author: Poché, J.

text:
    No. 10,353.
    The State of Louisiana vs. F. A. Callegari.
    Tiie presence of an accused, in court;, is sufficiently shown by a minute entry reading as follows: “In this case, the prisoner, 3?. A. 0., represented by his counsel, Messrs. S. D. and ■\VM and the District Attorney, being all present in open court, the jury come,*’ etc., etc.

      An attempt to impeach the veracity of a witness by proving that he had previously made statements different from the testimony which he gave in the case on trial, must be pre_ ceded by proper foundation to put the witness on liis guard, and if the statements ascribed to him, had been made in, or reduced to writing, the proper foundation is in the production of the -writing itself; otherwise the inquiry must be suppressed.
    There is no warrant in law or jurisprudence to justify counsel of an accused to take testimony to disprove statements of facts by the trial judge in a bill of exception.
    APPEAL from the Fourteenth District Court, Parish of Calcasieu. Bead, J.

      Walter H. Bogers, Attorney General, for the State, Appellee.

      George S. Wells, L. J. Dueoté and W. F. Behwing for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

Appealing from a life sentence, predicated on a conviction of murder without capital punishment, the defendant submits an assignment of errors and three bills of exceptions.

In the assignment of errors he avers that the record does not show that he was present in court when the jury rendered their verdict in his case.

On that point his counsel argue as follows:

But it will perhaps be contended -that the language of the transcript, on page 37, reading as follows:

Iwéús case the prisoner, F. A. Callegari, represented by his counsel, Messrs. Schwing, Ducoté and Wells, all present in open court, the jury, etc.,” implies the presence of the prisoner in court. In answer, we contend that the adjective all, in the above sentence, refers not to the prisoner, but to his counsel, Messrs. Schwing, Ducoté and Wells, by whom he was represented.

But counsel’s quotation from the record is materially erroneous; the entry is in the following words :

“ In this case the prisoner, F. A. Callegari, represented by his counsel, Messrs. Schwing, Ducoté and Wells, and the District Attorney, all being present in open court, the jury duly impanelled for the trial of the case, come into court and through their foreman render the following verdict * * * “ The jury is discharged and the prisoner remanded to jail.”

(Italics are ours, showing the words omitted in counsel’s quotation from the record.) Comment would be superfluous under such a showing.

The correct entry does show the presence of the accused at that stage of his trial, and that he was remanded to jail.

I.

The first bill is leveled at the judge’s overruling the following question propounded, on cross-examination, to a leading State witness, who had testified that he had seen the homicide:

“Did you not testify on the preliminary examination of the accused for the murder of Neyland, referring to a conversation between yourself and George Bucher, which occurred in the room whore the homicide occurred,- that you were expecting a fight with said Bucher, from the way said Bucher talked at the time ? ”

The testimony which the witness had given at the preliminary examination had been reduced to wu-iting, and is annexed to this bill. But it was not handed, or read to, the witness at the time that the question was put to him, or at any time during his examination and cross-examination.

And that omission is the ground on wdiich the judge rested this ruling. We cannot say that his conclusion was erroneous.

The undoubted purpose of the interrogatory was to impeach the veracity of the witness and to weaken his testimony.

In that line of examination the witness is entitled to be put on his guard touching the previous statement wdiich he has made, and if the statement is contained in writing, ■ the production thereof is the proper foundation for the proposed investigation.

Greenleaf, in his work on evidence, formulates the rule as follows:

“ If the witness is asked generally, whether he has made representations, of the particular nature stated to him, the counsel will be required to specify, whether the question refers to representations in writing, or in words alone; and if the former is meant, the inquiry, for the reasons before mentioned, will be suppressed, unless the writing is produced.” Greenleaf on Evidence, Sec. 465. See also Pascoe’s Criminal Evidence, 8th Edition, page 216.

It appears from the bill, that -while counsel was cross-examining the witness, he held the testimony in his hand, and he has failed to adduce any reasons satisfactory to the legal mind, in explanation of his omission or refusal to submit it to the witness for his examination of the statement ascribed to him, as contained in that document.

II.

The second bill is to the refusal of a new trial prayed for on the ground of newly discovered evidence, which consisted of testimony going to show that about two hours before the homicide, during a quarrel between the two, the deceased had threatened to break the neck of the accused.

It appears from the bill that at the moment of, or immediately before, the fatal affray, the deeeased had made no demonstration indicating a design to do any bodily harm to the accused, but that lie was about to begin a dance when lie was shot down. Under well settled law,' such a showing could not admit of proof of previous threats, either in justification or in mitigation of the act.

And it also appears from, the judge’s statement in the bill that the newly discovered evidence would at most have amounted to cumulative testimony, as other witnesses had on the trial testified as to liot words and quarrels between the parties.

That circumstance, of itself, was sufficient to justify the ruling of the trial judge on the point. State vs. Fahey, 35 Ann. 12; State vs. Hyland, 36 Ann. 709; State vs. Hanks, 39 Ann. 234.

III.

In this connection, the last bill discloses the following incident:

After the refusal of a new trial, counsel for the accused proposed to show by testimony that the trial judge was in error in the statement implied in his reasons for refusing a new trial, to the effect that there had been testimony at the trial on the subiect of threats made by the deceased against the life of the accused.

The judge very properly suppressed such an investigation which finds no warrant either in law or in jurisprudence. ■

Until otherwise provided for by legislative authority, this court must be guided by the recitals of the trial judge, as to the nature and scope of the evidence submitted to the jury during the trial, as bearing on motions for new trials predicated on evidence alleged to be newly discovered.

Our conclusion is that none of defendant’s complaints are well founded.

Judgment affirmed.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 10,379.
    The State of Louisiana vs. Frank Reed.
    1. A person indicted, for crime cannot, validly, plead, or be tried, or convicted, or sentenced, virile in a state of insanity, although. Ms mental derangement may only have supervened since the date of the crime charged.
    2. The [’objection of present insanity may bo made at any stage of the proceedings. It requires no special or formal jilea, but may be adequately presented orally, or tbe court may itself suggest and act upon it on its own observation.
    3. "Whenever and however presented, evidence, if offered, must be received and the issue must, in some way, be determined.
    4. As to the mode of determining it, some discretion is left to the judge, according to the time and circumstances under which the objection is made,
    5. When raised during the progress of the trial, the better course seems to be to submit the • special issue, with the general issue, to the jury; but whatever be the judge’s discretion on this point, it is error to refuse to entertain the objection, or to receive evidence, or to determine it in any way.
    6. When a witness, properly introduced to impeach the rejiutation for virtue and chastity of the prosecutrix in a rape case, has stated positively that he knew her general reputation, 1ns competency is not destroyed, because, on cross-examination as to the nature of his knowledge, he states that he has heard, ten, fifteen, or twenty persons speak of her character in that respect, and say that it was bad. Knowledge of reputation is derived from what one person has heard from others; and its generality is sufficiently sustained when the witness has hoard a considerable number of persons speak of it and when they all concur.
    APPEAL from tlie Second District Court, Parisli of Bienville. Boone, J.

      Walter II. Rogers, Attorney General, for the State, Appellee.

      John A. Richardson and Young, Drew <& Stewart for Defendant and Appellant
   Tlie opinion of the Court was delivered by

Fenner, J.

The appeal of the defendant rests on several bills of exception and on the overruling of a motion for a new trial.

Bill No. 1 was taken to the refusal of the judge to admit testimony offered to prove the insanity of the prisoner at the time of trial, in absence of any plea.

There is no pretense that insanity existed at the time when the of-fence, for which defendant was prosecuted, was committed. In such case, it would- have been a legal defense, and under Revised Statutes, Sec. 995, evidence thereof would have been admissible under the general plea of not guilty. But the precise question here presented is a novel one in this State. It is elementary that a man cannot plead, or be tried, or convicted, or sentenced, while in a state of insanity. 1 Bishop Cr. L., § 396; 1 Wharton Cr. L., § 53 et seq.-, 2 Bishop Cr. Prac., § 666-668.

If insanity exist at the time of the arraignment, counsel should then make the objection, and, if sustained, the prisoner should be excused from pleading and the proceeding should await his recovery. If not made at arraignment, the objecton may be raised, at any time, before commencement of trial, and if sustained, the trial cannot proceed. Even though not made until the trial has begun, it is still not too late, and must be considered and determined in some way. Indeed, even after conviction, it may be opposed as a reason why sentence should not be passed.

The better opinion is that the objection requires no formal plea, but may be adequately presented orally, or the court may raise it on its own observation. Reg. vs. Southey, 4 Fost. & F., 864; Reg. vs. Turton, 6 Cox Cr. C., 385; Rex vs. Frith, 22 Howell, St. Tr., 307; Rex vs. Dyson, 7 Car. & P., 305.

Whenever and however raised, evidence must be received, if offered? and the issue must, in some way, be disposed of. As to the mode of disposition, it seems that much is left to the discretion of the judge. If made before trial, or after conviction, the general practice is to submit the issue to a jury impanelled for the purpose, though perhaps the judge may, in his discretion, adopt some other suitable method of ascertaining the fact.

