source: Caselaw Access Project

author: Miller, J. Watkins, J. McEnery, J.

license: Public Domain

text:
    No. 11,766.
    The State vs. L. O. Desforges.
    On the charge of attempting, by persuasion, to prevent a witness from testifying on an investigation by a grand jury, it is not error that the State witness, in proving the persuasion, was permitted to testify over the objection of the accused, that in the conversation in which the persuasion was used the character of the grand jury proceeding was introduced by the accused, and, to some extent, discussed; that discussion being linked with the persuasion, so that the testimony objected to was requisite to show the nature of the persuasion and the motive of the accused in using it. 1 Greenleaf on Evidence, Secs. 51,52.
    On such charge the proof was relevant that when the persuasion was used the grand jury investigation in contemplation, was known to the accused; that he also knew the p^rty sought to be persuaded not to testify was a material witness in that investigation, and the proof that the investigation resulted in indictments is also pertinent.
    If, to make the persuasion effective, the accused made a false statement, as, for instance, he had been sent to request the witness not to testify, testimony of the falsehood part of the persuasion is admissible.
    The instruction to the jury that under the State Constitution they are judges of the law and fact; they must ascertain the facts from the testimony, apply the law as given by the court, and that they can not rightfully disregard the instructions of the court on the law, affirms the weight due to the instruction; the moral obligation o¡ the jury to respect the charge, and although “must’ is used, the charge, as a whole, is in substantial accord with our jurisprudence. Constitution, Art. 168; State vs. Johnson, 30 An. 905; State vs. Cord, 37 An. 465; State vs. Cole, 38 An. 846.
    The section of the Revised Statutes under which the accused was indicted punishes the attempt by persuasion, to prevent a witness in a criminal case, in any stage of the prosecution, from appearing or testifying. Revised Statutes, Sec. 880.
    T'o constitute the offence under such section it is not essential there should be pending a criminal case in the technical sense, nor that the witness on whom the persuasion is attempted should be under a summons to appear; it suffices there is in contemplation an investigation on appropriate indictments by the grand jury, of which the accused has knowledge, it being known to him also that the party sought to be persuaded not to testify is a material witness in aid of such indictments, and that with such knowledge such persuasion is attempted by the accused. Ibid., 41 An. 341.

      McJinery,on Application for a ¡Rehearing. — Courts can not, on the theory of mischief intended to be prohibited, enlarge statutes beyond the fair significance of the language employed, but a statute must have a construction commensurate with its manifest object.
    The “stages” of the prosecution include the investigation by the grand jury, which results in finding the bill; hence, if the persuasion is used to prevent the witness from going before the grand jury, the investigation before that body is a stage of the prosecution in the sense of the statute.
    If the attempt is to prevent the witness from testifying in a contemplated investigation before the grand jury, resulting in the finding of the indictment, the offence is accomplished, though the case, in its technical sense, does not exist until the indictment is found. When that occurs the case may be deemed to relate back to the initial step, thofindingof the grand jury.
    APPEAL from the Criminal Disirict Court for the Parish o Orleans. Ferguson, J.

      E. A. O’Sullivan and Jas. G. Walker for Defendant and Appellant:
    I.
    An indictment charging an attempt, by persuasion, to hinder and prevent a witness from appearing and testifying, should set forth that there was a “criminal case,” or “charge,” or “ prosecution,” or investigation pending at the time when such attempt was made; also before what court, magistrate or grand jury the criminal prosecution was pending. R. S. 880; State of La. vs. Taylor, 44 An. 967; State of La. vs. Tisdale, 41 An. 338.
    The allegation that certain bills of indictment for felony and bribery were intended, and about to be preferred against certain councilmen of the city of New Orleans, is not equivalent to the necessary averment, in substance, that a “criminal case,” or “charge,” or “prosecution,” or investigation waspending at any stage of the prosecution from .making the oath in any order to obtain a warrant of arrest to the final trial inclusive, at the time it is alleged such attempt to hinder and prevent was made, according to the statute. R. S. 880.
    The indictment should recite in what parish of this State, or elsewhere, such criminal case, charge, prosecution or investigation was pending at the time of the alleged attempt.
    Although it is not necessary that a person be actually summoned to constitute him a witness, it should be clear in the indictment that the person upon whom the attempt to hinder and prevent was made was actually a witness in a criminal case of proceeding, etc., pending at the time, etc., and not leave this fact to intendment or inference; also where or before what court, magistrate or grand jury he was to appear and testify.
    II.
    It is true, a person may be a witness without being summoned, in the sense that he has knowledge respecting the facts connected with a “ criminal case,” but to constitute a witness in the sense contemplated by the provisions of R. S. 880, upon whom an attempt may be made to bribe or prevent him from appearing and testifying, it is necessary that such criminal case be pending “ at some stage of the prosecution, from making the oath in any order to obtain a warranty of arrest to the final trial inclusive.” State vs. Taylor, 44 An. 967; State vs. Tisdale, 41 An. 338.
    R. S. 880 does not create any such offence as an attempt by persuasion to hinder or prevent a witness from appearing or testifying in a criminal case; the only “ attempt” therein denounced'and made penal is an “attempt to bribe a witness ” in a criminal case, in any stage of the prosecution, from, etc., to prevent him from appearing and testifying.
    R. S. 880 is a reproduction of See. 1 of the Act of 1869, p. 63, minus the title, which does not include the word “ attempt; ” it is only the actual prevention of a witness by persuasion from appearing and testifying that is made punishable by the statute. Therefore there is no case against the accused unless he be charged in the indictment and it be proved by the evidence that the witness, Charles Marshall, was actually prevented from appearing and testifying as a witness.
    Persuasion is not per se an attempt, and does not amount to an attempt in any case, except it be made such by express statutory enactment, controlling reason and authority; nor is persuasion expressly defined or declared to be an attempt by the provisions of R. S. 880. At common law, solicitation to commit crime is indictable as solicitation, not as an attempt. Reporter’s note to Stabler vs. Com., 40 Am. Rep. 656, from 95 Penn. St. 318; Wharton Cr. Law, 9 Ed. 170; State vs. Bailer, 26 W. Va. 90; 53 Am. Rep. 66; Com. vs. Randolph, 146 Penn. St. 83; 28 Am. St. Rep. 782; Smith vs. Com., 54 Penn. St. 209; 93 Am. Dec. 688; Hawkins c. 74; State vs. Butler, 8 Wash. St. 194; 40 Am. St. 900; Cox vs. People, 82 111. 191.
    III.
    R. S. 880 does not prohibit the act of preventing, or the attempt to prevent a witness from appearing and testifying by persuasion, but inflicts a punishment only after a person is convicted of the act of preventing, by persuasion, a witness from appearing and testifying; the said section imposes a penalty, but does not prohibit, and is therefore nugatory, as in case of a law which prohibits an act without providing punishment for the act when committed.
    IV.
    The allegation in the indictment that certain bills of indictment “ were intended and about to be preferred for felony and bribery against certain councilmen of the city of New Orleans, and that the accused knew that Charles Marshall was a witness therein,” does not authorize the introduction of affirmative proof to show that an investigation was pending relative to charges against other councilmen of the city of New Orleans for other crimes not referred to in the indictment, wherein said Charles Marshall is not alleged to be a witness.
    And it is reversible error if the court go beyond the issue of the pleadings, outside the terms of the accusation against defendant, and instruct the jury * * * “ but the jury must be satisfied from the evidence, beyond a reasonable doubt, that a prosecu - tion was actually pending against one or more councilmen referred to in the indictment wherein Charles Marshall was a witness, or an inquiry as to the commission of crimes by members of the council of the city of New Orleans was being actually made by the grand jury, and that the accused did at the time attempt to hinder and prevent him from appearing, and' to testifying as a witness therein, in any of the stages of the said prosecution from making the oath or affidavit in order to obtain a warrant for the arrest of said councilmen, or either of them, until the said bills of indictment were preferred, while such investigation was still on foot.” Such charge extends the scope of the jury’s inquiry to matters and crimes not referred to in the indictment, including crimes other than felony and bribery, and against other councilmen than those referred in the indictment, and wherein it is not alleged that Charles Marshall was a witness.
    V.
    And it is error, excepted to before the jury retired, that the court below, just before instructing the jury according to the charge just stated, also instructed as follows, in a manner altogether inconsistent and contradictory thereto: “I charge you, gentlemen of the jury, that it is not requisite, in order to constitute the crime charged in the indictment, that a criminal prosecution should actually be pending before the grand jury at the time of the alleged unlawful attempt by the defendant to prevent, by persuasion, the witness, Oharlcs Marshall, from appearing as a witness before said body.”
    And further error, that the court refused to charge in the same connection, “ that the jury must be satisfied from the evidence, beyond a reasonable doubt, that a prosecution was actually pending against one or more councilmen referred to in the indictment wherein Oharles Marshall was a witness, and that the accused did at the time attempt to hinder and prevent him from appearing and testifying as a witness therein in any of the stages of the said prosecution from making the oath or affidavit in order to obtain a warrant for the arrest of said councilmen, or either of them, until the said bills of indictment were preferred.
    And because the court refused to charge:

      “The jury must be satisfied from the evidence, beyond a reasonable doubt, that an investigation relative to bribery and corruption charged against the councilmen of the city of New Orleans, referred to in the indictment, was actually pending before the grand jury at the time of the alleged attempt to prevent the witness, Oharles Marshall, from appearing and testifying therein, and that said Oharles Marshall was a witness in said proceedings.”
    After the court has allowed to.go to the jury, over the defendant’s objections, evidence introduced by the State, and excepted to, that he and others, members of the city council, engaged in a purpose for which they were separately indicted in other cases, to induce the prosecuting witness to pay money to favor his petition for privileges, and also testimony to falsify defendant’s representations to the witness at the time it is alleged he attempted, by persuasion, to prevent him from appearing and testifying, the court should not refuse to instruct the jury as requested in defendant’s behalf: “ I charge you, that the ac-cured is on trial for having violated Sec. 880, relative to prevent a witness from appearing and testifying as a witness; he is not charged either with bribery or perjury, and no charge of bribery or perjury can be entertained.” It is reasonable, pertinent and appropriate to request such charge, as cautionary; and it is unreasonable to refuse it, because it could not by any means injure the case for the prosecution.
    VI.-
    It is error to charge the jury, as excepted to in defendant’s behalf that they “must apply the law which has been given to them by the court.” The rule in the Spencer case is that the judge must charge the jury subordinately to the powers of the jury. State vs. Spencer, 45 An. 1; State vs. Hannibal, 37 An. 619; Brown vs. State, 6 Baxter (Tenn.), 425; State vs. Tally, 23 An. 677; State vs. Jurche, 17 An. 71.
    VII.
    R. S. 880 makes no discrimination as to witnesses who are hindered and prevented from appearing and testifying whether they are material or otherwise, or whether they know much or little of the facts concerning criminal eases wherein they are witnesses. The guilt or innocence of the parties charged in criminal cases does not tend to prove or disprove whether the accused attempted to prevent the witness from appearing and testifying as a witness in the proceedings against them; and, therefore, when the State announces its purpose to prove that the witness had full knowledge of the crimes charged in the criminal eases referred to, it is not competent evidence to allow the witness to testify to all the facts of the cases in his knowledge and any statement made in the presence of the accused referring to said criminal cases, and to connect him with them.
    The inquiry should be restricted to proof of the fact that the party was a witness, and that the accused knew the fact that he was a witness, and attempted to prevent him, etc.; the testimony should not extend to proof of details and minutise of other, and distinct crimes and offences, to connect the defendant with them.
    In effect, such method of prosecution is to convict an accused of one crime by proof that he was guilty of other crimes, which he is not called upon to answer.
    VIII.
    On the trial of an accused for attempting, by persuasion, to prevent a witness from appearing and testifying, it is collateral and irrelevant whether the representations he made to the witness were true or false; therefore, to introduce evidence on the trial to prove that they were false, raises an issue which defendant is not called upon to answer, and which tends to his injury and prejudice before the jury.
    It is not a sufficient reason to influence the court to allow such evidence to be introduced “that it is but just and proper that the chief magistrate of this great city be permitted to make a statement in reference to the charge that was publicly made yesterday in a court of justice. The charge was a very serious one, made in the presence of a very large number of people. It is not a question, whether Mr. Fitzpatrick needs or requires vindication. I think, as a matter of justice to the mayor of this city, that he should be permitted, if he deems proper, to make a statement.” . .

