street.

The plaintiff nearly always passed on the lower side of Euterpe street.

On the night of the 26th of November last she passed on the upper side of that street, and was crossing the upper bridge on Baronne street, when she stumbled and fell.

The plank against which she stumbled and fell was about three feet and a half in length, ten inches wide, and about two inches in thickness.

The plaintiff, as a witness, was questioned with reference to the • accident.

She was alone at the time. She stated that she fell on her arm; after the fall she rose hastily and went on to where she intended to-go. At the time she did not know,that her arm was broken.

The witness also testifies that there was an electric light burning brightly at the corner of the street near which she fell.

She further testifies that she had seen planks nailed on the other bridges, as this was; that if she had looked she could have seen the plank, and adds:

“ I wouldn’t have stumbled against it. I didn’t want to fall.”

Two days after the accident she called in a physician, and was informed by him that her arm was fractured.

It is not proven by whom the plank had been nailed to the bridge.

It was put there to cover a crack on this bridge.

Most of this plank had been worn down by the wheels of passing: carts and carriages to nearly the level of the bridge; that part on which plaintiff stumbled was two inches and one-sixteenths above its level..

Counsel for plaintiff requested the court to charge that the failure of the defendants to call in their employés (to whom was personally entrusted the repairs of the bridge) as witnesses was evidence of the act of negligence charged against the defendant.

This charge was asked on the authority of Day against the Pacific Railroad, 35 An. 694.

The president of the company, who is also the superintendent, testified that he made efforts to ascertain who had nailed that plank, and could not find out who had put it there.

We will first pass upon the refusal to charge as requested.

In the case cited as authority, it is said by the court that the conclusion was fortified by the failure of the defendant to introduce the testimony of any of the employés on the train when the accident happened.

In support of this proposition, the following from Thompson on Negligence, Yol. 1, p. 514, is referred to as an approved authority, by the court, in that case:

‘ ‘ An absence from the trial of the employés of defendant who were on the cars and present at the time of the accident and were witnesses of the injury raises a strong presumption of negligence against the company.”

The case at bar is not similar. It is not shown that the employés knew who nailed this plank or that they had anything to do with it. Inquiry was made by the principal officers' of the company, with reference to this plank. He did not ascertain, he testifies, that the employes knew anything about it.

While municipal corporations and all those entrusted with the keeping of' bridges in good repair should be active and exceptionally careful in the performance of that work, on the other hand those who cross these bridges are not entirely relieved from the necessity of exercising some little care and of giving some attention to their steps.

Damages can not be recovered for all injuries received.

If in the haste of the moment or while the attention is entirely absorbed in thought and meditation an accident' happens, to an unfortunate pedestrian, the fall is not always owing exclusively to the uneven surface.

Most of us are prone to forget that sidewalks and bridges are not always level, and have sometimes suffered severely on account of inattention or forgetfulness; without the possibility of recovering damages.

Plaintiff was not ordinarily careful in crossing the bridge.

There was a bright light near.

She admits that she had seen planks before on other bridges nailed as this was.

That if she had looked.she could have seen it.

The plank was not of extraordinary thickness and was securely nailed on the bridge.

It is not shown by whom it was put on or that the defendant company had notice of the condition of this bridge, or that any complaint was made prior to the accident or that the crossing was at all hazardous.

When the plaintiff, recalling doubtless the pain she endured, sadly says: “I wouldn’t have stumbled against it; I didn’t want to fall,” there is great sine erity in her words and they naturally awaken a sentiment of kindness [and sympathy, but they can not serve to maintain precedents.

It is not possible justly to charge to the defendant that to which plaintiff’s own sad fate has contributed, at least in part.

To hold for plaintiff would be in effect to decide that whenever an accident occurs on uneven sidewalks, or in crossing bridges not level, without regard to the lack of care, damages can be recovered.

It would be to decree, in effect at least, that all bridges and sidewalks should be level, and that nothing about them should be in the least rugged or uneven.

However desirable it may be that all the streets be level, it is not a possibility.

The regrettable accident is not one for which the defendant can be held in damages.

The duty of municipal corporations is only to see that its sidewalks are safe for persons exercising ordinary care and prudence. Dillon on Mun. Oorp. 1019.

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


source: Caselaw Access Project

author: Bermudez, O. J.

license: Public Domain

text:
    No. 10,632.
    Succession of Leon Arlaud.
    An application for the confirmation or appointment of a tutor by nature can not. bo allowed, in the absence of a showing that the certificate of the clerk of court, establishing the amount of the minor’s property, has been recorded in the mortgage book of the Mortgage Office of the applicant’s residence.
    The certificate must be produced to the judge before the appointment can be legally made.
    APPEAL from the Oivil District Court for the Parish of Orleans. Jábíwoe, J.

      H. Ghiapella, E. D. LeBreton and L. DePoorter for the Under-Tutor, Appellant:
    A rule taken against an under tutor is not the proper proceeding- to obtain the-appointment of a dative tutor and under tutor to a minor when family meeting convened for the purpose of advising said appointments has failed to agree in their deliberations.
    2. A family meeting in deliberating- has the prerogatives of a legislative assembly; it is ruled in its deliberations by an absolute majority, and not by the-minority. Laurent, Droit Civil, Vol. 4, p. 573, See. 461; Demolombe, de la Minorite, Vol. 1, pp. 186, 187; Mareado, Vol. 2, p. 309, Sec. 39.
    3. An under tutor, appointed and qualified as such, under C. C. 251, at the instance of a mother claiming confirmation as natural tutrix, can not he removed by an ex parte order of the court from which said appointment emanates, on the-plea of error or prematurity. lie can only bo removed by a direct action. C. O. 306; C. P. 1017.

      4. Court has no power of appointing a dative tutor under Art. 270, C. C., exproprio 'mota, and without the advice of a family meeting. Art. 271, O. 0., has no application, because some one is claiming and willing to accept the tutor-ship of the minor.

      Ambrose Smith, contra,

    cited: C. O. 270, 271, 307; C. P. 957; Demolombe, Yol. 7, 183, et seq.

   The opinion of the court was delivered by

Bermudez, O. J.

The appellant states her case substantially as follows:

Appellant applied by petition to be confirmed as natural tutrix of her minor child, Leah Arlaud, whom she alleges is without a tutor. Her petition was filed in the succession proceedings of Leon Arlaud, her deceased husband, and the facts therein contained are sworn to by ber. Subsequently the • judge rendered a decree refusing to ■appoint her as prayed for, and she has sued out the present appeal. She claims that under Art. 250, R. O. 0., as surviving mother of said minor child, she is entitled to be confirmed as such, and that under Art. 950, R. C. P., she should have been appointed by the court to said trust.

The under tutor, who is appellee, has not opposed her appointment to said trust.

Appellant now prays that the judgment appealed from be reversed, and that she be confirmed as natural tutrix of her said minor child, and that letters of tutorship be ordered to issue to her as such.

The transcript contains no evidence, no bill of exceptions, no statement of facts, no assignment of errors.

The court is called upon to pass upon the issue presented, by considering the petition and the judge’s refusal.

In the absence of evidence, bill, statement of facts or assignment, the appeal might be dismissed, but it is preferable that it be not.

The petition does not allege that an inventory has been made of the minor’s property; that a certificate from the clerk showing that amount has been recorded in the mortgage book of the parish of the petitioner’s residence, and that the recorder’s certificate establishing the registry is annexed.

The provisions of law relied on are controlled by Art. 321, R. O. O., which is a new provision. It requires such a showing from tutors who are not bound to give bond (among whom fathers and mothers) before the judge can make any appointment, or authorize letters of tutorship to be issued. (See Act 95 of 1869, page 114, Sec. 2.)

The District Judge has assigned no reason for refusing to grant the prayer of the petitioner, which was “that she be confirmed as the natural tutrix of her said minor, that she be qualified as such on taking her oath and on complying with all the other legal requisites.”

It is only after the exigencies of the law have been observed that the appointment could be legally made and that letters could legally issue. -This compliance was a condition precedent.

We are left, to the inference that it is because the petitioner did not make a showing of previous compliance with legal requisites that the judge declined to grant her prayer.