If made during the progress of the trial, the court may let the trial proceed and submit the question of present insanity, with that of guilt or innocence, together, to the jury. Reg. vs. Southey, 4 Fost. & F., 864; Reg. vs. Berry, 12 B. D., 447.

All the foregoing prox>ositions are sustained by Mr. Bishop in his work on Criminal Procedure, sections 666-668, with references to numerous authorities which need not be here quoted.

We consider it very clear that the counsel for defendant had the right to raise the question of their client’s present sanity, without special or formal plea, and to have evidence received on the point, and to have the issue determined in some proper way. The judge’s safest coirrse would have been to have received the evidence and to have submitted this special issue to the jury with the general issse; in which case, if the jury found the defendant to be insane, it would have returned such verdict by itself without passing on the general issue; or, if it found him sane, it would proceed to pass on the general issue and return both verdicts together.

But whatever be his discretion as to the mode of determination, he undoubtedly commited error in refusing to entertain the objection, or to hear evidence thereon, or to determine it in any way.

This is sufficient to sustain a reversal and remanding; but Bills of Exception Nos. 2 and 3 involve questions likely to arise on a new trial, and, therefore, are proper to be determined.

The trial was for rape. Two witnesses were introduced to prove the general reputation for virtue and chastity of the prosecuting witness, charged to have been raped. They stated that “ they knew her general reputation for virtue and chastity” when, before proceeding further, the State was allowed to intervene to test, by cross-examination, the nature of their knowledge. One stated that he heard at least ten young men and boys speak of her reputation, for chastity; and the other stated that he had heard at least fifteen or twenty young men and boys say her reputation for virtue and chastity was bad. On this the judge ruled out the testimony, holding that the knowledge of the witnesses was special and not general. In this, we think the judge erred. Reputation is the general opinion of a qierson held by the community. A witness’ knowledge of another’s reputation must be derived from what he has heard others say on the subject. He is not required to have heard every member of the community express himself on the subject. If he has heard the opinion of a considerable number, and if such opinion is concurrent, that suffices. Certainly, nothing elicited from the witnesses contradicted or overthrew their first positive statement that they knew the general reputation of the prosecutrix.

It is, therefore, ordered and decreed that the verdict and sentence appealed from be annulled and set aside and that the case be remanded to the lower court to be there proceeded with according to law.


author: Watkins, J.

text:
    No. 10,363.
    The State of Louisiana vs. Tom Beck.
    1. In case a requested special charge is considered irresponsive to the proven facts and inapplicable to the case it is proper that the trial judge should decline to give it to the jury.
    2. The trial judge is vested with a sound legal discretion in the allowance, or refusal of applications for new trials, and his action in denying same will not be reversed in the absence of a showing that the court had abused its discretion to the detriment of the accused.
    APPEAL from the Third District Court, Parish of Claiborne, Bwrhsdale, J.

      Walter JI. Bogers, Attorney General, for the State, Appellee.

      John Young for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

The defendant was charged with murder, found guilty of manslaughter, and sentenced to imprisonment in the penitentiary for four years. This appeal is founded on two bills of exception, one of which was reserved to the declination of the judge to give to the jury a requested special charge, and the other to his refusing to grant a new trial.

I.

The first bill of exceptions purports to recite very much of the evidence on which defendant’s counsel requested the following' special charge, viz :

“ That if the jury should find that a wound, not serious or likely to produce death, was inflicted by defendant; and they should further find from the evidence, that the death of the deceased was produced by malpractice on the part of those attending him, and did not result from the wound,, they should find the defendant not guilty.”

But the trial judge declined to so charge the jury for the reason there was “ absolutely no such evidence before the jury” as that recited in the bill of exceptions; and because one “of the defendant’s counsel stated in substance to the jury, in the course of his argument, that they did not rely on the defense of maliiracticeand hence the charge was inapplicable to the case. He says, in conclusion r

“ The charge, even if it was law, was not applicable to the cam ; and the court believed from counsel’s argument that all- idea of such a defense.had been abandoned; and it does not understand the law to be that an attorney can make a statement of facts concerning which there has been no evidence adduced, and then require the court to charge the law concerning such an assumed conclusion, even though the charge asked be law, abstractly considered.”'

It is now trite to say that when there is a difference between the defendant’s counsel and the presiding judge with regard to the facts proven on the trial of the case, we feel bound to accept the statement of the judge; and, takiug as true the statement we have just quoted, the requested charge was an improper one.

In State vs. Milton, 37 Ann. 77, this question was very carefully considered, and antecedent decisions and common law authorities were cited and reviewed, and this court expressed itself as follows, viz:

“The judge refused the charge for the reason, substantially, that it touched upon the facts, that it referred to facts of which there was no evidence whatever; and that it was inapplicable to the facts of the case and calculated to mislead the jury. Section 991 of the Bevised Statutes provides : In charging the jury in criminal eases, the judge must limit himself to giving them a knowledge of the law applicable io the case. * The Constitution also, Article 168, restricts the authority of the court, in cliaiging the jury, to the law of the case.
“Under these provisions we would not say that the hypothetical charges based upon the jury’s belief of certain facts, are to be entirely excluded. But when such hypothesis embraces facts not supported by evidence and foreign to the case, the propositions of law based thereon become purely abstract propositions, and, under well-settled jurisprudence, the judge is not bound to charge them. Wharton’s Crim. PI. and Pr., Secs. 712, 797; Bishop’s Cr. Prac., Sec. 987; State vs. Standerman, 6 Ann. 287; State vs. Thomas, 34 Ann. 1084; State vs. Jackson, 35 Ann. 769.”

See also State vs. Ford, 37 Ann. 443; State vs. Labuzan, 37 Ann. 489; State vs. Primeaux, 39 Ann. 673; State vs. Durr, 39 Ann. 751.

A proposition so firmly established in our jurisprudence, and. so imbued in the principles of the common law, ought not to need additional argument to support them, or additional repetition, to make it plain, that it is our purpose to adhere to them.

II.

The defendant’s application for a new trial rests on the grounds, first, “ that a material and competent witness * * whose testimony would have likely produced a different verdict, was deterred, through fear of personal violence, from testifying in the case;” second, because there was error in the refusal of the court to give to the jury the special instruction requested — see preceding paragraph; fourth, because of a prejudice in the public mind against the defendant in which he believes some of the jury participated to the effect “ that there was a belief which prevailed that he (the accused) was the son of a man who committed a horrible crime on the person of a highly respected white lady of this parish some years ago,” etc.

To this application is appended an affidavit of one Alice Johnson, which tends to show that she was influenced through fear of personal violence not to attend, as a witness on the trial of the cause, and deliver her testimony.

But taking the motion, all in all, it seems to us a manifest attempt at trifling with justice, and undeserving of serious consideration.

The motion merely enumerates the reasons why the accused, deems himself entitled to a new trial, and it recites merely that affiant was acquainted wfitk the accused, and with one George Washington West, who is styled “ the principal witness for the State,” and heard him say that when court came on and Beck was tried again, lie intended to smite him if he could;” and it further recites, that Bird Brown, the father of Anna Brown, a girl of fifteen years of age, and a witness for the defendant, told the latter “ that she should not go, and “that she knew nothing about the case, and if she went to tell anything as a witness, that he would whip her,” and that Anna Brown said afterwards “that the reason she would not tell what West said was, that her father threatened to whip her if she did.”

Neither the motion, nor the affidavit contains any statement of what the witness Anna Brown, knew about the facts of this case, and there is no averment as to diligence, nor that any effort had been made to secure her attendance as a witness, nor that there was no other witness by whom the same facts could be established.

On the plainest principles of criminal proceedure, this affidavit is wholly insufficient, and the remaining two grounds of the motion are frivolous.

The trial judge is vested with a sound legal discretion in the matter of the allowance of new trials which are grounded on facts outside of what is matter of record, and particularly when the exercise of this discretion depends on testimony of witness, is, and it will not be interfered with except in extreme cases, and when it clearly appears that same has been erroneously.exercised.

“Motions for new trials, are addressed to the discretion of the trial court whose action in denying them, will not be reversed in the absence of a showing that the court had abused its discretion to the detriment of the appt'llee.” Knoblock’s Crim. Dig., p. 339, and the various cases therein enumerated.

We think the application was correctly refused.

Judgment affirmed.


author: McEnery, J.

text:
    No. 10,364.
    The State of Louisiana vs. Julius Canty.
    The receiving of a verdict of a jury is a ministerial act and may be received on a dies non.

    A verdict will not bo set aside on an exception to a portion of tbe judge’s charge to the * jury, which does not comment on the facts, and contains only an illustration of a general abstract proposition, which embodies self-evident truths.
    The trial judge is not required by any law to repeat as a special charge that which he had already given to the jury in the general charge.

      APPEAL from the Third District Court, Parish of Claiborne. Barlcsdale, J.

      Walter H. liogers, Attorney General, for the .State, Appellee.

      O. W. Seals and J. JR. Phipps for Defendant and Ajjpellant.
   The opinion of the Court was delivered by

McEnery, J.

The defendant was indicted for murder and convicted of manslaughter. Prom this verdict and the sentence to imprisonment at hard labor he appeals.

