text:
    No. 12,349.
    State ex rel. Vincent Satcho vs. Judge Criminal District Court, Parish of Orleans, Section A, and District Attorney, Parish of Orleans.
    Every party charged with crime has the constitutional right to have subjected to judicial investigation and testing the fact whether or not any particular charge made against him lias come up to the standard of legal requirement or not, but itdoes not follow from this that in every case where a ruling by a District Court on a motion to quash has been made adverse to a contention on that subject which the party charged has urged, that the action of the court is reviewable by the Supreme Court through certiorari and prohibition, particularly prior to trial and conviction.
    It will not be assumed that it was the purpose of the Constitution investing in the Supreme Court supervisory jurisdiction and in cutting off appeals by parties charged and found guilty of misdemeanors that they could and should be able to obtain not only the same relief that an appeal would give them, but greater relief by shifting the form or method of procedure from a proceeding by appeal to one by certiorari.

    QN APPLICATION for Writs of Certiorari and Prohibition.

      W. L. Evans for Relator.

      M. J. Cunningham, Attorney General, and Robert H. Marr, District Attorney, for Respondents.
    Submitted on briefs December 19, 1896.
    Opinion handed down January 4, 1897.
    On the 17th of August, 1896, the District Attorney for the parish of Orleans filed in the Criminal District Court for the parish of ■Orleans, an information against the defendant. On the 4th of December defendant filed a motion to quash the information. He complains that the judge illegally overruled said objection. That by Art. 8 of the Constitution of Louisiana, parties accused are entitled “ in all criminal prosecutions ” to “ enjoy the right to beinformedof the nature and cause of the accusation” against him, which means by a long line of precedents resting on principle, that in a prosecution for the commission of a statutory offence the words of the statute or others of fully equivalent import should be employed (State vs. Jackson, 43 An. 184). That said criminal prosecution against hi-m is fatally irregular and said information absolutely void, because (1) it does not describe any criminal offence known in the words of any penal statute, or, in “ others of fully equivalent import,” and because (3) it does not allege that relator was at the time mentioned in said information the proprietor of a place of public business which required a license under a law of the State of Louisiana or under a parochial or municipal law or ordinance.” That the Criminal District Court is absolutely without jurisdiction to try said cause by reason of there being do legal information pending against him in said court. That if the judge of said court be not prohibited from proceeding further in the cause, he will force the defendant to trial and impose a sentence upon him (if convicted) in a ease wherein there is no appeal and will forever deprive him of his constitutional right to be informed of the nature and cause of the accusation against him before trial,, and will thereby cause him irreparable injury. He invokes the exercise of the supervisory jurisdiction of the Supreme Court conferred on it by Art. 90 of the Constitution, he prays for writs of certiorari and prohibition and due legal relief.
   The opinion of the court was delivered by

Nicholls, C. J.

The motion to quash was based on grounds substantially the same as those mentioned in relator's petition though somewhat amplified.

It asserts that “the information does not seif forth in allegations, facts essential in a prima facie case of guilt under Act No. 18 of 1886;” that it does not allege “that relator failed to close such licensed place of business at 12 o’clock on Saturday night; that it does not allege that relator failed and refused to keep such licensed place of public business closed continuously for twenty-four hours thereafter, nor does it allege that relator did unlawfully give, trade, barter, exchange or sell any of the stock or any article of merchandise kept in any licensed establishment on Sunday.” The information charges that relator, “on the 14th day of June, one-thousand eight hundred and ninety-six, in the parish of Orleans, and within the jurisdiction of the Criminal District Court for the parish-of Orleans, being the proprietor of a certain establishment and place-of business commonly called a barroom, which, by law, is required to be closed at 12 o’clock on Saturday nights, and to remain closed1 continuously for twenty-four hours, did on Sunday, the 14th day of June, one thousand eight hundred and ninety-six, unlawfully open'his said establishment and public place of business aforesaid, and, being the proprietor thereof, did then and there unlawfully give, trade,barter, exchange and sell certain portions of the stock and certain articles of merchandise kept in such establishment and place of business, contrary to the form of the statute of the State of Louisiana in such case made and provided, and against the peace and dignity of the same.”

By the first section of Act 18 of 1886 it is enacted that from and after the 31st day of December, A. D. 1886, all stores, shops, saloons and all places of public business which are or may be licensed under the law of the State of Louisiana, or under any parochial or munici - pal law or ordinance, and all plantation stores, are hereby required to be closed at 12 o’clock on Saturday nights, and to remain closed continuously for twenty-four hours, during which period of time it shall not be lawful for the proprietors thereof to give, trade, barter, exchange or sell any of the stock or any article of merchandise kept in such establishment.”

The second section declares a violation of the provisions of the act to be a misdemeanor, and prescribes that on trial and conviction the party found guilty shall pay a fine of not less than twenty-five dollars, nor more than two hundred and fifty dollars, or be imprisoned for not less than ten days nor more than thirty days, or both, at the discretion of the court.

Upon a claim that- his constitutional “ right to be informed of the nature and cause of the accusation against him” would be violated by the criminal proceedings directed against him under the information copied, and upon an argument that that instrument is absolutely void, it charging no offence against any penal statute of the State, relator invokes the exerei3e by this court of the supervisory powers conferred upon it by Art. 90 of the Constitution to prohibit the judge of the Criminal District Court for the parish of Orleans and the District Attorney from proceeding further in the cause based thereon.

The eighth article of the Constitution, quoted by relator, does guarantee that in all criminal prosecutions the accused should “ enjoy the right to be informed of the nature and cause of the accusation against him,” and therefore every party charged with crime has the right to have subjected to judicial investigation, and testing the fact whether or not any particular charge made against him has come up to the standard of legal requirement or not. It does not follow from this that in every case where a ruling by a District Oourt upon a motion to quash has been made adverse to the contentions which the party charged has urged upon that subject, the court’s action is reviewable by the Supreme Court through •certiorari and prohibition, particularly prior to trial and conviction. A judicial tribunal has been called upon in this ease to determine whether or not relator could legally and constitutionally be sent to trial upon the charge as laid against him, and it has after hearing held that he could. The authority advancing the charge is separate and distinct from that passing upon the sufficiency of the charge as a basis for prosecution, and therefore it could not be claimed that the constitutional privilege urged has not received impartial judicial consideration. The power to accuse and the power to dispose of the accusation have not centred in one hand. Whether the conclusions reached by a district court in a given criminal case should be final, of whether they should be subject to review was a matter for constitutional provisions to fix. Relator’s case is one which, from its character, is not appealable to this court. Our appellate jurisdiction in criminal cases is limited to “ questions of law alone, whenever the punishment of death or imprisonment may be inflicted, or a fine ■exceeding three hundred dollars is actually imposed.”

The question on which relator seeks to have us determine adversely •to the views of the District Oourt is not only a question of law, but ene which is patent on the face of the record.

Outside of the provisions of the Constitution, prescribing the limits of our appellate jurisdiction, there would be no logical reason why we should not as appropriately through an appeal, pass upon the rulings of a district court, made in prosecutions for minor offences on motions to quash informations or indictments based upon the alleged insufficiency of the allegations, than we should upon rulings of a similar character, made in graver cases, inasmuch as in neither class would we be called ¡on to deal with the facts of the case. The sovereign authority has thought proper, however, to leave the classification of crime to legislative discretion as to their importance and to grant a broader relief in one class of offences than in another. (State ex rel. Bourgeois vs. Police Jury, 45 An. 250.)

We do not understand that it was the purpose of the framers of the Constitution in vesting in this court supervisory jurisdiction and in cutting off appeals by parties charged and found guilty of misdemeanors that they could and should be able to obtain not only the same relief which an appeal woiild give them but greater relief by simply shifting the form or method of procedure from a proceeding by appeal to one by certiorari. If the General Assembly had thought proper to affix to the violation of the provisions of Act No. 18 of 1886, a penalty of punishment at hard labor in the penitentiary, and relator had stood charged upon the same information which he complains of now as insufficient, the present proceeding through certiorari would not be before us, as relator would have to stand his trial and rely upon ultimate relief through appeal. We see no ground upon which to assume that it was intended that he should occupy a better position in this respect by being charged with a lighter offence. Leaving aside any question as to the precise stage of the prosecution at which relator has had recourse to this court, we think that the conditions under which a party charged with crime in a non-appealable case could invoke our supervisory jurisdiction through certiorari as against an alleged insufficient information should be of the gravest and most serious nature. We should have to be convinced that the objections to the information were such as in point of fact would leave an accused in ignorance of the nature and cause of the accusation against him. The objections should not be be such as the party making them could only hope to succeed .upon the application of the most stringent technical rules as to form and as to pleading; such defects as, in our opinion, would really work no injury.

The writ of certiorari is not one of right, but one for the exercise of judicial discretion in cases of substantial wrong and injury. We have examined the information filed against relator in this case. We think it does not leave him in ignorance of the nature and character of the accusation against him. That it sufficiently charges a violation of the statutory offence created by Act No. 18 of 1886, and that if it be open to objections, they are not of such a character as to work wrong or injury or to call for the exercise of our supervisory powers.

For the reasons herein assigned, the orders hereinbefore given are set aside, as are the writs based thereon, and relator’s application is dismissed.


source: Caselaw Access Project

author: MoEnery, J.

license: Public Domain

text:
    No. 12,006.
    Town of Mandeville vs. J. B. Baudot.
    A person who raises grapes and manufactures them into wines and sells the same at his place of business, in either barroom or grocery, is liable to pay a license tax therefor. ^
    The Legislature can confer by general law on all municipal corporations in the State, an authority to collect licenses. Mayor vs. White, 46 An. 49.
    A PPEAL from the Fourth Justice’s Court for the Parish of St. x Tammany. Phillips, J.

      Clay Elliott for Plaintiff, Appellee.