Viewing the action of the District Judge as a dismissal for want of a proper showing, and not as a decree excluding the petitioner from the tutorship of her daughter, we can not say that he erred. This court is powerless to grant that which the lower court could not allow.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 10,514.
    The State ex rel. City of New Orleans vs. New Orleans, City and Lake Railroad Company.
    Act No. 183 of 1888, which authorizes mandamus proceedings to coerce specific performances of contractual obligations in certain cases, is not unconstitutional.
    It is a general statute, remedial in character only, divesting no vested rights and impairing no obligation of contract.
    The want of necessary explanation on the part of an obligee, who imposed the conditions which were accepted, will not, when the terms employed are obscure and equivocal, aggravate the burden of the obligor; but the construction most favorable to the latter should be adopted; the more so when the construction is in accord with the mode of execution of the contract by the parties.
    A street is a space dedicated to public use, for the passage and circulation thereon of ordinary driven vehicles and animals, in cities and towns.
    A neutral or middle ground is a strip of land extending betweeu the streets, or thoroughfares, which is not only not used, but prohibited from being used, as a street, and which, not being thus used, does not practically form part of the street proper.
    Under a contract by a city with a railroad company, giving right of way, that the latter shall keep in good order and condition, from curb to curb, the streets, intersections, bridges, etc., through which its tracks pass, it can not bo claimed that the company is under the obligation of keeping in such condition streets on which its tracks do not pass and which extend alongside of, and border on, middle or neutral grounds, dividing them, comprised between curbs or external linos, and which do not form part of thoroughfares, on which vehicles usually circulate.
    The obligation exists only as to such streets and spots on which the tracks actually pass.

    APPEAL from the Civil District Court, Parish of Orleans. King, J.

      SamH L. Gilmore, Assistant City Attorney, for Plaintiff and Appellee :
    3. No default is required as a condition precedent to a suit for the specific performance of a contract. Arts. 1911, 1912,1926, 1927,1932, C. 0.; Reynolds vs. Yarborough, 7 La. 193; David vs. Spurlock, 3 An. 208; Railroad Company vs. Ganallx & Co., 18 La. 510. Pratt vs. Craft, 20 An. 291. •

      2. Putting in default is not required, even m damage suits, when there is an active violation of the contract. Erwin vs. Fenwick, 6 M. ST. S. 230; Morton vs. Pollard, 7 La. 174; Berje vs. Railway Company, 87 An. 470.
    3. Because a suit for a specific performance of a contractus brought in the form of a mandamus proceeding, no putting in default becomes necessary.
    4. Wherever the duty to be performed is of a plain and unequivocal nature, demand and refusal are not required anterior to a mandamus proceeding to compel its performance. High’s Extraordinary Legal Remedies, 203; State vs. City. 41 An. 165.
    5. Whenever the duty to be performed is of a public nature, no anterior dcihand and refusal are required. High’s Extraordinary Legal Remedies, pp. 14, 15; Radway vs. Briggs, 37 N. Y. 256.
    6. The president and officers of the respondent company in this ease have assumed positions tantamount to a refusal to do thejworlc required of the company.
    7. Formal demand was made upon the president of respondent company to do the work sued for in this case.
    8. Act 183 of 1888 allows respondent opportunity to make its defence, and is not therefore, a law depriving respondent of its property without due process of law. Kennard vs. Louisiana, 92 TJ. S. 480; Davidson vs. New Orleans, 96 U*. S. 97; Chicago Ins. Co. vs. Needles, 118 IT. S. 574.
    9. Act No. 183 of 1888 docs not impose upon the respondent corporation a special burden from which other corporations are exempt, in violation of the law of the land. It applies to all private corporations throughout the State having contracts with municipal and parish corporations throughout the State. State vs. O’Hara, 36 An. 96; Cooley’s Const. Lim., p. 390: State vs. Latlirop, 10 An. 402.
    10. Act No. 133 of 1888 is not a local ór a special law. State vs. Dillon, 35 An. 1144; People vs. Supervisors, 43 N. Y. 18.
    11. Act No. 133 is not a special law having the effect of changing the method of collecting debts or of enforcing judgment in a particular class of cases. It does not deal at all with debts, and the execution of a judgment for specific performance by the writ of distringas was provided anterior to its passage by Art. 1927, C. C., and Art. 686, C. I\
    12. Act No. 138 of 1888 does not [impair any of the obligations of defendant’s contract; it docs not even change the remedies the city liadfor the enforcement of the city’s rights thereunder. It only provides a more summary method for the application of these remedies. Tennessee vs. Sneed, 96 CL S. 73; Ourtisvs. Whitney, 13 Wall. 71; Walker vs. Whitehead, 16 Wall. 318; State vs. Bermudez, Judge, 12 La. 352; Baldwin vs. Bennett, 6 R. 809.
    13. A judgment which is not final cannot form the basis of res adjudicóla. C. C., Art. 3556, No. 31; EscurixvS. Daboval, 7 La. 579.*
    14. In order to maintain the plea of res adjudicates there must be an identity of parties, of capacity, of object and of cause of action. State ex rel. Collensvs. Jumol, 30 An. 861; Art. 2286, O. C.
    15. In the interpretation of agreements the words of the contract are to be understood in their common and usual signification, and the intent is to be determined by the words of the contract. O. 0., Arts. 1945, 1946.
    Buck, Dinkelspiel & Hart for Defendant and Appellant:

      On aína Foiwi on Proceeding.
    •Under the general laws and jurisprudence of the State “contract obligations” can not be enforced by means of tlie harsh and Nummary remedy of mandamus. 37 An. 589, City vs. Carrollton R. R. Oo.
    II.
    There is no law to authorize such a proceeding except AetNo. 133 of the Acts of the General' Assembly of 1888. If this act is unconstitutional from any cause whatever; or if to apply it to the instant case were to give it retroactive effect, which it can not have; or if it impairs the rights and obligations of a prior contract, the mandamus asked should be refused.
    III.
    1. If the city elects to avail herself of the provisions of the statute and proceeds by way of mandamus, the suit, although in substance a suit for specific performance of the obligations of a contract, becomes subject to all the forms of trial, pleading, necessity for special and specific demand and default; to rules and provisions of law governing proceedings of mandamus.
    2. Such a suit must be preceded by a definite and specific demand of the particular thing to be done — the doing of which is sought to be enforced by mandamus.

    3. Relator must allege and prove that such demand has been made.
    4. A petition which does not contain such allegation discloses no cause of action and should be dismissed.
    5. In a petition for mandamus the cause of action and the relief asked should be set forth with utmost clearness and particularity, because the defendant is forced to present all means of defence, whether of '“ exception ” or “ answer,” in his return; and where tlie petition is justly open to the exception of vagueness and want of specific and clearly defined demand, etc., such exception should bo maintained and relator ordered to amend or suffer dismissal.
    IV.
    1. Where in a contract between the City of New Orleans and a street railway company, and in the city ordinances which authorize the contract, a particular officer or officers arc designated, whose duty it is to supervise compliance with the stipulations of the contract and to give notice of the work to be done, the notice and demand necessary to sustain relator’s application for mandamus must proceed from such officer or officers.
    '2. "When the officer or officers so designated in the contract are officers of the city created by its charter, tlie law will presume that they are properly performing their duties and functions, and any notice or demand issuing from any other source will be held informal and illegal.
    .3. A “report” made in general terms upon order and instruction from a “special committee” of the City Council to such committee, by the surveyor, of the general condition of the streets, and whether the defendant company had complied with its obligations under its contract, is in no sense a “notice and demand” upon the company.
    4. Nor is the appearance, on notice, before this “ special committee,” of the officers of the corporation, a waiver of “notice and demand” preliminary to suit by mandamus.