There are several bills of exception to the rulings of the trial judge and a motion in arrest of judgment upon which the accused relies for a reversal of the judgment.

The first exception is to a part of the charge of the trial judge, which is as follows:

So, too, when the evidence given by word of mouth comes directly and squarely in conflict with physical facts, if the jury believes the principal facts are established, they are justified in not believing that evidence which conflict with the principal facts.”

In his statement appended to the bill, the judge a quo states that he did not comment on any fact in the case, and that the part of the charge to which exception was taken was a part of a section of a charge in which the jury was instructed that they were the exclusive judges of the evidence and were instructed as to their legal powers in regard to the credibility of witnesses.” The portion of the chitrge to which the bill was taken seems only to be an illustration of abstract on proposition containing a self-evident truth — that is, that no oral testimony can disprove a physical fact — and that if the jury believes one state of facts, they are not bound to believe another state of facts in conflict with them.

The second bill has reference to the charge just referred to, and as the district judge says in his statement he had given the same charge to the jury, it was not necessary for him to repeat it. There is no law requiring the judge to repeat the charge given to the jury.

The motion in arrest of judgment is based on the fact that the jury returned their verdict and it was received on a dies non.

There was no judgment entered on the verdict on that day. The receiving of the verdict was only a ministerial act.

The point raised has already been decided by the court in State vs. Ford, 37 Ann. 443.

There is no evidence in the record relating to the grounds set up in the motion for a new trial.

We are of the opinion that there were no errors in the ruling of the trial judge.

Judgment affirmed.


text:
    No. 10,370.
    The State of Louisiana vs. Ellis Crawford.
    The ruling of a trial judge, in a criminal case, refusing a continuance, on the ground that counsel for tho accused had not been notified of tho order assigning the case for trial, will not be disturbed, if it appoars that on the day fixed, tho accuesd, his counsel, and all the witnesses on both sides were present.
    Tho discretion vested by law in trial judges, in matters of continuances, will not be interfered with on appeal, unless it is shown to have been arbitrarily exercised.
    APPEAL.from the Twenty-third District Court, Parish of West Baton Rouge. Talbot, J.

      Walter JI. Ilogers, Attorney General, for the State, Appellee.

      K. A. Gross, for Defendant and Appellant.
   The opinion of tho Court was delivered by

Poché, J.

The complaint of the accused, who appeals from a conviction of inflicting a wound less than mayhem, is as unfounded as it is indefinite.

His bill of exception shows that on the 4th of March the case was assigned for the 7th of tho same month, but on the same day the order was rescinded, and the case was assigned for tho 12th, and the accused was notified to be present on that day.

It appears that his counsel, who lived in an adjoining parish, proceeded to tho court on the 7th and was there informed that tho court had adjourned.

When the case was called for trial on the 12th, counsel for the defendant objected to go on with the trial on the ground that he had not been notified of the assignment of the trial for the 12th.

But as all the witnesses on both sides were present, the court overruled counsel’s objections, and ordered the trial to proceed.

Conceding that counsel’s objections could be legally construed to be a motion for continuance, it does not appear that as such his proceeding was in form and substance a proper motion, and that it was supported by an affidavit, or that it even suggested any injury to the accused to result from a trial on that particular day.

Criminal jurisprudence lias crystalized the rule that in matters of continuances the rulings of trial judges will not be disturbed on appeal, unless they are shown to be arbitrary and unjust. State vs. Milton, 33 Ann. 261; State vs. Kune & Hinton, 36 Ann. 153; State vs. Johnson, 36 Ann. 852; State vs. Primeaux, 39 Ann. 674.

And it appears very clear to us that the ruling complained of in this case can stand the most rigid test of that rule.

Judgment affirmed.


text:
    No. 10,350.
    The State of Louisiana vs. Alphonse Lewis, alias Joseph Norbert.
    1. The discretion of a trial judge, in sustaining a challenge, on the part of the State, of a juror, for cause, is not reviewable on appeal, and an error in such ruling does not entitle the accused to relief. The defendant cannot exercise any control over the rejection of jurors by the State.
    2. A. second arraignment having been made under the information, no additional time for summoning of witnesses can be required thereafter, and on that account.
    3. Overruled and disallowed objections cannot be a proper foundation for a new trial.
    4. The fact that, in an information charging the commission of the offense of obtaining goods under false pretenses, the phrase, “with intent to defraud” is employed, instead of the phrase “with intent to defraud him of the same,” is of no special significance, when it appeal’s that in the same sentence occur specifications of the goods obtained, the false pretense by which they were obtained, and the name of the person from whom they were obtained. In such case it is to be presumed that the intent to defraud had clear reference to the owner of tbe goods.
    APPEAL from the Twenty-first.District Court, Parish of St. Martin. Mouton, J.

      Walter JE[. Bogers, Attorney General, for tlie State, Appellee.

      .Bobert Martin, for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

From a conviction of the offense of obtaining goods under false pretenses, and sentence to imprisonment at hard labor, the defendant appeals.

The information substantially charges that, Alphonse Lewis alias Joseph Norbert, unlawfully and knowingly, did falsely pretend to Alfred Martin as the agent and clerk of one J. J. Nassans, the.proprietor of a store, that said proprietor had requested and instructed the said clerk, through him, the defendant, to sell him such goods as the latter wanted, on terms of credit.

That, through this false pretense, the defendant obtained goods from said clerk, of the value of twenty dollars, the same being the ‘‘ goods and chatties of said J. J. Nassans, with intent to defraud 5 whereas, in truth and in fact, the said J. J. Nassans, had not seen, nor spoken to the said Alphonse Lewis alias Joseph Norbert, nor sent him to Alfred Martin, his clerk, with the authorization and request to said Alfred Martin, to sell on credit to the said Alphonse Lewis, goods, etc.”

During the course of the trial a number of bills of exception were taken by the defendant’s counsel to various rulings of the trial judge, and which are earnestly pressed upon our consideration here, and which we will consider chronologically.

I.

The trial judge sustained an objection, urged on the part of the prosecution, to the competency of a juror, and excluded him from the panel, and that ruling is assigned as error here.

In State vs. Jake Shields, 33 Ann. 1410, this court considered this question, and, after a careful examination of common law authorities, said:

Exception is taken to the action of the court in excusing a juryman, for a cause which the defendant contends was not sufficient under the larv. Admitting the cause was not sufficient, the judge exercised his discretion in determining the question, and his error in such matters would afford no ground for relief.” 1 Bishop on Crim. Prac., Sec. 926.

In State vs. Wyatt Creech, 38 Ann. 481, we said on this subject:

Counsel charge error in the ruling of the judge in passing on the qualifications of a juror. The challenge for cause by the State, was sustained over the objection of defendant’s counsel, who urged then, as they do now, that the cause of alleged disqualification'was not sufficient.
“ It is not suggested that, at that stage of the proceedings, or even during the whole trial, the accused had exhausted Ms peremptory chailenges, and that, in consequence of the judge’s ruling he had been compelled to accept an obnoxious juror.
His counsel confounded the right of challenge, which is granted as a means of rejecting jurors, with the exercise of that right as a means of selecting jurors. It is no longer an open question in criminal jurisprudence, that the rejecting of a juror by the trial judge, even if erroneous, affords of itself no legal ground of complaint to the accused.”.

Iu this opinion are brought up an array of authorities, in support of this ruling, and on the faith of which we unhesitatingly affirm the doctrine announced therein, and approve the ruling of the trial judge.

II.

The accused complains, and assigns the ruling of the judge, denying him a postponement of the trial, in order to have a certain named witness summoned, as error, under the following state of facts, to the substantial correctness of which he certifies, viz:

Under the impression that the prisoner had been arraigned, the district attorney had, several days previously, fixed the case for trial for the 7th of February. Thereupon all witnesses for the State and the defendant had been duly summoned; when, on the 7th, the case was called for trial and the accused, in open court, declared that two of his witnesses had not answered, viz, Michel and LeBlanc; but if the latter, LoBlanc, could be had, he did not care about having Michel— that he could do without him, and would go to trial; but that LeBlanc was sick and unable to attend. Just at this moment, when the State’s attorney and defendant’s (counsel) were consulting for the purpose of assigning the case to some other day when LeBlanc could be present, LeBlanc appeared in court and answered to his name. Whereupon, and owing to the defendant’s previous statement that, with LeBlanc present, he was ready for trial, the court ordered the trial to be proceeded with. When the jury was about being called for empaneling, the district attorney discovered that the accused had not been arraigned * * Whereupon the court ordered the prisoner to be arraigned * * and this being-done it further ordered that the case be fixed mstmvter for trial, and that the trial be at once proceeded with, inasmuch as, five minutes previously, the accused had stated that it LoBlanc were present in court, he was ready to go to trial.”

On this statement of fact, which is contained in the defendant’s bill of exceptions, the judge assigned his belief to bo, that delay was the sole and only object of the defendant in refusing to go to trial;” and we arc also of the same opinion.

III.

Another bill of exceptions was retained because the accused was not granted time to have issued served and returned, a subpoena for a witness. This is substantially the same objection as the one discussed in the preceding paragraph, and it needs no further elaboration.

