text:
    No. 1246.
    James Surget et al. vs. Isidore Newman.
    When a case is remanded to fix a date from which proscription can he calculated, the plea of res adjudieata will not prevail.
    It is not necessarv for the Auditor of Public Accounts to' verify copies by affidavit, as it does not give any additional weight to his official signature and seal. Whore records are destroyed by fire, parol evidence can be received as to their existence and contents.
    Where a party has died and the heirs have not been put in possession of his prop erty, an assessment of the succession to his estate is sufficient.
    Forfeiture of property under Acts 42 of 1871 and 96 of 1877, results from the filing of the delinquent rolls, arid the effect of the forfeiture is that it can be sot aside only on proof of payment of the taxes. The limitation of the right to annul the forfeiture to a single specified case precludes the right to contest for irregularities and informalities in the assessment, or the affidavit of the tax collector as to the delinquency. Such irregularities are cured by said Acts. Property forfeited to the State was sold under Act 107'of 1880, in 18S1. Held that such sale is valid, and the prescription of three years applies.
    The parties who permit their property to he forfeited and vested in the State have no interest in its future disposition by the State.
    APPEAL from the Fourth District Court, Parish of Jackson. Wear, J.

      F. W. Pnce and Boatner & Boatner for Plaintiffs and Appellees:
    1. The plea of res adjudieata applies to all definitive judgments, and a definitive judgment is one that decides all the points in controversy between the parties (C. P., Art. 539; C. C., Art. 2286), and no matter in what form of action or proceeding, whether by petition, intervention or exception, the question may have been presented, the same question oneo judicially decided between the same .parties acts as a complete bar. 19.La. Reports, p. 328; 32 An. 829.

      2. Parol evidence can not be admitted to vary or contradict the recitals of a deed,, or against or beyond what is contained in the Act. 0.0.2276.
    3. The recitals of a deed can not be contradicted or varied by a party who hold* under the deed, without an allegation of error or fraud, and not then when the evidence would be at variance with liis allegations.
    4. Unsworn, ex parte, garbled extracts from the recojáis of the Auditor’s office tire not admissible in evidence to prove title to real estate in this State,
    5.- Statutes of forfeiture of property which do not.providefor due notice and a right to be heard by the debtor are unconstitutional and in contravention of the 14th. amendment to the Constitution of the United States, and even when constitutional and provide for a due process of law, the statute' must he strictly construed and followed under pain of nullity. 26 An. 699; 34 An. 255; American and English Encyclopaedia of Law, Vol. 3, p. 717; Vol. 6, pp. 43 to 52 and notes; Vol. H* p. 451, Sec. 34. See 9 Wallace (U. 8.)» PP* 335 and 336, as to right of forfeiture; Cooley on Tax., 2d Ed., p. 465. (Compare Acts 1871, No. 42, p. 122, Secs.66,67 and 68, and Acts 1873, No. 47, p, 101, Secs. 8 and 9.) Cooley on Tax, pp. 470, 472,476,288, 481, 487.
    6. The repeal oflaws is either express or implied. It is implied when the new law contains provisions contrary to or irreconcilable with those of the former law. O.C. Art, 23.
    7. The sale of land for taxes without authority by any statute of Ixmisiana is absolutely null and void, and no prescription will apply. 42 An., Surget et ais. .vs.. Newman; 40 An. 453; 39 An. 409; 32 An. 912, 228; 34 An. 309, 407, 705; 35 An.1086; Beack on Tax Titles, Secs. 124 to 127, 98, 99 and 100; Cooley on Tax., pp. 558 to 563, and 497,481 and 487 and notes; 33 An. 441; 32 An. 912 and 228; Black on Tax-Titles. 80, 88, 91; 30 An. 875; 32 An. 228; 42 An. 163, Waddill vs, Walton; 43 An., not yet reported.
    8. Act 107 of 1880 applies only to lands that had been forfeited to the State for taxes due prior to 1879. Act 77 of 1880 only applies to collection of current taxes due subsequent to 1879. There was no statute that authorized the sale of land for taxes due prior to 1879 and for taxes due subsequent to 1879 in one Act, and not at all for taxes due prior to 1879 unless the land had been duly and legally adjudicated to the State. 42 An., Surget et ais. vs. Newman; Con. 1879, Mis. Ordinance No. 1, and Art. 210, Con. 1879; Act 47 of 1873, See* 9.
    9. The burden of proof is upon the party setting up a forfeiture, and if he fails to establish a title in the State, or a legal forfeiture, his claim falls. 26 An. 699; 31 An. 255; Cooley on Tax, 461,465.

      White & Scmnders and Gi'aham & Halstead -for Defendant and Appellant :
    1. To effect a forfeiture under Acts 42 of 1871 and 96 of 1877, it was necessary:

      (a) That the tax collector should make out and verify the delinquent list.
    (5) That this delinquent list should be recorded in the parish mortgage records,
    (c) That it should 'then be forwarded to arid ¿led with the State Auditor.
    2. The certificates of the State Auditor show that the delinquent lists of Jackso parish, from 1873 to 1880, are on file in his office, with the tax collector’s certificate showing' delinquency, and the parish recorder’s certificate showing recordation, attached thereto, and that the lands in coritr'oversy appear thereon. This establishes the forfeiture of said lands to the State.

      3. The forfeiture resulted from the filing of the delinquent rolls in the Auditor's-office.
    f. The forfeiture could he set aside only on proof of payment of the taxes. Thl.limitation of the right to. annul the forfeiture to a single specified cause precludes the right to contest the forfeiture on the ground of informalities, sucia as the exact regularity of the asssssment, or affidavit of the collector as to delinquency.
    5. The assessment to the estate of James Surget, after his death and before his heirs were recognized and put in possession, was correct.
    6. The proof, as well as the tax deed of defendant, establishes that the sale was made under Act 107 of 1880.
    7. The property having been forfeited to the State, was subject to ho sold under, that Act, and the sale is protected by the prescriptions of three and five years-
    8. The plaintiffs’ title being divested by a forfeiture to the State prior to 1880, it is no concern of theirs whether the sale by the State in 1881 was regular or not»
   The opinion of the court was delivered by

McEnery, J.