      P. L. Fourchy for Defendant, Appellant.
    Argued and submitted January 4, 1897.
    Opinion handed down January 18, 1897.
   The opinion of the court was delivered by

MoEnery, J.

The town of Mandeville imposed a license tax of one hundred dollars for keeping a wholesale or retail grocery, and selling in connection therewith liquors. The defendant was sued by the town to collect the license tax for having conducted such a business. In the brief of the Oity Attorney reference is made to Sec. 11 of Act 150 of 1890, imposing a license of one hundred dollars on every business of barroom, drinking saloon, etc., and in the town’s laws there is an ordinance for keeping a barroom, the. license for the same being one hundred dollars. The evidence in the record does not make it plain whether the defendant kept a barroom, or a grocery store with bar attached.

The witnesses deny that he sold beer or alcohol at his place of business, but in the defendant’s answer he admits that he sold wine as “ occasion required,” that is by retail, but claims that the wine was manufactured by him from grapes raised by him, and that he is therefore exempt from the license tax. The constitutional exemption does not extend to the manufacturing of wine, whiskey or beer.

Wine, like whiskey, is not an agricultural product, although manufactured from such product. The word liquor includes all fermented liquors, and where it is sold singly or in company with whiskey, or beer, at a place kept as a barroom, or at a grocery, and sold in connection with the business, the person so selling it by the quantities designated by the statute, upon which the municipal ordinance is based, is liable to pay the license.

It is urged that the town of Mandeville had no authority by its charter to impose license taxes. This authority is not in the original charter. But the revenue acts of 1886 and 1890 authorize all municipal and parochial authorities to impose a license tax. The State unquestionably has the power by a general law to confer power upon municipal divisions, an authority not lodged in their charters. Mayor and Council vs. White, 46 An. 460.

It is alleged that the ordinance is illegal, not having been properly enacted. We are not informed as to what essentials are lacking in its enactment. Prom the record it appears to have been enacted with as much formality and regularity as usually attend municipal ordinances.

Judgment affirmed.


author: McEnery, J.

text:
    No. 12,169.
    Mrs. M. J. Callahan et al. vs. Callahan Fluker.
    Where there is an order for the advertisement of the application for the appointment of an administrator, and the order recites that the applicant shall be appointed if no opposition is made, if no appointment is made after this order and the administrator gives bond and makes affidavit, the bond and the affidavit will not authorize him to act as administrator. An order for the sale of property of the succession, by such administrator, is null and void, and if a party purchase succession property under the order, and has been instrumental in provoking the order with full knowledge of the irregularities in the administration, the sale will be set aside and the property returned to the succession for administration.
    APPEAL from the Civil District Court for the Parish ¡of Orleans. Bightor, J.

      William Winans Wall for Plaintiffs, Appellees.

      Thomas J. Kernan for Defendant, Appellant.
    Argued and submitted December 19, 1896.
    Opinion handed down January 18, 1897.
   The opinion of the court was delivered by

McEnery, J.

This case was before us at our last session. We then reversed the judgment of the District Court, which had sustained defendant’s plea to the jurisdiction of the Civil District Court» and dismissed plaintiffs’ suit and remanded the cause to the lower court for further proceedings according to law. Plaintiffs’ pleadings will be found given in full in the report of the case at page 427 of the 47th Annual, entitled Callahan vs. Fluker. For present purposes it will suffice to say that the suit is a petitory one brought by the children of Louis H. Young, seeking to recover from defendant property alleged to have belonged to their father, of which they averred-defendant to be in illegal possession. As part of the history of the case, they averred the death of Louis H. Young, in the parish of East Feliciana, and declared that defendant asserted ownership of the property in question to have vested in him under a judicial sale which they allege was an absolute nullity. We will have occasion in the body of this opinion to refer to the different reasons upon which they ground that contention. On the return of the case, defendant answered, pleading, first, the general issue. He admitted that he was in possession, as owner, of some lands claimed in the suit by the plaintiffs, a list of which he annexed to his answer. In respect to all other lands claimed he denied that he was in possession of, or claimed ownership thereof. He averred that the lands contained in the exhibit which he annexed were purchased by him in good faith at a regular probate sale made by the sheriff of the parish of East Feliciana on December 3, 1894, in pursuance of a valid decree of court to pay debts, granted by the Sixteenth District Court for the parish of East Feliciana, on October 8, 1894, in the matter of the Succession of Louis H. Young of the-docket of that court; that he had lawfully continue 1 in the open and uninterrupted possession of said lands as owner ever since the date of said sale; that his title is protected by said order; that neither said order for the sale nor the sale made thereunder could be collaterally attacked or drawn in question before any court, except that in which said proceedings were had. He denied that he was acting in any fiduciary capacity which disqualified him from becoming the purchaser of said lands, and averred that said bid for the same was made unwillingly for the purpose of realizing costs only after the plaintiff had apparently abandoned the succession and after the lands had failed to sell at public offering for want of a bidder. He averred that the title to the portion of the lands was inchoate, imperfect or bad, and that he expended much labor, skill and money in perfecting the title to the lands described, in his exhibit to the aggregate value of at least one thousand five hundred dollars; that in the event of his eviction from the lands he should recover said amount as a condition of their taking possession of the same. He pleaded the prescription of five years against all irregularities or informalities, if any there were in said probate sale, and the prescription of ten years etc quirendi causa. He prayed that he be quieted in his title and possession of the lands, and contingently upon being evicted that he have judgment against the plaintiffs for fifteen hundred dollars, with legal interest.

There was judgment for plaintiffs. Defendant appealed.

The first difficulty which confronts us is whether or not a direct action is necessary in order to annul the order of sale attacked in this suit. Ordinarily an attack to annul a judgment must be by direct action. There can be no questioning of the well-established jurisprudence on this point. Duson, Curator, vs. Dupré et als., 32 An. 896; Grevemberg vs. Bradford, 44 An. 400; Heirs of Ford vs. Mills & Phillips, 46 An. 331.

In the case of Heirs of Ford vs. Phillips, supra, (46 An. 331) there was an order directing the application for the administration of the succession to be advertised, and in case of no opposition being filed the applicant to be appointed. Following this order, letters of administration issued to Dean, reciting that he had been appointed administrator of the succession and had taken the oath and executed the bond required by law, and it was further declared that the applicant was confirmed in his appointment. An order of sale was issued to sell property to pay debts. It was sold, and found its way eventually to a third innocent party, against whom suit was brought to recover the same. The appointment of administrator and the sale were alleged to be nullities. We held that the order appointing the administrator could not be attacked collaterally, and assumed as a fact that between the issuing of letters of administration and the application for the administration there had been a direct appointment of administrator. The letters of administration directly war-, ranted this assumption, as they recited facts, the appointment, etc., which had been done.

In this case there is no room for an inference that an appointment had followed the conditional order, and in this case there is no innocent third purchaser invoking the order for his protection as in the case cited.

There may be also irregularities preceding the order appointing the administrator, Which could only be reached by a direct action.

But in this case there was no advertisement preceding the appointment. There was an order requiring an advertisement and a conditional order that the applicant be appointed administrator in case no opposition was made to the application. No appointment followed this order. The administrator, however, furnished a bond and made the required affidavit. These requisites could only be based upon a prior order of the appointment of an administrator, and none having been made they are valueless as authority for the administration. There was then no appointment of administrator. Succession of Gusman, 35 An. 405; Pfarr & Kuhlman vs. Belmont, 39 An. 298.

In a contest for the appointment of an administrator the facts recited would establish the proceedings following the application for the administration were absolute, and not relative nullities, and no direct action was necessary to have them declared so. Id.

It is firmly fixed in our jurisprudence that a purchaser at probate sale is not bound to look beyond the judgment ordering the sale. He is not bound to inquire into irregularities preceding this order. The duty is not imposed upon him to inquire into the regularity of the administrator’s appointment. It is enough for him that the administrator is recognized by the court as such, and is acting under the eye of its authority. Succession of John Gurney, 14 An. 622; Mitchell, Dative Testamentary Executor, vs. Levi, 23 An. 610.

But the purchaser at such sale must be a bona fide purchaser — that is, he must not be in fraud or collusion, and the order must not have been through his own acts. In this case there are no such charges as fraud and collusion. The case rests on the active participation of the defendant in the procurement of the order under which the purchase was made.

Prom the testimony it appears that the succession had been abandoned by those in interest. The attorney, the defendant, had rendered valuable services to the succession, and his only means of realizing his debt against the same was by purchasing the property at succession sale. The price was totally disproportionate to its value, at least at the present time. Its present value, no doubt, has stimulated pursuit for its recovery. The record shows that the defendant .was the attorney of the succession. He filed the application for its administration — in-fact, all applications for the order in the case. He was not, then, an innocent third party buying at probate sale who can invoke the order for his protection, nor can he plead prescription as to irregularities, the direct result of his own professional acts.

Having knowledge of the entire proceedings and having been the author of them, and the beneficiary of them, he can not set up the plea of relative nullity and require a direct action to annul them. So far as he is concerned and those having an interest the order of sale was an absolute nullity. The evidence discloses, while acting as attorney, he was, in fact, the agent and attorney of the succession, the practical administrator, a condition imposed upon him, not directly by his own act or solicitation, but from the very necessity of connection with the succession and its abandonment for years by those interested in it. There was no duly appointed administrator, and the defendant, in fact, acted as such. In that capacity he was without authority to purchase. The application for the appointment of an administrator still exists. It has not been disposed of in the lower court. Kullman vs. Belmont, 89 An. 298.