IY.

On the same grounds as those enumerated in the foregoing paragraphs, the accused moved for a new trial, and to its refusal retained a bill of exceptions. Inasmuch as the errors assigned in those rulings, did not prevail, it follows that the application for a new trial based upon them, must be equally unavailing.

Y.

Finally the accused tendered a motion in arrest of judgment on the ground that the information does not disclose the necessary ingredients to constitute the crime of obtaining goods under false pretenses, and that no legal sentence can be passed upon him thereunder.

That from said information it appears that the accused is charged with having told “ a simple naked lie which cannot be the basis of an indictment.”

From neither the motion, nor the judge’s ruling, can we glean what the precise complaint of the information is; but in the brief of defendant’s counsel, we find this statement, viz :

“ Under the words of the statute, obtaining goods by false pretense, does not constitute an offense against the statute, unless the goods were so obtained with intent to defraud the owner thereof.”

Section 813 of the Revised Statutes, under which the accused was indicted, provides that, when one, by any false pretense, shall obtain * * from any person, money or any property, with intent to defraud him of the same, shall, etc.”

Recurring to the phraseology of the information as set out in the beginning of this opinion, and it appears that it substantially conforms to the statute. That through the false pretense recited the defendant obtained goods from one Alfred Martin, the acting clerk of the owner, J. J. Nassans, “ with intent to defraud.”

Evidently “ with the intent to defraud him of the same,” was intended, and said words were, in all likelihood, casually or accidentally omitted from the indictment. The fact that, in the same sentence with the phrase “with the intent to defraud,” occurs the specification of the goods obtained, the false pretense by which they were obtained, and the name of the person from whom they were obtained, necessarily presupposes that said intent to defraud had clear reference to said Nassans, as the owner. The objection is technical.

This court, and its predecessors, have often held that if an indictment, charging a statutory offense, pursues the language of the statute denouncing it, it is sufficient; but it has never held that such indictment must follow its language, under the pain of nullity. Nor is such the case. It is permissive, not obligatory. In such case the use of the language of the statute is not sacramental, but sufficient.

We think the indictment has followed the statute substantially, and is not open to the objection urged against it.

None of the objections assigned by the defendant’s counsel were well taken, and the trial judge committed no error in his rulings.

Judgment affirmed.


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    No. 10,390.
    The State of Louisiana vs. Abe Price.
    1. A motion in arrest of judgment, is not the proper plea to urge against an error in the proceedings touching the time or the manner of impaneling a petit jury. Such a vice in the record can he taken advantage of hy an argument of error filed in this court.

      Young, APPEAL from the Ninth District Court, Parish of Tensas. Young, J.

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

      JB. F. Young and Luce & Lemle for Defendant and Appellee.
   The opinion of the Court was delivered by

Watkins, J.

The State is appellant from a judgment and decree of the trial judge, sustaining defendant’s motion in arrest, and vacating and setting aside a verdict of the jury convicting the accused of man-' slaughter.

The defendant has not joined issue on the State’s appeal, nor filed in this court, any assignment of errors; hence, we have nothing before ns but the alleged erroneous ruling of the trial judge in sustaining the motion in arrest of judgment.

The grounds set out in arrest are, first, that the jury were impaneled and sworn prior to arraignment and plea; and second, that after arraignment and plea, the case was not fixed for trial, and the jury were not again impaneled and sworn.

Prom this state of facts defendant’s counsel argue that there was, at the time the jury were sworn, no issue for them to try, and this constitutes an error of record which vitiates radically all that was done subsequently to the prisoner’s plea and arraignment, and that he can avail himself of that defect, by a motion in arrest of judgment.

The minutes of the court show that the jurors were duly impaneled and sworn, and the prisoner not having been arraigned, was duly arraigned, heard the reading of the indictment, plead not guilty and prayed for a trial by jury; the trial of the case was then proceeded with, and after hearing the evidence, argument of counsel, and charge by the court, the jury retired to consider their verdict, etc.”

Counsel’s reliance is upon the material defect disclosed in the record; that is to say, the absence from the record of any evidence showing that the jury of trial were sworn in the case, after arraignment and plea, it being the well-settled jurisprudence that there is no issue joined, between the State and the accused, upon the charge contained in the indictment, until after arraignment and plea.

We do not think that this question can be raised and presented by way of a motion in arrest of judgment, for Mr. Bishop announces the following to be the causes for which judgment and sentence may be arrested, viz:

This motion will, at common law, reach whatever defects are apparent on'the face of the record, but no others. If the indictment is inadequate in allegation, and not cured by the verdict, or if the verdict does not conform to the indictment, or there is error in any other part of the record, or the statute on which the indictment was drawn has been repealed — the motion in arrest is the approximate remedy. On the other hand, a variance between proofs and allegation, any matter in abatement, or matter appearing only in evidence at the trial; a defect in the process for bringing the defendant into court, in the serving of it, in the examination before the committing magistrate, or in the summoning or impaneling of the grand or petit jury, or in any misconduct of either jury, will not be reached by this motion.” 1 Bishop, Crim. Prac., Sec. 1285, third edition.

Mr. Wharton enumerates the following as the causes for which judgment may be arrested, viz :

“ Thus judgment will be arrested when no indictable offense is set forth j when the statute creating the offense has been intermediately repealed ; when the case has been tried with more or less than twelve jurors; when no issue was averred to have been joined y and when the verdict is insensible, etc.” Whar. Crim. Plead, and Prac., Sec. 759, eighth edition.

“ Errors as to form, not going to the description of the offense, which might have been taken advantage of at a previous stage, are not sufficient to arrest the judgment. Id. Sec. 760.

As the principles of the common law are the foundation of our crim'inal jurisprudence, the foregoing would seem to control the question raised in this case, and they are conclusively in favor of the State.

In the instant case the jury were regularly impaneled and sworn, and the prisoner was regularly arraigned, and entered a plea of not guilty. The only .question presented by the motion in arrest is that of the particular stage of the proceedings at wldch the jury was impaneled and sworn.

All of the proceedings were had upon one and the same day, and during one continuous sitting of the court, without any intervening adjournment thereof. The accused and his counsel were present, participating in the proceedings, and fully aware of them.

Neither urged any objections to the trial being proceeded with at that time, under those circumstances, and before that jury; and evidently the accused accepted the situation and took his chances of acquittal before that jury. Whatever objection there might have been to tlie proceedings should have been taken advantage of seasonably. This he did not do, and it was too late to urge them for the first time after a trial and verdict of guilty, particularly by way of motion in arrest.

We think the ruling of the trial judge erroneous, and the judgment appealed from should be reversed.

It is, therefore, ordered and decreed that the judgment and decree appealed from be reversed and the verdict of the jury re-instated, and the trial judge directed to proceed in the cause according to law and the views herein expressed.


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    No. 10,380.
    The State of Louisiana vs. Eugene Frank.
    An indictment which charges an offender with breaking and entering a store-house, used as a dwelling-house, in which a person was, at the time residing, is equivalent to charging that the offender did break and enter a dwelling-house, a person being lawfully therein; and such indictment contains the essential elements of the crime of burglary, and is, therefore, valid and sufficient.
    APPEAL from the Thirteenth District Court, Parish of St. Landry. Lewis, J.

      Walter FT. 1logers, Attorney General, for the State, Appellee.

      1$. P. Veasie for Defendant and Appellant.
   The opinion of the Court was delivered by

Watkins, J.

The sole question presented by this appeal, arises on a motion in arrest of judgment filed in the court below, and an assignment of error filed here. They are to the effect that the indictment does not charge the accused with breaking and entering a house which was at the time lawfully occupied, and, therefore, no judgment and sentence could be pronounced thereon for breaking and entering a dwelling-house in the night time, with intent to kill.”

The indictment charges that on or about the 1st of January, 1889, Eugene Frank, did unlawfully, feloniously, wilfully and burglariously, and with his malice aforethought, in tlie night time, break and enter a dwelling-house, that is to say, a store-house used as a dwelling-house im, which Adolphe Ohaehere was then residing, with intent to kill, being at the time, armed with a dangerous weapon, and * * did then and there commit an assault upon the said Adolphe Chachére, etc.”

It was evidently the intention of the grand jury to indict the accused under Section 85U of the Revised Statutes, and the district attorney so framed the bill. It is so stated in terms, in the judgment of the court below.

It provides that whoever, with intent to kill * * shall in the night time break and enter * * a dwelling-house, any person being lawfully therein, at the time of such breaking and entering, armed with a dangerous weapon * * ® or committing an actual assault upon any person lawfully being in such house, etc.” R. S., Sec. 1850.

Not only does the indictment respond, in substance, to the requirements of the statute, but it does not appear to be susceptible of any other interpretation.

What idea does the phrase a store-house used as a dwelling-house, in which Adolphe Chachére was then residing,” mean 1 Certainly, that the store-house was, at the time, lawfully occupied by Adolphe Chachére as a dwelling-house.