The plaintiffs, who reside in the State of Mississippi, are the heirs of James Surget, who died in that State in, the year 1856. They allege that, at the time of his death, he owned ■lands situated in the parish of Jackson, to. the amount of 7200 acres- and that the defendant, Isidore Newman, claims the ownership of said lands by virtue of a tax sale made to him by the Sheriff of Jackson parish, on the 24th of June, 1881. The facts in the case, and the issues involved are stated in the ease of James Surget vs. Isidore Newman, 42 An., p. 777.

This case came before us at the last term of court at this place, ore-an exception of no cause of action, and the [plea of prescription., filed by the defendant, of two, three and five years. The determination of the time from which the prescription would run, and' whether it could be urged, depended upon the statute under which the sale was made. There was no means of determining the question from the face of the papers, and the case was, therefore, remanded! for further proceedings. There was no definitive judgment rendered, consequently the plea of res adjudioata urged by plaintiffs is not tenable.

As stated in the opinion remanding the case, if the sale was for-delinquent taxes it was null and void, as Act 107 of 1880, the only-act under which the sheriff and tax collector could make a sale, provides only for the sale of property forfeited to the State for the nonpayment of taxes.

The question then is whether or not there was ever any forfeiture-of the property in controversy to the State for the non-payment of the taxes assessed against it.

It is vigorously urged by plaintiffs that Act 47 of 1878 repealed Act 42 of 1871. We have carefully examined the acts and find that there is no conflict between them. Act 47 of 1878 had reference to the sale of property of the delinquent taxpayer, and the forfeiture of certain rights for the non-payment of taxes and licenses.

Act 41 of 1871 provided for both the sale and the forfeiture of the property, the latter when the sheriff and tax collector had ■exhausted his efforts to collect the taxes.

The objection to the constitutionality of this act is without foundation. The examination of the several revenue acts, 1871 and .1877, will show that there was no arbitrary forfeiture of the property ■of the plaintiffs, and taking it without due process of law. The law ■provided for the assessment of the property, notices by advertisement, its sale, and finally its forfeiture, all of which was done for the enforcement of the collection of the amount owing to the State for the assessments against the property. In re Douglas, 41 An. 765.

Act 96 of 1877 is similar in its provisions for the forfeiture of the property for non-payment of taxes, and is the last resort in the •efforts to collect the tax.

Both acts vested the property in the State from the date of filing the delinquent lists in the office of the Recorder of Mortgages. Both áets declare that the title to the property so vested in the State •shall be impeachable only on proof that taxes for the non-payment whereof the lands were returned forfeited had been in fact paid to the collector before the return of the list to the recorder.

Parol evidence was introduced, and received over the objection of plaintiff, to prove that the property had been forfeited to the State under Acts 42 of 1871, and Act 96 of 1877.

Plaintiff’s objection was that it would contradict, vary and go beyond the recitals of the deed. The deed, if authorized by statute, is sufficient to transfer title to the property. There was no mention made in the deed of the act of the Legislature by which it was Authorized.

The object of remanding the case was to ascertain these facts. The evidence, therefore, does not contradict or vary the record, but is only in aid of its interpretation. The courthouse in Vernon, Jacksori parish, had been destroyed by fire, with the official records, and the testimony of the officials of the parish in relation to a matter which came under their observations while in office, .was the only accessible evidence.

The same objection is made to the Auditor’s certificate as to the fact of filing the delinquent lists in his office.

The further objection is made that the certificates were not sworn to, were ex parte statements, and were only partial extracts from his records.

The oath of the Auditor could give no additional weight to his official signature.

The extracts were from the records of his office, and were full and. complete so far as essential to show that the delinquent lists had been filed and the property forfeited.

The evidence shows that the property was returned as delinquent- and filed at the proper time in the office of the parish recorder and the office of the Auditor of Public Accounts. The sheriff states that the sale was made under Act 107, of 1880. All the circumstances show this fact. He was not authorized to make a sale under any other act, and the object of remanding the case was to ascertain whether there had been a forfeiture of the property, so as to be-covered by Act 107, of 1880.

The plaintiffs allege that the property was never iegally assessed for and during the years mentioned in the act of sale.

The ground for illegality in the assessment complained of is that it was assessed to the “ James Surget estate.”

The evidence shows that James Surget died in 1856, and that his succession is still open. The heirs have never been placed in possession of the property of the estate. The plaintiffs contend that the property ought to have been assessed to the heirs, as they accepted the succession unconditionally. The heirs are non-residents, and there is no evidence showing that they are in possession of the estate as joint owners, or that there is any record of this fact, if it existed, in Jackson parish.

The property was properly and legally assessed. 31 An. 816; 28 An. 180; 33 An. 520.

There is no attempt made to show that the tax had not been levied; that the property is not subject to taxation; that it had not been assessed; that the taxes had been paid — essential requisites for' the valid sale, or forfeiture of the property. The objection is to the mode and manner of the' assesáment, a- 'hón-esséntial, which :inay be remedied by legislation.

In re Douglas, 41 An., p. 769; we said: “The only complaint is of 'certain' irregularities in the-a'ssessmefit; ih'non-compliance with the requirements of the law under which it;‘was 'made.- ’ The fact remains that an assessment was actually 'made- by a description suffi¿éient to identify the property and not to- mislead the Owner, which as all that is essential.” '"' ''

Act 41 of 1871, and Act 96 of 1877, so far as they relate to the ■forfeiture of property to the State, aré, in their nature, remedial statutes, and were intended to cure the irregularities complained of by plaintiffs.' In re Douglas, 41 An., p. 765; in re Lake, 40 An., p. 142.

