author: Nicholls, C. J.

text:
    No. 12,762.
    State of Louisiana vs. Wm. Wyatt.
    On Motion to dismiss.
    'The appeal in a criminal case will not be dismissed in limine upon motion made to that effect on the ground that appellant reserved no bills of exception; that no assignment of error had been made, and no error was patent upon the face of the record. If the appeal was regularly taken the court will take cognizance . of the cause and deal with it from the record. Brown vs. Land Co., 49 An. 1779.
    Where the minutes of the court which show that an appeal had been taken on the 26th of February on behalf of the State in presence of the accused and his counsel is charged to be untrue and the cause being remanded for evidence on that point, appellee shows by parol testimony, introduced without objection, that no order of appeal was granted on the 26th, either in the presence of the parties or otherwise, he cannot complain that by the testimony of the clerk and the District Judge it should be shown that the entry should have been made as for an appeal granted on the 23d of February. The more regular course to have been pursued was for the court to have ordered the minutes to have been amended and corrected and made to conform to the facts. As the law does not require that the accused, or his counsel, or either of them, should be present in court when the State takes an appeal from an adverse ruling, an erroneous statement that they were so present is an immaterial circumstance.

      On the Merits.
    The record showing that the accused was indicted on. the 17th of February, 1897; that he was arraigned on the 23d August, 1897, pleading not guilty; that on the 26th of August the cause was continued to the next term of court; that on the 23d February, 1898, he filed amotion to quash the indictment, on the ground that she ventre was drawn at a place other than the court house, and that defendant was up to that time ignorant of that fact Held: That the court erred in sustaining the motion. The motion to quash having been made by defendant after pleading to the merits, was too late, in the absence of an affirmative showing that neither the accused himself nor his counsel was ignorant of the facts when defendant pleaded. State vs. Brittin, 50 An. 277; State vs. Strickland, 41 An. 514; State vs. Robertson, 50 An. 92; State vs. Sterling, 41 An. 681; State vs. Henderson, 13 An. 490; State vs. Bazile, 38 An. 545; State vs. Hancks, 38 An. 469; State vs. Toups, 44 An. 904.
    The circumstance that counsel may have acquired knowledge of the facts touching the venire at a time prior to his employment by defendant, and when he was not aware that the latter was charged with crime, does not have the effect of making such knowledge any the less (when he became employed) the knowledge of the accused in determining whether the motion to quash was filed tardily or not. State vs. Stricklaud, 41 An. 514; State vs. Frank M. Robertson. 50 An. 92.
    ON. APPEAL from the Fourth Judicial District Court, Parish of Jackson. Machen, J.

      M. J. Cunningham, Attorney General, and A. B. Hundley, District Attorney, for Plaintiff and Appellant.

      C. P. Thornhill for Defendant and Appellee.
    Submitted on briefs November 12, 1898.
    Opinion handed down December 5, 1898.
   The opinion of the court was delivered by

Nicholls, C. J.

The defendant, William Wyatt, was indicted by the grand jury of the parish of Jackson, on the 17th of February, 1897, for burglary and larceny, the regular term of the District Court having opened on the 15th of that month. The accused was arraigned on the 23d of August, 1897, pleaded not guilty, and asked for trial by jury. The case was fixed for trial for the 26th of August. On that day it was continued until the next term. On the 21st of February, 1898, the case was fixed for the 23d of that month. On that day defendant filed a motion to quash the indictment. -The motion was taken up, tried and sustained by the court. The testimony adduced on the trial of this motion was taken down and-is transcribed in the record.

The motion to quash was as follows: “Defendant respectfully shows that the indictment returned against him herein is defective, null and void for the following reasons, to-wit:

“ The grand jury which returned said indictment was illegal, null and void, because said grand jury was called and empaneled from a venire of jurors illegally drawn in this, that said venire was not drawn in the clerk’s office in the court house as required by Act No. 99 of 1896, but if any such drawing actually took place, it took place at the commercial establishment of W. R. Carroll, in the town of Vernon. That the facts herein set forth as to the place of drawing the said venire of jurors was not known to this defendant until the twenty-third day of Febuary, 1898. Wherefore, the premises considered, he prays that the said indictment be quashed, annulled and set aside, and that he be discharged.”

This motion was sworn to by defendant, but not by his attorney.

On the trial of the motion to quash W. R. Carroll, clerk of the court and one of the jury commissioners, was permitted to testify over .objection to his being so allowed, urged by the District Attorney, and under a bill of exception reserved. He testified that he had been clerk of the court since 1892. The venire of jurors drawn for • the February term of this court was drawn in his storehouse in the town of Vernon. The clerk’s office in the town of Vernon was at the court house.

Cross-examined, he said: “ My store is about seventy-five yards from the court house. The clerk’s office is also occupied by the sheriff. The sheriff collects taxes a part of the time in the clerk’s office. He also keeps a part of his books in the office. The clerk’s office is about twelve feet by fifteen feet. We drew the jury at the store in order to have witnesses. I could not secure witnesses to witness the drawing of the jury at the clerk’s office without having them to close the store. The witnesses who witnessed the pro ees verbal were present all the time during the drawing. I don’t think any one else was present. I did the principal part of the office work at my store in 1891.”

He testified further that Mr. Thornhill, attorney at law, wrote up the first part of the pro ees verbal at the clerk’s request; that Mr. Thornhill is defendant’s attorney. Mr. Thornhill testified that he was not at that time counsel of Wyatt, and did not then know that there was a charge against him.

The State offered in evidence the minutes of the court in the case against the defendant, showing the arraignment of defendant and the fixing of the case for trial. The State, on the 5th of March, 1898, lodged a transcript of the case in the Supreme Court as having been appealed. In this transcript appear copy of the minutes of court of February 23, 1898, and February 26, 1898. The minutes of the 23d show that the motion to quash was filed, taken up, tried and sustained on that day. The minutes of the 26th show that the accused and his counsel being present, the District Attorney asked for and obtained an appeal to the Supreme Court returnable in ten days.

Defendant moved to dismiss the appeal on the grounds:

1. Plaintiff reserved no bill of exceptions to the ruling of the lower court, and there is no assignment of error, and no error patent upon the face of the record, without which there is no question presented for this court to determine or pass upon.

2. The transcript states in error that the order of appeal was asked for in open court in the presence of the accused and his counsel, whereas in truth and in fact no such order of appeal was asked for in the presence of the accused and his counsel, nor was the accused present in court at all on the 26th of February, 1898, at which time, according to the transcript, the appeal was asked for. Counsel for the accused was present on said 26bh of February until the business of the court had been concluded, and the clerk was writing up the minutes thereof preparatory to final adjournment, but did not remain to hear the minutes read, and up to this stage of the proceedings no order of appeal had been asked for, and he was not aware that a transcript of appeal had been sent up to this court until advised to that effect by the clerk of this court.

3. That the State through the District Attorney had acquiesced in the judgment on the motion to quash.

In the event the court should hold that the first ground urged for dismissal was insufficient, defendant asked that the case be remanded to take testimony as to the facts contained in the second and third grounds.

On motion of appellant’s counsel (the Attorney General consenting) the court, on March 26, 1898, directed the cause to be remanded to the lower court to take testimony as to the facts contained in the second and third grounds of defendant’s motion to dismiss. Evidence was taken as directed and returned. One R. J. Mitchell testified that he was present on the 23d of February, 1898, when the motion to quash was filed. Defendant Wyatt was at witness’ house on the 26th of February, 1898. He did not visit the court house on that day. Witness knew of his own knowledge that he was not present on that day. The minutes of the court of February 26, 1898, which say that the appeal in this case was taken up in the presence of the accused and his counsel are erroneous in so far as the accused is concerned. He was not in the court at all on that day. Defendant’s counsel, O. P. Thornhill, testified that he left the court house on February 26, 1898, before the final adjournment, and was not present at the taking of this order of appeal, as shown by the minutes of the case of the State vs. Wo. Wyatt. He was the attorney who represented Wyatt in the motion to quash, and this appeal was not taken and entered in his presence. On the day the motion to quash was sustained by the court, the court in concluding its remarks upon the motion to quash stated, by way of suggestion to the District Attorney, he had the right of appeal, and the District Attorney replied: “Yes, I intend to do so.”

The State placed both the District Judge and the District Olerk ■•upon the stand as witnesses, and they testified over objection urged by the defendant that the minutes of the court were the judicial acts and declarations of the prosecution itself, and the prosecution could not be heard to contradict its own judicial acts, declarations and admissions. The clerk testified that the judge makes a minute on his docket prepared for that purpose, and this is copied from the judge’s docket; that he had examined the docket kept by the judge for the February term, 1898, and the docket shows that the State appealed. Being asked “ to explain why the regular minutes of the court (evidently of the 23d February), as copied from the judge’s docket, does not show the order of appeal,” he answered: “ I overlooked the order in the transcribing of the minutes of 23d February, 1898, the day the order of appeal was granted and entered on the minutes.”

This question and answer were objected to by the defence on the ground that the minutes of the court of the 26 ch of February, 1898, showed that the appeal was asked for by the State on the 26th; that the minutes being the judicial admissions and declarations of the prosecution itself, no evidence, of any character was admissible to explain or contradict them. Being asked whether he knew of his own knowledge whether an order of appeal was asked for in open court in presence of the accused and his counsel, he answered he was not certain, but to the best of his recollection it was asked for in open court; he did not know whether accused and his counsel were present or not. The District Judge testified over the same objections that had been made to the questions propounded to and answered by the District Clerk. Being asked the question whether he remembered when he passed upon the motion to quash, that the District Attorney, in the presence of the accused and his counsel, excepted to the ruling, reserved a bill and asked for an appeal,” he answered that he was not positive, but his recollection was that at the conclusion of his remarks in passing upon the motion to quash, he observed to the District Attorney that he had a right to appeal if he desired to do so. The District Attorney thereupon reserved a bill to the ruling of the court and asked an appeal to the Supreme Court, which was granted, and he told the District Attorney to dictate his order of appeal, it being his usual custom in all cases of appeal to permit the attorneys to dictate their orders; that he then made an informal note on his docket that the State had taken an appeal.