      f>. The very nature of the proceeding, the object of which is to compel the doing of a “particular thing,” which must be set out in the final judgment, carries with it the incident necessities of both specific demand and specific allegations. As neither the one nor the other exists in this suit no evidence should have been received until the necessary and proper allegations were made.
    ON TIIE CONSTITUTIONALITY ON ACT 138 ON 1888.
    1. The act of the Legislature purporting to confer on municipal corporations the right to proceed by mandamus to enforce obligations arising from contracts with certain “ corporations,” is null, void and unconstitutional, as
    1. Falling within the prohibition of Art. 46, which provides that no special law shall be passed to change “the method of collecting debts or enforcing judgments in a particular class of cases.”
    2. The Act 188, providing this remedy against corporations only, and not against natural persons who have similar contracts with municipal corporations, is “ special ” or “ class ” legislation, in violation of the letter and spirit of Arts. 46 and 48 of the Constitution.
    '2. A law which substitutes the harsh,summary and exceptional remedy of enforcing* contract obligations, and which provides that the case shall be tried without jury, and in event of judgment that the sheriff of the court take possession of the property of defendant and execute the work ordered by mandamus, is not a law merely changing the remedy, but one taking away substantial rights and imposing* heavier burdens. It affects the real rights of contracting parties and can not be made retroactive upon contracts entered into before its passage.
    8. Such construction'and application of the law would impair the obligation of the contract, in violation of Art. 1, See. 10, No. 1, and Art. 1. Sec. 9, No. 8 of the Constitution of the United States, the supreme law of the land.
    On tiiic Mekits.
    1. Where the writ of mandamus is resorted to to enforce the performance of contract obligations, the evidence must be clear and specific, and the judgment directly responsive to it and the pleading. The writ can not issue in general terms; the act or acts to bo done must be distinctly defined and set forth.
    2. Under her contracts with the City of New Orleans the defendant company owes no obligations on streets-having a “ neutral ground” on which its tracks are laid beyond the “ curbs ” bounding such “ neutral ground.”
    8. The obligation in said contract to keep in repair * * * * “streets through which said tracks pass,” means the streets on which the tracks are laid.
    4. Where, during a period of over ten years since the date of the present contract, and under a prior similar contract of twenty-five years’ duration, no demand has ever been made that the contract stipulations imposed the duty to maintain roadways on both sides of “neutral ground” in good order and repair, such silence will be hold a construction of the meaning of an ambiguous clause adopted by the parties to the contract.
    6. When the terms of a contract are doubtful, the manner in which it has been executed furnishes a rule of interpretation. B. U. 0.1956.
    6. This part of the issue in the case, as to the liability of the company to do work on Canal street, lias been passed on by the Civil District Court, Division “ 0,” in favor of the defendant in the suit of the City of Now Orleans for the use of, etc., vs. New Orleans, O. and L. B. B. Co., and the judgment rendered in that case is pleaded as res adjudícala, to that extent herein.

      7. Whether this plea, technically, be sustained or not, the evidence, especially as embraced in the statement of facts proved in that case between the same parties litigant, sustains the defence that there is no obligation as to the streets bordering on “neutral grounds ” on which tracks are laid.
    8. The obligation to keep streets in repair, etc., assumed by the defendant under contract of October 2,1879, is a contract obligation, and can not be enforced by the harsh remedy of mandamus, unless that remedy was authorized by law when the contract was made.
    9. Where the contract contains stipulations as to the manner of its enforcement these constitute.the law between the parties, and are exclusive of other remedies. New Orleans vs. R. R. 0., 37 An. 589.
   The opinion of the court was delivered by

Bermudez, C. J.

The object of this suit is to compel, by mandamus, the defendant company, in specific performance of alleged contracts, to pht and keep in proper condition the streets, etc., through which its tracks pass within city limits.

In its return the company substantially pleaded that the allegations of the petition are too vague, general and indefinite; that the action is premature; that no proper demand was made to authorize the suit; that the act (No. 133 of 1888) under which the action is brought is unconstitutional for several reasons, one of which is, that it impairs the obligations of the contracts between the parties; that the charges preferred are unfounded; that it has always complied with all its obligations and continues to do so, etc.

From a judgment, overruling the preliminary defence and making the mandamus peremptory, for specified purposes, the company appeals.

In relation to the exceptions, it suffices to say, that the petition clearly discloses a valid cause of action; that there was a proper demand for compliance; that the writ itself is a putting in default, if any was necessary; that the statute attacked is not special or local, but general and remedial only; that it divests no vested rights, and impairs the obligation of no contract. It has already been evoked, and twice enforced. State ex rel. New Orleans vs. New Orleans and N. E. R. R. Co., 42 An. —.

So that the contention is reduced to an interpretation of the direct and assumed contracts, between the parties.

Under the terms of the contracts whereby the right of way was granted, the substantial obligation, assumed by the purchaser, and which is of moment in this controversy is, that the company would keep in good order and condition, from curb to curb, the streets and bridges through which the tracks pass.

The contention is not, whether the company is or not bound to-keep in such condition the streets, etc., on which its tracks pass, but rather, whether the company is or not under such obligations, as to streets, etc., on which its tracks do not pass, and which border on the sides of the middle or neutral ground, which separate them and on which its tracks are laid; such as the streets alongside the strip-of ground between them, on Oanal, Rampart and Esplanade streets in this city.

The theory on which this action is predicated rests on the assumption that the neutral or middle ground forms part of the street, and that the track of the company having been laid on it, they passthro ug the street itself; but the theory at once explodes when it is considered that the strip of ground does not form part of the street proper.

A street is a space dedicated to public use, for the passage and circulation thereon of ordinary driven vehicles, or animals, in cities or towns.

Such was surely the meaning attached to the word, before the time, when street cars were permitted to be run on the streets and such it must have been, in the contemplation of the parties, when they entered into the contracts propounded upon.

Indeed, the neutral or middle ground is not only not used, but is prohibited from being used, as a street, and, not being used thus, it can not be treated practically as a part of the streets, between which it extends. See Act 73 of 1876; 13 An. 320; 26 An. 362; 35 An. 1067; 36 An. 547; 41 An. —.

The evidence shows that, in the exercise of the right of way purchased, the company did not lay its tracks on the side streets themselves, but on the space dividing them, which does not form part of them, as a thoroughfare for the passage and circulation of ordinary carriages and vehicles.

It also establishes that the city has never opposed such use of such ground, and has never called on the company to do any work on such double streets; but that such work has always'been attended to by the^city at its own expense.

The terms employed are clear and free from doubt. Were they obscure or equivocal, the want of necessary explanation on the part-■of the obligee, who imposed the conditions which were accepted, should not render the burden more onerous; but the contention most favorable to the obligor should be adopted; the more so, when the mode of execution justifies this course. R. O. O. 1956, 1958; O. N. 1162.

A careful reading of the stipulation, coupled with the consideration of the interpretation placed upon it by the parties, forces the irresistible conclusion that the space, which in their intent, the company was to keep in good order and condition, is the route through and on which its tracks would pass, extending from curb to curb, or external boundary. No other reasonable signification can be placed on the agreement.

It is therefore apparent that the company is not bound, under its tenor, to perform any work beyond the curbs or lines within which are comprised the neutral or middle grounds, or strips of land, between the side streets on which its tracks have been laid.

The proof shows in what respects the company has been derelict as to ordinary streets, and to some extent as to intersections, bridges and neutral grounds which constitute the route through and on which its tracks pass.

The judgment of the lower court is correct, unless in that portion which makes the mandamus peremptory as to the streets or thoroughfares which extend on the sides and beyond the curbs of the strips of ground in question.

It is therefore ordered and decreed that the judgment appealed from he amended by striking therefrom that portion which imposes on the defendant company the obligation of keeping in good order and condition the sireets or roadways on the sides of the middle or neutral grounds on Canal, Rampart and Esplanade streets in this city, and by rejecting the demand in that respect, and that thus amended said judgment be affirmed at appellee’s cost.


author: Pochb, J. Fenner, J.

text:
    No. 10,580.
    The State of Louisiana vs. Henry Wenger.
    An establishment in the City of New Orleans consisting of a bar room and o a restaurant, at 'which liquors and'refreshments are sold, and to "which customers are attracted by means of free vocal and instrumental concerts, of comical songs, characters and mimicry songs and performances, and similar exhibitions, is liable to a license of $1000 per annum under the provision of Section 10 of Act 101 of 1886.

      PPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Charles Carroll for Plaintiff and Appellee:
    Defendant, having a fixed place at which there are nightly given singing, dancing and variety performances, mimic and character acting and exhibitions, and vocal and instrumental concerts, is liable for a State license of $1000 per annum under Section 10 of Act 101 of 1886. State vs. O’Hara, 36 An. 93; State vs. Schonliausen, 37 An. 42.