The filing of the delinquent lists, and the forfeiture of the property to the State, were in effect a deed tó the State, and vested in the ■State title to the land from the filing of the list. Sec. 67, Act 42 •of 1871; See. 60, of Act 96 of 1877.

The taxpayer was divested of his property, and the title of the State was impeachable only on proof that the taxes had been paid for the non-payment whereof the lands had been forfeited.

All irregularities were cured by these . statutes, and the only ■condition upon which the forfeiture.could be, set aside was that the taxes had been previously .paid on the forfeited property. The irregularity in filing the delinquent roll, the.absence from it of the ■collector’s affidavit, can not now .be urged. .

The forfeiture resulted from the fact that no one would bid on the property,- and the State stepped in as the last bidder and took title -in herself of the property without a formal-offering. She could perfect her own title as against a non-taxpayer. . .

In re Douglas we quoted from the ease of De Treville vs. Smalls, ‘98 U. S. 517, as follows: “ The statute1 left to .the owner of the land ■every substantial right. It was his duty to pay the taxes when due. His land was charged with it; and the proceedings ending in the sale was simply a mode of compelling che discharge of his duty. All his substantial rights were assured to him-by the permission to show that he owed no tax, that his land- was not -taxable, or that he had •redeemed his land after the sale. He was- thus -permitted to assert everything' of-, substance, everything except mere irregularities. .There.is-no possible excuse for not.enforcing such statutes according to their'letter 'and spirit.”

All these enumerated rights have beeni?es.erved to. the plaintiffs in this case.

There has been no attempt to sjjipw that before the forfeiture of the property the plaintiffs have been debarred, from asserting any of these rights, the violation of which would come within constitutional prohibition.

Having" been thus legally divested of their property by the forfeiture, it is not apparent how or in what manner they are interested in its future disposition by the State.

It seems that the tax of 1880 was included in the taxes for which the property .was sold. But the sale was not made under the revenue act of that year, and, therefore, this error-can not affect the sale 'as made under Act 107 of 1880,’ providing for the sale of forfeited lands to the State prior to 1879.

The defendant having established his tax deed under a statute of the State, the pléa of three years’ prescription must prevail. Barrow vs. Wilson, 39 An. 410; McDougal vs. Mouligan, 39 An. 1005.

It is, therefore, ordered,-adjudged and decreed that the judgment appealed from be annulled, cancelled and set aside, and it is now •ordered and decreed that there be judgment for the defendant, rejecting plaintiff’s demand with costs.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 1242.
    Succession of Joseph L. Tugwell, Mary A. Russell and Josephine Russell, Opponents.
    T>eft in necessitous circumstances, a widow dies without having received from the succession of her husband the$1000 to which she had aright.
    She haying no minor heirs, her lieirs-by a previous marriage can not claim this amount in preference to the creditors and heirs of the deceased husband.
    The right of the widow is personal, and before it has been received it does not ‘form part of her succession which descend to her heirs.
    It is aright which must be asserted and reduced to possession, bo demanded and received before it-is vested in the party.
    A judgment obtained by the widow for the amount is not any more heritable than * the elaim itself prior to its possession.
    The law mentions the widow- and the minors as the beneficiaries. The opponents are not minors,nor.are they in -necessitous circumstances, nor are they descendants of the deceased from whose estate they are demanding the $1000...

      The widow having died before it was bestowed on her, before it was severed from the estate, and before possession, these major heirs can not recover.
    The‘>judgment, since it was rendered, has become void. The plea of res adjudicata is not maintained.
    APPEAL from the Third District Court for the Parish of Union* Barksdale, J.

      Dawkins & Dawkins for the Administrator, Appellee:
    The right to the $1000 is apersonal one, and depends upon the condition o£ the person in whose favor it is granted. It is not a right that vests irrevocably in full property in such person, and forms apart of her succession which descends-to her heirs. It is aright that must be asserted and reduced to possession, demanded and received, before it can be vested in the party. The law'in its-spirit and its object simply provides a support for the widow or children of the-deceased. It does not regulate the rights of property or descent. It is the necessitous condition of the widow and minor children that are to be relieved. If they are relieved by inheritance, death, or otherwise, there is no right to the-bounty. 28 An. 832.
    Where the husband dies, leaving- the widow in necessitous circumstances, and she shortly aftoward dies, her major heirs can not claim the $1000, as having inherited it from their mother. 30 An. 669.
    The taking-by the widow of the $1000 is conditioned upon the fact that there are-no descendants of the previously deceased husband. 13 An. 378. •
    When a widow is left in necessitous circumstances, but dies without claiming the-homestead privilege from the succession of‘her husband, who died without descendants, her heirs by a previous marriage can not claim said privilege in preference to the heirs or creditors of the said husband. 35 An. 371: 28 An. 832.
    The allowance of $1000 is in derogation of common right, and should be strictly construed. 11 An. 67; 22 An. 444, 805, 979; 33 An. 240; 28 An. 212; 81 An. 81; 34 An. 545.
    As the major heirs of the deceased husband can not claim the $1000 (30 An. 669), then much less could the major heirs of the deceased wife claim it.
    Circumstances may arise after the rendition of a judgment that will render it inoperative and void.' 40 An. 286.
    If anything should happen to destroy the force of a judgment,, it will cease to have effect either against the parties or their heirs. 34 An. 170.
    Judgments homologating accounts in insolvent successions do not invariably constitute res adjudicata. 35 An. 343. -
    A judgment recognizing a claim against a succession has generally no greater force in law than an acknowledgment of the claim by the administrator. 34 An. 343.
    A judgment neither creates, adds to, nor detracts from a debt. It only declares its existence, fixes its amount, and seeure.s to the creditor the means of enforcing its payment. 10 B. 412; Hennen’s Digest, 726, No. 8. ,
    To sustain the ploa of 'res adjudicata the parties must be identical. 7 An. 665.
    The plea of res adjudicata can not be opposed to an action of which the very object is the interpretation of the judgment pleaded in bar. 32 An. 1245.
    The pica of res adjudicata is stricti juris, and in case of doubt should be interpreted against the party pleading it. 7 An. 665.