To that portion of the Judge’s answer touching the reserving by the District Attorney of a .bill of exceptions to the Judge’s ruling on the motion to quash, defendant urged the additional objection that if such bill was reserved the bill itself was the best evidence of that fact.

On the 26th of March, 1898, there was filed in this court a certified copy of three bills of exception signed by the District Court and filed therein on the 17th of March, 1898. The first bill was reserved to the action of the court in permitting defendant over objection of the District Attorney to file the motion which he did to quash the indictment, the District Attorney contending and objecting that defendant could not make such a motion after he had been arraigned and pleaded not guilty.

The second bill was reserved to the action of the court in permitting the clerk of court to contradict as a witness the recitals of the proces verbal of the jury commissioners for the reason that the proces verbal was the best evidence of the proeeedingá of the jury commissioners, and that the clerk being a sworn officer of the court could not be heard to vary, alter or contradict, or change his own solemn acts underseal of the court, and that the motion failed to allege injury or fraud.

The third bill was to the action of the court sustaining the motion to quash the indictment.

These bills are not before ús under such circumstances as would justify us in taking notice of them. They were not made part of the record below and embodied in the transcript either originally or on the remanding o£ the case for evidence, nor upon certiorari contradictorily. We will have to dispose of this case independently of them.

On Motion to Dismiss.

This court has frequently dismissed appeals with the statement that it did so for the reason that there was neither demurrer, nor bill, nor assignment of error, nor points, nor arguments, nor any ' errors apparent of record. State vs. Potter, 10 An. 281, was a case of that character, but this dismissal was not made in limine on a motion to dismiss, but after an examination of the record by the court. In order to say that there is no error apparent of record we have to take cognizance of the case. Brown vs. Land Co., 49 An. 1779. The more logical form of judgment in such eases would be an affirmance of the judgment appealed from. The minutes of the court as sent up in the “ record ” show an appeal taken by the State in this case on the 26th of February, 1898, in the presence of the defendant and his counsel. Defendant challenged the correctness of that statement. The proper method of proceeding if there was error therein was to have had the minutes amended and made to conform to the truth. As matters took shape testimony was taken on part oj appellant to show that no order of appeal was granted on the 26th of February, 1898, as recited in the minutes, either in or out of the presence of the accused and his counsel. Error in the minutes has been shown unquestionably. No order of appeal was granted on the 26th of February, but an order was granted on the 23d of February, and should have been made to so appear on the minutes of that day. If' the order was granted it is immaterial in this case whether it was granted on the 23d or 26th of February, 1898. Appellant complains that the clerk and District Judge should have been permitted to. testify as to the actual facts. We think, as we have said, that the proper course would have been for the minutes to have been amended to conform to the truth. The truth being that an order of appeal was granted on the 23d, we think, as matters stand, it is immaterial to the appellant whether it was ascertained by amendment or testimony. Appellant himself having attacked the minutes as erroneous and introduced testimony in support of that contention, the State was ■ entitled in some way to show the actual facts. It was not necessary for the legality of an order of appeal that either the defendant or his •counsel should have been present at that time. A statement on that ..subject in the minutes even if erroneous would be immaterial, It is not shown that defendant was not in court on the 23d of February when the order was granted.

There was no attempt made by appellant to show an acquiescence by the State in the judgment.

We think the motion to dismiss not well grounded, and the dismissal is therefore refused.

On the Merits.

The record shows on its face that defendant was indicted on the 17th day of February, 1897; that he pleaded not guilty on the 23d day of August, 1897. • ■

That on the 23d day of February, 1898, he filed a motion to quash ■the indictment, which was, at once, taken up, argued and sustained, .and that the State appealed immediately. The Attorney General .claims that the motion to quash was taken too late for the reason that the defendant had pleaded to the indictment. We think his ■contention on this point (borne out on the face of the record as to the facts asserted) is well taken. The case falls under and is controlled by the principles announced in State vs. Adam Robertson, 50th Annual, not yet reported; State vs. Sterling, 41 An. 681; State vs. Jack Brittin, 50 An. 277. Appellant attempts to justify his delay in not moving sooner to quash on the ground that he was not aware of the facts on which the motion was grounded until the 23d of February, 1898; but it is not shown that his counsel was not aware of those facts before, and if so, he should have acted on this knowledge sooner. State vs. Strickland, 41 An. 514; State vs. Robertson, 50th Annual, not yet reported.

In determining, in any particular case, whether counsel has acted tardily or not, the circumstance that the facts may have come to the knowledge of the attorney at a date anterior to his connection with the defendant’s ease does not dispense him from the duty of acting promptly upon the information in his possession at the time of -his employment.

For the reasons assigned it is hereby ordered, adjudged and; decreed that the ruling and action of the District Court appealed, from herein sustaining motion to quash the indictment found against him be hereby annulled, avoided and reversed and set aside, the cause reinstated and remanded to the District Court for further proceedings according to law.


source: Caselaw Access Project

author: Nichollls, C. J.

license: Public Domain

text:
    No. 12,950.
    State of Louisiana vs. Joe Berry.
    Before, what purports to be the confession of an accused person can be intro-1 duced in evi< ence against him, it should have been shown to have been freely and voluntarily made and not brought about by fear on his part, or inducements held out to him.
    The mere fact itself that the confession was made while under arrest or imprisonment to the officer of the law arresting him or holding him in custody does not take from it the character of a free and voluntary confession.
    A prisoner’s confession to the officer arresting him or holding him in custody, will not be rejected merely because it was made in answer to a question which assumed his guilt.
    The mere fact of the intoxication of the prisoner (not amounting to mania), at the time of his making a confession to the officer arresting him or having him in custody, does not exclude the confession. Confession, however, produced by intoxication, is a fact for the jury tending to discredit a confession.
    Confessions made by prisoners to parties arresting them or holding them in custody should be closely scrutinized by the courts to make certain that instrumentalities intended merely for the vindication of the law should not be converted into engines of oppression and wrong.
    0 N APPEAL from the Ninth Judicial District Court for the Parish of De Soto. Hall, J.

      M. J. Cunningham, Attorney General, and J. B. Lee, District Attorney, for Plaintiff and Appellee.

      Wm. Goss for Defendant, Appellant.

      Submitted on briefs November .26, 1898.
    Opinion handed down December 5, 1898.
   The opinion of the court was delivered by

Nichollls, C. J.

Appellant was convicted of murder without capi-. tal punishment, sentenced to life imprisonment in the penitentiary, and from the sentence he has prosecuted this appeal.

The only question submitted to us for review is the action of the District Court in permitting a confession of the defendant to go to the jury, over the protest of the latter.

It was claimed by the defendant that the confession was not free and voluntary.

The testimony which served as the basis for the introduction of the confession is annexed to the bill as part thereof, and is as follows:

C. W. Smith, sworn, says:

“ I am the constable of Ward 6, and arrested the accused. I found him at Mr. Airy’s, about five or six miles from the scene of the homicide, about 10 or 11 o’clock at night. He made a statement to me in regard to the killing. It was a free and voluntary statement on his part. I offered him no inducement whatever for making the statement. I did not tell him that it would be better for him to make a statement. I did not tell him he would get out lighter if he made a statement. I made no threat or offered no violence against him to induce him to make a statement. I had him under arrest at the time, and he voluntarily made the statement to me without any inducements or threats of any kind.
“ He made me a statement at the time he was first arrested, and he made me a subsequent statement at the house where the homicide was committed. At neither time did I offer any inducement, or threaten him, or tell him, it would be better for him to make a statement. Both statements referred to were free and voluntary on his part.”

Cross-examined:

“Mr. Jim Bice, Jr., went with me to arrest him. I was armed with a shotgun and a pistol. Mr. Bice had a pistol. I think I found him about 10 or 11 o’clock at Mr. Airey’s. The first words I told him was to hold up his hands, which he did. I asked him ‘ Why did you do it?’ I tied him with a rope. ' The first words he said after I told him to hold up his hands wei’e: ‘ Who in the hell told you about it?’ I asked him, what on earth he meant by killing Will?’ I think it was about the time we went up to him. When I got to Mr. Airey’s I got over in the cowpen, between where Joe’s horse was unhitched and the house. Before I got over in the cowpen I heard them talking coming down where Joe’s horse was, and recognized Joe’s voice and got over in the cowpen. I don’t know but what there was a lane leading to the house, and Joe was coming down beside the fence, and Mr. Airey was with him. When I heard Leon Airey tell Joe that he heard somebody, I then went up to the fence where they were as quick as I could, and' drew my gun on him, and told him to throw up his hands. He threw up one, and I told him to throw up the other, and he done that. .1 think I told him that if he didn’t throw up the other I would shoot him. I then got over the fence as quick as I could and tied him, and then searched him. I think he asked me the question: ‘ Who in the hell told you?’ before I had gotten to him. It was just after this that I asked him why he had killed his brother, and in reply to what he had said, and it was then that he began to make the statement to me about how and why he had done it. He substantially made the same statement to me a number of times after that. Leon Airey went back in the house, and his father, Victor Airey, came out to where we were and asked what was the matter, and Berry replied: I told you I had killed the damned scoundrel,’ or damn son of a biieh.’ I don’t recollect which epithet he used. (Defence objects and reserves a bill.) I remained with him at Mr. Airey’s about half an hour. He made no further statement differing from the first he told me at that time. 1 went back with him to his (Berry’s) house. I had him tied all the time. I suppose it was after 12 o’clock when I got back to his' house. He made pretty much the same statement to me several times. We would ask questions along, and he would answer, until he thought he had answered enough, and would then siy he would wait and see what Oarrie would say about it. Carrie was his wife. He went to bed after he got to my house. It was probably' 2 or 3 o’clock when he got to my house. Jim Bice was with me. I tied his hands behind him and tied his feet under the horse while he was riding. I loosed his hands from behind him and tied them down by his side after I got to my house. I came on to town with him next morning, and left my house probably at 8 or 9 o’clock. J. J. Vealock came to town with me and him. I got there a little after 12. I don’t know that he made any further statements to me between my house and town. The next morning at my house, after Berry woke up, my brother Frank asked him how he felt, and if he realized what he had done the night before; and Berry replied that he couldn’t realize what he had done, and said he didn’t believe he had killed Willie, and then said: ‘I have talked too damned much now for my own good. I will wait and .see what Carrie says.’ When I arrested him I saw some indications that he was under the influence of liquor. He did not seem to be excited or seared when I was tying him. The moon was shining very bright when he was talking to me. I could see plainly who he was twenty steps off. I didn’t tell him that he had better tell about it, or that it would be better for him to tell about it. As soon as I got to him after throwing my gun on him he began to make a statement. The first statement made was in answer to my question as to why he had killed his brother.” Re-examined:
“Mr. Berry knew me well, and knew I was the constable of the ward. I had only one man with me. Berry did not seem at all frigthened and seemed like he didn’t care for anything. I suppose Mr. Berry is about thirty-five years old and passes for a white man.”