      M. J. Cunningham, Attorney General, Chas. A. Butler, District Attorney, John J. Finney, Assistant District Attorney, Lionel Adams, of Counsel for the State.
    I.

      The Testimony of Charles Marshall.

    The hypothesis of the State was: (1) That although up to the 22d of June, 1894 (the date of the offence charged in the indictment), Mr. Marshall had not been summoned as a witness before the grand jury, nevertheless, he was a witness in the sense that he had knowledge of the commission of felonies and briberies for which bills of indictment were intended and about to be preferred against councilmen of the city of New Orleans, including the present defendant; (2) that it was the defendant’s knowledge of this which prompted him on the night of June 22 to attempt by persuasion to prevent Mr. Marshall from appearing and testifying before the grand jury.
    It is conceded that “ it was competent upon the part of the State to show that Oharles Marshall was a witness in the sense that he had knowledge of the facts charged in the indictment;-” meaning the indictments returned against Oouncilmen Haley, Caulfield and Thriffiley and defendant. But it is contended that the details of the transactions should not be permitted to go to the jury in order that they might determine for themselves whether Mr. Marshall, who had not yet been summoned, was in legal intendment' to be considered and treated as a witness because of his knowledge with respect to these crimes.
    That Mr. Marshall was a witness was a material allegation of the indictment which required proof. This involved a question of fact to be found by the jury. State vs. Spencer, 45 An. 11, 12. Mr. Marshall had as yet neither testified nor been summoned. The jury could not, for the purpose of establishing this evidential fact, accept as true the unsupported averments of any of the indictments, nor could Mr. Marshall be allowed to solve the difficulty by giving as his opinion the conclusion of law, that he was a witness. The only legal way of establishing the truth of this allegation was by doing what was actually done in the case, that is, to require that Mr. Marshall state the facts within his knowledge, and then leave it with the trial jury to determine, under proper instructions as to the restricted purpose for which the evidence was offered, whether Mr. Marshall was or not a witness in the legal sense.
    The jury were instructed that “ evidence tending to prove knowledge on the part of the accused that certain indictments against certain councilmen of the city of New Orleans were intended and about to be preferred, and that Oharles Marshall was a witness in said proceedings,” is to be considered by the jury solely and only for this purpose.
    Besides the reason assigned by the trial judge for admitting this testimony, it was relevant and material to show knowlege by defendant that Mr. Marshall was a material witness; to supply a motive for his crime; to show the intent with which he sought to dissuade Mr. Marshall from testifying; to show the relation of the parties and illustrate, qualify and explain, for the benefit of the jury, what was said by and between Mr. Marshall and defendant at the time of the unlawful attempt to prevent the appearance of Mr. Marshall as a witness before the Grand Jury.
    If there be no misdirection in the ruling of the court admitting the testimony objected to, the fact that the judge gave wrong reasons in support of his ruling will furnish no ground for a new trial, unless it appeared that the jury were misled by them. A judge at nisi prius is not bound to give his reasons. 2 Thomp. Tr., Sec. 2404; Shorter vs. People, 2 N. Y. 193; People vs. O’Neal. 67 Cal. 378; Ellis vs. Jameson, 17 Me. 235; Carpenter vs. Pierce, 13 N. H. 403, 408.
    In this case the trial judge’s reasons for admitting the testimony of Mr. Marshall were stated after the jury had been directed to retire.
    “The universal rule recognized by appellate courts is that where a ruling has not operated to the prejudice of the party complaining, a new trial will not be granted; for however remiss in his duty the judge may be, and how censurable soever his conduct, if a correct result has nevertheless been obtained, the verdict will not be disturbed. The remedial interposition of the appellate courts in granting new trials is wholly for the benefit of the parties, and not to compel the good conduct of judges.” 3 Gra. & Wat. N. T. 717; 2 Cain, 85; 3 Gilm. 202; 2 Turn. R. 5; 9 Cow. 680; 1 Scan. 18; 1 Gilm. 475 ; 2 16. 185; 11 Conn. 342; 7 Greenl. R.442; 4 Day, 42; 10 Ga. 429; IBrev. 109; 23 Wend. 70; 4 Lee & M. 386; 24 Ver. 242; Whart. Or. P. & P., Sec. 793; 1 Bish. Or. Pro., Secs. 1276, 1277; 3 Graham & Waterman N. T. 926; 9 Am. and Eng. Ency. Law, 765; 11 An. 480; 16 An. 384; 30 An. 1271; 35 An. 96; lb. 317; 6 An. 652, 658; 35 An. 970; State vs. Walsh et als., 44 An. 1136; State vs. Don-Ion et als., 45 An. 755.
    Should the testimony have been admitted for the additional reasons here suggested ?
    As to the relevancy vel non of Marshall’s testimony:
    “ Relevancy is that which conduces to the proof of a pertinent hypothesis; a pertinent hypothesis being that which logically affects the issue.” Whart. Or. Ev., Sec. 23. “Relevancy is, therefore, to be determined by free logic, unless otherwise settled by statute or controlling precedent. All facts, that go either to sustain or impeach a hypothesis logically pertinent, are admissible. But no fact is relevant which does not make more or less probable such a hypothesis. Relevancy, therefore, involves two distinct inquiries to be determined by logic, unless otherwise arbitrarily prescribed by jurisprudence: (1) Ought the hypothesis, if proved, to affect the issue ? (2) Does the fact offered in evidence go to sustain this hypothesis ?” Whar. Or. Ev., Sec. 24.
    “Evidence must tend to prove issue. It is not necessary, however, that the evidence should bear directly upon the issue. It is admissible if it tends to prove the issue, or constitutes a link in the chain of proof; although, alone, it might not justify a verdict in accordance with it.” . 1 Greenl. Ev., Sec. 51 a.
    “ The rule excluding evidence of collateral facts, treats as collateral facts only those ‘ which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute.’ ” 1 Greenl. Ev., Sec. 52.
    As to knowledge and intent:
    “In the matter, however, of collateral proof, one class of exceptions is universally recognized. In cases where the knowledge or intent of the party was a material fact, on which the evidence, apparently collateral and foreign to the main subject, had a direct bearing, collateral proof was admitted.” 1 Greenl. Ev., Sec. 53; State vs. Keyes, 8 Vt. 66; State vs. Carpenter, 20 Vt. 12, 13.

      As to motive:
    “When there is a question whether any act was done by any person, the following fact is deemed to be relevant; that is to say, any fact which supplies a motive for such an act.” Steph. Dig. Law Ev. 36; 7 Am. and Eng. Ency. Law, 50.
    As to relation of parties and facts explaining a fact in issue:
    “ Facts necessary to be known to explain or introduce a fact in issue or relevant, or deemed to be relevant to the issue, or which support * * * an inference suggested by any such fact, * * * or which show the relation of the parties by whom any such fact was transacted, or which afforded an opportunity for its occurrence or transaction, or which are necessary to be known in order to show the relevancy of other facts, are deemed to be relevant in so far as they are necessary for those purposes respectively.” Steph. Dig. Law Ev. 39, 40; 7 Am. and Eng. Ency. Law, 55, 56.
    The evidence sought to be introduced not only went to sustain the hypothesis of the State, which is logically pertinent and supplied a motive for the crime charged against the defendant, but is necessary to be known in order to show the relation of the parties and to explain the conduct and language of the defendant at the time of the commission of the particular crime charged against him in the present bill of indictment.
    The further objection is insisted upon that the testimony should have been excluded, because it had the effect of showing the perpetration by the defendant of a crime other than the one for which he was being prosecuted.
    Under the circumstances of this case there is no merit in such a contention.
    The rule of law is that “evidence is admissible of the perpetration by the defendant of a crime other than the one on trial, when it tends to establish that the defendant is guilty of the one charged.” State vs. Goodwin, 37 An. 713; State vs. Munco, 12 An. 625; State vs. Benjamin, 7 An. 48; 1 Bish. Cr. Pro., Sec. 1123; Whart. Or. Ev., Sees. 30, 32, 49.
    II.

      Testimony of Mayor Fitzpatrick.

    In his testimony with regard to what was said at the time of the attempt to prevent his appearance as a witness before the grand jury, Mr. Marshall stated that the defendant claimed that he had been commissioned by Mayor Fitzpatrick to call upon Mr. Marshall for the purpose of persuading him not to injure or damage Mr. Fitzpatrick’s “ administration.”
    Mr. Fitzpatrick was afterwards placed upon the stand, and in answer to the question: “ Did you, on the 22d day of June, or at any other time, authorize the defendant, L. O. Desforges, to call upon Mr. Charles Marshall and ask Mr. Marshall not to injure or damageyour administration?” The answer was: “No, sir.”
    It was objected that this testimony was inadmissible, and a bill of exceptions was reserved to the action of the court in permitting it to be heard.
    The grounds suggested for excluding the evidence were: (a) That it was immaterial whether the mayor could establish his reputation or protect himself against what witnesses might say in their testimony, (b) That the testimony of the witness, Charles Marshall, has neither been contradicted nor impeached, and, therefore, the same could neither be controverted nor affirmed, (c) That it was irrelevant.
    (a) It is not, and never was pretended that the admissibility of this evidence could be justified upon the plea that the mayor, who had been misrepresented, should be given an opportunity to vindicate himself.
    (b) No endeavor .was made either to support or to impeach the statements of Mr. Marshall, which were not disputed, nor could the testimony elicited from Mr. Fitzpatrick have any such tendency. The purpose was to show that the defendant, believing that consideration for the wishes of Mr. Fitzpatrick would have weight with Mr. Marshall, sought to make effective his attempt to pursuade Mr. Marshall not to appear and testify by producing a false impression as to Mr. Fitzpatrick’s connection with the transaction.
    (c) The evidence was relevant and material because: (1) It conduced to the proof of a pertinent hypothesis — one that logically affected the issue (Whart. Or. Ev., Secs. 28, 24) ; (2) although alone this falsification, with a view to create a false impression with respect to defendant’s motive, would not justify a verdict against him, yet, as a fact, it constituted a link in the chain of proof (1 Green. Ev., Secs. 51 a, 52) ; (3) it disclosed the true intent of defendant, and supplied a motive for the resort to falsehood in his attempt to prevent the attendance of the witness (1 Green. Ev., Sec. 53; Steph. Dig. Law Ev. 36; 7 Am. and Eng. Ency. of Law, 50) ; (4) it established the giving of a false reason for the criminal act (State vs. Reed, 62 Me. 129), and the saying by defendant of something intended to produce a false impression touching the fact in issue, and his connection with it. Steph. Dig. Law Ev., 36, 39.
    III.

      The Charge of the Court — Duty of Jurors as “ Judges of the Law.”