The judgment appealed from is amended so as to reverse that part in favor of the plaintiffs which restores to them and gives them title to the property, and the adjudication to defendant be annulled and the property be restored to the succession. In other respects it is affirmed, reserving to the defendant the right to assert his claim for fees against the succession, when duly and properly under administration. Plaintiffs to pay costs of appeal.


author: Breaux, J.

text:
    No. 12,184.
    Eleonora Siebert, Wife of John W. Klapper, vs. John W Klapper, Her Husband.
    The issue is principally of fact.
    'The plaintiff complained of the violent treatment of the defendant toward her.
    She alleged one of the causes of divorce set forth in Art. 138 of the Civil Code.
    The proof sustains the averments.
    There was no alternative save tó affirm the judgment.

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

      Henry P. Dart and Benjamin W. Kernan for Plaintiff, Appellee.

      Ambrose Smith and O. W. Long for Defendant, Appellant.
    Argued and submitted December 17, 1896.
    Opinion handed down January 4, 1897.
    Rehearing refused February 1, 1897.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff brought this suit against her husband for divorce. In her petition she charged that she was- ill treated, frequently struck and bruised by her husband. She alleged further that recently she had discovered that for three years past he had frequented houses of ill fame, associating with lewd women and committing acts of adultery.

These charges were denied by the defendant.

The case was tried by a jury. From the verdict and judgment of divorce the defendant appeals.

The epithets applied by the defendant to the plaintiff in the presence of third persons were offensive and the unfounded imputations were greatly injurious and in direct violation of the duty marriage imposes.

In addition, he, in a number of instances, without provocation, it appears of record, resorted to personal violence. Blows were inflicted, leaving marks of their severity upon plaintiff’s face, such as to bring on a condition of irreconcilable animosity. The injuries, unprovoked, we gather from the testimony, were frequent and grave. The testimony reveals that they were not unknown to others, and in consequence doubly injurious. The ill treatment proven was enough to render their living together insupportable. It was, in our opinion, sufficiently grave to serve as the basis for a demand in separation from bed and board.

We can not, however we regret it, stop here and limit our decree to one of separation from bed and board.

Dissolving matrimonial ties is not under any circumstances a pleasant duty.

We can not ignore the charge of adultery sustained (indirectly at least), as it is, by a number of uacontradicted witnesses. It is urged on the part of the defendant that there is no direct proof of adultery. That may be true, and none the less presumption may establish the adultery charged.

It is urged further that the only evidence approximating to proof of adultery consists of statements, said by the witnesses - to have emanated from the defendant husband himself.

Returning to the first proposition as to direct proof.

It is well settled in principle; announced by the text writers, and by numerous decisions, that direct proof is not always necessary. A simple presumption may prove a fact, in cases such as that we now have under consideration, as well as in other cases.

Prom Baudry Lacantinerie, Vol. 1, p. 413, we translate and quote:

Adultery invoked as a cause of divorce may be proven by witnesses and even by simple presumptions.

Doctrine and jurisprudence are in accord upon a point which offers no difficulty.

Unquestionably the facts to give rise to a conclusive presumption must be pertinent and true.

We will not detail all the facts here. It would serve no useful purpose. We have passed them in review with care and attention.

We will state that it is in evidence that at late hours the defendant visited houses of ill fame in company of a number of others; they drank and made merry with the inmates; they, during the visit remained together, left together, parted, and it may be that all went to their respective homes.

But the utterances of the witnesses, as written in the transcript, were not of such a character as to inspire absolute confidence that such was the fact There are other incidents giving-rise to one inference only; such as for instance, after the wife had been compelled to leave their home, because of the ill and violent treatment to which she was subjected, a young girl and her mother were received in the house. A witness testifies that she was “ cooking there; she was a house girl and everything.”

This young girl sent away her mother, expelled her from this house and remained alone under circumstances .not suggestive of absolute innocence in her relations with the defendant.

“ Where, as in the present case, from the circumstances proved, no other inference can be drawn, but that there was an improper intimacy or illicit connection between the parties, the fact of adultery or concubinage must be considered as substantiated.” Mehle vs. Lapeyrollerie, 16 An. 4.

But it is said that the statements of. the defendant admitted as evidence- should not be considered for the reason that Art. 2281, O. 0., as amended by Act 58 of 1888, declares that such statements shall not be received in evidence in suits for divorce.

There was no confession by the defendant and his statements are not sufficient to sustain the charge, set forth in the petition. As part of the case they merely corroborate the facts proved. The testimony to show that a fact was acknowledged is not admissible in evidence. Chance incidents, however, may be shown, or utterances of no great importance may be proven as a part of the res gestae without giving ground to annul the verdict of a jury and judgment of the court. Mack vs. Handy, 89 An. 491, 499.

The judgment of the District Court is affirmed.


text:
    No. 12,296.
    Edward P. Webb vs. M. H. Rothschild.
    Exemplary damages will be allowed against a party wlio makes a violent assault on another and strikes and wounds him. S4 A-n. 1107.
    A PPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Merrick & Merrick and H. M. Ansley, for Plaintiff, Appellee.

      Farrar, Jonas & Kruttschnitt for Defendant, Appellant.
    Argued and submitted January 7, 1897.
    Opinion handed down January 18, 1897.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff brought this suit to recover of the defendant the sum of six thousand and seventeen dollars as damages inflicted upon him by an assault and battery on the 13th day of June, 1894.

There was judgment for the plaintiff in the sum of one thousand dollars.

The case was tried without the intervention of a jury.

The defendant is a clothing merchant on Oanal street. The plaintiff had purchased a vest at defendant’s store for the sum of ninety cents, the price having been reduced from one dollar and twenty-five cents, because of its damaged condition. The plaintiff says, when shown to him the vest was damaged on one side, and that when he left the store, on examination he found the vest damaged on both sides. He, within an hour, returned to the store, and demanded his money on the return of the vest. The defendant requested him to take another vest. He insisted upon his money being returned. It was returned to him. In the act of leaving the store and when near the exit, the defendant called to plaintiff and told him, with an opprobrious epithet, not to come back into his store. The plaintiff replied that he would not “ come back into the darned store any more.” The defendant then put himself in front of the plaintiff and asked him what he said, when he repeated his reply to defendant. Thereupon defendant assaulted him.

The testimony shows that the defendant was the aggressor in language and conduct. There was no provocation for the assault, and nothing attending it to justify its violent continuance. The plaintiff was an old man fifty-five years of age, sick, weak and very feeble.

The plaintiff is entitled to a judgment. Sheen vs. Poland, 34 An. 1107.

The facts in this case, so far as exemplary damages are involved, are almost identical with those in the case cited. We will therefore fix them at five hundred dollars. In both cases the assault was unprovoked, violent, and a wound inflicted. For the special damage inflicted we think one hundred dollars will be full compensation.

The judgment is amended so as to reduce the judgment in favor of plaintiff to the sum of six hundred dollars, -plaintiff to pay costs of appeal.


text:
    No. 12,332.
    Simon and Mark Pinsky vs. Jules A. Resweber.
    In the ease of insolvency where two appeals have been taken from two different orders, one to the Circuit Court of Appeals and the other to this court, the Supreme Court is only concerned with the appeal to it. The fact that two orders of appeal were thus granted is no ground for dismissal of the appeal sent to the Supreme Court.
    The oath of a proxy of a creditor must be direct and positive as to the existence of the debt. “Prom the best of his knowledge and belief” isnot sufficient, as this shows oh its face that the knowlege is derivative. But where the oath of the proxy is direct, positive and unequivocal, this authorizes the proxy to vote at the meeting of creditors.
    The validity of the debt can only be questioned in an opposition to the distribution of the fund.
    APPEAL from the Nineteenth Judicial District Court for the Parish of St. Martin. Voorhies, J.

      Martin & Voorhies for Plaintiffs, Appellees.

      James Simon and James E. Mouton for Defendant, Appellant.
    Argued and submitted January 5, 1897.
    Opinion handed down January 18, 1897.
   On Motion to Dismiss.

The opinion of the court was delivered by

McEnery, J.

The motion to dismiss the appeal recites that two orders of appeal were granted in this case; one to the Circuit Court of Appeals, on the order for a meeting of creditors, and .the second, in opposition to proceedings of the meeting of creditors, to this court, and that there is but one appeal bond in the record, and that the same is insufficient, as it does not mention the number of the suit, when the judgment was rendered, the nature of the judgment, in whose favor the judgment was rendered; nor is it shown in the bond who are appellees and appellants.

It does not appear that the appeal to the Circuit Court of Appeals was perfected. At any rate we have nothing to do with the appeal to that court, but are only concerned with the jurisdiction of this court. The plaintiffs’ claim is for seventy-eight dollars or thereabouts. They are pursuing a fund for distribution exceeding two thousand dollars. There is a contest of creditors which would eventuate in the final distribution of this fund if the plaintiffs succeed in their contention. The case is as though the debtor had made a voluntary surrender, and there was a contest among creditors for the settlement of the rights, which went to the whole fund.

In obedience to the order of court the debtor filed his schedule, and it shows a fund exceeding the lower limits of our jurisdiction. The whole contention is the disposition of this fund, whether it shal be surrendered, or whether it shall remain iu the hands of the-* debtor. There is no contention as to the claim of plaintiffs.

Motion denied.

On the Merits.

The plaintiffs were judgment creditors of the defendant. They caused an execution to issue on their judgment. It was returned “ No property found.” They then proceeded under See. 1781, R. S., to compel the defendant to surrender his property to his creditors. The judge ordered a meeting of creditors. They voted against the surrender. Opposition was made at the meeting to the votes of certain creditors, because the proxy’s oath to the claims held by him were insufficient, and his knowledge of the debts was not personal, but derivative. An opposition was filed to the proces verbal of the meeting of creditors and the proxy stated the source of his knowledge of the indebtedness. The debtor had placed all the claims in his schedule, to which he made oath. The proxy’s testimony was that he based his affidavit on the schedule acknowledgment of the debt and from information derived from his clients. The acknowledgment of a debt by the debtor is the highest evidence of its existence. We do not see how an agent could get better personal knowledge of the debt than by its acknowledgment by the debtor. The schedule acknowledgment, however, is not conclusive on the creditors. But the contention as to the existence of the debt is a question which can only come up on opposition to a distribution of the fund. For all purposes of voting the affidavit of the creditor, or his proxy to the absolute existence of the debt is sufficient.