The indictment further charges that the accused was, at the tíme, armed with a dangerous weapon, -‘and then and there committed am, assault xypon the said Adolphe Ohachbrell

Then, the inference is irresistible, that Adolphe Chachére was, at the time, in tiie store-house used as a dwelling, and in which he “ was then residing.”

“ The crime of burglary known to our law is statutory,” said our predecessors in Newton’s case, 30 Ann. at page 1254: “The statute defines it, and we must, therefore, look to the statute to ascertain the essential averments of the indictment.”

To this construction we have constantly adhered. Vide State vs. Spencer Jordan, 39 Ann. 340.

It has often been held that a statutory offense need not be described in the language of the statute, but that it was sufficient, if all of the essential elements of the offense are distinctly and clearly set out “ in words of similar import to those employed in the statute — that is, in such words as clearly convey the real meaning of the language used in the statute.” State vs. Eams, 39 Ann. 989; State vs. Williams, 37 Ann. 776; State vs. Humphries, 35 Ann. 966; State vs. Hood, 6 Ann. 179.

In the instant case the language which is employed in the indictment is of similar import to that which is employed in the statute, and we think it is entirely sufficient.

Judgment affirmed.


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    No. 10,383.
    The State of Louisiana vs. Giles Watson.
    In pleading guilty to an indictment tlio defendant confesses himself guilty in manner and form, as charged in the indictment, and if the indictment charges no offense against the . „ , law none is confessed.
    Wlien the indictment charged the defendant with “feloniously” inflicting a wound less than mayhem, and omitted the statutory definition of the offense, held that no judgment could be entered upon the plea of guilty, as the indictment charged no offense against the law. The law, to make the inflicting of the wound an offense, requires that it must be done maliciously and wilfully.
    The word feloniously is not equivalent in meaning to “wilfully and maliciously.” It has no well defined meaning in American law, but is used in this State to describe more particularly offenses which were felonies at common law, or of offenses of gravity which are declared felonies by statute law.
    The offense charged against defendant was not felony at common law, nor has it been made one by statute,
    Offenses must be charged in the words of the statute which describe them, or in words which convey the clear meaning of the language used in the statute.
    APPEAL from tlie Thirteenth District Court, Parish of St. Landry. Lewis, J.

      Walter H. Rogers, Attorney Geneva!, fov the State, Appellee.

      Keneth Bcdllis for Defendant and Appellant.
   The opinion of the Court was delivered by

McEnery, J.

The defendant was indicted for feloniously inflicting a wound less than mayhem. The words “wilfully” and “maliciously,” in Act 17 of 1888, which are used to describe the offense, were omitted from the indictment.

The defendant pleaded guilty, and thereafter filed a motion in arrest of judgment, the first ground of which is that no judgment could be entered on the plea, as the indictment charged no offense known to the laws of Louisiana.

The State appealed from the judgment sustaining the motion, and alleges that the plea of guilty cured all defects in the indictment, and that the word feloniously was equivalent to the words wilfully and maliciously, found in the statute.

By a plea of guilty the defendant confesses himself guilty in manner and form as charged in the indictment; and if the indictment charges no offense against the law, none is confessed. 1 Wharton, 532.

“Feloniously” is a technical word which was essential in every indictment at common law which charged a felony, which occasioned, on conviction, a forfeiture of lands or goods to which was superadded other punishment.

In American law it has no well defined meaning, but it is used in this State to designate offenses which were declared a felony at common law, or offenses of considerable gravity which are declared a felony by statute.

The offense with which the accused is charged is a statutory offense, and it was not a felony at common law and has not been declared one in the statute.

The use of the word feloniously, in the indictment, was meaningless and surplusage.

The offense charged should have been described in the words of the statute, or in words which convey the clear meaning of the language used in the statute. State vs. Williams, 37 Ann., p. 776.

The plea of guilty, therefore, entered .by the defendant, was to a charge of inflicting a wound less than mayhem, not punishable under the law,- unless it was done wilfully and maliciously.

In indictments where it is necessary to use “feloniously” to designate the offense as a felony, the omission of the words with “ malice aforethought” will not be supplied by the- employment of the word “ feloniously.” I Wharton* 399.

It lias been held in an indictment for arson, in which the defendants were charged with feloniously setting fire to a barn, that the word “feloniously” did not supply the omission of the word “maliciously.” And, also, when a statute makes criminal the doing of an act “ wilfully and maliciously,” it is not sufficient for the indictment to charge that it was done “feloniously.” 1 Wharton, 401 — Note.

We are of tho opinion that the word feloniously, used in the indictment, is not an equivalent to, nor is it synonymous with the words wilfully and maliciously, in the Act 17 of 1888, which describes the offense of inflicting a wound less than mayhem, and that the indictment does not charge an offense punishable under the laws of the State, and no judgment could be entered upon the plea of guilty.

Judgment affirmed.


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    No. 10,365.
    The State of Louisiana vs. Bob Wright et als.
    "When the district judge finds it necessary to prolong tlie term oi‘ Ms court to transact criminal "business, and a jury lias been drawn, for only two weeks of the term, under the • provisions of Act 4Á of 1877, he has discretionary power to order the jury commissioners to draw a jury for tho third week.
    "When the venire list contains names who have been summoned, hut not the jurors who were drawn, this is no ground for setting aside the venire.
    The accused who alleges a correct oopy of the venire has not been served on him must prove it.
    The trial judge is not required to give as a special charge of that which is fully covered in his general charge to the jury.
    "When several parties are jointly indicted for the same offense, the testimony of the wife of one of tho defendants is admissible against the co-defendants. The testimony, however, cannot be used against tho husband, and the judge should instruct the jury to this effect.
    APPEAL from the Third District Court, Parish of Claiborne. Barlcsckde, J.

      Walter R. Bogers, Attorney General, for the State, Appellee.

      J. B. Pldpps é O. W. Seals j J. W. Rolbert, J, P. Pverett and J. P. Moore for Defendants and Appellants.
   The opinion of tho Court was delivered by

McEnery, J.

The defendants, Bob Wright, Torn Bugg, Bill Ware and Virg. White, were indicted for murder. Bob Wright was convicted of murder; Tom Bugg was found guilty without capital pusishment; Bill Ware guilty of manslaughter, and there was a mistrial as to Yirg. White.

Court opened on February 25,1889, and the accused were arraigned and pleaded not guilty, and their trial fixed for March lltli following.

A jury had been summoned for the first two weeks of the term, and the judge a quo, assigning as a reason for his order to draw and summon a jury for the third week, says that he knew from the number of cases on the criminal docket, the number of persons charged with crime in the parish jail and the number of bills against them filed by the grand jury, that criminal business before the court could not be completed in two weeks.

The defendants allege, in their motion to quash this venire, drawn in pursuance of the order of the judge, that it was not drawn fifty days before the term of court, and was not drawn until the term had commenced, and after the arraignment of the accused.

The order of the judge for the additional jurors was made in pursuance of Act 44 of 1887, Sec. 7. The object of the act was to provide for the possibility of the need of additional jurors, which could not have been foreseen at the opening of the court. The judge is vested with discretionary power to provide for this emergency. He found that it would be necessary, in order to transact the business before the court, to prolong the term, and as the jury had been only drawn for a two weeks’ term, it was essential to have a jury for the third week, and the jury commissioner was ordered to draw a jury for that week.

The judge was clearly authorized to issue the order.

It is a matter of public policy which requires the drawing of the jury fifty days before the commencement of the term.

The right to set aside a jury drawn less than fifty days before the term commences is one in which the public, as well as the accused, is interested. It is a right not personal to the accused, but one which he has in common with others interested, and with the public. The judge can set aside the venire on Ms own motion, or the district attorney can file a motion to quash. The personal right which affects the accused is the right to have a list of the venire served on him two entire days before the trial. As a matter of public policy the Legislature saw fit to authorize the judge, during the term, when he deemed it necessary, to order the drawing of additional jurors. And when these additional jurors were drawn, the accused has the right to have served on him two entire days before his trial, a list of the jurors who are to pass’ on Ms case.

The defendants allege that no correct list of the venire was served on them, and that the names of several on the venire were not the correct names of the persons intended to be drawn. If this is a fact, they were not jurors and not summoned.

The absence from the list of jurors who were drawn and not summoned is no ground to set aside the venire.

Defendants also complain that in the copies served on them a juror’s name was written Dan Thornton, and on the venire it was written Dave Thornton. The statement of the judge shows that the abbreviation was not legibly written, and from his statement we conclude that the abbreviation may have been Dan. The list was certified to as correct, and the accused have failed to show that it was not a correct copy. No testimony was offered on this point except the venire and the copy.

There are several exceptions to the ruling of the judge refusing the five special charges to the jury. The judge’s general charge is in the record, and the special charges asked are fully covered in the general charge.

The defendants select this sentence from the charge: “You sometimes hear jurors say ‘I was satisfied the defendant did the act but they didn’t prove it on him,’ and allege this was calculated to prejudice the minds of the jury against them.”