    The trial judge, in his original charge, instructed the jury as to their duties and powers as “judges of the law,” in these words: “ The Constitution of this State makes jurors the judges of the law, as well as of the facts in criminal cases. The jury must find the facts which they believe to have been proven, and when they consider what, if any, crime results from the state of facts, they must apply the law which has been given to them by the court.
    “ A jury can not rightly exercise the physical power of disregarding the instructions of the court upon the law any more than they can rightfully find a verdict directly opposed to the proof of facts.”
    Whatever views may formerly have been entertained upon this subject, it is now the settled jurisprudence of the State that “ the jury is bound to accept and apply the law as laid down by the judge, and that while it has the power to diregard it, yet, in so doing, it would violate its oath and duty.” State vs. Matthews, 38 An. 776; State vs. Ford, 37 An. 465; State vs. Cole etals., 38 An. 846; State vs. Tisdale, 41 An. 341; Breaux, J., in Callahan’s case, ante, p. 444; State vs. Johnson, 30 An. 905; Const, of La., Art. 168.
    And this rule of construction is almost universally recognized and accepted in the United States courts and in those of the sister States. Proff. Jury Tris., Sec. 376; 2 Thomp. Tr., Secs. 2122, 2134; Pierce vs. State, 13 N. H. 533; Robbins vs. State, 8 Oh. St. 131; Batre vs. State, 18 Ala. 119; State vs. Drawdy, 14 Rich. L. (S. 0.) 87; Duffy vs. People, 26 N. Y. 588; United States vs. Morris, 1 Ourb. O. O. (U. S.) 23; Montgomery vs. State, 1 Oh. 424, 427; Hamilton vs. People, 29 Mich. 173; Pennsylvania vs. Bell, Add. (Pa.) 156, 160; Georgia vs. Brailford, 3 Dali. (U. S.) 1, 4, opinion by Jay, O. J.; Washington vs. State, 63 Ala. 135; S. O. Am. Rep. 8; Sweeney vs. State, 35 Ark. 586; Pleasant vs. State, 23 Ark. 360.
    It is contended, however, that, in State vs. Spencer, the Supreme Court distinctly reversed this long line of authorities without so much as even referring to them or to the principle upon which they are made to rest.
    This assumption is not borne out by the opinion rendered in the case which to a different state of facts applied an entirely different rule of law.
    The point at issue was not in any sense dependent upon the right or power of the jury to disregard the instructions of the court as to the law of the ease. The matter involved was whether in a trial for perjury the materiality of the false oath was a fact to be found by a jury, or a question of law to be determined by the court; and the court, speaking through the Chief Justice, said that “ the accused had the legal right to submit his case to the jury on the subject of the materiality of the testimony given by him to the issue in the case in which it was given (it being, as we have said, a mixed question of law and fact), not only on the evidence but on the law; and this statement is not inconsistent with the right of the court to charge the jury on the law applicable to the matter.” It was in this connection that the court held that while it was the duty of the trial jxxdge to charge the jury, yet, “ in the performance of that duty he must, in this State, do so subordinately to the rights and powers of the jury, and to the requirements of Section 991 of the Revised Statutes as to commenting upon the evidence.” State vs. Spencer, 45 An. 11, 12.
    There was no pretence at defining the general “ rights and powers of the jury,” or at questioning the binding force of a rule which announced to be “the settled doctrine of our jurisprudence on the question of the powers of juries in criminal cases.” State vs. Oole et ala., 38 An. 846.

      IV.

      The Pendency of a Criminal Cause.

    Some days before the time when the offence charged in the present indictment is alleged to have been committed, the grand jury were requested by the District Attorney to investigate the means by which the resolutions with reference to the track privileges of the Louisville & Nashville Railroad Company on the river front, were passed, and were informed that Mr. Marshall should be summoned as a witness.
    The matter was then regularly before the grand jury for investigation and action, upon the complaint and information of the prosecuting officer, and, as shown by the indictments incorporated into the record as part of the evidence offered on the trial, the inquiry resulted in the finding of three bills of indictment, against the councilmen of the city of New Orleans, for proposing to be bribed to support the resolutions granting these track privileges to the railroad company.
    The essence of the offence denounced by Sec. 880 is the obstruction of the due course of justice. If defendant knew that Marshall was a witness and about to be compelled to attend before the grand jury, and endeavored to dissuade and hinder him therefrom, his offence was complete. It will not do for a moment to admit that the defendant might anticipate the officers of justice and hinder, secrete and bribe the State witnesses from attending an inquiry by the grand jury into the commission of a crime, and would not be liable for anything done until the investigation should have been so far proceeded with that some evidence was taken. This view would leave untouched the most corrupting fields to offenders of this charrcter, and can not reasonably be considered to have been intended by the Legislature. All of these considerations are borrowed from the reasoning of Red-field, J., in State vs. Keyes, which commends itself to the approval of every unprejudiced mind. 8 Vt. 62-67. See also State vs. Tisdale, 41 An. 341.
    The grand jury were sworn to “ dilligently inquire and true presentment make of all such matters and things ” as shall be given them in charge. 1 Archib. P. and P. (Pomeroy’s Notes'), 505.

      By express statute it is made felony, punishable at hard labor for not less than one nor more than five years, in any grand juror to fail to disclose to the grand jury any crime committed within the parish, which may have come to his personal knowledge, or of which he may have been informed. R. S., Secs. 888, 2140. .
    Therefore in intendment of the provisions of Sec. 880, there was a criminal cause in one of its stages actually pending before the grand jury from the time that the matter of the investigation of the passage of the resolution with respect to the track privileges in question was given them in charge by the suggestion made and information communicated to them by the District Attorney.
    In so far as it affects the present prosecution against defendant, the statute provides: “Whoever shall be convicted of * * * attempt * * * by persuasion, to prevent any witness in a criminal case, in any of the stages of prosecution, from making the oath in order to obtain a'warrant of arrest, to the final trial inclusive, from appearing or testifying as a witness, shall be sentenced,” etc. R. S., Sec. 880.
    The intention of the Legislature was evidently to prevent any corruption of or interference with the due administration of justice, and to denounce and punish any assault upon its purity, no matter at what stage it may have occurred.
    The use of the collocation of words, “ from making the oath in any order to obtain a warrant of arrest, to the final trial inclusive,” was not intended by the Legislature to operate as a limitation of, or restriction upon what had gone before. It was purely illustrative, and was meant to emphasize the declaration that the provisions of the statute should apply to every stage of a criminal case.
    The ascertainment of the law-maker’s intention ‘ ‘ is the cardinal rule, or rather, the end and object, of all construction; and where the real design of the Legislature in ordaining a statute, although it be not precisely expressed is yet plainly perceivable, or ascertained with reasonable certainty, the language of the statute must be given such construction 'as will carry the design into effect, even although in so doing, the exact letter of the law be sacrificed, or though the construction be, indeed, contrary to the letter.” And the rule holds good even in the construction of • criminal statutes. Endlick, Interp. 'Stat., Sec. 295 ; Suther, Stat. Oonstr., Secs. 234, 235.

      The statute declared it to be immaterial at what particular stage of prosecution, in a criminal case, the attempt was made to dissuade a witness from testifying. It was not, therefore, neces-. sary either to allege or to prove the stage of prosecution which had been reached; the essential, and only essential thing was to show a criminal case such as was understood and intended by the Legislature. To hold that an investigation set on foot by the grand jury, or a matter given them in charge by the prosecuting officer, is not a stage in a criminal case is to defeat the legislative purpose and to declare that any witness before the grand jury, in a cause originating in that body, is not a witness in a criminal case, and this whether summoned or not, or whether he has actually testified or not. If the expression “ from making the oath in any order (whatever that may be) to obtain a warrant of arrest,” is to qualify and control the stage of the prosecution, or if a criminal cause be limited to prosecutions actually returned into court and recorded and filed, then a construction will be maintained which absolutely nullifies and defeats what was intended by the Legislature, and affords no protection against corrupt endeavors to bribe, secrete or hinder the attendance of witnesses before the grand jury.
    V.

      Does the Indictment Allege a “Criminal Case ” Pending?

    The indictment in the present case pursues with cautious exactness the precedent furnished by Dr. Wharton in his form (672) for “Conspiracy to induce a material witness to suppress his testimony.” 2 Whar. Prae. Ind. and Pleas. 251.
    In a prosecution pursuant to Sec. 880 it is immaterial and therefore unnecessary to allege or prove at what stage of prosecution the attempt to prevent the witness from appearing or testifying was made. Nor in charging that the “ attempt ” was made with respect to a witness in a criminal case, is it necessary to employ the identical words of the statute; it is sufficient if the fact be set out as to comply substantially with the statute. State vs. Smith, 5 An. 340; State vs. Hood, 6 An. 179; State vs. Price, 37 An. 215, 219; 1 Bish. Or. Proc., Sec. 612.
    The indictment avers a criminal case pending by alleging that certain bills of indictment were intended and about to be preferred, and that Marshall was a material witness in support of said bills. It lays the venue by setting out that the bills of indictment were intended and about to be preferred against certain councilmen of the city of New Orleans, for an offense committed in their official capacity, to-wit, bribery.
    Be this as it may, it is, in this State, provided by express statutory enactment that it “ shall not be necessary to state any venue in the body of any indictment, but the State, parish or other jurisdiction named in the margin thereof, shall be taken to be the venue for all of the facts stated in the body of such indictment.” R. S. 1062.
    But assuming that the indictment was defective in these particulars, does it lie with the defendant to complain after the verdict?
    Sec. 1064 of the Revised Statutes of the State declares: “Every objection to any indictment for any formal defect apparent on the face thereof, shall be taken by demurrer or motion to quash such an indictment, before the jury shall be sworn, and not afterwards; and every court before which any such objection shall be taken for any formal defect, may, if it be thought necessary, cause the indictment to be forthwith amended in such particular, and thereupon the trial shall proceed as if no such defect had appeared.”
    Among the corrections which Che Legislature declared could thus be made by amendments, is included ‘ ‘ the name or description of any matter or thing whatsoever ” . in the indictment named or described. R. S., Sec. 1047.
    It is respectfully submitted that the defects complained of in the indictment are in their nature such formal defects as can be objected to only by demurrer.
    Another consideration. As stated by Mr. Bishop, “at common law, the verdict cures some things, as to which the rule is the same in criminal causes as in civil. It is that, though a matter either of form or of substance is omitted from the allegation, or alleged imperfectly, still, if under the pleadings the proof of it was essential to the finding, it must be presumed after verdict to have been proved and the party can not now for the first time object to what has wrought him no hai-m.” Bish. Cr. Proc., Sec. 707 a.

      The same principle is recognized by Mr. Wharton, who says: “So the verdict will cure the omission to connect necessary and dependent members of the same sentence by their appropriate copulatives, and also merely formal or clerical errors. So it is with essential averments, of which the verdict implies the truth, but which are imperfectly stated. ‘ There is a general rule as to pleading at common law, and I think it is right to say that there is no distinction, where questions of this kind arise, between the pleadings in civil and criminal proceedings,’ said Blackburn, J., in 1878, ‘thatwhere an averment which is necessary to support a particular part of the pleadinghasbeenimperfectly stated, and a verdict on an issue involving that averment is found, and it appears to the court after verdict that unless this averment were true the verdict should be sustained, in such case the verdict cures the defective averment, which might have been bad on demurrer.’ The authorities upon this subject are all stated in 1 Williams Saund, 260, n. 1 (last Ed.) Whart. Or. P. and P., Sec. 760.
    The law will not permit a defendant to take his chances as to the result of the trial upon an indictment which he, upon due objection, could have had corrected and then after conviction seek to escape punishment by suggesting the defects which should have been urged in season. So that even if the matters complained of really constituted defects in the indictment, the defendant has slept upon his rights and could not be heard to explain.
    VI.