When the oath is positive and is not from belief, or as it is expressed sometimes, to the best of his knowledge and belief, it is sufficient basis for the right to vote.

The proxy presented a list of all the creditors he represented. This was preceded by a statement that the proxy represented the “ following creditors of Jules A. Res weber, to-wit ” (then followed names and amounts, the affidavit, after list of names) :

Said James Simon further declares that his constituents are bona fide creditors of the said Jules A. Res weber in the sums above speci - fied. Appearer James Simon further votes in the names of his said constituents against the surrender of the property of Jules A. Resweber to his creditors.” This oath was positive and direct as to the existence of each claim presented by him. Power of attorney accompanied each claim, and there could be no objection to the mode and manner of voting all the creditors represented at one time instead of calling the name of each and voting it in the prooes verbal. h

The placing of the debt on the schedule by the debtor gave it a prima facie existence. The oath of the proxy was that the debts were bona fide debts against the debtor. This was a sufficient verification of the debt to entitle the creditor to vote at a meeting of creditors. No other evidence is required to entitle the creditor to vote. “ The fact that the opponent opposed the votes before the notary does not change the relative position of the parties.” Mercadal, Jr., vs. His Creditors, 16 An. 82; Spears vs. His Creditors, 40 An. 650.

In that case the court further said:

The burden of proof would necessarily rest on the creditor on an opposition to a tableau of distribution, and the reason for the difference is obvious. In the first place the interests of the mass of creditors requires that the property of. their common debtor should be applied to the payment of their claims without unnecessary delay; and in the next place a judgment liquidating a debt in a litigation of this kind would not be binding on the creditors, who were strangers to the proceeding.”

There was objection made to the voting of other creditors because the oath to their claims was not made before the notary holding the meeting. The District Judge sustained the vote. It is not essential that the creditor should make oath to his debt before the notary. He can make it at his domicile, and when presented by his proxy it has the force and effect as though made in person by the creditor before the notary holding the meeting. Phillips vs. Her Creditors, 36 An. 904.

Walmsley filed an opposition to the proees verbal of the meeting of creditors. He did not appear in person or by proxy, and his oppo - sition came too late.

The judgment appealed from is annulled, avoided and reversed, and it is now ordered that the demand of plaintiff for the surrender of his debtor’s property be dismissed.


author: Watkins, J.

text:
    No. 12,379.
    State ex rel. City of New Orleans vs. Gabriel Fernandez, Judge of the Second City Court.
    The Constitution confers jurisdiction upon the city courts of the city of New Orleans to entertain suits in which the exact sum of one hundred dollars may be involved, without reference to any computation or allowance of interest.
    The words of the Constitution, “exclusive of interest,” mean that jurisdiction must be determined without any regard to interest, whether accruing or accrued.
    QN APPLICATION for a Writ of Mandamus.

      S. L. Gilmore, City Attorney, and W. B. Sommerville, Assistant City Attorney, for Relator.
    Respondent in propria persona.

    Submitted on briefs January 4, 1896.
    Opinion handed down January 18, 1897.
   The opinion of the court was delivered by

Watkins, J.

Relatrix’ application is predicated upon the averment that in the matter of her demand against the commercial firm of L. E. Jung & Co. for the payment of a license of one hundred dollars for carrying on their business of retailing liquors for the year 1896, with two per cent, per month interest from the 1st of March, 1896 and costs, the respondent declined and refused to take jurisdiction, on the ground that the amount in dispute was in excess, or beyond the upper limit of the jurisdiction of his court, which is fixed in the Constitution at one hundred dollars, exclusive of interest. Const., Art. 135.

And she invokes the supervisory power of this court to compel the respondent by our writ of mandamus to take jurisdiction of said cause, and try and decide the same.

The respondent’s return affirms that his court is without jurisdiction to entertain and decide the suit of the relatrix, because it is for an amount in excess of one hundred dollars — same being for the sum of one hundred dollars — with the interest that has accrued thereon since March, 1896.

It further suggests that the two per cent, per month which the law allows to be assessed against delinquent license payers is in its essence and nature a penalty, and not interest in its ordinary acceptation.

Counsel for the relatrix cites and principally relies upon the decisions of this court in State ex rel. Forman vs. Recorder, 33 An. 14, and Breaux vs. Recorder, 36 An. 742; and, on the other hand, the respondent cites and relies upon that of Bruno vs. Oviatt, 48 An. 471.

Dealing first with the case last cited, we find it to have been an action to revive a judgment; and we treated the interest which had accrued on the demand in the original suit at the time it was filed, as having formed a part of the demand upon which the judgment was pronounced, and which the suit then before us was intended to revive. That is to say, to the extent and for the purpose of determining the jurisdiction of the suit to revive, it was the judgment liquidating the debt and making it executory that we dealt with, jurisdictionally speaking, and not the debt itself.

The decisions on which we rested our conclusions are the following, viz.: Mason vs. Oglesby, 2 An. 793; Cornell vs. Geddes, 10 An. 170.

Those decisions were rendered while the Constitution of 1868 was in force, the provision of which declared that the jurisdiction of the Supreme Court “ shall extend to all cases when the matter in dispute shall exceed five hundred dollars” (Art. 74) ; whereas the framers of the Constitution of 1879 added the words “ exclusive of interest.” Art. 81.

We find in the brief of the City Attorney the following quotation from the case of Forman vs. Recorder, 33 An. 13, which we have examined and verified, and reproduce it here as giving a very clear and lucid interpretation of our appellate jurisdiction, viz.:

“ From the showing of the City Attorney himself, it appears that the principal of the city’s claim in this case amounts to only five hundred and eighty-four dollars and eighty-eight cents, but he contends that the interest accrued at the time of suit, amounting then to four hundred and forty dollars, must be added to the capital in determining our jurisdiction. He quotes with apparent confidence several decisions of this court in support of his theory, but he evidently lost sight of the fact that the case on which he relies originated under the Constitution of 1868, which provided that the jurisdiction of the Supreme Court should ‘ extend to all cases when the matt; r in dispute, exceeded five hundred dollars,’ and made no mention of interest.
“ Under such a provision the court very properly ruled that interest accrued at the institution of the suit, was part of the matter in dispute, and should be considered, with the principal or capital of the demand, in determining its jurisdiction.
“ But under the present Constitution it is provided that the jurisdiction of the Supreme Court ‘ shall extend to all cases when the matter in dispute shall exceed one thousand dollars, exclusive of interest.’ The difference between the two provisions is striking and glaring, and presents a self-evident proposition. In one case interest forms part of the matter in dispute; in the other, interest must be specially excluded in determining the jurisdiction of the court.
“ It follows, therefore, that the matter in dispute in this case does not exceed one thousand dollars, inclusive of interest, and that we have no jurisdiction.”

And the further extract from Breaux vs. Recorder, 36 An. 742, viz.:

“ In their petition plaintiffs allege that these taxes, together with penalties and interest, exceed in real value eighteen hundred dollars, and that, therefore, their actual interest in the controversy is equal to that amount. Hence, their counsel contended that their ‘jurisdictional allegations’ clearly bring their case within the reach of our jurisdiction.
“But allegations of ‘jurisdictional facts’ are not the exclusive test of a question of jurisdiction. ‘ The real amount in dispute, whenever the same can be legally ascertained from the pleadings and documents annexed and not the allegations of parties, is to be the test of our jurisdiction, and shall be our rule in determining all such questions.’ Wilkins vs. Gantt, 32 An. 929. Applying this rule to the case at bar, we find that the alleged sum of eighteen hundred dollars includes taxes amounting, in capital, to seven hundred and seventy-eight dollars and fifty cents, and that the balance comprises penalties and interests, as alleged by plaintiffs. * * *

“The real amount in dispute is the amount of taxes in capital, bearing interest from the dates at which the respective amounts became due, as hereinabove stated. * * *

Under the textual provision of the Constitution our jurisdiction only attaches when the matter in dispute, exclusive of interest, exceeds one thousand dollars.

“We know of no provision in the Constitution, or in our laws, which contemplates an exception to that rule in cases involving the erasure of inscriptions of tax mortgages, and plaintiff’s counsel, have pointed to no authorities in support of such a proposition. The argument that interest on taxes mast be included in the matter in dispute, because it is alike secured by the mortgage which secures the principal tax, is not sound.” * * *

The reasoning of the court seems clear, and the language of the Constitution itself is very plain; and the incorporation of the words “ exclusive and interest ” in the article of the present Constitution, in addition to that of the Constitution of 1868, seems to have been done ex industria.

And the language of the Constitution appertaining to the jurisdiction of the city courts is exactly similar, and must be controlled by the same rule of interpretation.

We think that, following the rule of interpretation announced in those cases, interest must be excluded from consideration in deteimining the original, jurisdiction of the city courts, as it is in determining the appellate jurisdiction of this court — the constitutional provisions applicable to each being identical.

But in so deciding we do not intend to change or depart from the theory of oar opinion in Bruno vs. Oviatt, with reference to revival suits.

With reference to the two per cent, per month being of the nature and essence of a penalty and not interest, and, consequently, to be treated as capital forming part of the matter in dispute in determining jurisdiction, .we are of opinion that respondent’s contention is not sound.

The language of the statute is, “ that all unpaid licenses shall bear inierest at the rate of two per cent, per month from the first day of March,” etc. Sec. 26 of Act 150 of 1890.

The statute was carefully considered and construed in City vs. Fireman’s Insurance Co., 41 An. 1142, and that decision was affirmed in City vs. Pontchartrain Railroad Company, 41 An. 519.