      Everett & Thomas for Opponents and Appellants:
    1. Under tlie Act of the Legislature of March 17, 1852, when there are no minors of the husband, the amount due to the widow in necessitous circumstances is received by her in full property, and she is not hound to give security. 12 An. 883; 41 An. 717; 13 An. 257, 378.
    2. A widow or minor children must he residents of the State at the time of the death of the husband or father, in order to obtain the benefit of the homestead act. IS An. 3G. '

    3. The amount due the necessitous widow being sued for by her, liquidated and settled by it judgment, is her property absolutely, and descends to her heirs at her death, if there areno minor heirs of the husband. 41 An. 717; 13 An. 237, 378.
    4. Where a judgment is rendered against a party, his recourse to have it changed is by appeal. He can not disobey the orders of the court, and disregard the recitals of a judgment, without a direct action to annul it; and the plea of res adjuiliatta must prevail. 14 An. 227; 1 An. 93; 31 An. 212.
   The opinion of the court was delivered by

Breaux, J.

The administrator presented a provisional account to be homologated.

The assets of the succession .to be distributed amount to $2285.02.

InM889 Mrs. M. E. Tugwell, wife of Joseph L. Tugwell, brought' suit against the administrator to recover $1000 from decedent’s estate as a widow in necessitous circumstances. She obtained judgment for the amount. Before realizing anything on the amount decreed to be due, she died, leaving no minor heirs.

Mrs. Josephine Tugwell and Mrs. Mary Russell, daughters of Mrs. M. E. Tugwell by a previous marriage, opposed the homologation of the account and the payments the administrator applied to be authorized to make.

There were no children b'orn of the marriage of Joseph L. Tugwell and Mrs. M. E. Tugwell.

No minors claim the bounty under the Act of 1852. The contest lies between the administrator representing the succession and the heirs of the widow, issue of a former marriage.

In support of their opposition, they contend that they are the only heirs of the decedent; that she was a judgment creditor for $1000, which descends to them.

That the judgment recognizing the widow’s right has the effect of res adjudieata, and that the administrator should be ordered to pay it in preference to all other claims.

Opponent’s claim was rejected by the district court and they have appealed.

The law upon which opponents base their claims does not include the major heirs of the deceased widow, for it provides that the widow or minor heirs of a deceased person left in necessitous circumstances shall be entitled to demand and receive from the succession of the deceased husband and father a sum which, added to the amount of property owned by them, will make up the sum of §1000.

The opponents have no right to this portion.

In 30 An. 669 the facts were that the husband left a widow in necessitous circumstances and four children, all of age.

The widow died a short time after her husband.

The administrator declined to carry the claim of these heirs on his account.

The court, in maintaining the administrator’s account, held that “the children meant throughout the Act are those descriptively mentioned in the first clause as the ‘ minor children ’ of a deceased person ” for whose benefit alone the bounty provided by the Act was intended.

Clearly the children of age of a previous marriage can not inherit from the mother’s succession the widow’s portion not collected by her, or reduced to possession prior to her death.

In opposing the distribution, they urge that they inherit from their mother, who became entitled eo instanti at her husband’s death to §1000 as the widow’s portion. That the amount belonged to her in full property.

They also earnestly argue that the widow’s claim, having been put in judgment, became unalterable and vested in her as completely as if the amount had already been paid to her.

That it had become an inheritable right to which they were entitled as the representatives of their mother.

Opponents, in support of their claim, cite 13 An. 257, also the case of Welsh vs. Welsh, 41 An. 717, which settle affirmatively the absolute ownership of the widow where there are no minors of the husband.

The question decided in each of these cases was decided contradictorily with the widow asserting her rights.

The administrator sought to make the widow furnish bond as usufructuary. In each case it was decided that where there are no descendants of the husband, the amount due the widow is received by her in full property and she is not bound to give security.

These decisions fully settle that question, but are not authority when the heirs of the widow claim the bounty by virtue of inheritance.

There are other decisions more direct in their application.

In the Robertson Succession, 28 An, 832, the court held when a widow is left in necessitous circumstances, but dies without claiming the homestead privilege from the succession of her husband, her heirs by a previous marriage can not claim the bounty in preference to the heirs or creditors of the husband.”

This case is hand in hand with the case at bar. The facts are similar, with only the difference that Mrs. M. B. Tugwell obtained a judgment for the amount before she died.

In the case cited it was decided that the amount must be in possession before it becomes the property of the widow and inheritable.

A similar conclusion was reached in the case of John Durkin,, 30 An. 669.

The amount in that case also had not yet been collected. It, therefore, remained in the succession of the deceased husband, to be appropriated to the payment of his debts.

In Successions of Hies and Hebert, 35 An. 3*71, the principle settled in the decisions before cited was reaffirmed.

In that case the widow left in necessitous circumstances died without claiming the $1000 reserved to her by law.

The three minor grandchildren were allowed the amount to the exclusion of the major children, not as an inheritance, but because in contemplation of law they could inherit from their grandfather.

The opponents plead the judgment obtained by their late mother as an inheritable right.

A judgment does not create any right. It decrees' its existence and makes it executory and secures a method to enforce payment.