      The Charge to be Construed as a Whole.

    It is also urged that there was reversible error in the modified charge submitted by the court for the fourth of the special instructions requested on defendant’s behalf. The contention is, that “ the judge’s charge certainly goes very fax beyond any issue made by the indictment and defendant’s plea of not guilty, and authorizes the jury to base their verdict upon matters clearly outside of the accusation against the accused.”
    Instructions are construed with reference to the evidence on which they are based. 2 Thomp. Trials, Sec. 2408 (continued). And “ an instruction is not to be disposed of by dissection; if good as a whole it will stand. New rules are better settled than that, an instruction is to be taken in its entirety.” Nave vs. Flack, 90 Ind. 205, 211; 2 Thomp. Trials, 1757; 11 Am. anplEng. Ency. Law, 250; State vs. Munston, 35 An. 888; State vs. Garic, lb. 970; State vs. Ferguson, 37 An. 51; State vs. Hannibal, lb. 619.
    The allegation of the indictment is that Charles Marshall was a material witness in support of “certain bills of indictment for felony and bribery (which) were intended and about to be preferred against certain councilmen of the city of New Orleans, who, as such, were municipal officers within the State.” The proof at the trial was expressly restricted to the cases of felony and bribery specified in the indictment.
    The purpose of the court was evidently to make it clear that it was necessary that a technical prosecution should be actually pending in the sense that an indictment had, in fact, been presented or an information been filed, but that it was sufficient if an inquiry in the commission of crime was actually being made by the grand jury. The jury was instructed as to what it was essential for them to find from the evidence, and what was said by the court with respect to a pending inquiry by the grand jury was to be construed in the light of what had gone before. It was the commission of crimes referred to in the indictment which the jury was to be satisfied from the evidence was being actually inquired of by the grand jury.
    Admitting, however, that the judge was in error in thus illustrating, by reference to crimes committed by councilmen, the legal proposition that any inquiry by the grand jury was a criminal case in intendment of the statute, in what respect has the defendant been prejudiced ?
    The rule is that, where it is apparent that the defendant could not have been prejudiced, he can not complain that an instruction which was given has no application to any evidence adduced in the case. State vs. Johnson, 33 An. 889. And although there may be error in an instruction given to the jury, yet, when such instruction could not have resulted in injury to the prisoner, it is error without prejudice. State vs. Oazeau, 8 An. 109; State vs. Tompkins, 32 An. 621; State vs. Thomas, 28 An. 170; State vs. Turner, 35 An. 1103.

      VII.

      Does the Statute Punish an “ Attempt.”
    Counsel for the prisoner contend “ that there is no crime contained in Sec. 880 of the Revised Statutes, responsive to this indictment.”
    The indictment alleges that the defendant “ did feloniously and corruptly, by felonious and unjust solicitation and persuasion, attempt to hinder and prevent the said Charles Marshall from appearing and testifying as a witness,” etc.
    Punctuation in a statute forms no part of law, but is the work of the draughtsman, engrosser or public printer. It may be and frequently is disregarded altogether, and courts will correct and re-punctuate to give effect to what is plainly the legislative intent. U. S. vs. Isham., 17 Wall. (U. S.) 496; Hammock vs. Farmers’ L. C.T. Co., 105 U. S. 77; U. S. vs. Lacher, 134 U. S. 624. In this last case, Fuller, C. J., said: “For the purpose of arriving at the true meaning of a statute, courts read with such stops as are manifestly required.”
    “ In another case, a comma was allowed to be taken from before a word and placed after the same word, to give effect to the true purpose of the statute.” Albright vs. Payne, 43 Ohio St. 14.
    In the construction of statutes for the purpose of arriving at the real meaning and intention of the law-maker, the rule is stated by the Oregon court to be that the court will disregard the punctuation, or re-punctuation, if need be, to render clear the true meaning of the statute. State vs. Payne County (Oregon, 1892), 29 Pac. Rep. 789.
    If read with such stops as are manifestly required, the meaning of Sec. 880 of the Revised Statutes is made plain and unambiguous, and effect is given to all of its parts.
    Re-punctuate so as to precede and follow the word “ attempt,” with a comma, and the statute paraphrased will enact: “ whoever shall be convicted of * * * attempt * * * by persuasion, to prevent any witness in a criminal case, in any state of the prosecution * * * from appearing or testifying as a witness, shall be sentenced to imprisonment at hard labor in the penitentiary not less than one nor more than five years.’

      Can any motive be assigned which could have weight in showing that the Legislature intended to punish the actual prevention by persuasion of the giving of testimony by a witness, but not the corrupt attempt at prevention?
    As has already been said, “the essence of both offences is the obstruction of the due course of justice. The mere endeavor to dissuade a witness from giving evidence or to advise a prisoner to escape or stand mute, are all impediments to the due course of justice, and are by the common law considered as high misdemeanors. The mere attempt to stifle evidence is a crime, though the attempt should not succeed.” 1 Bl. Com. 126; 2 Ohitty O. L. 286; 6 East. 466; 2 Strange, 904; State vs. Keyes, 8 Vt. 59, 65; State vs. Carpenter, 20 Vt. 12; 1 Bish. Or. Law, See. 468; 2 Whar. Or. Law, Sec. 1383.
    To attempt to prevent, either by persuasion or intimidation, a witness from attending a trial, is and has always been a common law offence, punishable by indictment both in England and in this country. In so far as the due administration of justice is affected, there is no conceivable difference in the moral obloquy of the offender, whether his unlawful attempt were successful or not. To hold to the construction contended for by counsel would amount to this, if the attempt to prevent proved successful there could be no conviction, because there * would be no proof. On the other hand, if the attempt failed there could be no prosecution, because the attempt is not to be considered as an offence within the intendment of the statute.
    But it is argued that the present Sec. 880 of the statutes is borrowed from the Acts of 1869, No. 63, and that the title of that act refers, in enumerating its objects, to “ any person guilty of preventing any witness, in any criminal proceeding, from appearing or testifying, from force, or threat, or intimidation, or persuasion,” and that it nowhere alludes to an “ attempt to prevent.”
    While this is true, it is also true that an “ attempt to bribe any witness ” is not provided against in the title. If there be any force in the contention of counsel “that if it had been the intention of the Legislature to punish an attempt to commit the crime of preventing a witness” from appearing and testifying, the word “ attempt” would be indispensible in the title of the act; then equally must it be maintained that it was not the intention of the Legislature to punish the attempt to bribe a witness to prevent him from appearing and testifying.
    Then, again, if there must be an actual prevention, how could an unsuccessful attempt at bribing a witness result in preventing him from appearing and testifying in the cause?
    Up to 1870, therefore, although the Legislature clearly intended to punish an attempt to bribe a witness, and also an attempt by persuasion to prevent a witness from testifying, nevertheless neither of these purposes could be carried into effect because they were not expressed in the title.
    It was not because the Legislature had not intended and undertaken to punish these offenses, but because the legislative purpose, in this direction, was rendered nugatory by a failure to comply with the constitutional provision that “ every law shall express its object or its objects in its title.”
    In 1870, Act 96, of the session of that year, was passed, of which one of the objects as expressed in its title was to make provision “ relative to crimes and offenses; the definition of crimes and offenses, and the penalty therefor.”
    This broad and comprehensive title included within its terms every object contemplated in the statute, in so far as concerns the creation and punishment of crimes and offenses. One of the sections of this act embraced within the terms of this portion of the title is Sec. 880, usually known and designated as Sec. 880 of the Revised Statutes' of the States.
    Much stress seems to be laid by counsel upon the force of the argument that the Legislature could not be presumed to have intended “ to punish an attempt to commit a crime with the same severity of punishment that is meted out for actually committing the crime.”
    If such a contention needed refutation, a complete answer is to be found in the very terms of the statute itself, which punishes the person convicted of bribing a witness in exactly the same terms as it does the person who attempts to bribe a witness.
    The diserc tion vested in the trial court in meting out punishment (the penalty being imprisonment at hard labor in the penitentiary not less than one nor more than five years), makes it possible to so regulate the sentence as to make it commentary to the degree of culpability.

      VIII.

      Whether Persuasion is an Attempt.

    A very labored effort has been made to establish as a legal proposition that an attempt by persuasion to prevent a witness from testifying is not indictable because bare solicitations or allurements can not be construed into indictable attempts.
    But counsel themselves concede the proposition laid down by Mr. Wharton that solicitations to commit crime are independently indictable when their object is interference with public justice^ and that the better opinion is that there the solicitation is in itself a substantive offense. 1 Whart. Or. L., Sec. 179.
    Of course, in this State all offenses are statutory, and every offense created by statute is a substantive offense. The attempt by persuasion to prevent a witness from testifying is independently indictable in this State, because here by statute it is made a substantive crime. Nor is our jurisprudence in this respect in derogation of the common law.
    As said by Mr. Bishop, “ some acts are made substantive crimes, not so much on account of their inherent evil as of their tendency to promote ulterior mischief. Thus, * * * preventing the attendance of witnesses and the like are indictable, because they are calculated to pervert public justice. * * * these wrongs are substantive crimes, instead of attempts.” 1 Bish. Or. L. Sec. 734.
    ■“To attempt to prevent, either by persuasion or intimidation, a witness from attending a trial is not merely contempt of court, but may.be punishable by indictment.” 2 Whart. Or. L., Sec. 1333*
    “ To thwart or obstruct the due administration of justice by violence, bribery, threats, or other unlawful means, whether in preventing the attendance of witnesses, jurymen, or other officers of the court, is a high-handed offence, which strikes at the vitals of judicial proceedings, and subjects to severe animadversion in every well ordered community. The attempt to commit such an act, it is well settled, is itself a substantive offence, punishable by the common law.” State vs. Carpenter, 20 Vt. 12.
    The mere attempt to stifle evidence is a crime, though the attempt should not succeed. State vs. Keyes, 8 Vt. 59, 66; 4 Bl. Com. 126; 2_Ohitty C. L. 116; 6 East. 466; 2 Strange, 904.

      And it was held in this State, under this very statute, that an attempt by threats and intimidation to prevent a witness from testifying, was an offence. State vs. Tisdale, 41 An. 388.
    IX.

      Does the Statute Create an Offence.