It is our decided conviction that the respondent’s court is vested with original jurisdiction of the amount of exactly one hundred dollars, excluding any computation of interest.

Entertaining this opinion, the writ of mandamus will be made per~ emptory.

It is therefore ordered and decreed that the writ of mandamus provisionally granted be made peremptory, and that the respondent be taxqd with costs.


author: Miller, J. Watkins, J. Breaux, J.

text:
    No. 12,240.
    The State vs. John Scott.
    The law presuming sanity, the burden is on the accused urging his insanity as defence, to prove it. Archbold Criminal Law, p. 549 et seq.; 2 Bishop Criminal Procedure, Sec. 672 et seq.

    That proof must satisfy the jury the accused was not of sane mind at the time of the act charged; they should consider all the testimony before them, whether produced by the accused or the State, and give due weight to the presumption of sanity; if on the whole testimony, and giving 10 the presumption of sanity its full operation, they are satisfied the accused was insane when the act was committed they should acquit, but if not thus satisfied they should deem the accused sane and responsible. Archbold Crim. Law, p. 549 et seq.; 2 Greenleaf on Evidence, See. 173; 2 Bishop Criminal Procedure, Sec. 675 et'seq.; Wharton’s Criminal Law, Sec. 62 et seq.; Davis vs. United States, 160 XL S., p.'469.
    A PPEAL from the Criminal District Court for the Parish of Orleans. **■ Moise, J.

      M. J. Cunningham, Attorney General; R. H. Marr, District Attorney, and John J. Finney, Assistant District Attorney, for Plaintiff, Appellee.

      Chandler C. Luzenburg and Bernard Titche for Defendant, Appelant.
    Argued and submitted November 21, 1896.
    Opinion handed down January 18, 1897.
   The opinion of the court was delivered by

Miller, J.

The accused, indicted for murder, convicted and sentenced for manslaughter, takes this appeal.

The accused relies on a number of exceptions to the charge of the judge. But the question sought to be raised in nearly all ig as to the correctness of the charge in respect to the defence of insanity, and the refusal of the instruction on that subject requested on behalf of the accused. On this defence of insanity the instruction in part was:

“ Every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crime, until the contrary be satisfactorily proved. When insanity is set up as a defence for crime, it must be proved as a substantive fact by the party alleging it, on whom lies the burden of proof. The degree of proof must be by a preponderance of evidence. This does not mean a preponderance of witnesses, but it means that, taking all the evidence into consideration, the weight and effect of it is to satisfy your minds that at the time of the commission of the act the prisoner was insane. The presumption of sanity must be overthrown, and this presumption exists with as much force as the presumption of innocence.
“As the law presumes a man to be innocent until he Is proven guilty, if there is a reasonable doubt as to his guilt, this degree of proof as to guilt does not overcome the presumption of innocence, and he should be acquitted. The presumption of sanity is a logical parallel to the above rule. Men are presumed to be sane until they are proven insane. If there is a reasonable doubt as to their sanity, this degree of proof as to insanity does not overthrow the the presumption of sanity, and the jury should find him sane. These two presumptions of law as to ‘ innocence and sanity ’ stand upon the same footing. The burden is upon the State to overcome the presumption of innocence, while the burden is upon the defendant to overcome the presumption of sanity when insanity is set up as a defence, and both presumptions should be overcome beyond reasonable doubt.” To this part of the charge the defendant excepted as ambiguous, contradictory and not a correct exposition of law. It is urged on us that this portion of the charge placed before the jury for their guidance two different rules of proof; one that the preponderance of testimony sufficed, and the other that proof beyond a reasonable doubt was required to establish insanity as a defence. Our decision is controlled by a more important factor.

The objection in varied forms presented by the other bills is, in effect, that the charge is erroneous in its requirement of the degree of proof requisite to support the defence of insanity. The charge recognizes the distinction between the preponderance of proof and that which excludes all reasonable doubt, and instructs that the burden is on the accused to prove beyond all reasonable doubt he was not sane at the time of the commission of the act charged. The charge follows that sustained by our predecessors in State vs. De Rance, 34 An. 186, and in State vs. Burns, 25 An. 302, and State vs. Coleman, 27 An. 691.

Without the sanity of the accused there can be no guilt. Humanity and the law alike concur in this and utterly exclude punishment for crime when there is no moral responsibility of the accused. It is familiar that guilt must be proved beyond a reasonable doubt before punishment can be inflicted. Yet the charge in this case places on the accused the burden of disproving one of the constituents of guilt, and exacts of him the highest order of proof known to the law. In both aspects the proposition has been controverted by text writers and decisions. The preponderance of proof is recognized as that of a character to satisfy the mind, though it be not free from reasonable doubt. This preponderating proof is enough in civil cases to authorize a finding in favor of the party. The terms are of constant use in the administration of the criminal law. The charge in this case implies, if it does not express, that though there may be a preponderance of testimony before the jury to show that the accused was insane at the time of the act, yet they may convict. It is not easy to conceive that with this preponderating proof they can deem guilt established beyond a reasonable doubt, the prerequisite of any conviction. Can, then, this charge be sustained which exacts punishment with preponderating proof producing not only a reasonable doubt of guilt, but pre - ponderating to carry the conclusion that no guilt can exist, because of the absence of that moral accountability, the basis of all punishment for crime. Between hanging the maniac or bringing to the scaffold one whose insanity is established by a preponderance of testimony before a jury that pronounces him guilty, is a difference in degree, not of principle. A conviction when insanity is thus proved this charge sanctions.

If we turn to the authority of text-books and decisions it must seem difficult to maintain the charge, conceding all due weight to the decisions of our predecessors, and types of that class in some of the decisions of the courts of other States. In State vs. Spencer, 1 Zabriskie (N. J.), 196, the court instructed, if in weighing testimony of insanity against that of sanity the scales are balanced or so nearly poised as to leave a reasonable doubt of insanity, the accused was to be deemed sane. This decision, that sustains punishment when guilt is ascertained by the balanced or nearly poised scale, is in marked contrast with the rule that exacts proof of guilt beyond all reasonable doubt. In one of the text-books there is the comment, the decision has been departed from in the New Jersey courts, 1 Bishop, Criminal Procedure, Sec. —. The case of Regina vs. Layton, 4 Cox Criminal Cases, is cited by the State as supporting Che charge under consideration. But as we gather that decision from the report, the instruction was that sanity was to be presumed till the contrary was proved, and the question for the jury was whether the accused had proved to their satisfaction he was not of sound mind. There was no requirement of proof beyond that point — i. e., the satisfaction of the jury. All the decisions tending to exact from the accused a higher degree of proof have had our attention. On the other hand the text-books and the weight of the decisions while affirming that the burden of proof of insanity is on the accused, maintain that the proof suffices that establishes insanity to the satisfaction of the jury. In 1 Waterman’s Archbold there is an array of authority; with others the case of McNaughten is cited, much discussed in the House of Lords, and led to questions propounded to the judges as to the terms in which the question of insanity should be submitted to the jury. The answer was that the accused was to be presumed sane until the contrary was proved to the satisfaction of the jury. That charge is brief, plain and easily understood. It is commended in all the text-books. It exacts no greater degree of. proof than that required to satisfy the mind and precludes any acquittal for insanity when the proof does not convince the jury on the point of inquiry. Other authority arrayed by Mr. Archbold is to the effect that the testimony of insanity must be sufficient to overrule the presumption of sanity and satisfy the jury the accused was not sane, or as put in another form, to sustain the defence the evidence must convince the jury that when the act was done the prisoner was not conscious he was committing crime. 1 Archbold, pp. 37, 38 et seq. Other decisions have qualified the proof to be administered by the prisoner as a preponderance of the whole evidence that he was sane when he committed the act. 7 Gray, p.583; 7 Metcalf, 500, 506. The charge sanctioned in 1 Curtis, C. C., p. 1, was that the burden resting on the accused to prove insanity the whole evidence must satisfy the jury the prisoner was insane, otherwise he should not be acquitted. In Wharton’s Criminal Law the text is the defence of insanity must.be proved by the accused as an independent fact, and he alludes to the Spencer case and to decisions on the other hand, maintaining the sufficiency of preponderating proof of insanity. In the later edition of Wharton this preponderating proof is stated to be all that is required. Wharton’s Criminal Law, Sec. 711 and notes; 10th Edition, See. 62 and notes. It is Mr. Bishop’s view, reviewing all the authorities, .that it is never incumbent on the State to give affirmative evidence of the sanity of the accused, but if denied by proof administered by him the jury alone with the presumption of sanity must consider all the evidence, and if then they entertain a reasonable doubt of whether the accused did the act in a sane state of mind, they are to acquit, otherwise they are to convict. 1 Bishop Criminal Procedure, Sec. 534.

The same view substantially has been announced quite recently by the Supreme Court of the United States and is thus expressed in the head-note: no man is to be deprived of his life under the forms of law unless the jurors who are to try him are able on their consciences to say that the evidence before them, whether adduced on his behalf or by the State, is sufficient to show beyond a reasonable •doubt every essential of the crime, and mental competency to distinguish between right and wrong was, of course, recognized as one of the constituents of the crime. United States vs. Davis, 160 U. S., p. 469. In the light of principle and authority we can not assent, to the proposition affirmed by this charge that with preponderating-testimony of the insanity of the accused they may convict on the-theory that a higher order of proof is required. In this view the sentence must be reversed.

In view of the new trial we deem it proper to say with respect to> other objections reserved by accused that the charge in a criminal case should be restricted to the questions fairly arising on the testimony. In our view the explanation of insanity, whether it be termed temporary or epileptic in its character, was sufficient to meet the inquiry arising on the testimony, though an addition as to that form produced by the absence of will power would be appropriate. Wharton and Stille Medical Jurisprudence, p. 38. We think it well to add, too, that on the issue of insanity testimony of the conduct, of the accused before and after the act is proper to go to the jury under proper instructions. 2 Greenleaf on Evidence, Sec. 371.