      Branch K. Miller for Defendant and Appellant:
    1. The terms of ¡Section 10 of Act 101 of 1888 are as follows: “That for anyplace where can-can, elodoche, or other similar female dancing or sensation performance, or statuary exhibition are shown, or any other fixed place, for either-theatrical, musical, minstrel, concert, dancing or variety performance, exhibition, amusement, or show,” refer to and cover a single subject matter, different phases of which are mentioned by the language used.
    2. The latter part of the quoted languge, reading, “ or any other fixed place, for either tlieatrical, musical, etc.,” means a “place” similar to that spoken of at the commencement of the quotation; and the performances in contemplation are considered as similar in kind to those sot out in the language used before-
    3. Act 69 of 1888 defines a “ concert saloon.”
    4. In construing a statute the prior law, its contemporaneous judicial interpreta - • tion, will bo considered. Bishop on Written Daws, Sees. 82,75, 78.
   The opinion of the court was delivered by

Pochb, J.

This is a proceeding by the tax collector to enforce payment of a State license of §1000 per annum for each of the years 1887, 1888 and 1889, under the provisions of Sec. 10 of Act 101 of 1886. The portion of the section involved in the controversy reads as follows:

“That for any place where can-can, elodoche or other similar female dancing or sensation performance or statuary exhibitions are shown, or any other fixed place for either theatrical, musical, minstrel, concert, dancing or variety performance, exhibition, amusement or show, the license shall be $1000 in cities with a population of more than 25,000, and in cities and towns with a less population the license shall be $500; and nothing in this paragraph shall be construed as licensing or permitting any performance which is prohibited by other laws, ordinances or police regulations. Provided that nothing in'this section shall apply to any respectable place of business already paying a license under the provisions of this act, where free concerts are given for the entertainment of guests by regular organized officers only.”

The defence is a general denial which puts at issue the affirmative allegation that defendant’s business falls within the description contained in the first portion of the section as herein above transcribed, followed by the contention that defendant’s business is protected by the proviso contained at the end of the section.

Prom a judgment in favor of the State defendant appeals.

Prom the preponderance of the evidence, which is conflicting, it ■conclusively appears that defendant’s place of business, 'known under the name of “Wenger’s Garden,” consists mainly of a barroom and restaurant, at which liquors and refreshments are sold, and to which customers are attracted by means of free vocal and instrumental concerts, and other attractive performances therein given.

Besides instrumental music and songs, both by male and female performers, there are exhibitions consisting of comical songs, either solos or duets, motto songs and character songs, in which different typical characters are represented by imitation of national idioms, mimicry of faces and of characteristics of individuals and classes of individuals, by means of mimicry of the expression and appearance of sundry persons, even of those who are in the audience, and by means of rapid and numerous changes of costumes. -

Without goining into the description of other details, many of which had better remain unwritten in this opinion, we are led to the conclusion that defendant’s business is a place at which musical, concert, dancing and variety performances are given, and that, as such, it is clearly liable to the license prescribed in Sec. 10 of Act 101 of 1886.

In support of his second ground of defence, and of the contention that his case is that of a “respectable place of business, already paying a license under the provisions of this act, where free concerts are given for the entertainment of guests,” the defendant has introduced a mass of testimony going to show that his establishment is much more respectable, both in the character of the performances and of its audiences, than several well known “ concert saloons,” situated in this city, and which are admittedly liable to the license prescribed by the section now under consideration.

Even-handed justice to his establishment justifies the statement from us that, in this, he has succeeded, but a careful analysis of the testimony has forced on us the conclusion that he has entirely failed to make out a ease entitling him to the protection of the proviso which he invokes. On this point also details had better be omitted from this opinion.

Entertaining these views, we find it unnecessary to decide many points which are very ably discussed by counsel of both parties, and to judicially determine what the Legislature meant by the expression of concerts “ by regular organized officers only.”

Judgment affirmed.

On Application for Rehearing.

Fenner, J.

We discover no reason to change our opinion on the general merits of this controversy; but one minor issue was so overshadowed by the larger ones that it escaped the attention of the vigilant judge who was the organ of the court.

It is clearly proved by the answers of defendant to interrogatories on facts and articlés, which are not contradicted, that he conducted the business in 188V only from the 8th of October of that year; and Sec. 15 of Act 101 of 1886, contains the proviso, that any person commencing business after the 1st of July shall pay one-half the above rates.”

This necessitates a correction of our judgment by reducing by one-half the amount allowed for license of 1887.

It is therefore ordered that our former judgment affirming the judgment appealed from be amended by now amending said judgment by reducing the principal of the license for 1887 from §640 to §320, and that in other respects said judgment be now affirmed, plaintiff to pay costs of appeal.


author: Fenner, J.

text:
      No. 10,587.
    State of Louisiana vs. Gus. Johnson.
    An indictment under a statute must set forth the particular facts and circumstances which, under the terms of the statute, are essential to constitute the crime charged.
    APPEAL from the Tenth District Court, Parish of De Soto. Sail, J.

      Walter H. Rogers, Attorney General, for the State, Appellant.

      Ghas. W. Mam for Defendant and Appellee.
   The opinion of the court was delivered by

Fenner, J.

The State appeals from a judgment quashing the indictment.

The Act No. 11 of 1882 defines and punishes the offence of resisting or assaulting an officer of the State ‘ while serving or attempting to serve or execute the process, writ or order of any court.”

The indictment charged accused with “assaulting” and with “resisting” an officer of the town of Mansfield, designated as a “constable, marshal and peace officer,” he “being then and there in the due and legal execution of said office.”

Leaving out of view the question as to whether a town officer is an “ officer of the State” within the meaning of the statute, it is. clear that the indictment is fatally defective in not charging that the officer assaulted and resisted was then “serving or attempting to serve or execute the process, writ or order of some court.”

The averment that he was engaged in “ due and legal execution of his office,” might well be satisfied by his engagement in performing other duties thereof not connected with the service of any process of court. “The indictment,” says Bishop, “ought to contain a-complete description of such facts and circumstances as constitute the crime, without inconsistency or repugnancy. In other words it should distinctly specify everything which enters into the offence.”' 1 Bish. Or. Proc., Sec. 509.

“An indictment under a statute ought, with certainty and precision, to charge defendant with having committed the acts under the circumstances mentioned in the statute.” State vs. Stiles, 5 An. 324; State vs. Sheppard, 33 An. 1216.

The indictment here was fatally defective.

Judgment affirmed.


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

text:
    No. 10,530.
    The State of Louisiana vs. Dupré & Hearsey.
    Considering that, under the statement of facts in this case, the making of newspapers is a business; that the process of making it employs machinery and extensive manual labor, and large quantities of physical raw material, which are placed in new combinations, and that the newspaper, when made, is a new and distinct article of commerce, sold by the makers thereof directly to dealers and consumers; considering that such business falls within the reason and motive of the Constitution, which was to encourage enterprises furnishing employment to home labor in the making of things which the people use and require, and which, if not made at home, would be brought from abroad; considering that the Constitution, in Art. 207, uses the term “manufacture” in a broader sense than that attached to it in common parlance, embracing under that term such businesses as boat building, stationers, makers of chocolate, etc.; and considering that the Legislature obviously considered this business, as well as that of book publishers, to be exempt, by expressly enumerating among businesses taxed, “ editors ” and “ agencies for publications,” and making no mention of home publishers of either newspapers or books:
    Held: That newspaper publishers are exempt from license taxation under Art. 206 of the Constitution.
    APPEAL from the Fourth City Court for the Parish of Orleans. Marr, J.

      Charles Carroll and N. B. Boberts for Plaintiff and Appellee:
    1. Publishers of newspapers, though not specially referred to by name in the license law, Act 101 of 1886, are, nevertheless, taxable under See. 12 of that act, which section fixes a rate upon “ all business not herein provided for.”
    2. A newspaper publisher is not a manufacturer. 3 McArthur 412; 1 Utah 47; Norris vs. Commonwealth, 27 Penn. 496.
    3. Words used in á constitution must be taken in their ordinary sense and meaning. Cooley Const. Lim. 58; 5 Md. 337; 32 Miss. 650; 5 Ind. 570 ; 34 Barb. 137; 9 Pick. 310; 4Vt. 540; Story on Const., Sec. 453.
    4. The fact that the constitutional amendment of 1888, extending the term of exemption, adds several industries to the favored list, shows that the list, as fixed in the Constitution, was intended to enumerate and not tq illustrate the enterprises which are exempt.
    5. Exemptions are to be construed strictly. Cooley Const. Lim. 61; 381-397; 528-529.

      Jos. H. and J. Zach. Spearing for Defendants and Appellants,
    cited: 34 An. 596; 35 An. V47; 35 An. 825; 35 An. 1154.
   The opinion of the court was delivered by

Fenner, J.