    Counsel for defendant announce this proposition: “We are living under statutory law, and no act which is not defined and specially prohibited can be considered as a crime rendering the perpetrator of it liable to punishment. Sec. 880 neither defines nor prohibits the act set forth in the text. No one will dispute the proposition that an act, prohibiting without specifying any punishment for its committal, is no crime under the law, because the prohibition must also carry with it the penalty. We state also that punishment inflicted for an act not prohibited will not render the one who commits the act liable to punishment. Sec. 880 simply provides punishment for the committal of certain acts, without any word prohibiting the acts. We ask, where is the statute which prohibits the prevention of witnesses from appearing in criminal cases? Sec. 880 does not do so. All the * section says is that when a person is convicted of having ‘ prevented a witness ’ he shall be punished. Where, then, is the denouncement? Where is the prohibiting of the act of preventing a witness.”
    A crime is defined to be a “ wrong of which the law takes cognizance as injurious to the public, and punishes in what is called a crimimal proceeding prosecuted by the State in its own name, or in the name of the people or sovereign.” Be Bergin, 31 Wis. 386 (1872); And. Law Diet. 283; 4 Am. and Eng. Ency. Law, 643.
    A statutory crime is an act which has been made a criminal offence by enactment of the Legislature.
    Any statute which provides that a person convicted of doing a specified act shall be punished in a definite way, and which describes the act and fixes the penalty, is an act creating and punishing an offence.
    To be convicted of a given offence not only presupposes that the person convicted was guilty of the offence, but also that his guilt has been established pursuant to the forms of law. There can be no question here as to the intention of the Legislature. Their purpose was to prevent the commission of certain acts enumerated in the statute by fixing penalties therefor.
    It is difficult to appreciate what distinction exists in a statute which provides that “ whoever shall be convicted of attempt by persuasion to prevent any witness from appearing or testifying, shall,” etc.; and one which enacts that “whoever shall attempt by persuasion to prevent any witness from appearing and testifying, on conviction, shall,” etc.
    It does seem that these statutes are identical. Yet there is no more prohibition in the latter of these two forms than in the other. In the one case, if the proposition of counsel be correct, all the section says is, that when a person is convicted of having attempted to prevent a witness from testifying he shall be punished; in the other, all that the section says is, that when a person has attempted to prevent a witness from testifying, on conviction, he shall be punished. In both cases the affixing of a penalty to the act by implication, at least, prohibits and denounces the same as an offense. It is not the practice in this State to incorporate into a penal statute a precept declaring, in terms, that a specified act is prohibited. If there were any merit in the position thus asserted by counsel, the whole body of our statutes would, in one fell swoop, be declared nugatory.

      Thomas J. Semmes, for Defendant, on Application for a Rehearing:
    Counsel entertain the belief that, until the decision of this case, no indictment for tampering with a witness has been sustained wherein it was not alleged that at the time of the supposed offence a suit or prosecution was commenced, or an investigation had been initiated, or that the law in some form had been set in motion.
    The general impression has been that there could be no witness unless there was a case, and there could be no case unless the law was set in motion.
    The Constitution of the United States provides that the judicial power shall extend to all cases arising under this Constitution, the laws of the United States, and treaties made, or which shall be made under their authority.

      This clause, says Chief Justice Marshall, “ enables the judicial department to receive jurisdiction to the full extent of the Constitution, laws and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it.
    “ That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. If then becomes a case,” etc. Osborn vs. Bank of United States, 9 Wheat. 819.
    It is therefore clear that there can be no case until the law is put in motion. It is equally clear that there can be no criminal case until the commencement of a prosecution; and when a case is initiated, or a prosecution commenced, then there are various stages of the prosecution, and as prosecutions are generally commenced by an affidavit in which a charge is made against an accused person, so that he may be arrested, the statute declares the oath to be the first stage of the prosecution, and from that time until the final trial, the legislator endeavors to secure the administration of justice, and to prevent its obstruction by tampering with witnesses having knowledge, or supposed to have knowledge of the circumstances of the case which has been begun.
    Concede that a prosecution maybe commenced by the commencement of an investigation by a grand jury, certainly there must be some act of the grand jury to start the investigation before the prosecution can be said to be instituted; the intention of the grand jury can not be considered the commencement of a legal proceeding even if that intention could be ascertained; some step must be taken by the judicial department of the government before it can be said that there is a judicial proceeding, or that a person is a witness as to matters involved in the proceeding.
    Section 881 throws light on the construction of Sec. 880 of the Revised Statutes; Sec. 880 punishes the tempter, while Sec. 881 punishes the tempted who yields to the temptation.'
    Section 881 speaks of a witness in a criminal proceeding — a proceeding which has its stages — and the first stage is the “ oath to obtain a warrant of arrest,” for the language of the section is “ any witness in a criminal proceeding in any of its stages from making oath to obtain a warrant of arrest to the final trial inclusive, who shall fail to appear and give evidence when legally required to do so, by reason of being bribed or persuaded not to do so,” shall be punished.
    Section 880 punishes a person who, by bribery or attempting to bribe, or by persuasion to prevent “ any witness in a criminal case in any of the stages of the prosecution from making the oath in order to obtain a warrant of arrest to the final trial inclusive.”
    Is it not plain that in both sections the legislator had in contemplation a witness in a judicial proceeding. The word “case” is used in Sec. 880, and the word “proceeding” is used in Sec. 881. Both words mean the same thing. “Case” necessarily includes the idea of a proceeding, because, as Ohief Justice Marshall said, in Osborne vs. Bank of the United States, “ when a subject is submitted to the judicial power by a party who asserts his rights in the form presented by law it then becomes a case.”
    When, therefore, the State or a citizen in criminal matters sets in motion the judicial power against a person, this then is a criminal case, which proceeds until it is finally tried. The commencement of a ease is the commencement of a proceeding. What is a proceeding? ■ Webster says it is “ the act of one who proceeds,” and that it is synonimous with “step,” and that “process is a series of actions, motions, or occurrences; progressive act.”
    A] criminal case, like a criminal proceeding, has its steps or stages; it is commenced by some act, and until that act is done there is no proceeding; it proceeds from one step to another, but it has no existence until a step has been taken.
    It is clear to my mind that a witness in a contemplated proceeding or case, before the case or proceedings is begun, is not embraced in the statute.
    The obstruction of justice contemplated by the statute is the obstruction of a case or proceeding, when that case or proceeding becomes judicially a case or proceeding, and it does not become so until the judicial power is put in motion. The statute never was intended to punish a parent, who in anticipation of a criminal prosecution of his son, should persuade the brother of that son to get out of the way so as to avoid giving testimony against his brother, should he be called on to do so.

      The withholding of testimony so as to prevent a prosecution is a very different thing from baffling the courts in the trial of cases pending before them. Such conduct may be improper, but it is not the obstruction of a criminal case or a criminal proceeding; it is the difference between abstaining and obstructing, and it is this difference which the Legislature recognized in Secs. 880 and 881.
    The construction of Sec. 880; R. S., contended for by the State, strikes out two entire lines of that section, viz.: “ In any of the stages of prosecution, from making the oath in order to obtain a warrant of arrest, to the final trial inclusive.”
    The court can not do that. “ Where the language of a statute is plain and clear, that language alone is to be consulted.” State vs. Backarow, 38 An. 316.
    “ Criminal statutes can not be extended to cases not included within the clear import of their language.” State vs. Peters, 37 An. 730.
    Such statutes can be extended by the law-making department of the State, but not by the courts.
    As the law stands now, it is criminal to prevent, or attempt to prevent any witness from appearing or testifying as a witness in a criminal case, when, and only when such an attempt is made at some point of time between the two events mentioned in the statute; that is to say, between the time the oath is made in order to obtain a warrant of arrest to the final trial inclusive.
    “ In construing penal statutes, courts can not take into view the motives of the law-giver further than they are expressed in the statute.” State vs. King, 12 An. 593; State vs. Carzeau, 8 An. 114.
    It is true that Blackstone says an endeavor to dissuade a witness from giving evidence is a misprison and a contempt of court, punishable, but he does not state that such endeavor is so punishable when no case is pending, and the fact that he treats such conduct as a contempt of court, implies that a case must be pending in some court whose authority is contemned.
    The note to Blackstone refers to East’s Reports, Vols. 6 and 2, and to Strange’s Reports, Vol. 2.
    The two cases in East refer to solicitations to commit a crime. Justice Lawrence said, in 2 East, 21, that Rex vs. Lawly was an indictment charging that the defendant, knowing that J. C. was indicted for forgery, endeavored to keep away a material witness for the king, on which there was judgment for the crown. It is clear in that case that a suit was pending at the time of the alleged offence. The defendant knew that J. C. was indicted.
    The case in 2 East merely decided that it was a misdemeanor to solicit a servant to steal his master’s goods, though the servant do not actually steal the goods. The case in 2 East held that it was a criminal act to endeavor to provoke another to commit the misdemeanor of sending a challenge to fight a duel.
    The case in 2 Strange, 904, is thus reported:
    “She moved in arrest of judgment after conviction on an information for attempting to persuade a witness not to appear and give evidence against Japhet Crooke for forgery. And the exception taken was that it was not positively averred that Crooke was indicted; it was only laid that the sciens that Crooke had been indicted and was to be tried did so and so; whereas, in all criminal cases the fact must be positively alleged, and not by inference.”
    The court sustained the information, but there was an averment in it that Crooke had been indicted and was. to be tried.
    In none of the cases that I can find was an indictment sustained in the absence of an averment that some sort of judicial proceeding was pending against somebody when the witness was tampered with. Case of John Freely, 2 Rob. (Va.) Cases, 1; State vs. Keyes, 8 Vermont, 57.
    Argued and submitted, April 13, 1895.
    Opinion handed down, June 3, 1895.
    Opinion refusing rehearing, June 27, 1895.
   The opinion of the court was delivered by

Miller, J.

The defendant, convicted of attempting to prevent a witness from testifying, takes this appeal, relying on various bills of exception to the admissibility of testimony and to the charge of the court.

The indictment has reference to an investigation of charges against members of the city council, intended to be made by the grand jury, and charges that the defendant attempted by persuasion to prevent Charles Marshall from appearing and testifying in support of the indictments about to be preferred against the councilmen. The conviction of the accused is under See. 880 of the Revised Statutes: “ Whoever shall be convicted of bribery, or attempting to bribe, any witness, or by any force or t hreat, or intimidation of any kind, or by persuasion, to prevent any witness in a criminal case, in any of the stages of the prosecution, from making the oath in (any) order to obtain a warrant of arrest to the final trial inclusive, from appearing or testifying as a witness, shall be sentenced,” etc.

The first bill to which our attention has been directed is to the admissibility of the testimony of Marshall as to the conversation between him and the accused, in the course of which the State claims he attempted by persuasion to prevent Marshall from appearing before the grand jury. It appears, from the bills, the defendant visited the witness at his house, referred to the intended indictment of the councilmen for bribery, then the subject of rumor and newspaper comment, and used the alleged persuasion charged .on the accused to prevent Marshall from appearing before the grand jury as a witness in the investigation of the bribery charges. The State could prove the offence of the-accused only by testimony of the conversation, and that conversation necessarily referred to the bribery charges against the councilmen then supposed to be intended to be laid before the grand jury. Marshall, in testifying, naturally stated the defendant’s visit; the reference by defendant to the approaching investigation before the grand jury, and Marshall testified that the conversation related to the subject of that investigation; that is, that the suspected councilmen had sought to obtain money of the railroad company for their votes, as councilmen, for certain railroad privileges the company sought from the city council. It is to the admissibility of Marshall’s testimony that in his conversation with the accused allusion was made to the suspected councilmen and their supposed effort to obtain money for their votes, that the bill of exceptions was reserved. It is urged on us, the testimony objected to tended to prove improper conduct on the part of the councilmen, and had no relation to the charge against the accused, not on trial for conspiracy with the council - men, but only on the charge of attempted persuasion to prevent Marshall from testifying. It is claimed Marshall should, in his testimony, have been restricted to the statement of the persuasion, not to appear as a witness, charged to have been employed by the accused. We think the supposed charges against the councilmen were so linked with the criminal persuasion for which the accused was indicted, as to necessitate Marshall’s testimony of the conversation. The State was entitled to prove there was an investigation pending, or about to be brought before the grand jury; that accused, aware of this approaching investigation, and that Marshall was a necessary witness, approached him with persuasion, he should not appear and testify. We can not appreciate that Marshall’s testimony went beyond the issue, and to exclude in his testimony all reference to the proposed investigation before the gran i jury, alluded to in the conversation between the accused and Marshall, would be to strip the criminating testimony against the accused of its force and effect. We think the testimony was properly admitted.