Recross-examined:

“ I always try to arrest everybody down there that I have a warrant for. I have never let one get away yet that I know of.”

Defendant’s counsel calls attention to the fact “ that during all the time he was making the confession he was securely tied with his hands bound behind or at his side.” He calls attention to the following statement by Smith at the close of his cross-examination. “As soon as I got to him, after throwing my gun on him, he began to make a statement. The first statement made was in answer to my question as to why he had killed his brother.”

In the brief filed for defendant his counsel says: The accused begins his statement in answer to'a question asked by a constable acting as deputy sheriff, while the deputy had his gun leveled at him and the statement was continued while accused was being tied and while under arrest. Smith’s testimony shows that the prisoner’s captors were plying him with questions which he answered reluctantly. Smith says: “ We would ask him questions along and he would answer until he thought he had answered euough.” It will be observed this deputy undertook to tell what the prisoner thought thereby indicating that his captors were pressing him for a fuller confession. It will also be noticed that Smith assumes in his first question that the accused did kill his brother, for he says: “ I asked him why he had killed his brother?”

We do not understand the witness Smith to say that the statement of the accused was made to him in response to a question, “why he had killed his brother?” propounded to him simultaneously with the leveling of the constable’s gun at him, and while it was so leveled upon him. Had this been the situation; it might well be said that the answer was made under duress, while únder the influence and fear of the gun directed against him. What the constable said was “ that he threw (leveled) his gun at Berry, calling twice upon him to throw up his hands; that after this had been so, he climbed over the fence,advanced upon and arrested the defendant.” The object of the leveling of the gun was evidently to ensure the constable’s safety while moving up to Berry, and not to call threateningly for an answer to a question asked. The constable says that Berry “began to make the statement as soon as he (the constable) got to him, after throwing the gun, and not while throwing the gun on him. Parties making dangerous arrests are not apt to initiate-proceedings by asking questions. A fair construction of the language of the witness is that the conversation between the parties occurred just as or just after the constable had reached defendant, and it is from that standpoint we must test matters. There is no claim that the tone of Smith’s voice in asking the question he did of the defendant was threatening, or indicated any hostile feeling toward him. Two persons (Bice and Airey) were present, besides Smith, and defendant was in position to have shown anything like coercion, had such existed, by the testimony of one or the other, or both. It is unquestionable that before what purports to be the confession of a person accused of crime is introduced in evidence it must be shown that it was free and voluntary; not made under the-influence of fear, inducements or promises. It has been held by this and other courts that the mere fact that the confession, was made while under arrest or imprisonment to the party or parties arresting him or holding him in legal eustody is not sufficient ground per se to take from the' confession thp character of its being free and voluntary. A confession made under such circumstances and shown affirmatively by testimony to have been made without intimidation, threats, menaces .or inducements on the part of the officer of trie law is admissible. State vs. Hash, 12 An. 895; State vs. Monie, 36 An. 513; State vs. Alphonse, 34 An. 18; State vs. Magee, 36 An. 309; State vs. Meekins. 41 An. 545; State vs. Hamilton, 42 An. 1205; State vs. Johnson, 47 An. 1230; State vs. Lewis, 39 An. 1111; State vs. Demareste, 41 An. 617; State vs. Chambers, 45 An. 37.

The fact that a confession was made to such persons and under such circumstances throws upon courts the duty of very closely scrutinizing the' conduct of those officials and making sure that the instrumentalities intended merely for the vindication of the law should not be converted into engines of oppression or wrong. We find nothing in this case to break the force of Smith’s declarations, under oath, that the statements made to him were free and voluntary,' brought about by neither fear nor inducements. The facts disclosed by the testimony that Berry when arrested was under the influence of liquor furnishes a probable reason for his having so indiscreetly and injudiciously acted so far as his own interests were concerned.

Neither the fact of defendant’s partial intoxication, nor that of his statements being made in response to question asked of him (State vs. Allen, 37 An. 687; State vs. Taswell, 30 An. 886; State vs. McGee, 36 An. 209), furnish in law legal grounds for excluding the confession, though they may affect its weight when before the jury. The following extracts taken from Wharton’s Oriminal Evidence (9th Ed.) bear directly on the issues raised in this case.

Section 649: “Confessions made to constables or other arresting parties, or to magistrates, can not be excluded unless it appears that there was a threat of harm or a premise of worldly advantage employed by an authoritative person.” R. vs. Baldry, 12 Am. & Eng. L. and Eq. 591; 5 Cox. C. C. 528; 2 Ben. C. C. 430; Com. vs. Sturtivant, 117 Mass. 122; Com. vs. Smith, 119 Mass. 305; Murphy vs. People, 63 N. Y. 590; Wolf vs. Com., 30 Grat. 833; Aaron vs. State, 37 Ala. 106; State vs. Carlisle, 57 Mo. 102; State vs. Bruce, 33 La. An. 186; State vs. Staley, 14 Minn. 105; State vs. McLaughlin, 44 Iowa, 83; State vs. Ingram, 16 Kas. 14.

Section 661: “When a party is compelled by duress to make a self-disserving statement, this statement can not be put in evidence against him. Legal imprisonment, however, does not operate to exclude a confession made during its continuance when no threats or promises are used. ‘Thus, when a prisoner after his arrest, upon being interrogated, why he had killed his wife, replied: ‘ Because I loved her,’ and said further, ‘1 killed her because she loved another better than me,’ and also said to a fellow-prisoner in jail, that he had killed her, but if it was to do again, he would not do it; it was held that there was nothing in the circumstances under which the eonfession was made to render them inadmissible. State vs. Freeman, 1 Speers 57. That the prisoner’s feet were tied does not exclude. State vs. Patterson, 73 Mo. 695.”

Section 662:

“ A' confession is admissible when voluntarily made to the public officer, even though the prisoner be in custody of such officer, unless the eonfession be in some sense elicited by threats or promises.” Numerous authorities cited.

Section 663:

“ A prisoner’s confession will not be rejected as evidence merely because it was made in answer to a question which assumed his guilt. Thus, where the officer who committed the prisoner on a charge of murder, asked ‘ whether if it was to do over again, he would do it,’ and the reply was, ‘Yes sir-ree, Bob,’ it was held that both the question and answer were admissible in evidence, as well as the fact that in making the reply the prisoner’s ‘ manner was short.’ ” Carroll vs. State, 23 Ala. 29, and numerous other authorities.

Section 676:

“The mere fact of intoxication, unless amounting to mania, does not exclude a confession made during its continuance, even though the intoxication was induced by a police officer who sought in this way to lead the prisoner to confess. Confession, however, produced by intoxication is a fact for the jury tending to discredit a confession.” (Authorities cited.)

We find no basis for holding that the proceedings of the case, the verdict of the jury and the sentence of the court were not in accordance with law and evidence.

The judgment of the District Court must be and it is hereby affirmed.


author: Watkins, J.

text:
    No. 12,719.
    Charles E. Alter vs. Home Insurance Company.
    In case a loss s occasioned by the fall of a building through the owner’s failure to* protect and keep same in a secure condition, he must repair the same, and not the insurance company, in the absence of clear proof that such loss is covered by its risk.
    APPEAL from the Oivil District Court for the Parish of Orleans. Théard, J.

      Branch K. Miller for Plaintiff, Appellant.

      R. Ii. Browne for Defendant, Appellee.
    Argued and submitted March 25, 1898.
    Opinion handed down June 21, 1898.
    Rehearing refused November 21, 1898.
   The opinion of the court was delivered by

Watkins, J.

This action is for the recovery of seven thousand five hundred and five dollars and fifteen cents, as the amount of damages which were caused to the plaintiff’s property by reason of. defendant’s alleged failure to have taken proper care in the reconstruction, after its damage by fire, of a portion of the party wall' which separates it from the adjoining premises.

On the trial there was judgment rejecting the plaintiff’s demand, and he has appealed.