While the misuse or abuse of this defence of sanity can not affect, the legal principle on which the defence is allowed, we are deeply impressed with the importance of guarding against the failure of justice arising from the frequent interposition without foundation of' this defence of insanity characterized in one of the decisions as the last resort of desperate criminals. We have already suggested the charge should be restricted within the scope of the questions fairly arising on the testimony and not extend to forms, real or supposed, of mental disorder, not the subjects of inquiry under the testimony laid before the jury. The charge should be clear and avoid unnecessary qualifications. We think Professor Greenleaf’s summary of the essentials of the instruction as to the burden and degree of proof required on the defence of insanity meets substantial requirements. 2 Greenleaf, Sec. 373. We think it will suffice if the jury are told in effect that the burden of proof is on the accused to establish by clear and convincing proof the insanity he urges as a defence; that the presumption of sanity is to be taken into consideration and exercise its full influence along with all the testimony before them, whether produced by the accused or by the State; and if on the consideration of the whole testimony, giving due weight to the presumption of sanity, they are satisfied the accused was not of sane mind when the act charged was committed, they are to acquit, but if not thus satisfled they are to hold the accused sane and responsible. With clear instruction as to the presumption of sanity; the burden of disproving it; and that in order to acquit on the ground of insanity the jury must be satisfied of that insanity by clear and convincing proof, it seems to us there should be no convictions of the insane, nor misapprehension by the jury of their duty to hold the accused sane and responsible when not satisfied of the insanity urged in his defence.

For the reasons given in this opinion, it is now ordered, adjudged and decreed that the sentence of the accused be annulled and set aside; that he be again put on trial on the indictment and be held in custody to abide the verdict on the new trial.

Concurring Opinion.

Watkins, J.

The defendant was indicted for murder, convicted of manslaughter, and sentenced to imprisonment in the penitentiary for fifteen years, and from that sentence appeals.

Under a plea of not guilty, the defendant sought to prove insanity as a defence, but the jury evidently regarded the proof insufficient.

The principal question argued at the bar and presented in the briefs of counsel on either side is, as to what was the proper instruction for the trial judge to have given to the jury with regard to the decree of proof necessary for them to acquit the defendant on the ground of insanity.

In the course of his written charge, the trial judge, amongst other things, gave to the jury the following instructions substantially, viz.:

That the presumption of sanity “ exists with as much force as the presumption of innocence,” and that the presumption of sanity can only be overcome by the same degree of proof that is necessary to overcome that of innocence.

That, as the law presumes a man to be innocent until he is proven guilty, if there be a reasonable doubt as to his guilt, the degree of proof as to his guilt does not overcome the presumption of innocence, and he should be acquitted.

The presumption of sanity is a logical parallel to the above rule. Every one is presumed to be sane until he is proven insane. If there is a reasonable doubt as to the man’s sanity, the degree of proof as to insanity does not overthrow the presumption of sanity, and the jury should find him sane.

These two presumptions of law as to innocence and sanity stand upon the same footing.

The burden is upon the State to overcome the presumption of innocence, while the burden is upon the defendant to overcome the presumption of sanity, when insanity is set up as a defence. “ Both presumptions should be overcome beyond a reasonable doubt.”

To these instructions, defendant’s counsel excepted on the ground that same were contradictory and conflicting, and reserved a bill of exceptions thereto.

An examination of a large number of decisions of the courts of different States, as well as those of the courts of England, shows that there are three distinct and well-defined theories on the subject, viz.:

First — That the proof administered must satisfy the minds of the jury beyond a reasonable doubt that the defendant was insane at the time of the commission of the act.

Second — That the burden of proof is upon the defendant to show, by a fair preponderance of evidence, that he was incapable of distinguishing right from wrong, and, consequently, insane.

Third — That if, upon the whole of the evidence adduced, that by the prosecution as well as that by the defendant, there is left in the minds of the jury a doubt as to the sanity of the accused, it is their duty to resolve that doubt in favor of the defendant, and acquit him.

We will make an examination and analysis of the authorities on each theory separately, and by that means ascertain in favor of which one they preponderate.

I.

On this theory the leading American authority is State vs. Spencer, 1 Zabriskie (26 N. J.), 196, and we make the following quotation therefrom, viz.:

“ When the evidence of the insanity on the one side, and of sanity on the other, leaves the Scale in equal balance, or so nearly poised that the jury have a reasonable doubt of his sanity, then a man is considered sane, and responsible for what he does.”

Again:

“Proof of insanity at the time of committing the act ought to be so clear and satisfactory, in order to acquit him on the ground of insanity, as the proof of committing the act ought to be, in order to find the sane man guilty.”

Again:

“ If, in your opinion, it is clearly proved that the prisoner at the bar, at the time of the homicide, was unconscious that what he did was wrong, and that he ought not to do it, you must acquit him on the ground of insanity; but if, in your opinion, this is not established beyond a reasonable doubt, then you must find him guilty of the act and proceed to investigate the nature of the homicide.”

This case has been quoted and followed by several of the courts of other States, particularly in the following, viz.: State vs. Thompson, 1 Houston (Del.), 511; Hodge vs. State, 26 Florida, 11; State vs. Crawford, 11 Kansas, 32; Ballard vs. The State, 19 Nebraska, 609; Wright vs. People, 4 Nebraska, 407; Faulkner vs. Territory, 30 Pacific Rep. (N. M.) 905; State vs. McIntosh, 39 S. C. 97; State vs. Patterson, 45 Vermont, 308; Revoir vs. State, 82 Wisconsin, 295; Miller vs. State, 3 Wyoming, 667.

It will be observed that this theory has found favor in but com - paratively few of the States.

II.

On the second theory, those first in importance are the decisions of the English courts, and to illustrate we have made extracts from the following eases, viz.:

From Regina vs. Stokes, 3 Car. and K., 180, we make the following selection, viz.:

“ If the prisoner seeks to excuse himself upon the plea of insanity, it is for him to make it clear that he was insane at the time of committing the offence charged. The onus rests on him, and the jury must be satisfied that he actually was insane. If the matter is left in doubt it will be their duty to convict him, for every man must be presumed to be responsible for his own acts until the contrary is clearly shown.”

So in Regina vs. Layton, 4 Cox C. C. 149, the court said that the question for the jury was, not whether the person was of sound mind, but whether he had made out to their satisfaction that he was not of sound mind.

McNaghton’s case, 10 Cl. and Fin. 200, wherein the defendant was discharged by a jury as not guilty of murder, “on the ground of insanity,” having created considerable discussion, was brought to the attention of the House of Lords, and the judges were summoned to give their opinions on the question of insane delusions giving immunity for acts punishable criminally, and Lord Chief Justice Tindall, speaking for the court, said, that the jury should be instructed that “every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing,” etc.

That case has been frequently cited in the decisions, English and American, and is often quoted with favor by text writers, in treating of the subject of insanity.

Dr. Wharton, in his treatise on criminal evidence, cites the case of State vs. Spencer, 21 N. J. L. 196 — the leading case in favor of the first theory we have outlined — and several leading English cases, and McNaghton’s case among the number, as the representative of the second theory; and then he supplements the statement with the observation that the theory once entertained by the English courts has been so far modified that the rule announced in McNaghton’s case, that the jury is to be governed by the preponderance of evidence, is the prevalent opinion in England. Whar. Crim. Ev., Secs. 837, 838.

But the modification of the theory is very readily observed by comparing the opinion of the judge in McNaghten’s case with that of Lord Mansfield in Billingham’s case, cited in Russell’s Treatise of Crimes, as will be shown in the subjoined extract, viz.:

“In Billingham’s case, who was tried for the murder of Mr. Percival, a part of the prisoner’s defence was insanity; and upon this part of the case, Mansfield, C. J., stated to the jury, that in order to support such a defence it ought to be proved by the most distinct and unquestionable evidence that the prisoner was incapable of judging between right and wrong; that in fact it must be proved beyond all doubt that, at the time he committed the atrocious act with which he stood charged, he did not consider that murder was a crime against the laws of God and nature; and there was no other proof of insanity which would excuse murder, or any other crime,” etc. 1 Russell on Crimes (7th Ed.), 16, 17.

Mr. Wharton adopts the modified theory as being more consonant with reason and justice, and says, “ by the common law, every man is presumed to to be sane until the contrary is proved; and the better opinion is, that when insanity is set up by the defendant, it must be proved as a substantive fact by the party alleging it on whom lies the burden of proof.” Wharton on Homicide (2d Ed.), See. 665.

Mr. Greenleaf states the rule in somewhat similar terms, thus:

“ In all such cases the jury are to be told that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of committing the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and ■quality of the act he was doing,” etc. 2 Greenleaf on Ev., Sec. 373.

In the recent; treatise of Eice on the law of criminal evidence, in discussing the plea of insanity, he says:

“ After careful review of the various judicial dicta, we are inclined to recommend the instructions contained in the case of Baldwin vs. State, 12 Missouri, 223, which decision is authority for the broad proposition that the defence of insanity is established when the evidence offered in support of it preponderates in favor of the .fact, and reasonably satisfies the jury that it existed at the time the criminal act charged was committed.” 3 Rice on Ev., See. 396.

That author cites the case of Boswell vs. State, 63 Ala. 307, in which it was held that “insanity is a defence which must be established to the satisfaction of the jury by a preponderance of the evidence, and a reasonable doubt of the defendant’s sanity, raised by all the evidence, does not authorize an acquittal.” Ibid., Sec. 399.