The same line of reasoning, we think, applies to the exceptions reserved by defendant to the admissibility of the indictments found against the councilmen. It was a part of the case of the ’State to prove the prosecution against the councilmen as a judicial proceeding, in aid of which Marshall was to give testimony, and to prevent the giving of which testimony was the object of the persuasion for which the accused was indicted. Offered for that purpose only, in our view, the indictments were properly admitted.

Another exception reserved by defendant’s counsel was to the admission of the testimony of the mayor that he had not sent the accused to Marshall, as stated by the accused, testified to by Marshall. The testimony of the mayor tended to prove that the persuasion charged to have been used by the accused on Marshall was accompanied with a false statement designed to make more effective the persuasion. The testimony that the accused stated to Marshall the mayor had sent him, the accused, had gone before the jury. If true, it tended to mitigate the intent of the accused in his visit to Marshall. Whatever the tendency of' the statement of the accused as to the mayor’s agency, if in point of fact the asserted suggestion or request of the mayor was a fabrication of the accused to enforce 'on Marshall’s mind the alleged persuasion, the falsehood then was pertinent to show the intent of the accused in holding out the persuasion. The testimony of the mayor went to show that the persuasion was not innocent, but marked by the deliberate falsehood .to sustain it. We find no merit in the bill.

The defendant reserved bills to the charge of the court, as to the weight the jury should give that charge. In varied forms the question as to the functions of the judge and jury in criminal cases has been frequently presented to this court. The statute originally of 1858, now Sec. 991, of the Revised Statutes, and the somewhat broader enunciation in the Oonstitution of 1879,' have been interpreted to affirm the judicial function of giving the jury the law of the case, and while the right of the jury to determine the issue of fact and law has always been recognized, no decision of this court has ever detracted from the weight due the instructions of the court on questions of law. The statute that preceded, intended, and the organic law, as it stands, intends that the jurv shall heed the law as it is given to them by the court. By that is meant, the charge shall have its moral weight with the jury, just as the juror’s oath is presumed to exert its influence when he goes into the box. The exposition so often given substantially, that the jury should apply the law as given by the court, and while the jury has the physical power to disregard it, they are morally bound to apply the law as announced by the court, we think is the correct application of the provision of the organic law. Indeed, after the frequent judicial utterances on this subject, the question should be deemed closed. We do not appreciate that the decision in the Spencer case, 45 An. 1, at all conflicts with previous decisions. The jury was instructed in this case they must find the facts, and if any crime results, must apply the law given by the court, but the court also instructed the jury: “ A jury can not rightly exercise the physical power of disregarding the instructions of the court upon the law any more than they can rightfully find a verdict directly opposed to the proof of facts.” We shall be careful always to see that the legal instructions are correct. Courts of the last resort are not to set aside verdicts, on the form of statement used to announce the trite proposition contained in the organic law that the juries are judges of fact and law, if the substance of the constitutional mandate is observed, and the law, in other respects is correctly stated. We think the charge as given meets the test of the Constitution and our jurisprudence. State vs. Johnson, 30 An. 904; State vs. Ford et als., 37 An. 443; State vs. Cole, 38 An. 846. This disposes of the exceptions to the judge’s charge on this point.

There are exceptions to the charge that to constitute the offence, it was not necessary that a criminal prosecution was actually pending before the grand jury, or that Marshall was actually under a summons to appear, when the alleged persuasion was used. These exceptions virtually affirm that the bribery statute has no operation to punish attempts to bribe or prevent witnesses from testifying, unless there is a criminal case pending, or an investigation actually pending at the moment of the persuasion. This discussion belongs to the consideration of the statute, its scope and purpose.

Our view of the statute will answer this last and other contentions. The statute badly worded and constructed, still presents, we think, the purpose to guard against improper interference with witnesses necessary in criminal prosecutions. Hence the language following the attempt prohibited “ to prevent any witness in a criminal case in any of the stages of the prosecution ‘ to the final trial inclusive,’ from making the oath to obtain the arrest from appearing or testifying as a witness.” The investigation before the grand jury on indictments laid, or proposed to be laid, before it, is the first and most important phase of the prosecution. The investigation is, of course, in advance of the finding of the indictment. It would, in our opinion, be doing violence to the meaning and language of this statute to hold it has no application to an attempt' to prevent a witness, known to be such by the accused, from appearing as a witness in support of an indictment, laid or proposed to be laid before the grand jury. When the indictment is found there is techni ally a criminal case, and then the argument concedes any attempt to prevent the witness from testifying' would be a crime. But the argument insists that until indictment is found, there is no “ case,” and hence there is no crime in improper appliances to prevent witnesses from appearing. The argument finds its answer in the phrase “ all stages of the prosecution” in the statute. The reasoning of the defence gives the protection of the statute to the administration of public justice after the indictment is found, but leaves wide open to the bribe-giver the portals of the grand jury room. Without witnesses there can be no indictments, and the construction of the defence leaves unpunished those who, through bribes or persuasion, seek to defeat the'action of the body charged with indicting for crime.

The motion in arrest presents, in another form, the proposition of the defence, that to constitute the offence there must have been at the time of the persuasion a criminal case or prosecution, or investigation, and it is insisted the indictment does not charge there was any stage of any criminal prosecution, in reference to which Marshall was to be a witness. It is urged, in this connection, too, that the indictment does not follow the statute. Support for this view, it is claimed, is derived from State vs. Taylor, 44 An. 967, and State vs. Tisdale, 41 An. 388. The first decision is, we think, adverse to a technical construction of the statute. It held that one might be a witness in the sense of the statute, though not summoned. In the other case it was held the indictment need not aver the competency of the witness or materiality of his testimony. The decisions do not, we think, sustain defendant’s contention. We have analyzed this statute. It speaks of a witness in any stage of a prosecution. It does not require, as was held in the case of State vs. Tisdale, 41 An. 338, that he should have been summoned, nor does the statute imply that at the moment the prosecution should be pending. If the prosecution is in contemplation, and aware that it is about to be begun, a party, with the view to defeat the investigation, approaches one known to be an indispensable witness, and by bribes and persuasion attempts to prevent him from appearing or giving testimony, in our view the crime of guilty persuasion is accomplished. The indictment in this case charges the indictments against the councilmen were about to be preferred; that Marshall was a witness; that accused attempted, by felonious and unjust solicitation, to hinder and prevent him from appearing and testifying as a witness in support of the indictment. We are dealing, it is true, with a statutory offence. We think the indictment sets out substantially the offence. Identical words are not essential. See State vs. Smith, 5 An. 340; State vs. Price, 37 An. 215, 219; 2 Gallisonn, 18. It is enough that the offence prohibited by the statute, is set forth with substantial accuracy, as is the rule announced in the text books and decisions. We think the allegation that indictments were about to be laid before the grand jury may be accepted as equivalent to the averment of a judicial proceeding; the indictment charges Marshall was a witness to support the indictments, and the accused knew it when he approached Marshall. It is claimed that the indictment does not show where the indictment was pending. If such express allegation is to be deemed essential, we think the venue in the indictment answers the objection. Under our law it is provided that the venue in the margin shall be deemed a statement of all the facts stated in the indictments; by another salutary provision objections of this nature must be taken before trial. Revised Statutes, Secs. 1062, 1064. The defendant’s counsel have made an able and elaborate argument, which has had our careful attention, to support the alleged objections to this indictment, on the theory it charges, no criminal case or investigation pending, or where pending, or that Marshall was a witness, and that defendant knew of such pendency. We think the indictment is sufficient in these respects.

In supporting the motion in arrest of judgment the defendant insists that the statute does not recognize persuasion as an attempt, punishable as a crime. Persuasion is not the attempt but the means of making the attempt effective. The statute, in our view, punishes attempts by persuasion or other means to prevent witnesses from appearing or testifying. Reason suggests that such attempts should be punished, and the statute announces that purpose. The defendant’s construction is that the crime is committed only, when the witness is actually prevented from appearing or testifying.' That is', the successful attempt to prevent a witness from testifying is a crime, but the attempt that fails, though marked by all the bad intent, and defeated only by the integrity of the witness who is approached, according'to the theory of the defence, is to go unpunished. To apply this theory in this case, if Marshall had been prevented from appearing the accused could have been punished, but because the persuasion of the accused proved futile, therefore his attempt on Marshall’s integrity was innocent. In our view, statutes to protect the administration of justice would fall short of their purpose if improper solicitations to witnesses were not punishable, unless the witness succumbed and failed to testify. We can not give that narrow construction to this statute. Reason and the terms of the statute forbid it. We read this statute: Whoever shall attempt by persuasion or other means to prevent a witness from appearing or testifying shall be sentenced,” etc. We have given attention to defendant’s argument on this point. We note his reference to the act of 1869, and his view of the logical and grammatical arrangement of the section. We are dealing with this statute as we find it in the Revised Statutes, and it must be construed as if it never had been the subject of the enactment of 1869. Our construction is to be according to the natural meaning of words and the legislative purpose* The position of a semicolon or of a comma, maybe deemed of minor importance in ascertaining the scope of the statute. The first line of the section places bribery and attempting to bribe a witness on the same footing. The attempt, in the view of the statute, might be by force, threat, intimidation or persuasion. Persuasion may be more effective to enforce the attempt than other means. The statute, hence, makes an offence the attempt by persuasion to prevent a witness from testifying. To disconnect “attempting” with what follows in the section, i. e. by persuasion to prevent, etc., is, we think, to destroy the force of the section and its obvious purpose. We have not discussed all the phases of defendant’s argument on this branch of the case. They have had our attention. We hold that the attempt by persuasion to prevent a witness from testifying is an offence under the statute.

Our attention has been directed to the special charges asked for by defendant. In our view they were covered by instructions given. One that the defendant was not tried for bribery or perjury was not calculated to confine the attention to the real charge, .but had a tendency to confuse the jury. We think it was rightfully refused.

The case has had our best attention, and our conclusion is there is no error on which this verdict can be reversed.

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

Concurring Opinion.

Watkins, J.

The defendant having been convicted, under Sec. 880 of the Revised Statutes, on the charge of having attempted to hinder and prevent one Charles Marshall from appearing and testifying as a witness in support of certain bills of indictment pending before the grand jury, and sentenced to five years’ imprisonment at hard labor in the penitentiary, prosecutes this appeal, relying upon nine bills of exception which were reserved during the progress of the trial.

The one of most importance is that raised on defendant’s motion in arrest of judgment which was denied by the trial judge.

The following is the tenor and substance of the motion, viz.:

That the defendant has been convicted of attempting to prevent, by persuasion, Charles Marshall from appearing and testifying as a witness, whereas Sec. 880 of the Revised Statutes under which the indictment was framed, does not create, recognize or refer to any such crime or offence; ‘ ‘ and the said defendant is not charged in said indictment with having by persuasion prevented said Charles Marshall from appearing and testifying as a witness.”

In other words, that the statute denounces as a crime the prevention of a witness from appearing and testifying, and not the attempt to prevent such witness from appearing and testifying; and conse - quently the indictment does not charge an indictable offence known to the law, and therefore the judgment and sentence of the court should be arrested.

The court held the indictment good and sufficient in law, and, in all respects, sufficient to warrant the verdict and judgment pronounced, and defendant’s counsel retained a bill of exceptions to the ruling of the judge.