Briefly stated, plaintiff’s demand is that on July 29, 1889, defendant issued in his favor its policy of insurance No. 37,204, whereby it contracted and agreed to insure him against loss or damage by fire on the three-story brick, slated building, designated as No. 80 South Peters street, between Poydras and Lafayette streets, and running through to No. 12 Common street, in the city of New Orleans; that by successive renewals said policy was kept alive, and same was in force on June 20, 1892.

That during the month of April, 1892, while said policy was in force, said building was injured and damaged by fire so as to make same a total loss within the terms of said policy.

That due demand was made upon the defendant for indemnity for the loss sustained, and that negotiations occurred between them which resulted in an agreement with reference to the loss by fire to the effect that in lieu of paying the amount of loss sustained in money, the defendant should rebuild, or reconstruct said building, placing it in a good and sound condition.

That the duty of reconstructing said building was not discharged by the defendant in accordance with its obligation; that the work of reconstruction was negligently and faultily performed.

That amongst the parts of said building which, by reason of the damage received by fire, required demolition and reconstruction, was a part of a division or party wall between plaintiff’s property, No. 80 South Peters street, and the adjoining building, No. 78 South Peters street; and that in active violation of its contract to repair the fire damage done thereto, and reconstruct same and place it in a safe and sound condition, the defendant failed and neglected to take down and demolish same, but let it remain standing in a weak, dangerous and unsafe condition, with the purpose and intention of using and building on same in the reconstruction of the edifice which was damaged by fire.

That said party wall being weak and entirely insufficient to be used in such reconstruction, it became and was the duty of the defendant to have taken same down and removed, and to have erected a new, sound and safe party wall in its stead.

The plaintiff then avers that while the said work of reconstruction was in progress the said portion of the party wall collapsed and fell, causing the collapse of the adjoining building, No. 82 South Peters street, the upper floor of which was used as a factory, where there were at the time a large nnmber of operatives employed; and that by said collapse two of said female operatives were injured.

That two of them, Pauline Knoop and Emma Steppe, brought suits against him for damages for the personal injuries sustained; and the former recovered a judgment for one thousand five hundred dollars, and the latter the sum of four thousand dollars.

That in the defence of those suits he paid and expended in attorney’s fees the sum of thirteen hundred dollars, and in costs the sums of three hundred and twenty-three dollars and twenty-five •cents and three hundred and eighty dollars and forty-three cents, aggregating the amount claimed of the defendant in this suit.

Plaintiff alleges that included in its obligation to reconstruct said building was the duty imposed upon the defendant of taking propel" and sufficient precaution, pending the work, to prevent the collapse and falling of said party wall between Nos. 78 and 80 South Peters street; and, also, to so conduct said work of reconstruction that no injury would thereby result, or be caused to any third person.

That under its contract the defendant did assume the full charge and control of the work of reconstruction, in which petitioner took neither part nor participation; and that same'was at the sole and exclusive risk of the defendant company as a contractor.

Plaintiff finally avers that it was by reason of the defendant’s breach of contract that said accident was caused and said damages inflicted upon the said two female operatives aforesaid.

The defendant first tendered a plea of prescription of twelve months under the twelfth clause of its policy of insurance; and, in the alternative, urges the following defences, viz.:

It admits the execution of the aforesaid policy of insurance, and that it was in full force in 1892 when the adjoining building No. 82 South Peters street was destroyed by fire.

It avers that the walls of plaintiff’s building were old, rotten and weak; and having nothing to support them they fell down, having been exposed to inclement weather, causing the alleged damages referred to.

That it subsequently agreed by arbitration and compromise to undertake to repair the front wall and forty feet of the party wall, through a competent and skilful contractor, and before the work could be done it was abandoned by agreement with the plaintiff and a settlement was then effected with him.

That it denies that the party wall was in any manner damaged by fire, or that it was or became in any manner responsible under its contract to repair or rebuild the same, or that it at any time had charge or control over the wall which' fell down. And it avers that said wall fell, solely by reason of its rotten and decayed condition; and that it was the duty of the plaintiff to have taken care of same, and not suffered the damage to have occurred.

On the 23d of April, 1892, a fire occurred in the building No. 80 South Peters street, in which the Klotz or Margaret’s Bakery was kept; and that building immediately adjoined the building of the plaintiff which the defendant had insured — No. 80 South Peters street — there being a party wall between the two.

The only apparent damage which No. 80 had sustained by the fire was an awning in front of it which had been damaged by the falling debris and the blistering of the side of the party wall.

Soon after the fire, the defendant sent its builder to examine the building No. 80, and received a report in conformity with the foregoing statement. That of the party wall there was actually some forty feet down;” but the estimate made by the expert shows about sixty-four feet.

The testimony of this expert builder and contractor that this was the only portion of the party wall with which either he or the insurance company had anything to do-; that was the only portion of the party wall which was embraced in the agreement of the insurance company to rebuild.

It shows that the front wall of No. 82 was demolished as low down as the second story.

The weight of the evidence shows that the party wall was quite an old one; and that it was very poorly anchored, and so badly cracked that holes or fissures could be seen through them.

That as a result of the fire, the joists and rafters, by means of which the building No. 82 had been connected to that of the plaintiff, were all drawn out or torn out by the demolition of the building as a result of the fire.

It further shows that in this condition the wall was suffered to remain standing for several days, and while the weather was rainy and bad — the fall occurring on the 20th of June, subsequent to the fire.

The contractor states that he had charge of no portion of the plaintiff’s building except that above described; and that after he took charge of it, he “ shored up the timbers, floor-beams, and the roof.”

He says the estimated cost of the repairs was fourteen hundred dollars, and that for that price the repairs of the party wall were undertaken, and that his instructions from the insurance company were to build the number of feet of wall indicated.

That he had no charge or control of any other portion of the wall.

This witness was asked this question, viz.':

“Q,. What portion of the wall was it? Was it immediately continuous from where you had agreed to repair, or was it a section beyond that?
“ A. It was a section beyond that.”

The testimony shows that the portion of the wall which the insurance company was engaged in repairing fell during the latter part of May, and during the time the workmen were engaged in effecting the reconstruction thereof, the rear portion of the wall fell — that is, about the 20th of June.

Consequently it is evident that very nearly two months had elapsed between the date of the fire, which occurred on the 23d of April, 1892, and the time when the falling of the party wall occurred, which did the injury for which the plaintiff seeks to recover damages, namely, June 20, 1892.

It is equally evident and indisputable that very nearly six weeks intervened between the date of the fire and that of the falling of the portion of the party wall which the insurance company undertook to repair. It is shown by all the evidence upon the subject that during this interval of time there were frequent and heavy rains; and that on the 20th of June, when the rear portion of the party wall fell, the rain was so continuous that the contractor’s workmen were necessitated to do their work between showers.

The weight of the testimony is to the effect that the aforesaid rear portion of the party wall was in no way properly shored up or secured.

In our opinion the decisions of this court in Knoop vs. Alter, 47 An. 570, and Steppe vs. Alter, 48 An. 363, virtually decide this case against the plaintiff. This suit is instituted for the express purpose of obtaining from the insurance company a repetition of the damages he was condemned to pay to the plaintiffs therein.

The records and opinions in those cases show that the defence of Alter was an attempt to fix the whole responsibility upon the insurance company for the damage which was inflicted upon the plaintiffs therein, and considering that this court fixed the responsibility directly upon him the duty is placed upon him in this case to either demonstrate the error or incorrectness of those decisions, or by additional evidence show that those cases would, in all likelihood, have been differently decided had such additional evidence been before the court when such decisions were rendered.

But in our conception plaintiff has done neither.

This we think sufficiently appears from the portions of the evidence which is herein cited, and those portions to which reference is made.

The portion of the party wall which the insurance company agreed ■with Alter to repair and reconstruct only fell down on the 23d of May, and the fire occurred on the 23d of April previously. It is not •claimed that the insurance company had come under any obligation to the plaintiff for. the reparation of any damage prior to the date first mentioned.

It is not shown that the plaintiff did anything in the meanwhile to .protect his own wall, but it is affirmatively shown that he left it in an unsafe and unprotected condition.

It is shown that the rear portion of the party wall, the fall o^ which occasioned the damage complained of, occurred on the 20th of •June following the first break in the wall, and that that portion of the wall had been, up to that time, apparently safe and entirely intact, and was not in the possession or under the control of the defendant’s •contractor.

That said rear portion of the party wall was not embraced in ■or covered by the agreement and compromise between the plaintiff and defendant, and consequently its reconstruction was never contemplated by either of them.

-In the Kuo op case our opinion states:

“It is not shown by the evidence that the insurance company had -undertaken to repair the wall which caused the damage.
“ On the contrary, the repairs were limited to the front portion, •the forty feet which had previously fallen. The contract between •the insurance company and the builder was to rebuild from the front to the rear, a distance which did not include the standing wall, from which it does not appear that (Alter) withheld his assent.”

Again:

“Primarily, every one should keep his building in repair so that, damage may not be occasioned by the ruin.” 0. 0. 670, pp. 573, 574.

That principle of the Oode is reinforced by the opinion of this •court in Insurance Company vs. Werlein, 42 An. 1046.

On careful investigation of the law and evidence we are satisfied that this case was correctly decided in the court below.

Judgment affirmed.

-Rehearing refused November 21, 1898.


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    No. 12,951.
    State of Louisiana vs. Lum Williams.
    Questions o£ fact occurring in the course of the trial in the court below, and which are therein assigned as error by counsel for the accused, are not examinable in the Supreme Court.
    ON APPEAL from the Ninth Judicial District Court for the Parish of DeSoto. Hall,J.

      M. J. Cunningham, Attorney General, and J. B. Lee, District At-' torney, for Plaintiff and Appellee.

      J. D. RoaaJi for Defendant and Appellant.
    Submitted on briefs November 26, 1898.
    Opinion handed down December 5, 1898.
   The opinion of the court was delivered by

Watkins, J.