If the right of inheritance existed at all, it was not affected in any respect by the judgment.

The major heirs can not recover this amount by representation of their mother’s succession. This we have seen is no longer an open question.

A judgment obtained, as in the case at bar, will not secure a right declared in at least three cases not to be recoverable.

The opponents have also presented the plea of res adjudicata to maintain the judgment obtained by their late mother.

If the amount were allowed these heirs the succession would be insolvent.

The judgment is not binding on the heirs and creditors any more than a claim presented to an administrator and which he has promised to pay in due course of administration. 84 An. 548.

Since the judgment was rendered it-has became void and of no-effect.

It was granted on account of the necessitous circumstances of Mrs.' Tugwell.

Her death put an end to the necessity of allowing the bounty. In addition,' the plea of res adjudieata can not be opposed to the rights of parties not identical with those in the suit in which the judgment was rendered.

The widow’s portion was intended for the helpless.

The technical plea invoked will not prevail to change the destination — of the amount allowed — and to make parties its beneficiaries who are not included within the terms of the statute.

The judgment appealed from is correct, and is affirmed at appellant’s costs.


author: Bermudez, C. J.

text:
    No. 1250.
    Succession of M. A. Myrick.
    The law requires, for the preservation of mortgages against the property of deceased persons, that the creditor shall reinscribe the evidence of his mortgage within ton years after the original inscription has been made.
    Although the law is different in eases of surrenders, it is peremptory in cases of successions, whether solvent or not.
    By the failure to reinscribe within ten years the creditor loses his right of mortgage, though he may remain an ordinary creditor.
    The rule does not apply whore real estate is sold within ten years.
    In this case the property was sold long after the expiration.of that delay.
    APPEAL from the Twenty-seventh District Court, Parish of Rich-land. Williams, J.

      E. T. Lamkin for Appellant.

      Wells & Toler for Appellee.
   The opinion of the court was delivered by

Bermudez, C. J.

This is an opposition to the account presented by the administrator, whereon W. J. Slayden, a judgment creditor of the deceased, originally for §3670 and interest, was placed, with a recognition of a judicial mortgage, to be paid as such by preference over the ordinary creditors out of the proceeds of the real estate.

The judgment was rendered,on May 2, 1876, and recorded on the same day to operate as a judicial mortgage against Mrs. Mary A. Myrick’s property.

The defendant died in the year 1880.

The validity of the judgment was attacked by some of the creditors, but was within the ten years of its rendition finally recognized,, even on appeal.

The real estate belonging to the deceased, burdened by the registry of the judgment and forming part of the succession property, was sold in May, T888.

In the meantime, it is admitted, the judgment was not reinscribed.

The original inscription perempted at the expiration of the ten years following it.

In order to preserve the mortgage, which once secured the payment of the judgment, the inscription should have been 1’enewed, within the delay fixed by law.

Owing to the failure of the creditor to thus have acted, his judgment ceased to be secured by mortgage.

The property affected by the registry was sold some two years after the expiration of the ten years within which the reinscription should have been made.

It has been held that, although prescription does not run, but is suspended against the creditors of an insolvent bankrupt, who surrenders, the rule is different in cases of successions, whether solvent or not.

It has consequently been ruled that the right of a creditor entitled to a mortgage against the property of a defunct person, dies away by the omission on his part to reinscribe within the ten years, although the debtor had died before the expiration of that term. C. C. 1825, Art. 3327, now 3368; Succession of Flower, 12 An. 216; also 27 An. 527 (552) 5 630; 28 An. 811.

This doctrine was recognized in the Succession of Gagneux, 40 An. 703; but not applied, as the property encumbered by the registry had been sold before the ten years had elapsed, and the mortgage was referred to the proceeds.

The Opposition to the allowance by the administrator of a mortgage, in favor of Slayden, which would have operated injuriously to tha other creditors, was properly sustained, and the mortgage was likewise justly refused recognition.

Judgment affirmed.

McEnery, J., takes no part.


author: Watkins, J.

text:
    No. 1239.
    Hirsch Lowenstein & Levi et al. vs. E. Fudickar et al. Schmidt & Zeigler, Gravely & Miller, Yale & Bowling, In Liquidation, J. Grossman vs. J. Y. Covington et al. Ouachita National Bank and Merchants and Farmers Bank, Intervenors.
    ox Motion to Dismiss.
    An order of appeal granted in general terms on the joint and several motions of plaintiffs and intervenors in open court, will not be vitiated on account of the failure of the judge to specify, in the concluding portion thereof, the amount of intervenors’ appeal bond. Intervenors having furnished bond in the amount fixed in the order of the court will sufiiee, notwithstanding the plaintiffs alone are mentioned.
    On the Merits.
    1. Notwithstanding a debtor illegally and fraudulently disposes of his goods to to the injury of his credtiors, they can not be reached and recovered unless the purchaser is shown to have participated in the fraudulent design.
    2. A sale made to one not a creditor must be considered as one in the ordinary course of business, if made for an adequate consideration, paid m cash or its equivalent; and the fact that a portion of the purchase price was subsequently applied to the discharge of the vendor’s debt will not vitiate the sale as an onerous contract.
    APPEAL from the Fifth District Court for the Parish of Ouachita Richardson, J.