The following is the language of our statute, viz.:

R. S., Sec. 880: “Whoever shall be convicted of bribery, or attempting to bribe any witness, or by any force or threat, or intimidation of any kind, or by persuasion, to prevent any witness in a criminal case, in any stage of the prosecution, from making the oath in any order to obtain a warrant of arrest, to the final trial, inclusive, from appearing or testifying as a witness, shall be sentenced to imprisonment at hard labor in the penitentiary not less than one, nor more than five years.”

And the indictment is couched in the language following, viz.:

“ The grand jurors of the State of Louisiana duly impaneled and sworn in and for the body of the parish of Orleans, in the name and by the authority of the said State, upon their oath present:

“ That one L. O. Desforges, late of the parish of Orleans, well knowing that certain bills of indictment ior felony and bribery were intended, and about to be preferred against certain councilmen of the city of New Orleans, who, as such, were municipal officers within the State, and that one Charles Marshall was a material witness in support of such bills of indictment, feloniously and corruptly contriving and intending to impede and obstruct the due course of justice, on the twenty-second day of June, in che year of our Lord one thousand eight hundred and ninety-four, with force and arms, in the parish of Orleans aforesaid, and within the jurisdiction of the Criminal District Court for the parish of Orleans, feloniously and corruptly, by felonious and unjust solicitation and persuasion, did feloniously and corruptly attempt to hinder and prevent the said Oharles Marshall from appearing and testifying as a witness in support of said bills of indictment so as aforesaid intended to be preferred against the said certain councilmen of the city of New Orleans, who, as such, were municipal officers within the State, contrary to the form of the statute of the State of Louisiana in such cases made and provided, and against the peace and dignity of the same.”

Omitting for the present other grounds of objection, the question is whether the statute charges a crime when charging defendant with an attempt to hinder and prevent a witness from appearing and testifying in any given case, by persuasion, or otherwise.

Whilst it is not doubted that an “ attempt to bribe a witness ” is a crime within the terms of the statute, the argument of defendant’s counsel is, that an attempt by solicitation or persuasion, to prevent a witness from appearing and testifying, is not a crime which is denounced by the statute.

At first glance, it is noticeable, that the statute is susceptible of such an interpretation, for it declares that “ whoever shall be convicted of bribery or attempting to bribe any witness, or by force or threat, or intimidation of any kind, or by persuasion, to prevent any any witness,” etc. — the words “ any witness” twice occurring, suggesting a division of the text into two distinct paragraphs, separated by a semicolon. And if this be done the word ‘ attempting ” would be entirely eliminated from the latter paragraph; and, considering the sense of the whole statute, it might well be divided thus, as the former paragraph would apply to the bribery, or the attempt to bribe a witness, and the latter to the persuasion of a witness not to attend and testify.

This section' of the Revised Statutes is but a reproduction of the first section of Act 63 of 1869, ipsissimis verbis; but the second section of that act is assisting, in that it makes a similar division of the sense of the statute, as follows, viz:

“ That any witness in a criminal proceeding * * * who shall fail to appear or give evidence, when legally required to do so, by reason of being bribed, or persuaded to do so, on conviction,” etc.

In States vs. Tisdale, 41 An. 338, the defendant was indicted under section of Revised Statutes 880, as the defendant is, the charge being that ‘1 of having intimidated a witness.”

In treating that case we made subdivision of the sense of the statute, as we have just intimated, and separated the two paragraphs by a semi-colon, thus:

“ The statute declares that, whoever shall be convicted of bribery or attempting to bribe any witness; or by any force or threat, or intimidation of any kind, or by persuasion, to prevent any witness in a criminal case,” etc. (Italics as in opinion.)

To clearly demonstrate that the expression was purposely used, we have only to refer to the following paragraphs of the opinion, viz.:

“ That the Legislature intended that any person tampering with, bribing or intimidating a known witness * * * should be punished,” etc. (p. 340).

It further speaks of “ the intimidated witness,” and of intimidating him and preventing him from testifying as a witness, as accom - plished facts (p. 341). No mention is anywhere made of an attempt to intimidate, solicit or persuade the witness.

State vs. Taylor, 44 An. 967, presents a case of an indictment under the first paragraph of Sec. 880, charging the defendant with an attempt to bribe a witness.

These two decisions interpret the statute and suggest its division into two distinct paragraphs, as denoted by the employment of the term witness ” twice.

The only difficulty that is suggested as, in any way, interfering with such subdivision of the section, is the absence of a semicolon. But it is a well established principle of jurisprudence that “punctuation forms no part of a law.” It is but the work of a draughtsman, or amanuensis, engrosser, or often of a printer. It is frequently altogether disregarded by courts and judges, and they invariably exercise the function of so punctuating a statute as to effectuate the manifest legislative intent. This is conspicuously true of the Supreme Court; as, for instance, in United States vs. Isham, 17 Wallace, 496; Hammock vs. Farmers’ Loan and Trust Co., 105 U. S. 77; United States vs. Lacher, 134 U. S. 624.

In this last case the court, speaking through the Chief Justice, said:

11 For the purpose of arriving at the true meaning of a statute, courts read with such stops as are manifestly required.”

This court will adopt that theory as correct, and as one that is often necessary and useful in the interpretation of statutes, so as to avoid giving them a bias not intended by the Legislature.

We are indebted to counsel for the State for the foregoing authorities. Vide State vs. Payne, 29 Pac. Rep. 789.

On the foregoing hypothesis the defendant’s counsel substantially formulates the following proposition in support of their theory, that an attempt to persuade a witness is not a crime under the statute, viz.:

First — That the statute has two distinct offences in view, (1) the bribery or attempt to bribe a witness; (2) the intimidation or prevention of a witness from attending or testifying.

Second — The employment of the word “ witness” twice as indicative of the two different offences.

Third — The employment of the terms “ being bribed ” and “prevented,” in Sec. 881, likewise suggesting the two different offences.

Fourth — The character of the penalty — imprisonment at hard labor — putting the two offences upon the same plane.

Fifth — Imprisonment at hard labor in the penitentiary for a term of ñve years for an attempt to persuade a witness, being altogether incompatible with other criminal statutes of much graver import.

Generally speaking, under our law, punishable attempts appear to be restricted exclusively to consummated efforts, except cases which, in themseives, involve a breach of the peace; such as aiding or abetting in sending a challenge to fight a duel (R. S. 802) ; or furnishing tools or implements to assist a prisoner to break jail (R. S., Sec. 864) ; or attempting to rescue a prisoner after he shall have been arrested (R. S., Sec. 868) ; or attempting to rob another of money (R. S., Sec. 811) ; or attempting to set fire to any house (R. S., Sec. 845) ; or attempting to burn any bridge, shed, etc. (R. S., Sec. 847) ; or attempting to set fire to or burn any cotton (R. S., Sec. 848) ; or attempting to bribe any judge (R. S., Sec. 860) ; or attempting to corrupt or awe jurors (R. S., Sec. 861), and a variety of other attempts, which are enumerated.

To extend the theory of attempts to the persuasion of a witness not to appear and testify, would be an innovation upon criminal nomenclature.

Mr. Wharton states the rule by asking a question, and making answer thus:

“ Are solicitations to commit crime independently indictable?

“ They certainly are, as has been seen, when they, in themselves, involve a breach of the public peace, as is the case with challenges to fight, and seditious addresses. They are also indictable when their object is interference with public justice; as when a resistance to the execution of a judicial writ is counselled or perjury is advised ; or the escape of a prisoner is encouraged; or the corruption of a public officer is sought, or invited by the officer himself.

“They are' indictable, also, when they are in themselves offences against public decency, as in the case with solicitations to commit sodomy; and they are indictable, also, when they constitute accessoryship before the fact.

“ But is solicitation indictable when it is not either (1) a substantive indictable offence, as in the instances just named, or (2) a stage toward an independent consummated offence?

“The better opinion is, that when the solicitation is not in itself a substantive offence, or when there has been no progress made toward the consummation of the independent offence attempted, the question whether the solicitation is by itself the subject of a final prosecution must be answered in the negative. For we would be forced to admit, if we hold that solicitations to criminality are generally indictable, that the propagandists, even in conversation, of agrarian or communistic theories, are liable to criminal prosecutions; and hence the necessary freedom of speech and of the press would be greatly infringed.

“It would be hard, we must agree, if we maintain such general responsibility, to defend, in prosecutions for soliciting erime, the publishers of Byron’s 4 Don Juan,’ of Rousseau’s 4 Emile,’ or of Goethe’s ‘Elective Affinities.’

“ Lord Chesterfield, in his letters to his son, directly advises the latter to form illicit connections with married women; Lord Chesterfield, on the reasoning here contested, would be indictable for solicitation to adultery. Undoubtedly, when such solicitations are so publicly and indecently made as to produce public scandal, they are indictable as nuisances. But to make bare solicitations or allurements indictable as attempts, not only unduly and perilously extends the scope of penal adjudications, but forces on the courts psychological questions which they are incompetent to decide, and a branch of business which would make them despots of every intellect in the land.

“What human judge can determine that there is such necessary connection between one man’s advice and another man’s action as to make the former the cause of the latter?

“ An attempt, as has been stated, is such an intentional preliminary guilty act as will apparently result, in the usual course of natural events, if not hindered by extraneous causes, in the commission of a deliberate crime.

“ But this can not be affirmed of advice given to another, which advice such other person is at full liberty to accept or reject.

“ Following such reasoning, several eminent European jurists have declined to regard solicitations as indictable, when there is interposed between the bare solicitation on the one hand, and the proposed illegal act on the other, the resisting will of another person, which other person refuses assent and co-operation.” 1 Wharton’s Criminal Law, Sec. 179, 1738.

On that theory it was held in Smith vs. Commonwealth, 54 Penn. St. 209, that an indictment would not lie for solicitations to commit adultery.

In Stabler vs. Commonwealth, 95 Penn. St. 318, it was held “ that A’s handing to B poison and soliciting him to put it in C’s spring, was not an attempt to administer poison under the statute.”

In Cox vs. People, 82 Illinois, 191, it was held that an indictment would not lie for solicitations to commit incest, and “ that the mere effort, by persuasion, to produce a condition of mind consenting to incest, * * * is not an attempt.”

But it is contended that an attempt to dissuade a witness from attending a trial and giving his testimony is an indictable offence at common law, and that statement is relied upon as a precedent for a contrary interpretation of the statute under consideration.

But is that statement correct?

Mr. Blackstone says:

“Lastly, to endeavor to dissuade a witness from giving evidence, etc., * * * are high misprisons and contempts of the king’s court, and punishable by fine and imprisonment.” 4 Black. Com. 126.

And Mr, Bishop says:

“ The precision of our language is promoted by restricting ‘ misprison ’ to neglects; and such, it is believed, is the better modern usage.” 1. Bishop Crim. Law, Sec. 717.

Mr. Russell says :

“All who endeavor to stifle the truth and prevent the due execution of justice are highly punishable; and therefore the dissuading, or attempting to dissuade, a witness from giving evidence against a person indicted, in an offence at common law, though the person should not succeed.” 1 Rus. Orim. 182.

It is noticeable that the author does not state that “attempting to dissuade a witness ” was an indictable offence, but “an offence at common law.” That it was “ highly punishable,” but it does not say that it was a criminal act, and, as such, indictable.

Mr. Archibold, under the title of “persons who solicit and incite others to commit offences which are not afterwards completed,” says nothing of attempting to persuade a witness. 1 Arch. Or. PI. and Pr. 8, and note.