The defendant was charged with and found guilty of the crime of incest, and sentenced to imprisonment in the penitentiary for the period of fifteen years, and from the verdict and sentence he prosecutes this appeal.

In the court below deiendant’s counsel, ex industria, filed an assignment of errors and retained one bill of exceptions; and in this court he has filed a plea of prescription, and also a plea to the jurisdiction of this court.

The charge of the bill of indictment is, that the defendant, on the-18th of May, 1898, “ then and there being the father of Mary Williams, and within the prohibited degree, did unlawfully and feloniously and knowingly cohabit with the said Mary Williams, without marriage, the same being prohibited, and commit the crime of incest,” etc.

As the record shows that the indictment was returned into court and filed therein upon the 4th of August, 1898, it is clear that the pleas of prescription of six and twelve months which are leveled at the indictment are not sustainable on. the face of the same; and it is manifest from the extract which we have made from the indictment that this court possesses jurisdiction of the prosecution.

But the trend of counsel’s argument is, that the testimony adduced at the trial tended to show that the crime, if any was committed by the accused, was committed while the parties to the criminal act resided in the State of Texas, and therefore beyond the jurisdiction of the court of first instance; or, if within its jurisdiction, then that the testimony showed that such acts were committed more than twelve months prior to the finding of the indictment.

This, we take it, is the purport of the first paragraph of the bill of exceptions, though it is somewhat inartistically drawn.

The second paragraph is to the effect that the trial judge erroneously allowed a verdict to be entered on the testimony of Savannah Williams, whose declarations were at variance with the charge of the court as to time, place and residence,” etc.

To this bill of exceptions the judge appends the statement that “ the verdict was not, so far as the court knows, based upon (the testimony) of Savannah Williams, as there was ample evidence to> support the verdict exclusive of hers.”

This declaration satisfactorily disposes of the defendant’s bill of exceptions.

The assignment of errors which was filed in the court below presents no question of which this court can take cognizance, as they appertain exclusively to matters dehors the record, and have particular pertinency to the testimony which was adduced before the jury vel non.

The two motions for the allowance of a new trial proceed somewhat upon the same line, and further assign the discovery of new and additional evidence; but the defendant’s counsel did not make the evidence relied upon as having been newly discovered a part of the record by annexing same to a' bill of exceptions taken and reserved to the ruling of the judge, and for that reason we decline to consider and pass upon the same.

On the state of the record as presented there is no relief which we can give to the accused.

Judgment affirmed.


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    No. 12,920.
    The State of Louisiana vs. Justin Cancienne.
    It is not error of the trial judge to refuse permission to counsel for the accused, to address liis argument to the jury in the Freucb languge on the ground that it was their mother tongue, the jurors having been examined on their voir dire and cross-examined in the English language and without objection on the part of the accused, and all the witnesses for the State and for the defence having been interrogated and cross-interrrogated in English.
    It is not error of the trial judge to exercise control of counsel for the accused with regard to the extent of his cross-examination of a juror on his voir direy if same be reasonably exercised.
    If in point of fact the discretion of the trial judge has been erroneously exercised in this regard, the accused has no ground of complaint if the record discloses that lie was not thereby compelled to take on the panel an obnoxious juror who voted in favor of his conviction during the deliberations of the jury.
    <T\N APPEAL from the Eighteenth Judicial District Court for the Parish of Lafourche. Caillouet, J.

      M. J. Cunningham, Attorney General, and L. C. Moise, District Attorney, for Plaintiff, Appellee.

      Clay Knobloeh and Howell & Martin for Defendant, Appellant.
    Argued and submitted November 12, 1898.
    Opinion handed down December 5, 1898.
   The opinion of the court was delivered by

Watkins, J.

Originally the defendant was indicted for the crime of having murdered his wife, was found guilty of manslaughter, and sentenced to imprisonment in the penitentiary for a term of eighteen monthS4 and from the verdict and sentence he successfully prosecuted an appeal to this court — the cause having been remanded for a new trial. 50 An.

On the second trial in the lower court, the jury again found him guilty of manslaughter, and being again sentenced to the same period of imprisonment, he prosecutes a second appeal therefrom.

It is discoverable from our original opinion, and the recitals of fact which are therein extracted from the various bills of exception, that the defence of the accused was twofold: (1) that having suddenly taken his wife in the act of adultery with one Delatto, in hffi defendant’s own house and upon his bed, he was precipitated into such a state of mental excitement and fury as to have rendered him unaccountable for her homicide; (2) that having under the circumstances, fired on Delatto, his wife seized his (defendant’s) hand and arms, and attempted to disarm him (she being the more powerful of the two), and called Delatto to come to her assistance, and that they would kill him, he was entitled to introduce evidence tending to establish the plea of self-defence.

It is also discoverable from our opinion that the trend of all the. defendant’s bills of exceptions was in the direction of these two. defences; and further, that whilst the fact of having caught his wife in the act of adultery was not a justification of the defendant’s homicide of his wife, yet, it was sufficient to relieve him of the charge of being technically the aggressor in the fray, and render-proof of self-defence admissible.

On this question we quote the following from our opinion, viz. r

“ We think there is a difference between the case of a person who, having originally no immediate cause of provocation himself, should originate a difficulty, which, in its after phases, would lead to his killing the person whom he led into it, and that of a man who, entering his own home, is there brought to face a scene calculated to' throw him into a condition of frenzy, under the influence of which he commits an act which, though not legally excusable, comes near the border line of justification.
“We think the situation was such as to justify us in referring the origin of the difficulty to the wife and her paramour as the aggressors, sufficiently so to open the door to submission to a jury of the plea of ‘ self-defence,’ when in one of the after phases of the difficulty the husband’s life had been placed in danger by one of them, and, in order to save the same, he had killed the party making the killing necessary.
“ We think the rigor of the rule which the court refers to should be relaxed in a case of this character, and that the matter of self-defence should have been submitted to the jury, to be by it passed upon under the whole evidence, and that the excluded testimony could legally have formed part of it.”

The foregoing sufficiently indicates the reasons this court entertained for having set aside the verdict of the jury and granted a new trial; and when the case went back to the lower court and the new trial was had, the question of justification was eliminated, and the testimony in support of self-defence was admitted and heard by the jury — the trial judge having given the jury instructions in his general charge relative to the law of self-defence.

■ I.

The first bill of excptions which attracts attention is that directed to the trial judge’s refusal to allow the defendant’s leading counsel to address the jury in the French language — it being therein assigned

(1) that the mother tongue of every member of the jury is French;

(2) the mother tongue of the judge is French; (3) the mother tongue of the defendant’s counsel is French; (4) and that the district attorney understands French better than a majority of the petit jury understands English.

This request having been objected to by the district attorney, and the objection having been sustained, the court assigned as the reason for his ruling, inter alios, that the district attorney “ did not understand the French language sufficiently well to follow the argument of counsel (for the defendant) ;” but that the district attorney stated to the counsel, that if he “wanted to state certain things, or parts of his argument in French, and would inform him, district attorney, in English of the meaning thereof, that he would make no objection to such proceedings.”

The judge then stated that his ruling was to the effect that upon objection being made by either counsel, “the proceedings would have to be carried on in English, the language of the Constitution.”

He further stated, “ that up to that time all the proceeding in the trial had been carried on in English; that the jurors had all been examined in English on their voir dire, and answered satisfactorily; that the witnesses had been examined, and testified in English; and that no question had been raised that the jurors did not understand the English language sufficiently to sit on the case. That from the examination of the jurors on their voir dire, the court was satisfied that they understood the English language well enough to try the case, and nothing transpired during the whole trial to cause (him) to change that opinion.”

This statement -by the court is a full and complete answer to the objections of counsel; and we are of the opinion that the ruling was correct. The only ground upon which counsel could have reasonably based his claim was, that the jury understood the English language ■so imperfectly they would be unable to appreciate or fully comprehend an argument in same; but as the same reason applied with equal force to the interrogation and cross-interrogation of the jurors themselves and of the witnesses, it must be necessarily assumed that their knowledge of English was sufficient for all necessary purposes.

Otherwise they could not have understood and appreciated the reading of the indictment, which is couched in English and not in French.

II.

The second bill of exceptions relates to the refusal of the judge to give to the jury the following special charge, viz.:

“When the intellectual power of a person to resist is for the time obliterated through an overwhelming violence of mental disease, he is not a responsible moral agent; but if he had power of mind enough to be conscious of what he was doing at the time the homicide occurred —if you find that the accused killed his wife, and that he could distinguish between right and wrong — he is responsible.”

The judge assigns as the reason for his refusal to so charge the jury, “ that even if the requésted charge be good law, it had no earthly application to the facts of the case at bar, and to have charged it to the jury would have been to confuse them unnecessarily.”

The judge then makes reference to a similar charge which was requested by counsel for the accused at the former trial, and the view taken of it in our opinion, and then says:

“ It might be noted, en passant, that there was not before the jury the slightest evidence of the accused suffering at the time from any mental disease. He was excited at the time, naturally, but not to such an extent as not to note what transpired; for, as stated before, he testified minutely and in detail upon the subject. He did not claim that he was jealous, but did say that he never suspected his wife of wrong-doing before.”

The charge requested involves the law of insanity, and inasmuch -as the judge states that such a charge was wholly inapplicable to the proven facts of the case, he was right in refusing to give the charge, this court being conclusively bound to accept the judge’s statement as to what the testimony was on the trial.

III. '

The next bill of exceptions challenges the correctness of the following extract from the general charge, viz.:

“If you find from the evidence that the accused unlawfully killed his wife, the person described in the indictment, and that he was-not justified in self-defence in doing the killing, your verdict should be guilty,” etc.