This was said in connection with the charge as to the existence of a reasonable doubt in the minds of the jury, and the judge’s language is as follows:

“It should not be a vague, flimsy, shadowy doubt. We sometimes hear jurors say, ' I was satisfied the defendant did the act, but they did not prove it on him.’ Now, I charge you that if the evidence satisfies you of the existence of those facts necessary to constitute guilt, their guilt is proven, and the reasonable doubt spoken of by the law-writers cannot exist, because doubt of the existence of a fact is inconsistent with that condition the mind is in when it is satisfied of the existence of that fact.” In this charge there was nothing said that would predjudice the minds of the jury against the defendants.

Lula Wright, wife of defendant Bob Wright, was sworn as a witness. Her testimony was objected to by all the defendants, because as the wife of Bob Wright, she was incompetent as a witness, and as evidence had been introduced tending to show a conspiracy among the defendants, her evidence against one co-conspirator would necessarily be evidence against Bob Wright as tending to establish his connection with the conspiracy. The defendants were jointly indicted. There may have been evidence of the kind indicated, but because it would tend to show the connection of the other defendants, it would not necessarily implicate Bob Wright, the husband of the witness. At the time the witness was sworn, the jury was instructed by the judge that her testimony was not offered, and must not be considered, for or against her husband, Bob Wright. This instruction to the jury was repeated in the charge given to the jury on the close of the argument.

The wife’s testimony was introduced against the other defendants, not against the husband, and under the instructions given to the jury it could have no bearing on the husband’s case. There was no error in admitting her testimony. State vs. Adams, 40 Ann. 213.

There is no reason assigned in any of defendants’ exceptions and motions why the verdict and sentence should be disturbed.

Judgment affirmed.


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    No. 1205.
    The State of Louisiana vs. George C. Wright.
    The fact that, in a criminal prosecution, the trial judge informed the jury of what transpired during their absence, caused by his order retiring them pending an argument of counsel of a question, of the admissibility of certain evidence, is not a sufficient error to vitiate tho trial.
    It is not competent for a witness to explain the meaning of words used by another person, whose conversation or utterances he has recited before the jury.

      The trial judge cannot be required to charge any principle of law in the words or language suggested by counsel; it is sufficient that the charge embodies the substance of the principle urged if it be correct.
    The burden is not on the State to prove that the accused was unarmed in a murder trial,
    APPEAL from the Criminal District Court, for the Parish of Orleans. Baker, J.
    F. G. Hudson and G. H. Luzetiberg, District Attorneys, for the State, Appellee.

      Harry L. JSdwards for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

Convicted of manslaughter under an indictment for murder, appellant relies for relief on five bills of exception and on amotion for a new trial.

I.

His first complaint is touching some remarks made by the trial judge to the jury, under the following circumstances:

An objection had been made by the District Attorney to a question propounded to a witness on the stand when the jury retired under orders of the court pending the discussion on the question between counsel, but the District Attorney, having withdrawn his objection with the statement that he did so in order to facilitate the trial, the jury returned into court, whereupon the judge informed them of what had transpired during their absence, and cautioned them to “weigh and consider the testimony precisely as if no such objection had been made.”

It is argued by counsel for defendant, and with some force, that if there existed any reason for the withdrawal of the jury during the discussion, its object was practically defeated by the information conveyed to them by the judge.

But without expressing any views touching the necessity or propriety of retiring the jury during such a discussion, and conceding that the judge erred in .addressing to them the few remarks complained of, we are unable to appreciate, and counsel has failed to point out, any injury thereby caused.to the accused on trial, and the attempt to magnify such a trifling incident into a grievous wrong does not impress us favorably.

II.

While the accused was on the stand as a witness on his own behalf, he was asked the following question by his counsel:

“Had Werther on this same day and shortly before his entry into the barroom and diningroom, sent for the pictures, and if so what answer was returned to him ?”

On objection by the District Attorney the question was overruled, on the ground that the testimony which it tended to elicit was not competent and not pertinent to the issue on trial.

It appears from the recitals contained in the bills of exception in the record, that the accused had recently married the widowed sister of the deceased, who was intensely opposed to the match, and that bad blood had in consequence arisen between him and his sister and her husband.

It was also in proof that on the day of the homicide, and a short time previous thereto, the deceased had sent a messenger to his sister at her residence, in the same building in which she and her husband kept a bar and lunchroom, with the request for the return to Mm of certain pictures which were in her possession, and that she had sent him word that she would return them to him in about an hour. In a short time thereafter the deceased entered the premises of the accused in á boisterous and turbulent manner, and addressed his sister in very unbecoming and offensive language, demanding the instant delivery of the pictures in question, all this occurring in the diningroom, and in presence of the accused, who was then at breakfast. The wife then asked her brother to cross over into the barroom, where she left Mm and went up stairs in search of the pictures. While she was gone, the accused proceeded to the barroom in wMch began the altercation, which ended on the sidewalk, and which resulted in the infliction of the fatal wound by the accused on the deceased, with a revolver.

Under the theory of the defense, the proffered testimony was pertinent and necessary to show the intent of the deceased in going to defendant’s house, and knowledge of those facts in the accused.

But it appears to us that the accused was not the proper witness to state a conversation in which he had taken no part, and which had already been recited to the jury. The record does not show by what witness the conversation or incident in questian had been given, but we presume that it must have been by the messenger sent by the deceased to his sister. At all events, it is perfectly certain that all the facts connected therewith had gone to the jury, and from those and other facts and circumstances in proof, they were the sole judges of the motives and intent of the deceased in going to the house of the accused, and of the danger, either of death or bodily harm which the latter had the right or was justified to fear, from the words used, or acts done by the deceased under all the circumstances characterizing his unusual visit to the house.

A repetition of that conversation by the accused as a witness, would at most have been cumulative evidence .of facts admittedly in the possession and cognizance of the jury, and in his mouth, it would have been merely hearsay of a conversation which had taken place between his wife and the messenger sent to her by the deceased. He was, therefore, not the competent witness of that conversation, and the judge did not err in excluding his testimony thereon. In so far as the hostile feelings of the deceased towards him were concerned, the record shows that he had been allowed to testify touching threats against his life made by the deceased, and communicated to him previously to the homicide.

Hence it appears that the jury were in full possession of all the facts which could possibly throw any light on the subject of the hostile feelings of the deceased towards the accused, of his motives and intent in going to the latter’s residence and place of business, and of the state of mind of the accused in reference to the fears which he had reasons to entertain from the conduct of the deceased.

We therefore conclude that the accused was not deprived of any of Ms legal rights by the ruling complained of.

III.

The third bill involves the ruling of the trial judge in refusing to allow a witness, a female servant of the accused, to explain the meaning of a word used by the deceased in a conversation which took place between the latter and his sister, previous to her marriage with the accused, and in presence of the witness.

She had testified that the deceased had said to his sister that if she married Wright he would “threaten his life.” She was then asked what she understood the deceased to mean in using the word threaten.

The judge very properly sustained the District Attorney’s objection to that course of examination, on the ground that the witness, who was shown to be an illiterate servant, could not be allowed to give her opinion as to the meaning of words used by other persons. The jury were the sole parties authorized to weigh and consider the probable meaning of words used by another person, and the intent which he thereby desired to convey.

Counsel can hardly be serious in his contention on this point.

IV.

The accused next complains of the refusal of the following special charge to the jury, as requested by his counsel: Every man must be tried according to his own lights.”

It appears from the record that in his testimony the accused had stated that in pursuing the deceased, he had accidentally, and not purposely, shot off his pistol, which, as a theory, was somewhat inconsistent with that of self-defense, which was the foundation of the special charge requested. If the homicide was accidental, it cordd not be excusable as a means of self-defense, the essence of which is that the act was wilfully performed. And on that ground alone the refusal of the judge might have been sustained.

But he informs us that, notwithstanding the inconsistency of these various elements of defense, he took the pains of charging the jury on all the shades and degrees of homicide, including specially justifiable and excusable homicide, which comprises killing in self-defense.

It is well settled in criminal jurisprudence that the trial judge cannot be required to charge any principle of law in the form and language suggested by counsel, and that his charge will be sustained if it embodies in substance the principle of law which counsel may suggest in their own language.

We are satisfied that the accused was not prejudiced by the refusal of the trial judge to give, in the words of Ms attorney, the special charge which is the subject-matter of this bill. State vs. Durr, 39 Ann. 751; State vs. Boasso, 38 Ann. 202; State vs. Porter and Howe, 35 Ann. 1159; State vs. Primeaux, 39 Ann. 673.

Y.

It is next alleged that the trial judge erred to the prejudice of the accused in refusing the following special charge as requested by his counsel:

“ The burden is on the party to prove what it is his duty to prove. When the fact is peculiarly in the knowledge or power of the party, it must be proved or produced, or he must suffer the consequences. It being in the power of the State to produce a witness or witnesses to show whether the deceased was armed or not, and having failed so to do, the XJresumption must be that the deceased was armed.”

It was correctly refused as embodying an abstract principle of law not applicable to the state of facts established in the case. And viewed as an abstract proposition it is not sound as applicable to criminal jurisprudence. State vs. Ford, 37 Ann. 443.

It is not true that in a trial for murder the burden is on the State to prove that the deceased was -unarmed j and we are informed by the bill that at least one witness had testified that the deceased was unarmed.