Under the heading of “attempt to commit crime,” that author furnishes various illustrations, such as (1) an attempt to provoke another to send a challenge, Regina vs. Phillips, 6 East. 464; an attempt to bribe a juror, Young’s case, 2 East. 14; to attempt to corrupt a judge in a case pending before him, 3 Just. 147; to an attempt by soliciting a servant to steal, Higgin’s case, 2 East. 5. But nothing is said of attempting to persuade a witness. 1 Arch. Cr. Pl. and Pr. 896, and note.-

In Myers’ Federal Decisions, under the heading of “ miscellaneous offences,” is found the following, viz.:

“ Section 1247. Attempt. Every attempt, or offer to commit any crime or misdemeanor at commom law, or by statute, is not an indictable offence. Only those attempts, or offers to violate laws, are indictable, which, if the attempt were carried into effect, would invade the very safeguards of. social order.” (Our italics.) 12 Myers’ Fed. Dec. page 371, Sec. 1247.

That is all the digest contains on the subject. The American and English Encyclopaedia of Law collates no adjudications on the subject.

In treating on the subject of “ attempt,” in quite an extended article, Mr. Bishop says:

“ Some acts are made substantive crimes, not so much on account of their inherent evil as of their tendency to promote ulterior mischief. Thus * * * false oaths and affidavits employed in judicial proceedings, preventing the attendance of witnesses, and the like, because they are calculated to prevent public justice,” etc. 1 Bish. Cr. Law, Sec. 734.

But that author makes no mention of an attempt to persuade a witness, as a common law offence.

I have made diligent examination of adjudicated cases in other courts of the Union, and find but few of them bearing on the question.

State vs. Carpenter, 20 Vt., presents the case of a witness having been actually persuaded not to attend. In Commonwealth vs. Reynolds, 14 Gray, 89, the court said it was indictable at common law to “ dissuade, hinder and prevent a witness from appearing,” etc. Citing Regina vs. Wyatt, 2 Ld. Raw, 1191; Regina vs. Bidwell, 1 Dennison, 222; The King vs. Stephenson, 2 East. 363. State vs. Early, 3 Harrington (Del.), 562, presents the case of a witness who had been actually persuaded.

The only dictum that tends, in the least, to give support to the contrary contention of the State, is found in an isolated expression of Mr. Wharton, in his treatment of the persuasion of a witness “ to give particular testimony, irrespective of the truth, which is to the effect that an attempt to persuade a witness from attending a trial, is not merely a contempt of court, but may be punishable by indictment.” 2 Whar. Cr. Law, Sec. 1333.

In support of that dictum, the author cites the cases we have collated supra; but, as we have shown, they exclusively relate to cases in which persuasion has been successful. Of all the cases cited the only one which bears him out is that of State vs. Ames, 64 Maine, 386, which is strictly sui generis, and relates to a witness, in a prosecution for the violation of the liquor law, who was sought to be persuaded away.

To show that this dictum is quite exceptional it is sufficient to say-that the section quoted (1333) is found under the title of “perjury,” and is not found at all in the earlier editions of the author.

Mr. Bishop makes a similar alteration in a recent edition of his treatise on criminal law (Sec. 468), citing the same authorities to-which Wharton refers supra.

On the foregoing authorities it can be safely affirmed that a mere-attempt by persuasion to hinder or prevent a witness from attending and giving evidence at a trial was not an indictable offense at common law; only a contempt of court, which was punishable as such.

Let us see in what analogy this alleged offense stands to other punishable attempts in respect of the punishment which is denounced by our statutes.

For instance, murder is punishable with death (R. S. 784), but an attempt to commit murder is punishable with imprisonment at hard labor not exceeding two years. R. S. 792.

Whoever attempts to rescue any prisoner in custody shall suffer fine or imprisonment. R. S., See. 866.

Whoever shall attempt to rob from another person any money or other property shall be punishable with imprisonment not less than six months nor more than five years. R. S., Sec. 811.

Whoever shall give, or promise to give, any judge, or other person concerned in the administration of justice, any bribe or reward, shall suffer fine and imprisonment. R. S. 860.

That for every attempt to corrupt or awe jurors in trial of any cause, by menace, threats, giving money, or promise of any pecuniary advantage, or otherwise, shall, on conviction, be fined not less than one hundred dollars, nor more than five hundred dollars, and imprisoned not less than six months, nor more than two years. R. S. 861.

Yet, under the construction that has been placed on Revised Statutes, 880, the defendant has been convicted of the crime of attempting, by persuasion, to prevent the attendance of a witness before the grand jury, which attempt was unsuccessful, and, in this court, he is appellant from a judgment sentencing him to a term of five years’ hard labor in the penitentiary.

Taking into consideration the entire scheme of crime and its punishment — both at common law, and under our statutes — can it be reasonably deduced therefrom that it was the evident intention of the Legislature to denounce, in Sec. 880 of the Revised Statutes, an attempt, by persuasion, to prevent a witness attending a trial, as a crime which is punishable with five years’ imprisonment at hard labor in the State penitentiary?

'In my opinion, both the plain meaning of the statute and a reasonable and just interpretation of it indicate the opposite view.

It has always been the rule — constantly adhered to in every jurisdiction — that criminal statutes must receive strict interpretation.

In State vs. King, 12 An. 593, it was held that “in construing penal statutes courts can not take into view the motives of the lawgiver, further than they are expressed in the'statute.”

In State vs. Peters, 87 An. 730, it is held that criminal statutes can not be extended to cases not included within the clear import of their language, and held Act 64 of 1884 null and void.

In the recent and conspicuous case of State vs. Gaster, 45 An. 636, this court said:

“ All crimes in Louisiana are statutory, and there can be no crime which is not defined and denounced by statute.”

Again:

“The twenty-third section of the act of 1805, authorized a reference to the common law of England for the definition of particular crimes therein enumerated, but neither that nor any other law of the State has authorized reference to that system in order to ascertain the definition of any other crime not enumerated.”

And the court held that there was, under our law, no such crime as a “misdemeanor in the execution of an office,” and abated the indictment, holding that R. S., Sec. 869 was null and void.

This is precisely what we are called upon to decide in reference to R. S., Sec. 880, in so far as the charge of the indictment against the defendant is concerned.

And my appreciation of the statute leads to that end.

Entertaining this view, I concur in the decree.

On Application for Rehearing.

McEnery, J.

The argument on the rehearing insists that the testimony of Marshall, not embracing the conversation between him and the accused, should not have been admitted, and that the court misconceived the defendant’s exception to the testimony. The testimony of Marshall, the subject of defendant’s exception, relates to what transpired between him and the indicted councilman prior to the conversation. In the conversation it is in evidence Marshall stated he would have to tell all he knew that passed between him, the accused and the councilmen. The suppression of what he knew was the object of the persuasion of the accused, and it is defendant’s contention that what he knew, derived from what passed between him and the parties named, should not have gone to the jury. The court was fully cognizant of the relation Marshall’s entire testimony bore to the charge against the accused, but that portion deemed inadmissible has had our full consideration on the rehearing.

The witness had testified that in the conversation with the accused, on the night of the 22d of June, 1894, reference was made to the rumored grand jury investigation; that Marshall was to be summoned, and the accused had asked him if he could not go away to keep from appearing as a witness. The ordinance and “bargain” were mentioned, which, in the light of the testimony, was the basis of the charge against the councilmen of soliciting a bribe for the passage of the ordinance. Further along in the conversation it appears, in answer'to the question of the accused what Marshall would have to say before the grand jury, he stated he would have to tell all he knew that passed between himself and the accused, and on being asked “in reference to what,” answered it was understood. Up to this point there had been and could be no objection by the defence. The jury had derived the information that the approaching investigation had reference to Haley and Oaulfield, the councilmen; that Marshall had knowledge of the facts on which the charges were based, and that what he knew on the subject “ and would have to tell,” it was the design of the persuasion charged on the accused to suppress. What he did know, it would seem, was pertinent to go to the jury along with the other testimony. But precisely at this point the defendant objected to the testimony. The charge against the accused was the persuasion to prevent Marshall from testifying before the grand jury — i. e., telling “what he knew.” His knowledge on the subject had been alluded to in the testimony given, and we think that the State had the right to prove “ what he knew,” in order that the jury might appreciate the significance of that testimony already received. The contention of the defence is that after the testimony had reached the verge of disclosing to the jury the knowledge of Marshall, that the disclosure should have been prevented, leaving the jury to conjectures as to a fact of importance in the case. If Marshall had no knowledge, that circumstance would have had weight in estimating the motive for the persuasion. If, on the other hand, he had the knowledge to support the indictment against the alderman, and the accused, knowing that Marshall was the important witness, attempted the persuasion “he should go away and not testify,” then Marshall’s knowledge was an essential link in the evidence of the intent and guilt of the accused.

A witness is one who is cognizant or has knowledge of the fact. Webster’s Dictionary. The indictment charged that Marshall was a witness to support the indictments against the councilmen. Marshall in testifying to that which passed between himself, the accused and the councilmen, was simply proving his knowledge of the facts on which the indictments rested, and thus the State was maintaining by testimony essential to the indictment that Marshall was a witness. In the original brief for defendants it is conceded that it was competent for the State to show Marshall was a witness in the sense he had knowledge of the facts charged in the indictments, but it is said it was irrelevant and immaterial to show how far that knowledge extended, because the statute makes no distinction between the material witness or otherwise. The concession is unavoidable, but the distinction it draws is impracticable.

Relevant testimony is that tending to show the offence and the intent, and even collateral facts may be given in evidence when of a kind to furnish the basis for the conclusion of the jury. 1 Greenleaf on Evidence, Secs. 51, 52, 448. The testimony objected to is within the rule of relevancy as it is found in the text books and applied in the administration of justice.

The defendant insists that the testimony was calculated to leave the impression on the minds of the jury that the accused was tried on the charges against the councilmen; was designed by the State to exert an improper influence and did operate to the serious prejudice of the accused. The only test this court can apply is that of relevancy. We have examined it under that test. It was offered for the purpose only for which we hold it admissible. The charge of the court restricted it to that purpose and directed the jury to consider it only for that purpose.

On the other points made on the rehearing in relation to the admission of testimony and the charge of the lower court, this court, on full consideration, adheres to the views in the original opinion.

We have also considered, with the attention it deserves, the argument in the briefs and at the bar on the question of the construction of the statutes. We are sensible courts can not, on the theory of mischief intended to be prohibited, enlarge statutes beyond the fair significance of the language employed. But we think another rule of interpretation has its application in this case, that the statute must have a construction consistent with its terms and commensurate with its manifest object. It is said our construction strikes out that part of the section that reads “ in any of the stages of the prosecution, from making the oath to obtain the arrest to the final trial, inclusive.” By this we infer is meant that the stages of the prosecution are comprehended between the making the oath to obtain the arrest and the final trial. We think the “stages” of the prosecution include the investigation by the grand jury which results in finding the bill. Hence, if the persuasion is used to prevent the witness from going before the grand jury, the investigation before that body is a stage of the prosecution in the sense of the statute. We have also covered again the contention that there is no case until the law is put in motion. By this we understand is meant that under the statute punishing an attempt to prevent any witness in a criminal case from testifying, the attempt to be within the statute must be after indictment, until which there is no case, and hence no offence. We think that if the attempt is to prevent that witness from testifying in a contemplated investigation before the grand jury, "resulting in the finding of the indictment, the offence is accomplished though the case, in its technical sense, does not exist until the indictment is found. When that occurs the case may be deemed to relate back to the initial step, the grand jury investigation. The question is one of appreciation of the statute. We have considered the authorities cited in defendant’s brief, supposed by analogy to relate to the subject. It seems to us, on the maturest consideration, the construction we adopt is supported by the statute, and certainly by the motive presumably actuating the legislator.

The rehearing is refused.