Same is alleged to be incorrect in two particulars, (1) in that it trenches upon the facts adduced on the trial, and (2) that it was-equivalent to instructing the jury “ that the only lawful defence in cases of homicide is self-defence,, and practically instructing the jury that self-defence was, in point of fact, the only defence in the case at bar, thus instructing them to exclude and reject any other defence made in the case.” ■

The court, in its reasons, reiterates the facts of the case as they have been substantially related in other bills of exception which-were reserved at the two trials, and stated, as. we have previeusly said, that there were but two substantial defences set up by the accused, (1) justification, and (2) self-defence, and as the former-had been eliminated, the latter remained practically as the only one.

He further stated that, “ as a matter of fact, self-defence was the only defence set up in this case by the accused himself when he testified in the case, as will be more fully seen by reference to his testimony certified to the appellate court, in the court’s reasons for-refusing the requested charge on the doctrine of insanity, to which reference is here made.”

The charge seems to us to have been entirely appropriate under-the circumstances and situation of the case; and in our appreciation of the language in which it is couched, it does not trench upon the facts.

IV.

The next bill of exceptions relates to the action of the trial judge-in preventing the leading counsel from continuing an examination of' a juror on his voir dire which had been commenced by his associate-counsel.

The bill relates that after the juror had been examined by the District Attorney, and he had been cross-examined by one of the associate counsel for the defendant, the leading counsel for the defendant “ began to ask a question of the juror, and before he could complete the question, or remotely disclose the sense, purport, relevancy or pertinency of the question, the trial judge stopped said counsel, and spoke as follows: This examination has gone far enough; the court is satisfied that the juror is a competent juror.’ ” The response of the judge is, that when the leading counsel for the accused began to interrogate the juror, he assumed that his examination would be a continuation upon the same line on which his associate counsel had already interrogated him “and interrupted counsel by announcing that the examination had proceeded far enough, and that he was satisfied of the juror’s competency.”

That when the counsel protested against this interruption, ‘“• the court informed.counsel that it was under the impression that he was about to continue the examination on the same line on which his colleague had just examined the juror, on which point it was of opinion that the examination had gone far enough; but that if the court was mistaken in its assumption, and if counsel was about to examine the juror on other points, he could proceed with his examination. Counsel then remarked that it was too late, that his .bill was taken;” and he then challenged the juror peremptorily.

The judge then adds this statement, viz.:

“ Thereafter the accused exhausted his peremptory challenges, there being at the time said challenges were exhausted eleven jurors already accepted and sworn; and the juror Philip Pitre was the only juror accepted and sworn after said peremptory challenges had been exhausted. This juror, Philip Pitre, upon the polling of the jury, after the jury returned with their verdict, upon being asked the question, ‘Is guilty your verdict?’ answered ‘No.’ It thus appears that even if the court should have abused its discretion in stopping the further examination of the juror in the matter complained of, the accused is not in a position to take advantage of it, as he has suffered no injury, the only juror forced on him voting against finding him guilty.”

In our opinion, the answer of the judge to the complaint urged by counsel is complete, for the reason that the trial judge is vested with the fullest discretion in the control and management of .the proceedings at the trial, and is necessarily the proper person to determine the latitude to be'allowed the cross examination of the juror on his voir dire. '

On this ground, we approve the ruling of the trial judge.

V-

The next bill of exceptions relates to the refusal of the trial judge to give to the jury the following special charge, viz. :

The burden of proof throughout the trial is on the State, and the State must establish every fact required by the law to prove the guilt of the accused; one of these essential facts is that the accused was of' sound mind and discretion at the time the homicide was committed. This fact, however, can be established by presumptive as well as by, direct evidence. The law presumes every man to be of sound mind, until the contrary is shown by good and sufficient evidence. If the evi dence raises in your minds a reasonable doubt as to the sanity of the defendant at the time the homicide was committed, if you find any such homicide was committed, and such doubt reasonably and necessarily arises from the evidence, then it becomes your duty to give the benefit of the doubt to the accused, and acquit.” The judge declined to so charge the jury, because it was altogether inapplicable to the proven facts in the case.

The foregoing bill, in its entirety, is quite similar to the one which is discussed in paragraph II of this opinion, and the views we have therein expressed are strictly applicable thereto.

The foregoing are all the bills of exception we have found in the record. There was a motion for new trial and one in arrest of judgment, but as no bills of exceptions were retained to their refusal, we can not deal with them at all.

Judgment affirmed.


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    No. 12,896.
    State of Louisiana vs. Abram Wimberly.
    The ruling of this court in State vs. Eavre, No. 12,689 (50th An., not yet reported), íb reiterated.and affirmed.
    IAN APPEAL from the Eleventh Judicial District Court for the ^ Parish of Acadia. Dupré, J.

      M. J. Cunningham,, Attorney General, and B. Lee Garland, District Attorney, for Plaintiff, Appellee.

      E. P. Veazie for Defendant and Appellant.
    Submitted on briefs November 26, 1898.
    Opinion handed down December 5, 1898.
   The opinion of the court was delivered by

Watkins, J.

The defendant was indicted for the crime of murder, convicted of manslaughter and’ sentenced to seven years’ imprisonment in the penitentiary; and from the verdict and sentence, he prosecutes this appeal.

The defendant’s counsel rests his claim to relief on the ground that the trial judge erroneously refused to sustain his motion to quash the indictment.

We make the subjoined extract from the brief of the Attorney General as fairly stating the point at issue, viz.:

“ On June 17, he filed a motion to quash the indictment on the ground that the Constitution of 1898 was unconstitutional, illegal, null and void, because it is an amendment to the Constitution of 1879, and was not adopted by the Legislature and subsequently ratified by the people, as provided in Art. 256 of the Constitution of 1879; and on the further ground, in the alternative, that the indictment is null and void, because the grand jury which found the bill was not composed of sixteen persons as provided by Act 99 of 1896, but was composed of only twelve persons, which composition was irregular and null, because Art. 117, par. 2, of the Constitution of 1898 had never become executory — the Legislature having made no provision to put same in force by providing for the drawing of juries thereunder.”

The same questions were presented and decided adversely to the defendant’s contention, in State vs. Favre, No. 12,897, 50 An., not yet reported.

For the reasons which are therein assigned, the ruling of the trial judge is approved.

Judgment affirmed.


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    No. 12,829.
    Mutual National Bank of New Orleans vs. John T. Moore, Jr., et al.
    a paper which has been voluntarily executed by the defendants in a suit pending and therein filed, which contains the recital that “ we hereby enter our appearanee to said cause,” signifies that they make an appearance therein for every necessary purpose of said cause.
    A personal judgment which has been pronounced in a chancery court of the State of Alabama, against a non-resident of that State, upon such an appearance therein filed, will be recognized and enforced as % valid and jurisdietionul decree in personam against such defendants as citizens of the State of Louisiana by the courts thereof.
    A PPEAL from the Civil District Court for the Parish of Orleans. ^ King, J.

      Joseph Brewer and Dufour & Dufour for Plaintiff and Appellee.

      Robert G.Dugué for John T. Moore, Jr., Defendant and Appellant.
    Argued and submitted November 12, 1898.
    Opinion handed down December 5, 1898.
   The opinion of the court was delivered by

Watkins, J.

The object of this suit is to render executory a judgment in a suit of same title which was rendered by the Chancery Court of Jefferson county, State of Alabama, and in this proceeding the plaintiff claims the benefit of that provision of the Federal Constitution which declares that full faith and credit shall be given iu each State to the public acts, records and judicial proceedings of. every other State.

In the court below there was judgment rendered in plaintiff’s favor, and the defendant, John T. Moore, Jr., alone prosecutes a devolutive appeal therefrom.

In this court the plaintiff and appellee has filed an answer to the' appeal in which it assigns that same is frivolous, and that the judgment appealed from should be affirmed, and that ten per cent, on the amount of the judgment should be awarded in its favor for a frivolous, appeal; and the defendant and appellant filed in this court as an. assignment of error that there is no ground of action stated against him. Damages for a frivolous appeal are not allowable when the appeal is only devolutive. Such an appeal does not delay the execution of the ju -'gment. 0. P. 907; Berges vs. Daverde, 50 An., recently •decided, and the authorities therein cited.

The assignment of error is not well taken. The answer of . the defendant, John T. Moore, Jr., is a general denial, coupled with the averment that a valid, personal judgment was never obtained against him in the Alabama court; that he was never cited personally to appear and answer therein, and that he neither appeared or answered in the aforesaid cause therein, nor made any appearance therein upon which a valid judgment eould have been therein rendered against him personally.

That for these good and sufficient reasons no good and valid judgment has been rendered against him; and hence he is not bound by the judgment which was therein pronounced against him personally, •and which is sought to be rendered executory against him herein— he having been a citizen of the State of Louisiana at the time said •suit was filed and when the judgment was rendered, and consequently it non-resident of the State of Alabama.

In the District Oourt, the suit was tried and decided, exclusively upon a transcript of the suit and judgment in the Alabama court; hence, in our conception, the only question that is open to discussion and decision in this court is whether the Alabama court had jurisdiction in personam to render a judgment against John T. Moore, Jr., a citizen of Louisiana.

If It was possessed of such jurisdiction, then this court will of necessity assume that everything that was done by that court in that •suit was regularly and legally done, and that it is its duty to recognize same and give it force and efficacy here.

The transcript of that suit shows that the plaintiff or complainant filed a bill in the chancery court of Jefferson county, Alabama, against John T. Moore and Philip Thompson, alleging them to be non-residents of that State; and that John T. Mopre, Jr., executed a promissory note on the 26th of December, 1889, to the order of himself and by him endorsed for the sum of four thousand seven hundred dollars, payable one year after date, with interest at the rate of eight per cent per annum, from date until paid.