      D. M. Sholars for Plaintiffs and Appellants:
    I. The property of the debtor is the common pledge of his creditors. C. O. 31$

      2. Every act done by a debtor with the intent of depriving his creditor of tho eventual right he lias upon the property of such debtor, is illegal, and ought as respects such creditor ho avoided. C. C. 1969.
    3. Not only contracts which dispose of property, hut all others which are made in fraud of creditors, and deprive them of their recourse to tho property of their debtor, come within the provisions of this section. C. C. 1989.
    I. A sale of an entire stock of goods and store fixtures for one-third of its value by an embarrassed debtor, in order to be able to protect certain of bis indorsers, is a sale in fraud of tlie rights of bis creditors within the meaningof Article 1970, O. O.
    5. Such a sale can not be said to have been made in the usual course of tho party’s business. * * And the purchaser can not invoke the protection provided in Article 1986, O. O. It is only contracts made in the usual course of the party’s business, such as the ordinary daily sales of a retail merchant, that are exempt from revocation under the provisions of this article. 16 An. 102.
    6. Insolvency of the debtor and knowledge thereof by the party with whom he contracts, not the sole ground upon which contracts can be annulled for fraud upon the rights of creditors. 36A’n.8; 35 An. 885 ; 34 An. 995; 24 An. 217; 11L. 121; 16 L. 367, 1190; 6 An. 312; decision Second Circuit Court, 86-63.
    7. If the circumstances attending the sale wore such as to induce a prudent man ‘to make further inquiry as to the insolvency of his vendor, knowledge on the part of the vendee will be presumed. 10 L. 370; 1 An. 13; 3 M. 561.
    8. Positive proof of fraud and knowledge, as herein alleged, is difficult of direct proof, and for this reason great weight should be given to all the circumstances, and the relationship of the parties from which knowledge may he inferred. 2 11. 39; 4 L. 219.
    9. If knowledge of the involved and embarrassed condition of the vendor is brought homo to the vendee, at any time when it is possible for the vendee to retrace his steps, at any time when it is not too late for the vendee to restore property which the vendor has undertaken to place beyond the reach of his creditors, and yet he refuses to do so, lie then becomes a party to the fraud. 11 It. 196.
    10. When a sale is attacked and is met by a technical exception, an unwillingness to meet the issue thus disclosed, raises a presumption of fraud. 33 An. 1063.
    II. The exclusion of certain testimony as being privileged under Article 2283, O. C., if intended to shield an attorney’s client, which is doubtful, should not have prevailed in this case. In matters of simulation and fraud, the widest latitude is allowed in the introduction of testimony, and particularly when, as in this ease, the attorney was practically a creditor of his client.
    12.“ We must exercise the discretion confided to us by tho Code, and look through the apparent into tho real transactions of the parties which are covered by Imt a thin veil.” Rank of mobile vs. Harris, 6 An. 815.

      Potts & Hudson and Boatner & Lamkin for Defendant and Appellee:
    1. A surety is not a creditor. 11 An. 229; 2. An 498; 13 An. 525; 3 How. 510; 5R. 419.
    2.' The securing an indorser, or surety, against eventual liability, by a transfer to him of collaterals, by the principal debtor, is not the giving in payment to a creditor, and is not forbidden by Article 2658, C. C.

      8. To annul a sale, by the revocatory action, the plaintiff must prove three things: (1) Kraud on the part of the vendor; (2) Knowledge on the part of the vendee; O) Actual injury to creditors — the debtor’s insolvency. 33 An. 128; 31 An. L!)B; 26 An. 567; 34 An. 883.
    1. If the vendee be without fraud, and buy for a fair price, without knowledge of the vendor’s insolvency, the sale should not be annulled. 34 An. 888; 26 An. 467; 31 An. 196; 9 La. 170.
    5. The burden of proving- fraud rests upon him who alleges it. It is notpresumed, and must be proven. C. C.1818; 39 An. 574; 31 An. 810.
    6. Where plaintiff places the defendant on the stand as a witness, and probes his conscience by questions touching the facts of the cause, he represents such defendant as eminently worthy of belief, and the testimony thus obtained is of the highest character. 26 An. 693 ; 26 An. 594; 10 An. 170.
    7. Such testimony, like that formerly obtained by interrogatories on facts and articles, obtained from defendant by interrogatories propounded by plaintiff and answered in open court, should not be divided, but taken as a whole. 8 X. H. 109; 1 La. 158.
    8. If the contract bo annulled, the purchaser should ho reimbursed the amount that lias proven an asset for the payment of tlio seller’s debts. C. C. 1982; 12 L. 268; 11 Rob. 190.
    9. If made to one not a creditor for a fair price, in the usual course of business,' the sale will not be annulled, even though the purchaser knew of the insolvency. O. U. 1986; 24 An. 138; 7 An. 615; 12 L. 263; 19 L. 594
   On Motion to Dismiss.

The opinion of the court was delivered by

Watkins, J.

In the lower court intervenors joined plaintiffs in the prosecution of their suit, a general judgment was rendered in favor of defendants, and plaintiffs and intervenors have appealed.

In this court plaintiffs seek to dismiss intervenors’ appeal, (1) because there was no order of court fixing the amount of bond, and (2) because intervenors furnished no appeal bond.

The order of court is couched in general terms. It was granted in open court, on the motion of plaintiffs and intervenors respectively, and the respective appeals were made returnable to this court. It is true that the language employed by the judge a quo in the concluding part of the order is ‘‘ on the plaintiff’s giving bond in the sum of fifty dollars for a divolutive appeal,” without making any mention of the intervenors. That is a mere casus omissus, and is evidently the result of inadvertence. Mention is made of the plaintiffs and intervenors in the commencement, and the omission of intervenors in the conclusion of the order of appeal can not work the revocation of it in toto as to them, and leave it in propriore vigore as to plaintiffs.

At the time plaintiffs’ motion to dismiss was filed, the transcript did not contain the appeal bond of intervenors, but it has been produced since and filed. The filing of the bond serves to show how the order of appeal was construed by the intervenors, and our opinion is that their interpretation of it was correct.

The motion is therefore dismissed.

On the Merits.

Sundry creditors of Covington unite in this suit for the revocation of an alleged fraudulent sale by him to one Fudickar.