The State, through her tax collector, claims a license from defendants for conducting the business of “editing, printing, publishing and sending a newspaper called the Daily States.”

This business, though from its nature the most public and universally known of all, is not included in the enumeration of businesses taxed contained in the State license law. The tax collector predicates his claim exclusively upon the concluding phrase of the act, which levies a license on “ all other business not herein provided for.” The omission is certainly significant, as indicating either that the Legislature did not consider this business as taxable, or that it did not intend to tax it. ,

We have held that the legislative power to levy license taxes under Art. 206 of the Constitution, is discretionary and not mandatory, and that the State may abstain from taxing any occupation or calling, if it so desire. City vs. Mulé, 38 An. 826.

The inference that, if the Legislature had intended to tax this particular calling, it would have named it, particularly as it did specifically name the business of “editor,” is very strong; but as defendants have pleaded exemption under Art. 206 of the Constitution, which exempts from license taxation, “manufacturers other than those of distilled liquors, tobacco and cigars and cotton seed oil,” we prefer to rest our decision on that point.

This raises the novel questions whether or not a newspaper is an article of manufacture, and whether those who pursue the business of making or publishing newspapers are manufacturers within the meaning of the Constitution.

The legal meaning of this term, manufacturer, has been more than once considered by us, in this same connection. In one case, we said:

“A manufacturer is defined to be: One who is engaged in the business of working raw materials into wares suitable for use, who gives new shapes, new qualities, new combinations to matter which has already gone through some artificial process. A manufacturer prepares the original substance 4for use in different forms. He makes to sell, and stands between the original producer and the dealer, or first consumers, depending for his profit on the labor which he bestows on the raw material.” City vs. LeBlanc, 35 An. 747; City vs. Ernst, 34 An. 597.

Keeping this definition in view, the statement of facts embodied in this record shows that defendants use in their business valuable machinery and implements; that, in addition to the clerical and editorial departments, they employ a large number of mechanical laborers, such as type-setters, engineers, pressmen and their assistants ; that they purchase and use great quantities of raw materials, such as paper, ink, glue, etc.; that, by means of this machinery and mechanical labor, they convert this raw material into a new and distinct article, fit for use and in commercial demand, called a newspaper, which they sell directly to dealers and consumers.

Certainly, .from a mechanical point of view, this presents all the essentials of manufacture under every definition of the word.

It also comes clearly within the reason and motive of the constitutional exemption, which was to encourage enterprises that furnished employment to home labor in the making of things which the people use and require, and which, if not made here, would be bought abroad.

But because the value of the newspaper is not derived from the raw material, or from the mechanical labor expended upon it, but rather as a mere medium for conveying the ideas and information impressed upon it by the purely intellectual labor of its editors, reporters, correspondents and advertisers, the judge a quo concluded that the newspaper is a product of mind labor rather than of hand labor, and, therefore, is not an article of manufacture.

The suggestion is plausible, but, we think, not sound.

Such a view would deny exemption to a book publisher or manufacturer of books; yet it seems very clear that he would be considered a manufacturer within the intendment of the Constitution. For when we turn to Art. 207 of the Constitution we find expressly exempted from property taxation, capital, étc., engaged in the “manufacture of stationery.” What is “stationery?” Worcester defines it thus: “The goods sold by a stationer, such as books, paper, pens, sealing wax, ink, etc.” He says that “ stationer ” originally was synonymous with book seller, and meant “ one who kept a stall or station for, selling books.” Rut in modern use the term “stationery” probably covers only blank books, account books, etc. Yet the Constitution clearly considers makers of such books as manufacturers; and it is certainly difficult to conceive of any reason or principle that should deny the same quality to the maker of printed books.

Are we to say that a maker of blank books and account books is a manufacturer, but a maker of printed books is not, although the latter employs in his operations much more elaborate machinery and more varied and extensive manual labor than the former? We think not.

Then the argument stands thus: If the maker of blank books and account books is a manufacturer under the express terms of the Constitution, the maker of printed books, employing similar processes, with more machinery and labor, is also a manufacturer; and if the publisher of books is a manufacturer, all the reasons' on which the denial of the same quality to the publisher of a newspaper rests absolutely fail.

That the Legislature took this view seems very clear from the fact that while it mentions “agencies for publications” among the businesses taxed it makes no mention of home publishers; just as it taxes editors, but does not allude to newspaper publishers.

Other illustrations might be given of the fallacy of the view on which the judgment appealed from rests.

Who would deny that an establishment to make, with the aid of machinery and skilled workmen, optical instruments, such as telescopes and microscopes, would be exempt as a manufacture? Yet manifestly the value of such instruments is not derived from the brass, glass and other component materials, nor from the mechanical labor expended thereon, but from the scientific skill and knowledge which, by the power of adaptation and arrangement, gave to them the faculty of conveying to the eye visions of remotest stars or of minutest atoms.

Or, to take a case more homely and more strictly analogous, what would be said of the manufacturer of artistic wall paper, who impresses upon raw material, prepared for the purpose, designs of grace and beauty, invented and traced by his corps of skilled artists?

All manufacturers combine, in greater or less degree, the products of intellectual and of mechanical labor, and in very many the intellectual element confers upon the article produced its peculiar and greatest value. Such is conspicuously the case ■ with a newspaper; but since the making of newspapers is a business; since the newspaper, when made is a new and distinct article of commerce; .since the process of making it requires machinery and manual labor- and physical raw material as -essential and important factors, aggregating, as this record, shows, much the larger part of its cost, we can see no sound reason why such a business does not fall within the letter and spirit of the constitutional exemption as that of a manufacturer.

While we admit that newspaper publishing does not fall within the common usage of the term “manufacture,” the Constitution, Art. 207, attaches a broader meaning to the word by embracing within it the occupations of stationers, boat builders, chocolate makers, etc., which are not ordinarily considered as manufactures, any more than newspaper and book publishers.

We are satisfied that the Legislature took the same view of the subject, and this reinforces our own opinion.

We have nothing to say about- the tax levied on the business of editor, because not here involved. This record does not advise us whether the defendants are, personally, editors at all, and the claim is not based on such occupation, except as an element of the general business conducted by them, which is exempt.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that there be now judgment in favor of defendants, rejecting the plaintiff’s demand and the latter’s cost in both courts.

Concurring Opinion.

Poché, J.

I can not bring my mind to assent to the proposition that the business of printing and publishing a newspaper is a manufacture in the sense of the Constitution, or in any other sense of the word.

This court has held that the business of making and selling ice cream was not a manufacture. In that case the proof was that the defendant used in his business costly and complicated steam machinery, and employed numerous hands and skilled employés, and that the result was the reduction of several raw materials into a commodity fit for use, but the claim to exemption from license was declined by the court. City of New Orleans vs. Mannessier, 82 An. 1076.

The case is stronger against the newspaper business.

But I find no provision in the revenue act to warrant the enforcement of a license tax against the business of printing and publishing a newspaper.

I am confident that it was not within the contemplation of the framers of the Constitution, and that the Legislature industriously omitted to include that business in the enumeration of the large class of callings which are subjected to a license tax. For that reason, which I deem it unnecessary to elaborate, I concur in the decree rendered in this case.

Dissenting Opinion.

Bermudez, C. J.

It is elementary that exemption laws must be strictly construed and that whoever claims an immunity under them, must show himself quite clearly entitled to it. Hence it has been uniformly held that in such instances doubt is fatal.

It is apparent that the case of defendants is far from being a clear one in their favor. It is surely a doubtful one. The lower judge found that they were not entitled to the exemption claimed, and two of the jutices of this court concur with him in opinion.

Indeed, it is impossible to conceive how an establishment for the editing, printing and publishing of a newspaper can be considered under the provisions of Art. 206 of the Constitution a manufacturing enterprise, or a mechanical pursuit.

A manufacture is an establishment in which, by machinery or hand work, raw materials are transformed into wares and undergo new shapes suitable for physical use and commercial purposes.

The definitions relied on to show what a manufacturer or a manufacture is, are taken from 34 An. 596, and 35 An. 747. They announce that the raw material must be worked into wares suitable for use. The word wares means: goods, commodity, merchandise.

The question arises: What are the wares suitable for sale into which defendants work the raw materials employed in their business ?