The author then observes that “the adjudged cases in this country present a vast weight of authority favorable to the doctrine of Boswell’s ease; or at least in repudiating the rule entitling a defend.ant to an acquittal upon the existence of a mere reasonable doubt of his sanity.”

The expressions of some of the State courts, to whose opinions -we invariably turn for information in case of serious doubt and perplexity, may here be quoted with advantage.

Following the later and modified jurisprudence of the courts of England, the Massachusetts court in Commonwealth vs. Rogers, 7 Metcalf, 500, said:

“ The ordinary presumption is, that aperson is of sound mind until the contrary appears; and in order to shield one from criminal respon - sibility, the presumption must be rebutted by proof of the contrary, satisfactory to the jury, either out of the evidence offered by the prosecutor to establish the cause against the accused, or from the distinct evidence offered on his part; in either case it must be sufficient to establish the fact of insanity, otherwise the presumption must stand.”

In Commonwealth vs. Eddy, 7 Gray, 583, the same court said:

“But it is a presumption of law, that all men are of sane mind; and that presumption of law sustains the burden of proof, unless it. is rebutted and overcome by satisfactory evidence to the contrary. In order to overcome the presumption of law and shield the defendant from legal responsibility, the burden is on him to prove to the satisfaction of the jury, by a preponderance of the whole evidence in the case, that at the time of committing the homicide, he was not of sane' mind.”

In Ortwein vs. Commonwealth, 76 Penn. St. 414, the court said:

“Insanity must be made to appear on behalf of the defendant; and to be made to appear to the tribunal determining the fact, the evidence of itmustbe satisfactory and not merely doubtful, as nothing less than satisfaction can determine a reasonable mind to believe a fact contrary to the course of nature.”

In State vs. Davis, 109 North Carolina, 780, the court sustained this instruction of the trial judge, viz.:

“ The burden is on the defendant to satisfy the jury, but not. beyond a reasonable doubt, that he had not sufficient mental capacity to know right from wrong,” etc.

The foregoing dicta have been followed and repeated with perfect unanimity and without a single dissent, in the following cases from the States enumerated, viz.: Persons vs. The State, 81 Ala. 577;. Ford vs. The State, 71 Ala. 385; Gunter vs. The State, 83 Ala. 96; Coats vs. State, 50 Ark. 330; State vs. Cosat, 40 Ark. 511; Balling vs. State, 54 Ark. 588; People vs. Bemmerly, 98 California, 299; State vs. Trout, 74 Iowa, 545; State vs. Jones, 64 Iowa, 356; Kiel vs. Commonwealth, 5 Bush (Ky.), 362; Moore vs. Commonwealth, 18 S. W. Rep. (Ky.) 833; Ball vs. Commonwealth, 81 Ky. 662; Kailin vs. Commonwealth, 84 Ky. 354; Commonwealth vs. Rogers, 7 Metcalfe (Mass.), 500; State vs. Lawrence, 57 Maine, 574; State vs. Hanley, 34 Minnesota, 430; State vs. Schoffer, 22 S. W. Rep. (Mo.) 447; Loeffner vs. The State, 10 Ohio St. 598; Bond vs. the State, 23 Ohio St. 349; Ortwein vs. Commonwealth, 76 Penn St. 414; Parnell vs. Commonwealth, 86 Penn. St. 260; Lynch vs. Commonwealth, 27 Penn. St. 207; State vs. Vance, 82 North Carolina, 631; State vs. Bundy, 24 South Carolina, 439; State vs. Paulk, 18 South Carolina, 515; Webb vs. State, 9 Texas App. 490; Leach vs. State, 22 Texas App. 279; People vs. Dillon, 8 Utah, 92; State vs. Strouder, 11 West Virginia, 745; Baccagalupo vs. Commonwealth, 33 Gratton (Va.), 807.

The foregoing decisions represent the settled opinions of seventeen States of the Union upon this most important and vital question, and they are in harmony with the present jurisprudence of England.

III.

The leading and most important case which favors the third theory is Davis vs. United States, 160 U. S. 469, a case in which the question of insanity of the accused was examined with great care, and all authorities on the question were reviewed, English as well as American.

That ease involved the correctness of the trial judge’s charge to the jury, from which we make the following extract, viz.:

“ In other words, if the evidence is in equilibrio as to the accused being sane, that is, capable of comprehending the nature and effect of his oath, he is to be treated just as he would be if there were no defence of insanity, or as if there were an entire absence of proof that he was insane.

But it was the contention on the part of the attorney for defendants in error that the true rule is that if the evidence raises a reasonable doubt of the sanity of the defendant, the jury should have been instructed to acquit him — that is to say., if the evidence offered by the defendant raises a doubt of his sanity, the burden is placed upon the prosecution to affirmatively overcome that doubt by proof of his sanity.

In support of this proposition the decisions of the following courts are cited, viz.: Connecticut, Florida, Illinois, Indiana, Kansas, Michigan, Mississippi, Nebraska, New Hampshire, New Mexico, New York, Wisconsin and Tennessee — thirteen in number.

The purport of these decisions is that while there is a presumption of defendant’s sanity, this only goes to the extent of relieving the State of the burden of proving sanity, and without any proof on the subject the presumption is conclusive; but where proof is adduced establishing a reasonable doubt of his sanity it in effect establishes a reasonable doubt as to whether there was malice in the homicidal act, inasmuch as malice and ill will can not exist in the mind of an insane person.

Accepting this theory as most conformable to the ends of justice, the Supreme Court said:

“If the whole evidence, including that supplied by the presumption of sanity, does not exclude beyond reasonable doubt the ¡hypothesis of insanity, of which some proof is adduced, the accused is entitled to an acquittal of the specific offence charged. His guilt ■can not be said to have been proved beyond a reasonable doubt — his will and his acts can not be held to have joined in perpetrating the ■murder charged — if the jury, upon all the evidence, have a reasonable doubt whether he was legally capable of committing the crime, or (which is the same thing) whether he wilfully, deliberately and unlawfully, and of malice aforethought, took the life of the deceased.”

The court cites the following cases, from the States above mentioned, as supporting their theory, viz.: People vs. McCann, 16 N. Y. 488; Brotherton vs. People, 75 N. Y. 159; O’Connell vs. People, 87 N. Y. 377; Walker vs. People, 88 N. Y. 81; Chase vs. People, 31 Ill. 385; State vs. Bartlett, 43 N. H. 224; People vs. Garbill, 17 Mich. 9; Dove vs. State, 3 Hieskill (Tenn.), 491; Cunningham vs. State, 56 Miss. 269; Plake vs. State, 121 Ind. 433; People vs. State, 19 Ind. 170; Bradley vs. State, 31 Ind. 492; McDougal vs. State, 88 Ind. 24.

And finally they adopted the view expressed by the Supreme Court of the District of Columbia in Guiteau’s case, 10 Federal Reporter, 161.

It is a fact that is worthy of observation that the Supreme Court cite no other decision of their own as a precedent therefor; and that they refer to no treatise on criminal law as supporting the theory upheld by them. On the contrary, they admit that the jurisprudence of the English courts maintains the correctness of the second proposition supra; and that the courts of a great number of the States of the Union do likewise.

Mr. Wharton says of the theory maintained by the Supreme Oourt in the Davis case:

“This is a modern and strictly American doctrine, and it finds no countenance, as far as I can discover, amongst the best law writers or adjudged cases in England. It seems to be supported by Mr. Bishop, alone, of the American text writers, and finds support in the decisions of only some nine or ten of the highest courts in the several States.” Wharton on Homicide, Sec. 399.

In proof of this assertion, the author cites the greater portion of the decisions referred to by the court in the Davis case, and 2 Bishop’s Criminal Law, Sec. 673; and he cites, contra, many of the decisions we have referred to on the other side.

IV.

According to our judgment, this court has, in at least two cases, expressed its approval of the second theory; but in some opinions of recent date it has adopted the first. In so doing, it has pursued an exactly opposite course from that adopted by the English courts, which have changed from the first to the second; and that of the Supreme Court, which, as a matter of first impression, has chosen the third one.

For instance, in State vs. Burns, 25 An. 302, the trial judge was requested to charge the doctrine of the Davis case, to the effect “ that if they entertained a reasonable doubt as to the sanity of the prisoner at the time of the commission of the alleged act, they were bound to acquit him;” but on the contrary, the judge charged the jury “ that the law presumes the sanity of every man, and that it devolved upon the prisoner, under the plea of insanity, to satisfy the jury by a reasonable preponderance of proof, that he was insane at the time of the commission of the alleged act.” ‘

And this court said: “We think the judge did not err in his charge.

“ The true rule is, that the jury are to be told, that every man is presumed to be sane, and,to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that, -to establish a defence on the ground of insanity, it must be' clearly proved that, at the time of committing the act, the party accused was laboring under such a defect of reason, from disease of mind, as not to know the nature and character of the act he was doing, or, if he did know it, that he did not know that it was wrong.”

In State vs. Coleman, 27 An. 691, the charge given to the jury was very nearly the same as that given in the Burns case, as will appear-from the following, viz. :

“ When insanity is pleaded in defence of a criminal act, it must be clearly shown to have existed at the time of the commission of the act;” and “ that every person is presumed to be sane until the contrary is proved, and it is for him who sets up this defence to prove it by evidence which will satisfy the minds of the jurors, that, the party was insane at the time of the commission of the offence.”

And the court said: This charge was undoubtedly correct.”

Upon comparison these two decisions will be found to square exactly with the present jurisprudence of the English courts; and,, in criminal matters that jurisprudence is, by positive statutory enactment, made our guide.

The statute provides that all crimes, offences and misdemeanors shall be taken, intended and construed according to and in conformity with the common law of England; and the forms of indictment, the method of trial, the rules of evidence, and all other proceedings whatsoever in the prosecution of. crimes and misdemeanors, changing-what ought to be changed, shall be according to the common law,, unless otherwise provided.” Sec. 33 of Act 50 of 1805, p. 440;. Revised Statutes, Sfec. 976.