Their complaint is, that the conveyance covered the entire contents of the vendor’s two store-houses, situated in the town of West Monroe, composing his stock of merchandise, and that the transaction was fraudulently and collusively entered into by both parties —same being out of the usual course of vendor’s business, the price inadequate, and the insolvency of the vendor being known at the time to the vendee.

Averment is made that the. alleged sale was entered into with the intention of defrauding Covington’s creditors, and of giving an undue preference to some of them, whereby petitioners will be injured if same is consummated.

Further averment is made that all of Covington’s other property was under seizure by various attaching creditors; that they had also attached, but their attachments were subsequent in order, and of inferior rank and privilege; and, hence, the revocation of said fraudulent sale is necessary in order that they may collect their ■claims.

The prayer is that said sale be annulled and revoked in so far as same affects their rights, and the property be restored and applied to the satisfaction thereof.

The intervenors joined the plaintiffs in their demand for the revocation of the sale, on the grounds above assigned.

Substantially, the defendants’ answers set up the general issue, coupled with a special denial.

On the trial there was judgment for the defendants, rejecting plain - tiffs and intervenors’ demands.

The following is a fair summary of salient facts necessary to be considered, viz.:

At date of sale, Covington owed the two intervening banks about $6000, represented by two notes bearing the names of two indorsers. Two days prior thereto, a conversation occurred between Fudickar and these indorsers, in the course of which one of them suggested to the latter the propriety of the sale, and the other approved of it as ♦feasible, giving it as his opinion that Covington was solvent — thus, inferentially, suggesting that there existed no legal impediment to its accomplishment.

On the following day Covington began taking up his stock, and when completed the ■ inventory amounted to $5900. On the following day the sale to Fudickar was accomplished by the execution and delivery of his note to Covington for $3850, maturing at twelve months — the price paid being a little less than two-thirds of the inventoried value of the goods.

On the following day ¡Covington delivered the note to one of his indorsers, accompanied by ,the request that he should hold it as collateral ¡security for himself and his other indorser, for whose benefit the sale was made.

On the day of the sale the Ouachita National Bank caused a writ of attachment to be issued against Covington, and process was placed in the sheriff’s hands prior to the consummation of the sale to Fudickar.

Contemporaneously therewith a writ of attachment was obtained by the Merchants and Farmers Bank against Covington.

The two indorsers of Covington were directors in each-of the two banks, and it was upon information furnished by one of them that the former acted in suing out its attachment.

The sheriff did not seize Covington’s stock of goods, because he had been informed by him, that he had sold them to Fudickar, and upon demand being subsequently made upon him by other attaching creditors, to seize the stock of goods, he declined to do so, and required a forthcoming bond, but it was not furnished.

On this summary of the testimony, it is our opinion that the judgment appealed from is correct, inasmuch as there is nothing to show that Fudickar had any knowledge of Covington’s fraudulent purposes in disposing of his property. For it may have been the intention of the latter to give an unfair preference to others of his creditors over the plaintiffs, ultimately, but Fudickar not being a creditor, the price of the goods was not absorbed to any extent by any debt of Oovington, and nothing in the transaction itself pointed to such an intention or purpose on the part of Oovington.

Fudickar paid the price, which was a fair one, by giving his note, which was a gilt-edged piece of commercial paper, and at once took the goods to himself.

By this transaction, it is true, the goods and property of Oovington were illegally absorbed and misapplied, to the injury of his creditors, but they can not be reached and recovered by them without convicting Fudickar, a mere stranger, of participation in the fraudulent design.

It is of no consequence, in such a case, that the vendors were notoriously insolvent to the knowledge of the vendee, and that the transaction was not “in the usual course of the party’s business.” The provisions of R. O. O. 1984 and 1986 have exclusive reference to reprobated transactions between debtor and creditor.

In Pochelu vs. Catonuet, 40 An. 327, we had under consideration and construed the last cited article as appertaining to a precisely similar case, and, in the course of our opinion, said: “It is evident to our minds that neither Maylie nor Rougagnac were'bound in an way for the payment of the debt due the plaintiff. There was no legal impediment existing to prevent Maylie loaning, or Rougagnac borrowing the $4000 with which he paid the .purchase price to Navos. There was nothing to prevent Navos from selling to Rougagnac for cash, even though he were in insolvent circumstances to the knowledge of the purchaser at the time. A sale to one not a creditor must be considered as one made in the ordinary course of business, if made for an adequate consideration, paid in cash. The fact that a portion of the puchase money was applied to the discharge of vendor’s debts will not vitiate it as an onerous contract.”

In support of that view we quoted with approval Maurin vs. Rouquit, 19 La. 594, and affirmed it. The principles therein announced are strictly applicable to this case.

Counsel for defendants insist that the indorsers of Covington were not, at the time of. sale, his creditors, and, for that reason, ask us to declare the transaction between them and Covington exempt from the operation and effect of the statute of frauds. That is a question we can not, at present, decide, for the indorsers, neither as such nor as directors of the intervening banks, are cited in this suit and made parties, and, therefore, no judgment can be rendered that would be binding upon them. In addition, we are informed that this question is involved in another suit against the banks, which is pending in the district court. We are at present concerned with the sale of Covington to Eudickar alone, and not with Covington’s disposition of Fudickar’s note, with which the latter had nothing to do, and with which the plaintiff’s petition does not deal.

For these reasons we are of opinion that, the judgment should be affirmed, and it is so ordered.

On Application for Rehearing.

An extended and earnest application is presented in this case, but there are only one or two questions upon which we deem it necessary to make any additional expression of opinion.

I.

Counsel complains of the construction placed, by the opinion, upon R. O. C. 1984 and 1986, to the effect that they have “ exclusive reference to reprobated transactions between debtor and creditor;” and cite us to 84 An. 902 and 10 La. 868, as having been referred to in his brief.