Those materials i,ome to them already manufactured ready for use. They are not afterward worked into wares and made to undergo any new shape. The paper remains just what it was before, unless perhaps in its size. The ink and mucilage applied to it by diverse processes do not alter its substance or form. The impressions made with the ink on the paper do not change the nature of the raw material and put it into wares and shapes for physical use.

After the paper has been printed upon, it is not used as goods, commodities, merchandise, or for physical want, necessity or convenience.

It is used exclusively as an object for an intellectual purpose.

It may be that an establishment wherein wall paper is fabricated is a manufacture; but it is because the paper is transformed into a ware, an article of commerce, is designed and used for a physical purpose, and in no way for an intellectual object.

It passes strange that since the Constitution has been in force, that is for more than ten years, it never entered the mind of any owner of a newspaper establishment that he was entitled to the exemption claimed in this case. This clearly shows that it never was supposed that the article involved could mean anything of the kind.

The other means of defence resorted to should not avail.

It is clear that persons conducting the business which defendants carry on, though not specially designated by name in the Act of 1886, No. 101, are taxable, under Sec. 12, which fixes a rate upon all business not therein provided for.

The judgment appealed from should be affirmed.


author: Watkins, J.

text:
    No. 10,629.
    The State of Louisiana vs. Etienne Deschamps.
    1. Ordinarily, vlien tlie act is deliberately committed, with a deadly weapon, and is likely to be attended with dangerous consequences, the malice requisite to murder will be presumed. But, as a general rule, it has been held that the presumption which arises from a killing, unconnected with such circumstances of violence, is that of murder in the second degree only.
    2. Since malice can not usually be directly proved, and the evidence of it, therefore, being circumstantial, any facts which go to afford an inference of its existence, are admissible.
    3. When the scienter or quo animo forms an essential or indispensable part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent, notwithstanding they may, in law, constitute a distinct offence.

      L Though generally objectionable, proof of a different crime from the one charged is admissible when both offences are closely linked and constitute parts of the res gestee; and when it is pertinent and necessary to show intent.
    5. As it is permissible, on a trial for murder, to show guilty knowledge, or criminal intent, by making proof of the commission of another crime, either perpetrated or attempted, and which constitutes a port of the res gestee, and for the purpose of showing -intent, further proof of premeditation is unnecessary.

      6.It has often been held by us, that as this court has appellate jurisdiction on questions' of law alone, it will not revise the refusal of the lower court to grant a motion for a new trial, based solely on an alleged deficiency of evidence to make out a case.
    APPEAL from the Criminal District Court for the Parish of Orleans. Marr, J.

      Walter II. Rogers, Attorney General, and Lionel Adams, for the State, Appellee,
    cited: 30 An. 1323; 41 An. 191; Knobloch Crim. Dig. 94.

      Alfred Roman for Defendant and Appellant:
    1. The essential feature of murder is malice. There can be no murder without it.
    2. What the law punishes is not killing, but particular modes of killing, and these must bo averred and proved. Whart. on Horn., Chap. 20, Sec. 669; 30 An. 1823.
    8. A crime is made up of acts and intents, and these must be set forth with reasonable particulars of time, place and circumstances. And they must also be sup - ported by evidence, leaving no reasonable doubt in the mind of the jury. 92 Otto 511; United States vs. Cruikshank et als.
    I. He who uses a dangerous agent must take such care of it as prudent men arc accustomed to apply. If, from his neglecting to exercise such care, death ensue to another, he is liable, not for murder, but for manslaughter. Whart. on Horn., Chap. 1, See. 87.
    5. He who administers poison negligently to another, causing death, is guilty of manslaughter, and it is sufficient to establish negligence in this respect, that he ought to have known the pernicious character of the drug he administered. Whaxt. on Horn., Chap. 1.
    6. Whore a homicide is unintentionally committed when in the performance of an unlawful act, the offence is manslaughter. Whart. on Horn., Chap. 3 Sec. 61.
    7. A man who, in order to have sexual intercourse with a girl uses artificial means, with her consent, to make such intercourse practicable, in consequence of which she dies, is guilty of manslaughter. Whart. on Horn., Chap. 3, See. 68.
    8. The indictment must contain an allegation of every fact essential to the punishment of the crime charged. 1 Bish. Crim. Prac., Sec. 81.
    9. The crime the indictment speaks of must be well defined, and the court and jury can take into consideration nothing except what is specifically charged in the indictment. 1 Bish. Crim. Prac., Sec. 81.
    10. The accused should know what he is charged with. If charged with murder the evidence submitted on the trial must tend to show murder, and not other crimes- independent of and not necessarily included in or forming part of murder.
    II. The indictment must be sufficiently specific and descend sufficiently into detail o define the particular offence, transaction and thing;.in other words, to onder thorn certain. 1 Bish. Crim. Prac., Sec. 825.

      12. Every fact ■which is an element in a prma facie ease of guilt must be stated; otherwise there will be at least one thing which the accused person is entitled to hnow, whereof he is not informed. That he may be certain what each thing is, each must be charged expressly, and nothing left to intendment. 1 Bish. Grim. Prac., Sec. 519; see also Secs. 509, 518.
    13. What is not charged in an indictment does not exist; and it is the business of the pleader to exclude by proper averments the conclusions to which the accused is thus entitled. Means vs. Commonwealth, 2 Grant, pp. 385, 887.
    14. The allegation must descend far enough into the particulars and be sufficiently certain in its frame of words to give the defendant reasonable notice of what is meant. 1 Bish. Crim. Prac., Sec. 98 a.
    15. The accused shall enjoy the right to be informed of the nature and cause of the accusation. The nature and cause of an accusation are not stated where there is no mention of the full acts, or series of acts, for which the punishment is to be inflicted. 1 Bish. Crim. Xhae., Sec. 88; La. Const., Art. 8; see also 1 Bish. Crim. Prac., Secs. 79, 81, 84, 86, 87,110,131.
    16. When several offences are charged in one count, they must be necessarily so connected as to constitute but one crime, and be included in one another. State vs. Taylor, 35 An. 835; State vs. Ifontenette, 88 An. 61; State vs. Henrichs, 38 An. 682; 1 Bish. Crim. Prac., Secs. 417, 433.
    17. Rape is not murder. Sodomy is not murder. One may be guilty of murder and not of sodomy, and nut of rape, and vice versa.

    18. Where felonies charged in an indictment are not repugnant, but are construed on different sections of the same statute, and grow out of the same transaction, they may be joined, when charged in sepan'ate counts. State vs. Cazeau, 8 An. 114; Whart. Grim. PL, Secs. 290, 291.
    19. An indictment is not vicious for duplicity because two distinct offences arc charged therein, provided they be in separate counts; nor is it even necessary that they be of the same class of offences, if charged in separate counts. 35 An. 58.
    20. A defendant ought not to be convicted of the offence charged simply because he has been guilty of another offence. Hence, where offered simply for the purpose of proving his commission of the offence on trial, evidence of his participation, either in act or design, in commission or perpetration, in other independent crimes, can not be received. Whart. Crim. Ev., Sec. 30.
    21. Where separate pleas are tendered at the same time in an indictment, and they involve separate and distinct offences, they must be tried separately. State ex rel. vs. Edwards, Judge, not yet reported.
    22. An indictment under a statute must set forth the particular facts and circumstances, which, under the terms of the statute, are essential to constitute the crime charged. State vs. Johnston, not yet reported.
   The opinion of the court was delivered by

Watkins, J.

This is the defendant’s second appeal from a verdict and judgment sentencing him to the extreme penalty of the law for the commission of the crime of murder. 41 An. —.

The grounds on which the reversal of the judgment is demanded, are: first, that certain testimony was improperly admitted; second, that the court below improperly declined to give certain requested special charges to the jury; and third, that his' application for a new trial was illegally refused.

I.

The first bill of exceptions to which our attention is attracted is-that in reference to the testimony of the coroner who was called and interrogated as a witness on the part of the State.

The objections to the coroner’s statement as a witness are: first, that it is irrelevant to the issue; second, “ that its tendency was to prejudice the accused before the jury;” and third, that it tended to establish the perpetration of another and different crime than the one charged against the accused, and which was not necessarily included therein.

To these objections the trial judge replied that “in all cases of ■homicide, even when it is not absolutely necessary to prove the condition of the body of the deceased in order to ascertain and determine the cause of the death, and the instrumentality, means and agencies by which death was accomplished, such testimony is admissible to-show whether or not the killing was by the use of means and agencies prepared in advance, and dangerous to human life. Such testimony is also admissible to show motive, and whether the killing, intentional or unintentional, was done while the accused was engaged in doing some other unlawful or felonious act.” 'He therefore considered the testimony competent, and admitted it over defendant’s, objection and exception.