And the force of this rule is strengthened by the provisions of Secs. 993, 994 and 995 of the Revised Statutes, which declare that the plea of insanity raised upon the general issue is one for the jury to determine as an issue of fact; and if same is sustained by proof their verdict shall be not guilty. It is clear, then, that a reasonable doubt of the insanity of the accused would not satisfy “ our statute ” and the principle of the Davis case can not be applied in this State.

The consequence is that in criminal matters this court must follow the decisions of the English courts as the best expression of the-common law, in preference to those of the Supreme Court of the United States.

Adopting this as the correct guide it becomes our duty to conform, our jurisprudence thereto.

In State vs. De Rance, 34 An. 186, our immediate predecessor,-as. already intimated, receded from the position assumed in the Burns. and Coleman cases, and upheld the first theory supra.

That decision has been quoted as authority only once by this court as at present constituted; arid then it was merely cited without discussion in an uncontested case. State vs. Clements, 47 An. 1088.

Finding that decision — State vs. De Rance — unsupported by the current and weight of American authority, and not in keeping with the English jurisprudence, I think it the duty of this court to formally and in terms overrule it, and adhere to the theory maintained in State vs. Burns and State vs. Coleman.

My examination of the decisions cited in the De Ranee case does not impress my mind as they seem to have impressed those of our predecessors.

In the first'place, the Supreme Court of New Jersey, in a case of much more recent date than that of State vs. Spencer, has most distinctly aligned itself upon the second theory, as will appear from Graves vs. State, 45 New Jersey, 203 — decided in 1883, whereas the Spencer case was decided in 1846 — in which the court say:

“And indeed, so far as experience or tradition extends, it has been the invariable course to instruct the jury that the law, prima Jade, presumes mental sanity; and that when, in a given case, the prisoner would overcome such presumption, he must exhibit a clear preponderance of proof in favor of such defence.”

That this change in the course of decision by that court is conspicuous, appears from the fact that it has been noted and commented upon by Mr. Wharton. 1 Wharton Crim. Law, See. 6 and note; Wharton Crim. Ev., Secs. 729, 336.

This change must have an important influence upon courts which have conformed their opinions to that theory, and indeed this has been done, especially by the South Carolina court.

Aligning the authorities cited in De Rance’s case, I find, by making a comparison with the foregoing lists of cases which I have examined and cited, that all save one — State vs. Spencer, 1 Zabriskie (N. J.), 202 — are to be classed as favoring either the second or third theory supra, and not the first, to which category the opinion assigned them.

Indeed, I find in the quotations selected by the court such expressions as “ must be clearly proved,” “ on whom lies the burden of proof,” “governed by the preponderance of testimony,” “clear and satisfactory;” “will satisfy the jury,” “to the satisfaction of the jury,” “must be satisfactory,” and the like, but there is not found in any of them the statement that insanity must be proven beyond a reasonable doubt (pp. 188, 189).

And yet the opinion undertakes to say, upon the faith of those authorities, that “ the burden of proof on this plea rests upon the defence urging it, and its truth must be established beyond a reasonable doubt” (p. 190, citing 27 An. 692).

On the application for rehearing an additional opinion was rendered refusing it, but there was no additional authority cited, the apparent effort being to reconcile the various expressions we have quoted with that of “beyond a reasonable doubt” — that is, to demonstrate that they are one and the same thing. The conclusion is irresistible, then, that if they are not one and the same thing that opinion is wrong, and I have shown most conclusively by all authorities I have cited that they are totally different and irreconcilable altogether.

Not only is that the case, but in the year 1898, the year subsequent to that in which the decision of De Ranee’s case was rendered, the very decision of the court upon which it mainly depends was altogether changed. 45 N. J. 203.

It follows as a necessary consequence, that the instructions given by the trial judge to the jury were inconsistent and conflicting, and gave the accused just ground of complaint; but that was not the fault or mistake of our learned brother of the District Oourt, who merely conformed his views to those expressed by this court in the De Ranee case.

Dissenting Opinion.

Breaux, J.

Under the common law every man is presumed sane until the contrary be proven.

Insanity, as a plea, should be proved as a substantive fact by the accused on whom the burden of proof rests.

Being of the opinion that the proof of insanity at the time of committing the act ought to be made as clear and satisfactory by the accused, to secure his acquittal on the ground of insanity, as the proof of committing the act ought to be made evident by the State in order to find a sane man guilty, I respectfully dissent.

The foregoing rule is the English rule, announced by Mr. Wharton in his work on homicide.


text:
    No. 12,338.
    State of Louisiana vs. Willis Edmunds.
    In. charging an intent to murder, it is not required to set out the essential descriptions of the crime of murder. It is sufficient that the intent be charged as wilfully, feloniously and with malice aforethought. Where the weapon used is a club, in describing its use, it is not open to objection that the indictment charged an assault with it.
    Section 7};0 R. S. described two offences.
    The charging the same in separate counts in the indictment is not duplicity Where the second offence, the attempt to perpetrate, or in the perpetration of arson, rape, etc., and the intent to murder by stabbing, thrusting, etc., with a dangerous weapon, are sufficiently charged, there can be no reasonable objection to a description of the offence by lying in wait. The two offences can be committed at the same time by one act, andaré so closely allied that it. may be necessary to meet the evidence, to describe the latter offence as having; been committed while “lying in wait.”
    When a statute forbids several acts enumerated disjunctively and punishes therm alike, their commission may usually be charged in one count. State vs. Romus, 48 An. 581; State vs. Samuels, 38 An. 457.
    A PPEAL from the Eighteenth Judicial District Court for the Parish of Terrebonne. Caillouet, J.

      M. J. Cunningham, Attorney General, L. C. Moise, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      B. F. Winchester and H. M. Wallis, Jr., for Defendant, Appellant.
    Submitted on briefs December 5, 1896.
    Opinion handed down January 18, 1897.
   The opinion of the court was delivered by

McEnery, J.

The defendant was indicted upon two counts. First, lying in wait to commit the crime of murder; second, lying in wait to commit the crime of murder in the perpetration, or attempt to perpetrate, the crime of rape. The jury returned a verdict of guilty. The prosecuting attorney entered a nolle prosequi as to the first count, and the defendant was sentenced to the death penalty under the second.

He filed a motion to quash the indictment, as follows:

(1) That the indictment does not charge him with having committed any offence known to the laws of this State; (2) that the indictment is fatally defective for duplicity; (3) that in the first count defendant is charged with an assault and battery with a dangerous weapon, which are alleged disjunctively with intent to com - mit murder, not alleging the constituent parts and requirements of murder exacted by the common law of this State; (4) that in the second count defendant is accused of an assault and battery with the intent to commit the crime of murder, without defining the crime of murder, and whilst in the perpetration, or attempt to perpetrate the crime of rape, which is unknown to the criminal statutes of the State of Louisiana; (5) that the indictment is vague and indefinite.

He also filed a motion for a new trial.

There are two counts in the indictment for offences denounced by the same statute, the penalty being the same for each offence. There was no duplicity in the indictment. State vs. Pierre, 38 An. 91; State vs. Cook, 30 An. 145.

The first count charges the assault and battery upon the prosecutrix, but this is implied in the offence charged, and the charging of it is descriptive of the offence, and was an ingredient of it. State vs. Taylor, 35 An. 835.

The intent to murder is the gist of the offence.

The intent is sufficiently and properly charged in the words, with the intent, wilfully and feloniously, and of malice aforethought, to commit the crime of murder in and upon the said Elira Pelligrin. State vs. Washington, 48 An.; State vs. Frances, 36 An. 336.

The second count is constructed like the first, with the exception of charging the perpetration and the attempt to perpetrate the crime of rape. The crime of rape is sufficiently described and set forth. To this there is no complaint. The intent to commit the crime of murder, while in the perpetration and attempt to perpetrate the crime of rape, is the offence denounced by the statute. The intent to commit murder is described as in the first count.

In the case of State vs. Frank Brown, 21 An. 347, the indictment charged: “ That one Frank Brown, late of the parish of Orleans, on the twentieth day of June, in the year of our Lord one thousand eight hundred and sixty-eight, with force and arms, in the parish of Orleans aforesaid, and within the jurisdiction of the First District Court for the parish of Orleans, did, with a dangerous weapon, to-wit, a knife, and with the intent to commit the crime of murder, and while in the perpetration of the crime of robbery, stab and thrust one Ellen Elliott, contrary to the form of the statute,” etc. In this case it was held that the crime of stabbing with a dangerous weapon and with intent to murder was sufficiently described. State vs. Philbin, 38 An. 964; State vs. Williams, 38 An. 371.

The statute contains the designation of several offences, disjunctively recited. The offences may be charged in the same count in the indictment, as they are cumulative offences denounced by the same statute. Hence the lying in wait charged in the second count is not objectionable. State vs. Markham, 15 An. 498.

The charge constituted only one offence. 31 Cal. 416; 18 Fed. Rep. 901; 9 L. R. A. note, p. 182; Herman vs. People, 131 Ill. 594.

There is nothing in the record that could justify us in disturbing the ruling of the trial judge on the application for a change of venue. There is no evidence brought to our notice by a bill of exception. State vs. Daniel, 31 An. 91.

Objection is made in the motion for a new trial that the defendant was forced to trial immediately after counsel had been assigned him. There was no bill of exception taken to the ruling of the trial judge. He says, in overruling the motion for a new trial, that “ on the day fixed for trial the accused went to trial without objection, being urged then and there, and without suggesting to the court that he had no time to summon his witnesses in the case; nor was any request made for further time to prepare a defence, nor a continuance asked for any cause.”

The other matters in the motion for a new trial are unaccompanied by evidence, and we can take no notice of them.

Judgment affirmed.