It is therein further alleged that said Moore at the same time secured the payment of said note by the execution of an act of mortgage upon property in the city of Birmingham, Ala., and that subsequently said note and mortgage were delivered to Philip Thompson, and he pledged same to the complainant as a collateral security for the loan of said sum of four thousand seven hundred dollars. That at the maturity thereof said note was not paid, and that complainant caused same to be protested as to both Moore and Thompson; and that same is due for the full amount thereof, principal and interest, and that it is the owner thereof.

That the law day of said mortgage was the day said note became due, and same having passed and the debt thereby secured not having been paid, the property described is liable for said debt, and complainant has the right to have the same to satisfy the lien created by the mortgage.

The prayer of the bill of complaint is, that the court take jurisdiction of the cause, that Moore and Thompson be made parties defendant; that it be referred to the register to ascertain and report what amount is due complainant, principal, interest aad costs; “ that the property be sold to pay the same, and if there be a deficiency, that personal decree be rendered therefor;” and that complainant have such other and further relief as may seem to the court meet and proper.

Of the filing of this bill due notice was given by publication; and upon the failure of either of the defendants to appear and answer or demur to the bill a decree pro oonfesso was entered against each of them, and a decree of reference was duly rendered, and thereupon a decree of sale of the mortgaged property was pronounced.

But the decree of sale contained this stipulation, viz.:

' “ That this decree be not executed for eighteen months unless complainant enter into bond in the sum of three thousand dollars, payable to and approved by the register, and conditioned as required by Sec. 8495 of the Code of Alabama,” etc.

At this stage of the proceedings the two defendants, Moore and Thompson, voluntarily executed the following written instrument, viz.:

“ Parish op Orleans, State op Louisiana.
“ To the Hon. Thomas Cobbs, Chancellor of the Northwestern Chancery Division of the State of Alabama:
“ We, John T. Moore, Jr., and Philip Thompson, of the aforesaid parish and State, who are the defendants in a certain cause pending in the Chancery Court of Jefferson county, Alabama, wherein the Mutual National Bank of New Orleans, La., is complainant and we are defendants,in which cause judgment has been rendered in favor of the said Mutual National Bank of New Orleans, La., against us for the sum of five thousand four hundred and ninety-four and 50-100 dollars, condemning the property conveyed by the mortgage on file in said cause to be sold to satisfy said judgment, bub which decree suspends the execution of said sale for eighteen months because we were non-residents, and were not served with personal process, unless bond be given as the law directs for the sum of three thousand dollars, hereby enter our appearance to said cause, and expressly waive the giving of said bond, and consent that said sale may take piace as soon as it is practicable.”

Upon the production and filing of said appearance and waiver in said .cause, the court entered up the following decree to sell the mortgaged property, viz.:

“ In this cause it appearing to the court that the defendants John T. Moore, Jr., and Philip Thompson having in writing properly executed before a notary public, and which is on file in this court, entered their appearance in this cause, have waived the giving of the bond required by the former decree of this court, and consented that the sale of the land be made in this cause may take place as soon as practicable; it is therefore ordered * * * that the sale take place without further delay,” etc.

The register proceeded thereupon to make the sale of the mortgaged property, and his report shows that same was adjudicated to the complainant at the sum and price of twenty-five hundred dollars; and said report and adjudication were subsequently approved and confirmed by a decree of the court conformably to law.

Thereupon the complainant filed a petition for a decree of reference in which it is alleged substantially that it had obtained a judgment, ordering a sale of the mortgaged property, that the proceeds .of sale amounted to twenty-five hundred dollars, for which sum the defendants are entitled to a credit, less costs, etc. Complainant then alleges that the “ defendants are non-residents, but that they in writing appeared in this cause, all of which appears of record in this court.

. “The premises considered, petitioner respectfully requests that a .decree of reference be ordered to ascertain the matters above referred to, and report the same to your Honor, and that your Honor will render a personal decree for such balance as may be reported due complainant from the defendants,” etc.

The order of reference was made and the register’s report showed that the amount of the balance due was three thousand two hundred and forty-two dollars and seventy-three cents.

It was upon this state of the record that the court pronounced judgment in favor of the complainant for that sum against the defendants, Moore and Thompson, personally.

On the foregoing statement it is evident that the Alabama court accepted and treated the aforesaid agreement as an appearance in said cause then pending, and based its subsequent decree against the defendants personally, thereon; and the question for decision by this court is whether its judgment is and was valid and jurisdictional.

We think it was manifestly so. The meaning of the phrase, “ we hereby enter our appearance to said cause,” means just what it says, and an appearance in a pending cause signifies an appearance for every purpose in said cause.

Otherwise it would be meaningless.

It was prepared, as its language and terms fully import, for use in that suit, and the defendants are conclusively bound thereby.

Judgment affirmed.

Mr. Justice Blanchard dissents.


author: Breaux, J.

text:
    No. 12,898.
    The State of Louisiana vs. Sam Ducre.
    The defendant proposed to show (in order to corroborate his own testimony that he had bought the property he was charged with having stolen).

      Held: That the evidence sought was hearsay.
    ON APPEAL from the Sixteenth Judicial District Oourt for the Parish of St. Tammany. Reid, J.

      M. J. Cunningham, Attorney General, and D. S. Kemp, District» Attorney, for Plaintiff and Appellee.

      Henry L. Garland, Jr., for Defendant and Appellant.
    Argued and submitted November 26, 1898.
    Opinion handed down December 5, 1898.
    Rehearing refused December 19, 1898.
   The opinion of the court was delivered by

Breaux, J.

The grand jury on the twenty-ninth day of January, 1898, presented an indictment to the court charging the accused, Sam Ducre, with larceny.

In June following the defendant was tried and found guilty as charged.

During the trial the defendant reserved a bill of exceptions, the grounds of which he urges here in his defence.

The facts stated in the bill of exceptions are that the son of the man whose horse was alleged to have been stolen appeared before a justice of the peace court and expressed the wish to institute a civil proceeding to recover the horse or the value of same.

The justice of the peace required security for costs, whereupon the son abandoned a civil proceeding and resorted to a criminal pro-eeeding.

The defendant contends that the evidence sought would have corroborated his own testimony and would have enabled him to prove that he bought the horse from the son.

The defendant testified that he bought the horse charged to have been stolen from the son of the owner.

The trial judge states, as appears by the narrative of the bill of ■exceptions, that the accused testified that the son of the owner of the horse was in the parish. He lived near the accused, and that his attendance was easily to be procured.

The court ruled that it devolved upon the defendant to produce ■the son as a witness, and if he denied that he sold the horse, the testimony of the justice of the peace might be admissible to impeach .him, otherwise the testimony was open to the objection that it was •the testimony of a third person.

The State is the plaintiff, the son was not a party. Evidence to prove his statements to the justice of the peace made some time previous was, in our judgment, hearsay.

Mr. Bishop, upon the subject of hearsay, says: The person injured or the acting prosecutor is not a party, therefore his utterances out of court are hearsay.” He maybe called as a witness, whereupon if his testimony differs from the declarations in pais, they may be shown to discredit him. Bishop’s New Oriminal Proceeding, Yol. 1, p. 1083.

The defendant did not choose to avail himself of the right accorded under the rules of evidence, of calling the son as a witness. In the absence of even an attempt on his part to procure the testimony of this witness, we should not be justified in granting him the relief he asks.

Counsel arguing for his client urged that the statement made by the son was part of the res gestee. It was not. The statement made at the time, not contemporaneous, was not part of a transaction, but a separate and distinct statement not connected with any transaction which could be brought up before the court in the manner sought.

The defendant, we have seen, testified that he had bought the property from the son of the owner. The statement of the son to the justice of the peace (showing a change in matter of procedure), as before stated, would not prove that he had made sale to the defendant of the property. If it had a tendency in that direction the evidence offered, for reasons before assigned, would not have been admissible. As relates to defendant’s surprise, or that he was taken unawares, he had no reason to assume that his asserted vendor would be present at the trial as a witness for the State. His name was not endorsed on the indictment and nothing showed that it was the intention of the defendant to have him present as a witness. It was for the defendant, if he desired the testimony of this witness, to have a subpcena issued. We think the District Judge did not err in rejecting proof offered of the son’s declaration. There was, as we gather, no privity between the alleged owner of the horse and his son. If the son’s testimony could be admitted in evidence it must be on principles which would admit the evidence of any stranger. State vs. Maitreme, 14 An. 842. We have found no ground upon which, in our view, the verdict can be annulled.

It is ordered, adjudged and decreed that the sentence and judgment appealed from are affirmed.


author: Blanchard, J.

text:
    No. 12,931.
    State of Louisiana vs. Nick Ramsey.
    A juror who stated on his voir dire that he had formed an opinion of the ease, was asked by the court if he could lay it aside and decide the case according to the evidence adduced and the law as charged. He answered: “Yes, sir; 1 think I can do that.” Pressed further as to whether he felt satisfied he could do so, replied: “ I believe I could, but then I have got a fear on my mind; I have never felt I would make a competent juror.” Held: The challenge for cause should have been sustained, differentiating previous decisions.
    C\N APPEAL from the Third Judicial District Court for the Parish of Claiborne. Barksdale, J.

      M. J. Cunningham, Attorney General, Charles B. Roberts, District Attorney (E. H. McClendon of Counsel), for Plaintiff, Appellee.

      J. A. Richardson and J. W. Holbert (C..J. Boatner of Counsel), for Defendant, Appellant.
    Argued and submitted November 26, 1898.
    Opinion handed down December 19, 1898.
   The opinion of the court was delivered by

Blanchard, J.