In thus ruling, we think the judge’s decision was undoubtedly correct. The simple proof of a homicide is insufficient to establish the crime of murder. Some proof must be first affirmatively made, on the part of the State, of the existence of malice in the heart of the perpetrator of the act, in order to put the accused upon his defence.

Ordinarily, when the act is committed deliberately, with a deadly weapon, and is likely to be attended with dangerous consequences, the malice requisite to murder will be presumed. But, as a genei’al rule, it has been held in different States, that the presumption which arises from a killing, unattended with such circumstances of violence, is that of murder in the second degree. And as under our law there are no grades or degrees in the crime of murder, the simple proof of a killing by the accused, unattended by any circumstances of malice, could raise no stronger presumption against him than that of manslaughter. 2 Whar. Orim. Law, Sec. 952.

But there are many circumstances from which malice may be inferred other than the use of a deadly weapon; and Mr. Wharton instances “prior attempts to injure, though in other ways.” 2 Whar. Crim. Law, Sec 954.

The same author says:

“ Since malice can not usually be directly proved, and the evidence of it, therefore, being circumstantial, any facts which go to afford an inference of its existence, are admissible.” 2 Whar. Crim. Law, Sec. 956.

The same author announces the rule to be that:

“Where the scienter or quo animo forms an essential or indispensable part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent t * Notwithstanding they may in law constitute a distinct crime.” Whar. Homicide, Secs. 701, 702.

Bishop puts the principle thus tersely:

“The proof of criminal intent and of guilty knowledge, not generally admitting of other than circumstantial evidence, may often be aided by showing another crime, attempted or perpetrated; and, when it can be, it is permissible.” 1 Bishop’s Orim. Proc. Sec. 1126.

In treating of what is admissible in' proof of res gestee the same author says:

“ Therefore, if two or more offences are committed in one transaction, all the transaction — that is; all the offences — may be given in evidence on the trial for one. And all the res gestee may be shown, though the transaction is a continuing one, or done in parts on different days.” Bishop’s Crim. Proc., See. 1125.

Our predecessors recognized and enforced this precept of criminal law in State vs. Patza, 3 An. 572, the rule being stated thus:

“ The general rule is, as stated by counsel for the accused,- that no evidence can be given of other felonies committed by the prisoner than that charged in the indictment. To this rule, however, there are exceptions, one of which is where it becomes material to show the intent with which the act charged was done. Evidence may be-given of a distinct offence not laid in the indictment.” See also State vs. Thomas, 30 An. 600.

We have maintained the right of the State to offer such evidence as is here objected to in a recent and conspicuous case, State vs. Vines, 34 An. 1081, in which we said:

“ Proof of a different crime from the one charged, though generally objectionable, is admissible when both offences are closely linked or connected, especially in the res gestas, and also when such proof is pertinent and necessary to show intent.” State vs. Mulholland, 16 An. 377; State vs. Rohfrischt, 12 An. 382.

On this summary of authority we can safely rest our conclusion as to the correctness of the ruling complained of by the accused.

II.

The defendant’s counsel requested several special charges which were refused by the trial judge, which we will consider separately.

(а) That no evidence tending to establish the commission of other offences not connected with the charge of murder, and not growing out of such charge, should be considered by the jury in forming their verdict in this case.

To this request the judge responds that it proceeds upon the hypothesis that there was evidence before the jury tending to establish the commission of other offences not connected with the charge of murder; but he says “ there was no evidence before the jury respecting the commission of any offence by the accused, which was not connected with the charge of murder, and which did not tend to show that the killing 'was done while the accused was engaged in the commission of an offence which was a felony.”

On this statement of fact, the requested charge would have been misleading and superfluous if made, and the judge properly refused to give it to the jury.

(б) That should the jury believe from the law and the evidence, that the accused, being of sound mind, caused the death of the deceased in an unlawful manner, though not against the will of the latter; and should the jury also believe that the result of the defendant’s act showed negligence or gross imprudence, but no premeditation, no preconceived design to kill, and therefore no malice on his part, it -would be the duty of the jury to find for manslaughter but not for murder.

The judge declined to give this special charge, on the ground that it was not a correct exposition of the law; insisting, on the contrary, that if the killing was shown to have been done while the accused was engaged in doing an act, which was itself a felony, the absence of proof of premeditation or preconceived design to kill the deceased is insufficient to reduce the crime to manslaughter. He supports that view by reference to his written charge, in which similar ground is taken, viz:

If the jury believe from the evidence, and are satisfied that the deceased come to her death from any drug, or potion, or intoxicant furnished by the accused, fox the purpose of depriving her of consciousness, or volition, to enable him, thereby, to have either sexual or unnatural intercourse, and not for the purpose of causing death; yet if, in the perpetration of such unlawful design, death ensue, such act is murder.”

This requested charge is but a supplement to the objection'urged to the admissibility of evidence discuss'ed in paragraph first; for,' if it be permissible on a trial for murder, to show the guilty knowledge and criminal intent by making proof of the commission of another crime, attempted or perpetrated; if more than one offence may be proved to have been committed by the accused when the two transactions constitute parts of the res gestee; if it be an exception to the general rule that where it becomes material to show the intent with which the act charged was done, evidence may be given of a distinct offence,' not laid in the indictment, what becomes of the proposition that other proof of premeditation should be administered, in order to make out a case of murder?

As we understand the proposition argued and determined, it is that such proof' is admissible for the purpose of showing premeditation and malicious intent; or, that if offered and received, the proof of the commission of such contemporaneous crime, forming, as it does, a part of the res gestee, would be accepted as sufficient proof of malice. Certainly, no argument can be required in support of the proposition, that a homicide committed by an accused, while he is actually engaged in the perpetration of a known felony, such as rape' or sodomy, is murder.

(c) That if the jury should believe, from the law and the evidence, that the accused is guilty of felonious homicide, but that at the time of the commission of the offence he was suffering from such mental disease or such delusion that it overpowered his will and rendered him unable to distinguish between right and wrong, as to the act actually committed, or made it impossible for Mm to elect betweeu right or wrong, and that no reason or rational cause or motive for the perpetration of the deed is shown to have existed; and that furthermore, the evidence adduced on the trial shows no ill will, or malevoleance, or evil intent on the part of the accused as against the deceased, the prisoner can not be found guilty of murder.

The judge assigns as reason for refusing to so charge the jury that there was no proof offered with respect to the mental condition of the accused at the time of J or previously to the perpetration of the crime charged. No evidence to that effect is found incorporated in the transcript. None is adverted in the defendant’s bill of exceptions. How, then, was it possible for the jury to have- believed “from the evidence'1 ’ that the accused was suffering from mental disease or delusion sufficient "to have overpowered his will and rendered him unable to distinguish between right and wrong at the time he did the fatal act? Of course they could not, as there was no such evidence adduced. On the contrary, the judge states that the coroner swore that the accused was sane before and after the homicide.

As the assumed insanity of the accused is the gravamen of the charge requested, and there was no such proof adduced, we need not prosecute this inquiry further; for it is an elementary precept of our criminal jurisprudence that a court can not be required to charge the jury in matters of law, upon a point which does not arise in the case, and which is not applicable to the facts in evidence. State vs. Moulton, 34 An. 489; State vs. Thomas, 34 An. 1084; State vs. Riculfi, 35 An. 770; State vs. Garic, 35 An. 970; State vs. Hamilton, 35 An. 1043; State vs. Milton, 37 An. 77; State vs. Ford, 37 An. 443; State vs. Lobuzan, 37 An. 489; State vs. Summers, 38 An. 41; State vs. Perranaux, 39 An. —.

(d) That in circumstantial evidence, every necessary link in the testimony, and every material and necessary fact upon which a conviction depends must be proven beyond a reasonable .doubt, and that, if any of the facts or circumstances established be inconsistent with the hypothesis of guilt, that hypothesis can not be true.

To this request the judge inadvertently assigned no answer; but as counsel in his brief has made no mention of it, we will pass it by with out discussion. We referred to it merely for the purpose of exhausting the grounds assigned in defendant’s bill of exceptions.

hi.