It was part of the defendant’s theory of self-defense that his life was in danger from the accused, and it would seem that the burden of proof was on him to show as an element of danger that the deceased was armed. In the absence of affirmative proof of the fact the judge had no warrant in law to assume or to presume that the deceased was armed, and hence he correctly refused to instruct the jury that the State was burdened with the duty of rebutting a state of facts not proved, or a presumption which had no existence in law or in the nature of things.

VI.

In addition to the matters which have already been discussed and disposed of in this opinion, appellant’s motion for a-new trial charged error in the trial judge for having remarked in the presence and hearing of the jury, as his ground for refusing the special charge covered by the fifth bill of exception, that there was evidence “that the deceased was unarmed.” The contention is that that remark was an expression on the part of the judge, of an opinion as to what facts liad been proved, in violation of the prohibition contained in Sections 991 and 1963 of the Revised Statutes of 1870. But it appears from the record that the remark was addressed to counsel for the accused in a low tone of voice, and that it was impossible for the jury or any member of that body to have heard it. No attempt was made by appellant’s counsel to prove the contrary, and we have no warrant to believe otherwise. We must say, however, that trial judges must, and should be very cautious in such matters.

After a thorough review of all the questions submitted to our consideration in this appeal, we reach the conclusion, painful though it may be, that we are powerless to relieve the defendant.

Judgment affirmed.


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    No. 1,210.
    The State of Louisiana vs. George Dunn.
    In a trial under an indictment for murder tlie conviction of an accused for manslaughter operates an absolute acquittal of the charge of murder, and if the conviction he sot aside on his motion, he cannot he put upon his trial the second time for murder, hut he may he tried for manslaughter on the same indictment. Ho law or jurisprudence requires that he could only and legally he tried on a new indictment specifically charging manslaughter, as the latter is included in every indictment for murder.

      The discretion of trial judges in dealing witli motions for new trials on the ground of newly discovered, evidence, even to the-extent of their refusing to believe the affidavit of an alleged newly discovered witness, will not be interfered with on appeal, unless it clearly appear to have been exorcised in an arbitrary or unjust manner.

      APPEAL from the Criminal District Court, Parish of Orleans. Baker, J.
    F £r. Hudson, District Attorney, and John J. Finney, Assistant District Attorney, for the State, Appellee.

      McMahon & Pratt for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

This appeal is taken from a conviction of manslaughter.

The original charge in the indictment was for murder, and on a previous trial the accused had been convicted of manslaughter.

On his motion the verdict was set aside by the district judge and a new trial granted on the ground of the misconduct of the jury.

On the trial thus ordered, he fded a plea in bar, urging his acquittal of murder by the verdict which had found him guilty of manslaughter, and that he could not be tried for manslaughter under an indictment for murder. His plea was overruled; he reserved a bill, and the trial proceeded, resulting as hereinabove stated.

The contention of his counsel is substantially that a trial for manslaughter under an indictment for murder is not a compliance with the requirements of Article 8 of the State Constitution, which provides, on this sixbject, that “In all criminal prosecutions the accused shall enjoy the right to be informed of the nature and cause of the accusation,” &c. Hence they argue that the accused having been acquitted of murder, the State could not prosecute him for manslaughter in the absence of a new and different indictment charging the crime of manslaughter in terms.

It is conceded by the State that a conviction of manslaughter in a trial for murder operates an absolute acquittal of murder, hence in this case the District Attorney, in the trial now appealed from, formally announced to the court that the accused would be tried for manslaughter only.

Now we know of no provisions of law or adjudications in criminal jurisprudence which warrant the doctrine that in such a case the accused cannot be put on Ms trial for manslaughter on the same or original indictment.

The authorities relied on by counsel for appellant are simply to the effect that, If a prisoner is acquitted on some of the counts in an indictment, and convicted on others, and a new trial is obtained on his motion, he can be put upon trial a second time on those counts only on which he was before convicted, and is forever discharged from the others.” Cooley’s Constitutional Limitations, p. 328, and authorities cited by him. State vs. Byrd, 31 Ann. 419; State vs. Dennison, 31 Ann. 847.

Now, the prohibition contended for by counsel and recognized by these authorities, was effectually observed in this case, by the restriction imposed on himself by the District Attorney in limiting the prosecution on the last trial to the crime of manslaughter, for which the accused had been previously convicted, and by formally abandoning the prosecution for murder of which he had been acquitted.

It is elementary in our jurisprudence that an indictment for. murder includes a charge of manslaughter as it is specially provided by statute that on trials for murder the jury may find the prisoner guilty of manslaughter.” Section 785, Revised Statutes.

We therefore conclude that the accused was not deprived of any legal or constitutional right by being tried for manslaughter under an indictment for murder, a crime resulting from the same act, and a charge which included the lesser offense of the same generic nature.

There is no merit in the contention that the judge erred in overruling the plea in bar without submitting it to a jury or without requiring the State to join issue thereon.

The plea presented a bare question of law winch the judge alone was competent to decide, and which he was authorized to dispose of without plea, replication or rejoinder on the part of the State.

Counsel’s contention on this point is not sustained by the decision in Bille’s case, 35 Ann. 851, in which error was found in the ruling of the trial judge for having entertained a motion to strike out a plea in bar, and having thus refused to entertain and consider the plea on its merits.

In this case the plea was considered, but it was overruled by the judge without hearing argument from either side. As an argument is intended to assist or enlighten the ¡court, no law or precedent compels the judge to hear an argument, if he feels competent to decide the question under consideration without sricli assistance. If it should happen that the judge was not sufficiently enlightened, and that he should have erred in his ruling, tlie only penalty would be the reversal on appeal of his adjudication. State vs. Boasso, 38 Ann. 202.

The record contains two bids of exception charging error on the part of the judge in passing on the alleged incompetency of two jurors, on the ground that they both had formed opinions on the guilt or innocence of the accused.

The judge correctly ruled that jurors who had formed opinions predicated on the reading of newspaper reports, but who declared that they had no bias or prejudice in favor or against the accused on trial, and that they would try the case on the law and the evidence to be therein submitted, are not incompetent.

His conclusions are more than supported by jurisprudence as at present settled. State vs. Ford, 37 Ann. 443.

The accused moved for a new trial on the ground of newly discovered evidence, and supported his motion by his affidavit and by that of the newly discovered witness. The proffered evidence was to the effect that during the altercation, the witness had seen that the accused was beaten by several persons, among whom was the deceased, who repeatedly struck him on the head with a pistol.

The statement that the deceased was armed with a pistol is admittedly the only new element in the testimony of that witness, and the only fact which had not yet been given to the jury.

The refusal of the district judge was predicated mainly on the ground that he did not believe the affidavit of the alleged newly discovered witness, for reasons which he gave at length in refusing the new trial, and which are of record.

Among other things the judge says:

“Two days prior to the hearing of the motion the (newly discovered) witness Lynch was summoned to appear, and though served at the place set forth in his affidavit, as his residence, ho failed to attend.” * * * “ Some eight witnesses testified for the State and about an equal number for the defence. There were others, but these were present at the time of the killing, and not-one of them on either side testified to seeing a pistol in the hands of the deceased or even pretended that he had a pistol.” * * “ Some of the State witnesses swore that the deceased was unarmed, and all of them (who saw the difficulty) that when he was killed, his hands were empty and resting on the shoulders of the accused. Every defence witness testified that he saw no weapon in the hands of the deceased, though near him, and from their positions likely to have seen one had ho had it.” * *

And he concluded that the alleged evidence would not have brought out a different verdict, in his opinion.

In dealing with such rulings this court has formulated the following doctrine: “The greatest reliance is placed on the trial judges in refusing new trials in criminal causes, and it would be an unwise restriction to hold that they shall not take into account their belief that false swearing was resorted to' in order to break a conviction and obtain a new trial.” State vs. Williams, 38 Ann. 361. In that case the trial judge had refused to believe the affidavit of two alleged newly discovered witnesses.

We think that the rule is a safe and conservative landmark, eminently conducive to a proper administration of justice in criminal cases, and a doctrine which places confidence where it belongs in the very nature of things. And we shall follow it in all instances where it does not appear that the discretion of the judge has been exercised in an arbitrary or unjust manner.

This concludes our review of all matters of complaint which were pressed on appeal, and we feel confident that the accused has had a fair and impartial trial.

Judgment affirmed.


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    No. 1,206.
    The State of Louisiana vs. Gus Brown.
    This case having been submitted without argument or brief on either side, aucl on examination of the record failing to disclose any error to defendant’s prejudice, judgment affirmed.
    APPEAL from the Twenty-sixth District Court, Parish of Jefferson. Host, J.

      Gervais Lbohe, District Attorney, for the State, Appellee.

      W. L. Thompson for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

There has been no appearance in behalf of defendant before this court, and the case has been submitted without any argument, oral or written, on behalf of either the State or the accused.

We have examined the record and the several bills of excel}tion therein contained, and deem it sufficient to say that we have been able to discover no error vitiating the verdict and sentence.

Judgment affirmed.