From a verdict against him of manslaughter and a sentence of five years and six months at hard labor, defendant appeals.

Six bills of exception to as many rulings of the trial judge appear in the record.

The first bill brings up for review that phase of the trial relating to the challenge for cause by defendant of the juror W. W. King. The challenge was overruled, King was sworn as a juror and sat on the case.

It is averred that his answers on the voir dire show his incompetency and that the contrary ruling is reversible error.

It is shown that after the challenge for cause was overruled defendant was powerless to exclude King from the panel because of the fact that he had, previous to the calling of King, exhausted his peremptory challenges.

The questions put to King by counsel for defendant and his answers thereto, and those put to him by the judge and his answers thereto, .on his voir dire, are annexed to and made part of the bill.

This examination was as follows:—

■“ W. W. King sworn,—
Q.. What did yon say your opinion was based on, Mr. King?
“A. Well, I have talked with Mr. Shaw at different times and I also had a talk with Judge Richardson about it since this trial.
“ Q. Mr. Shaw is a witness in the ease and the principal prosecutor in the case is he not?
“ A. I think he is.
“ Q,. Well, now then, have you read the statement of Mr. Kelly in the paper?
“ A. Yes, sir.
“ Q. And from that statement, and from the statement of Mr. Shaw, you have formed an opinion?
A. Yes, sir.
“ Q. Is that a fixed opinion at this time?
“ A. No, sir, it is not.
Q. Are you certain that it will have no weight with you if you are sworn as a juror?
•‘A. Well, it might have some.
“ Q. You doubt your ability then to lay aside that opinion and try this man fairly and impartially according to the evidence here?
“ A. Well, it might have some .weight with me, but, of course, if I was sworn to lay it aside, I Would do my best.
“ Q. Mr. Shaw is your neighbor, is he not, Mr. King?
A. Yes, sir.”

By the court:

“ Q. You state that Mr. Shaw is a witness. Do you know that he is a witness?
“ A. Well, I understand that he is here on the trial, and I understood from his being here that he was one of the prosecutors.
“ Q. But, as to his being a witness is what I want to know.
A. I don’t understand that he is a witness. I have never understood it that way, at least.
“ Q. You say you have had some talk with Judge Richardson since the last trial?
” A. Yes, sir.
“ Q. You read what purported to be Mr. Kelly’s evidence in the newspaper shortly after this thing occurred?
“ A. No, sir; I didn’t read that.
“ Q. Now, what I want to know is this: Have you any bias or prejudice either for, or against Nick Ramsey?
“ A. None at all.
“ Q,. If you are sworn as a juror, can you lay aside the opinion that you now have and decide this case according to the evidence that will be given here before you, and according to the charge that will be given you as to the law?
“ A. Yes, sir; I think I can do that.
“ Q,. Do you feel satisfied that you can do that, Mr. King?
“A. I believe I could; but then T have got a fear upon my mind. I have never felt that I would make a competent juror.
“Q. Well, that dread that you have is what causes you to say that your opinion might have some weight with you, possibly?
A. Well, yes, sir.”

The judge’s reasons for overruling the challenge for cause are stated in the bill, thus:

“Counsel for defendant had the stenographer take down their examination of the juror tendered and the questions propounded by the court and the answers thereto, but the examination by counsel for the State is not attached. Taking Mr. King’s answers all the way through to myself, and to counsel on both sides, I was satified— thoroughly satisfied — that W. W. King was a fair and impartial juror, and his sole reason for fearing that his opinion might have some weight, arose from his lack of confidence in his competency to make a good juror.
“I was satisfied he could lay his opinion aside and depend on the evidence adduced on the trial.
“ Besides this, his opinion was based entirely on hearsay so far as the merits are concerned. Mr. Shaw was a witness to some little circumstances occurring after the homocide, but had no personal knowledge of the.homocide, and Judge Richardson was not a witness.”

It is insisted by the State that the trial judge, in holding the juror competent, is within the rule laid down by this court in such cases.

We are constrained to hold otherwise.

None of the decisions relied on go to the extent here shown to bring the challenged juryman within the rule of competency.

In State vs. McGee, 36 La. Ann. 206, the juror Bell, while stating he had formed a fixed, deliberate opinion which would take strong evidence to remove, replied decisively to the questions of the court that his opinion would yield to the law and the evidence, that he bad no bias or prejudice, and had talked to none of the witnesses; having heard only rumors. To the further inquiry if he could and would do justice by the State and the accused, if selected as a juror,

■ .answered unhesitatingly “ yes I can and will do justice to the State and the accused.” The juror Patton, in the same case, answered to the same effect.

Under these circumstances it was rightly adjudged they were •competent jurors, and nnder the same state of facts we would affirm the ruling, holding the doctrine announced in State vs. Ricks, 32 La. Ann. 1101, too broadly stated, and adhering to that declared in State vs. Desmouchet, 32 La. 1241, State vs. Hornsby, 33 La. Ann. 1110, State vs. De Rance, 34 La. Ann. 186, and other decisions.

In State vs. Dugay, 35 La. Ann. 327, the.jurors were properly held competent, having testified their opinions would yield to the evidence and that they would go into the jury box unhampered by the same.

They had no doubt of their own competency as jurors from the standpoint of being able to determine the ease only from the evidence as adduced, and the law as expounded on the trial. Far different was the case at bar.

In State vs. Melton, 37 La. Ann. 77, the challenged jurors stated on their voir dire that notwithstanding the opinion formed by them they were able to render a fair and impartial verdict according to the evidence and the law.

That is not this case. If the juror King had made that answer we would hold him competent. But when asked by the Court if he was satisfied he could lay aside the opinion he had formed and decide the case according to the evidence and the law, he answered only that he believed he could, and coupled with it this significant and warning expression: “ but then I have a fear on my mind; I have never felt that I would make a competent juror.”

This demonstrated his disqualification; bias was plainly discernible ; he himself was of the opinion he ought not to serve on the case. Why? Clearly because his mind was not free from bias. There could be no other reason. He carried both his bias, and his belief that he was not competent as a juror, into the jury box; he went there with an opinion of the case; he had said only he believed he could render a verdict according to the evidence adduced on the trial and the law as expounded by the court: — not that he was able to do it, or would do it. He would do his best, was the utmost he could say, to lay thp opinion he had -formed aside, if he was sworn to do so.

If he could lay it aside he would be a competent juror; if he could not, he would not be. He went into the jury box in doubt himself that he could lay it aside. This disqualified him. The opinion he had formed was based on what Shaw, one of the prosecutors, and who is said to be his neighbor, had told him about the case. He should have been excused. He evidently had much weight in the deliberations of the jury. He was prominent enough to have been chosen its foreman.

We likewise differentiate from the instant case, State vs. Dorsey, 40 La. Ann. 740; State vs. De Rance, 34 La. Ann. 186; State vs. Ford. 37 La. Ann. 443; State vs. Le Duff, 46 La. Ann. 546; State vs. Williams, 40 La. Ann. 1140.

The views above expressed render it unnecessary to pass upon the questions raised in the other bills of exception taken during the trial.

■For the reasons assigned it is ordered, adjudged, and decreed that the verdict, sentence and judgment appealed from be annulled, avoided and reversed, and that this case be remanded to the court <t qua to be proceeded with according to law.

Nicholls, C. J., takes no part, being absent ill.


text:
    No. 12,849.
    Union Stave Company vs. Wm. L. Langridge, Sheriff, etc. (L. H. Marrero, Sheriff and Tax Collector, Substituted).
    In an action claiming immunity from taxation under the article of the Oonstitutitution exempting property and capital employed in manufacturing industries, it is essential the petition should allege that the factory employs not less than five hands. Otherwise the suit is subject to dismissal on exception of no cause of action.

      /"VN APPEAL from the Twenty-first Judicial District Court, Parish-of Jefferson. Rost, J.

      Bernard MeOloskey for Plaintiff, Appellee.

      Robert J. Perkins, District Attorney, for Defendant, Appellant.
    Argued and submitted November 11, 1808.
    Opinion handed down December 5, 1898.
   The opinion of the court was delivered by

Blanchard, J.

This is an action to declare certain property exempt from taxation, and the appeal is prosecuted by the defendant from a judgment in favor of plaintiff decreeing such exemption and perpetuating an injunction prohibiting the sale of the property for taxes.

The petition alleges the ownership of a certain lot of ground,, which is described, and the'averment is made that a factory is built thereon “ for the manufacture of sugar and rice barrel material, viz.: staves and headings.” It is further represented that the property is used exclusively for such manufacturing purpose.

The exemption is claimed under Art. 207 of the Constitution of 1879.

If the property, used for the purpose aforesaid, be exempt from taxation under this article (as to which we pass no opinion), it is clear it is not so exempt unless the factory employs not less than, five hands, for such is the express requirement of the Constitution-

We have searched plaintiff’s petition in vain for any allegation that its factory employs not less than five hands.

More than that, there is no. proof in the record that not less than five hands aré employed.

Defendant first filed an exception of no cause of action.

Subsequently, with reservation of his rights under the exception, he pleaded the general issue.

The record shows that the exception and the case on its merits were taken up for trial at the same time. The exception was overruled and judgment on the merits followed in favor of plaintiff.

The note of evidence discloses that no- -witnesses were put on the stand, but, in lieu thereof, it was admitted that three witnesses, who had been summoned by plaintiff, if called to the stand “would swear t& the truth of the facts and allegations in plaintiff’s petition contained.”

The allegations of the petition being insufficient, the .exception of no cause of action was well taken and should have been sustained.

Moore vs. City, 48 La. Ann. 1452; In re Southern Wood Man. Co., 49 La. Ann. 926.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that this suit be dismissed at plaintiff’s costs in both courts.