The grounds of the application for a new trial are (1) that the verdict of the jury is contrary to law and evidence; (2) the jury disregarded the evidence submitted to them, and rested their verdict, apparently, on the evidence given on a former trial; (3) that the jury were swayed by the specious theories of the coroner, who was, against defendant’s protest, allowed to testify upon matters extraneous to and not connected with the charge in the indictment.

It is against elementary principles and in-the teeth of a special statute to claim that we can consider, for the purposes of the allowance vel non of a new trial, the evidence adduced before the jury, on the issue of guilt or innocence of the accused. That question has passed beyond the domain of discussion in this court. State vs. Sieley, and cases cited therein.

It has often been held by us, that as this court has appellate jurisdiction on questions of law alone, it will not revise the refusal of the lower court to grant a motion for a new trial, based solely on an alleged deficiency of evidence to make out the case. State vs. Hopkins, 33 An. 34: State vs. Crowley, 33 An. 782; State vs. Young, 34 An. 346; State vs. Disken, 35 An. 46; State vs. Riley, 37 An. 5. State vs. Taylor, 37 An. 40; State vs. Hahn, 38 An. 169; State vs. Smith, 8 An. 301; State vs. Bockorow, 38 An. 316; State vs. Bates, 38 An. 491; State vs. Bud, 38 An. 497; State vs. Broussard, 39 An. 671.

The discretion of the District Judge can not be disturbed on the showing made.

This completes the review of the nunerous points made in this case, and our conclusion is, that the trial was regular in every particular, and no error is apparent from an inspection of the record.

The counsel who was appointed to represent the defendant has represented him with signal ability, and we are very much indebted to him for his exceptionally able and exhaustive brief. •• But on the record, as presented to us; there'is nothing which entitles the accused to relief at our hands.

Judgment affirmed.


text:
    No. 10,622.
    The State of Louisiana vs. Robert H. Palfrey et als.
    In ease a trial judge shall state, in a bill of exceptions reserved by counsel for an accused person, that ho has substantially given to the jury certain requested special charges, and the proof adduced on a motion for a new trial discloses that in point of fact the judge has accidentally failed to thus charge the jury, either in terms or substance, justice requires that a new trial should be ordered.
    PPEAL from the Twenty-first District Court, Parish of Iberia. Mouton, J.

      Walter JR. Rogers, Attorney General, for the State, Appellee:
    “ When two or more are jointly indicted for murder, evidence tending to show a conspiracy between them is admissible although the indictment does not expressly charge a conspiracy in formal terms.” 37 An. 443.
    In a conflict of statement between court and counsel that of the court will be accepted.
    A motion in arrest of judgment only lies for defects apparent on the face of the record.
    A juror will not be heard to impeach his verdict.

      Joseph A. Breaux, Robert F. Broussard and Foster & Mentz, for Defendants and Appellants,
    cited: Wharton’s Orim. Evidence, Sec. 698; State vs. Smith, 30 An. 157, and State vs. Buchanan, 35 An. 89.
   The opinion of the court was delivered by

Watkins, J.

The several defendants were jointly indicted for murder, convicted of manslaughter, and from judgment and sentence thereunder have appealed.

I.

During the progress of the trial defendants’ counsel insisted, first, that the State must prove the existence of a conspiracy before she can introduce in evidence the declarations of one of the alleged co-conspirators-as against others; second, that a proper foundation must first be laid. The ruling of the judge was made the subject of a bill of exceptions, and defendant’s counsel contend that while admitting the force of the rule the judge reversed it, and admitted in evidence the declarations of some of the parties as against others to prove a conspiracy. But this is refuted by the judge, who states in the bill that ‘ ‘ the evidence was offered by the State to show conspiracy, and in order to lay the proper basis for the introduction in evidence of the subsequent declarations made by the parties accused.”

II.

Counsel further objected and excepted, first, that the declarations or admissions of one person are not admissible in evidence against another person, who is jointly indicted, unless the indictment charges a conspiracy; second, that the declarations or confessions of an alleged co-conspirator made after the accomplishment or abandonment of the common enterprise could not be received in evidence as against others. The court overruled the objections to the testimony on the grounds “that the declarations sought to be proven are the statements of each individual accused as to himself; that the evidence is not received of the declaration of one to have effect against the others, but are received against each, in so far as it may affect him and not the others.” Of this ruling we can perceive no well-grounded complaint.

III.

.On the trial the defendant’s counsel requested the court to charge the jury, first, that the declarations of one of the alleged co-conspirators made after the homicide are not admissible in evidence against others jointly indicted, if the indictment does not charge conspiracy; second, that the declarations of one conspirator made after the purpose of the conspiracy has been accomplished are not admissible against others jointly indicted.

The court refused to so charge the jury on the grounds following, viz:

“ After a full and exhaustive charge on all laws connected with and applicable to the case, or any of the facts of the case, the defendant’s counsel requested the aforesaid special charges; and “I carefully read both the written requests and proceeded to give to the jury instructions on the point as a whole. After completing the charge the jury was ordered and taken to their room of deliberation, counsel not insisting on anything more than what I had stated, suggesting nothing more, and in no way complaining to me. After the jury had retired * * counsel then arose and said, we reserve a bill to the court’s refusal to charge as above.’ ” The court then proceeds to state that, in point of fact, it “ never did refuse to charge on the points stated, and it felt satisfied that in the charge given to the jury ample and sufficient instructions had been given on all laws relating to the cause on trial. The court had specially charged the jury in relation to declarations and confessions of parties jointly accused, and (under the facts of the case) had, in so many words, instructed them that the declarations of each or either as to the commission and perpetration of the crime charged was evidence against the party who made the declaration or confession, alone,” etc. .

The judge thus substantially answered the objections urged by counsel. It has been held that “ when a judge has already charged the jury on a given matter, and the prisoner, among his requests of charges made thereafter, includes the matter already charged, the judge may well refuse to repeat it.” State vs. Boasso, 38 An. 202.

But it is the contention of counsel that the judge was in error in stating that he had, in substance, given to the jury the charges requested. But on the /ace of the bill of exceptions there is nothing to show whether the judge or counsel is correct.

Counsel of defendants freely admit the force of the rule by us repeatedly announced, that ‘ ‘ in considering bills of exception which contain conflicting recitals by counsel, and by the trial judge (we) will be guided by the statements of the judge.” State vs. Waggoner, 39 An. 920; State vs. Young, 40 An. 483.

IV.

The defendant’s counsel filed an extended motion for a new trial, the point of which is that the judge misdirected the jury, and failed to give them proper instructions as matter of fact in reference to the testimony adduced, and particularly with reference to such part of the evidence as is covered by the bills of exception above enumerated, and whereby the jury may have been unduly influenced against them.

Amongst other things the following are specified, viz: first, that the jury were not warned to disregard the alleged declarations and confessions of some of the accused parties, made after the homicide had been committed, and the judg e did not, in the presence and hearing of the jury, limit and restrict the effect of the evidence, as he assigned in the bills of exception; second, that in point of fact the judge did not instruct the jury as requested by them, and as set out in their bill of exceptions, which is discussed in paragraph three, and they gave weight to and consideration of illegal evidence which influenced their verdict.

The motion covers the point raised on the third bill of exceptions, and raises the question of fact whether the judge, in reality, gave the requested special charges. On the trial thereof testimony was introduced, and inter alios, a sworn copy of a stenographic report made of the charge actually given to the jury, and which was made at the request of defendants’ counsel at the time. An attentive perusal of it discloses the fact that the judge failed, in words or in substance, to charge the jury as requested.

As a witness, the judge says: “I do not now remember whether or not, when the exceptions marked two and three were signed, * * * the jury were still in their room. * * * Since having examined the notes which I had taken in the case, whilst it was being tried, I find that the special charge alluded to by counsel in bill No. 4 were not given, because in the rulings made at the time in bills two and three my notes indicated that these reasons had already been stated.”

From the copy of the stenographic report of the charge, and the judge’s admission as a witness, he made the statement quoted from bill of exceptions, under a misapprehension of fact, arising from his accidental omission to follow his notes in giving an oral charge to the jury, and one of great length. We think the jury may have been prejudiced thereby, and that a new trial should have been allowed the accused.

It is therefore ordered and decreed that the verdict and judgment appealed be set aside, and the cause be remanded to the lower court, and to be therein proceeded with according to law and the views herein expressed.

Mr. Justice Breaux, having been of counsel, recuses himself.