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    No. 1,211.
    The State of Louisiana vs. Henry N. Frisbie.
    Iu a motion for new trial on the ground of newly discovered evidence, if tlie evidence he newly discovered, if it he credible and unsuspicious, and if it he material and important in the case, the new trial should he granted.
    APPEAL from the Criminal District Court for the Parish of Orleans. Balter, J.

      John J. Binney, Assistant District Attorney for the State, Appellee.

      B. Armbruster and L. O'Donnell for Defendant and Appellant.
   The opinion of the Court was delivered "by

Fenner, J.

The defendant, an attorney at law, was prosecuted and convicted of embezzling money collected by him for his client. The case rested on testimony to the effect that having collected from the Illinois Central Bailroad Company fifty dollars in settlement of a claim made by his client, lie had falsely represented that he had collected only twenty-five dollars, and had settled with her by giving her twenty dollars and retaining five dollars as Ms fee, while concealing from her the receipt of the additional t\yenty-five dollars which he retained and converted to his own use.

The essential point in the case is the fact of concealment j for if the client knew that he had received fifty dollars and had accepted twenty dollars and consented to his retaining the balance, the crime charged would not have been established.

There seems to have been a conflict of evidence on the trial, but the jury believed the prosecutrix and found the defendant guilty.

A motion for new trial was made, one ground of which alone merits consideration, viz: That of newly discovered evidence.

The newly discovered evidence relied on is that of Mr. Mann, the officer of the railroad with whom the settlement was made, who testified that the prosecutrix was present in the office at the time the matter of settlement was discussed and when the agreement was reached to pay fifty dollars, and that he thinks she could have heard the conversation; and also the testimony of E. L. Simonds, Esq., the attorney of the company, who states that he was called and drew up the papers on which the settlement was made; that he prepared a power of attorney from the prosecutrix to Frisbie, authorizing him .to settle and receipt for the claim; tl:at Frisbie and the prosecutrix took tliis power to a notary, before whom it was executed and duly acknowledged; that Frisbie returned alone and'received and receipted for the money; that he (Simonds) left before Frisbie, and, as he reached the bottom of the stairs, saw the prosecutrix seated their crying; that he stopped and said to her: Jane, we have paid your attorney fifty dollars for you upstairs.”

This last mentioned fact is the only part of the testimony which has the slightest claim to be considered as newly discovered, but this is fully' entitled to be accepted as such. It was a communication between the witness and the prosecutrix, out of the presence of the defendant, and could only have been known to the latter by being told to him, and he swears that he was not told and did not know of it until after the trial, and there is no intimation to the contrary.

The source from which the testimony comes leaves no doubt as to its truth.

The testimony is certainly material, and indeed, important in its bearing upon the case.

If the prosecutrix heard and understood the statement made to her, she was informed of the very fact, concealment of which by Frisbie was the ground of the charge made against him. If, knowing that he had received fifty dollars,- she accepted twenty dollars in settlement and suffered him to retain the balsm.ce, there was no embezzlement. It may be that she did not hear or understand the statement; and if she did, it may be that Frisbie made a false statement to her and that, she believed him rather than Mr. Simond, in which case he might still be guilty. But these are matters to be considered and determined by the jury.

Finding that, the evidence is newly discovered; that it is thoroughly credible and unsuspicious; and that it is material and important in the case, we think the defendant is entitled to its benefit, and that he should have a new trial in which it may be heard and weighed by a jury.

The judge a quo may be right in his conviction that it could not have sufficient weight to alter the verdict in the case, but it lies within the province of the jury to determine that question, and we do not feel authorized to anticipate their conclusion.

It is, therefore, adjudged and decreed that the sentence be annulled and set aside, that the new trial applied for be granted, and the case remanded to the court below to be proceeded with according to law.


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    No. 1,207.
    The State of Louisiana vs. Louis Demareste.
    1. In caso a confession is made by an accused to the officer who holds him in custody, it is admissible in evidence against him, if it was freely and voluntarily made, and totally disconnected from any previous conversation or communication on the subject.
    2.‘ Proof of throats made against the life of the accused by the deceased, and communicated previous to the homicide, are inadmissible, unless a proper foundation is first laid for tbe introduction thereof, by evidouce of some overt act, or hostile demonstration made by the accused at the time of the fatal assault upon. him.
    3. A written declaration of an accused person in the English language, taken at a coroner’s inquest, is admissible in evidence, notwithstanding his mother tongue is Erencli, and he had no knowledge of the English language, if, sentence by sentence, it was translated into the Erencli language, in his presence and hearing and by him admitted to he understood and correct.
    APPEAL from tlie Fourteenth District Court, Parish of Calcasieu. Bead, J.

      J. G. Gibbs, District Attorney, for the State, Appellee.

      Bournet & Pujo for Defendant and Appellant.
   The opinion of the Court was delivered by

Watkins, J.

Tlie accused appeals from an unqualified verdict of guilty, on a charge of murder, and a sentence of death. Ilis only complaint is of the rulings of the trial judge in regard to the introduction of certain testimony pro and eon during the progress of the trial; and to which hills of exception were reserved.

I.

The first hill of exceptions was reserved to the reception of the evidence of J. W. Coly, witness for the State, who testified that he was the officer who arrested the accused, and, accompanied by the sheriff, went with him to the scone of the homicide; that, whilst on their way to the scene of the homicide, the accused and Reed, the sheriff, conversed about tlie homicide, the accused relating to the latter the circumstances of the killing of the deceased, in his mother tongue, the French language, of which he (witness) was ignorant; that, subsequently, the import of said conversation was made known to him by Reed, who translated it into English; that, when arrived at the scene of the homicide the accused made a statement in English, in regard to the circumstances of the homicide, which statement was free and voluntary, and without any extraneous influence having been exercised upon him, and altogether disconnected from the conversation between the accused and the sheriff, previously related.

His ground of objection is that the proof did not fully and affirmatively show that the conversation last related to witness was disconnected from that previously held with the sheriff in the French language.

The trial judge certified that the two statements of the accused were “unconnected and entire,” and free and voluntary.

We are satisfied, from this statement, that he correctly overruled defendant’s objections.

II.

The second bill of exceptions was reserved to the judge’s refusal to permit defendant’s counsel to introduce any evidence of alleged previous threats of the deceased against the lite of the accused, duly communicated to him previous to the homicide. The judge assigns that the proper foundation had not been laid for the introduction of such testimony; “that the evidence had disclosed no menace, and the circumstances did not, from their nature, afford any ground of apprehension of danger to any sane man — the evidence, explained by the situation, and the gestures, proving the contrary.”

This view of the evidence is fully substantiated by the substance of the statement made by the accused as a witness in his own favor, which is found incorporated in the bill, and which is as follows, viz :

“That, on the morning of the homicide, he came up with deceased. Deceased was in a wagon. He asked deceased why he forbade him (accused) to go to his mother-in-law’s house. Deceased replied that he did not forbid him going to his house, but before he (accused) could go there, he (deceased) would kill accused, or accused would'him (deceased). That deceased was in a wagon and leaned over as though to get an arm, and accused shot, and, in his anger, shot Mm the second time, as deceased was still moving.”

There is, in this confession, not a single circumstance of mitigation, or extenuation of the offense. Instead of the deceased being armed and in 'attitude to assault the accused, he appears to have been unarmed, unresisting and defenseless. It fails to disclose any semblance of self-defense, but that the homicidal act was unprovoked and cruel in the extreme. There is no merit in the exception. State vs. Ford, 37 Ann. 460; State vs. Jackson, 33 Ann. 1087; State vs. Vines, 34 Ann. 1078.

III.

Tlie nest bill appertains to the admission in evidence, over the objection of the accused, of the written statement of the latter, which was taken at the coroner’s inquest. His objection is that the declaration was made in the French language, and translated, and written in English, and the evidence adduced on the trial did not affirmatively show that the accused understood English.

The judge assigns as his reason for overruling this objection, that it appeared “from the testimony of several witnesses that the statement was read to the accused in English, which he professed to understand and (the statement was not) objected to; that, sentence by sentence (it was) translated to him in French (and) he recognized its correctness.”

We think it clear that the accused understood the statement, and that it was competent, and better evidence than the recolleceion of the bystanders.

Judgment affirmed.


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    No. 1,209.
    State of Louisiana vs. Louis Tranchon.
    In criminal cases tlie Supreme Court lias jurisdiction only on questions of law. A motion for a new trial wliicli presents no question of law will not be considered by this court.
    APPEAL from the Criminal District Court for the Parish of Orleans. Bailor, J.

      John J. Finney, Assistant District Attorney, for the State, Appellee.

      J. U. Ferguson for Defendant and Appellant.
   The opinion of the Court was delivered by

McEnery, J.

The defendant was indicted for the crime of murder, found guilty and sentenced, from which he appeals.

The only reason assigned for a reversal of the judgment is the /deal of the lower court to grant a new trial. The motion filed for new trial alleged:

1. “That the verdict of the jury is contrary to the law and tlie evidence.

2. “ That the State failed to prove malice.”

■ There is no question of law presented in the motion. The Supreme Court lias jurisdiction in criminal cases on questions of law only. Art. 81, Cons. 1879.

Judgment affirmed.