In this, counsel is in error. These authorities are not mentioned in his brief, but in the syllabus we find cited 84 An. 995 and 10 La. 870.

But an investigation has resulted in the discovery of the ease of Thompson vs. Freeman, 34 An. 992, which discusses a proposition germane to the one under consideration, and which is predicated upon Rhodes vs. Beaman, 10 La. 369.

But those cases deal with R. C. C. 1985 exclusively, which is not mentioned in the opinion, and they are addressed, solely, to the question of the insolvency of the debtor as affecting the bona fides of the sale attacked.

In Rhodes vs. Beaman.the court said: “ It is contended that the defendant, Beaman, was not a creditw, and that he is not shown to have had knowledge of the failing circumstances of the vendor. We consider Article 1979 (Rev. O. O. 1985) as merely establishing a presumption against the contract, whenever it is first shown that the obligee knew of the discomfiture of the obligor, and when being a creditor, he gains an advantage over other creditors. But it does not exclude other evidence of fraud and collusion,” etc. (Italics ours.)

Quoting and emphasizing this precept as sound, the court said in Thompson vs. Freeman:

“ Therefore, when satisfied, as we are in the present case, that the contract was made in execution of a collusive purpose between the parties, to defraud and defeat creditors, and when the direct result of the contract is to leave the obligor insolvent, and actually to defeat his creditors, we will not hesitate to frustrate' such schemes by annulling the contract.”

These decisions are precisely in line with our opinion and the cases therein quoted. In Rhodes’ case it was distinctly held that Article 1985 of the Code merely established “ a presumption against the contract when it is first shown that the obligee knew of the discomfiture of the creditor of the obligor, and when, being a creditor, gains an advantage over other creditors.'’1 Then the court adds, that this does not exclude other evidence of fraud and collusion. And the opinion in Thompson’s case was predicated upon “ other evidence of fraud and collusion; ” just as we hold the plaintiff should have done in this case. But not having done so, Fudickar was not connected with the fraud of the transaction.

A mere reference to Articles 1984 and 1986 will show that their provisions are in harmony with this view.

The last named article creates two exemptions from the law of fraud: (1) All sales of property, or other contracts made in the usual course of a party’s business, and (2)-, the payment of a just debt in money. It seems quite clear that it has exclusive reference to transactions between debtor and creditor, for, surely, an article of the Code is not necessary to authorize a party to make sales, or contracts, with a stranger in the usual course of business. This being the case, we must look outside of it and the two preceding articles, for authority to hold Fudickar, as the court did in Thompson’s case and in Rhodes’ ease.

We have carefully observed the comments of counsel, on the case of Pochelu quoted in our opinion; and, while there is a complete parallel between that case and the instant one, in the particulars mentioned, yet there are two essential differences between them, the Pochelu case being one en declaration de simulation, and it having been defeated, by proof of the price having been paid in cash. Now, while it is perfectly true that, in that case, we held that the sale having been made to one not a creditor, and for cash ‘ ‘ it must be considered as one made in the usual course of business,’’ it does not follow that the sale by Covington to Fudickar on terms of credit, was not such a transaction. Had we thus regarded it, further comment would have been supererogatory and unavailing.

What our opinion in the Pochelu case says in reference to the character of the action, was intended to be merely suggestive and not controlling; and even if it was, the turning point therein is, the inadequacy of price, not existing here.

Our opinion simply holds that Fudickar not being a creditor, the price of the goods was not absorbed as a part of, or all, the consideration paid therefor; in other words, the purchaser parted with value for them, and the fact that the price, or the note given for the purchase price, was by Covington subsequently applied to the discharge of his debts, did not .vitiate the sale as an onerous contract, and it will not impair any recourse creditors may have against the recipient of the proceeds thereof. (

II.

Holding as we do in our opinion, that, conceding Covington’s acts to have been fraudulent, the sale could not be annulled without convicting Fudickar of participation, we considered plaintiff’s bill of exception of no practical importance, as the contemplated evidence which was rejected did not have any seeming applicability to Fudickar as vepdee.

The question asked of Covington was, viz.: “ State the subject of this conversation with Mr. Hudson.” To it the objection was that it related to professional communications between client and attorney; and if it related to his contract with Fudickar, it was inadmissible, not having occurred in his presence.

The judge’s rejection of this testimony appears quite plausible, and nothing has been said on the subject to convince us that he erred.

Reexamination of the record and application has only served to strengthen our convictions in the correctness of our opinion.

Rehearing refused.


author: McEnery, J.

text:
    No. 1237.
    The State of Louisiana vs. Willis Finn.
    The defendant in a criminal case is entitled to have a true copy of the indictment served on him two entire days before the trial. If an imperfect copy has been served on him, if he makes timely objection before the jury is impanelled, he has the right to delay the ease until a correct copy of the indictment is served on him,
    When the accused was indicted for the murder of Edmond Ilembell, and the copy of the indictment served on him charged him with the murder of Edmond. Kemboli; held, that the copy of the indictment was imperfect, as the two names wore made entirely different by changing the initial letter of the name.

      \ PPEAL from the First District Court, Parish of Caddo. Hides, J.

      J. H. Shepherd, District Attorney, for the State, Appellee.

      I). T. Land for Defendant and Appellant:
    1. Every person wlio shall be indicted for any capital crime shall have a copy of the indictment and the list of the jury which are to pass on liis trial, delivered to him at least two entire days before the trial. R. S. 2997. The objection was timely, as it was made before announcing ready for trial, and before the jury was impanelled. 3 An. 50; 23 An. 020; 27 An. 206; 38 An. 470.
    2. The statute contemplates that the accused shall have a true copy of the entire instrument. 3 An. 50. When an imperfect copy, is served on the accused he has an absolute right, on timely objection, to insist upon a perfect copy and tile delay accorded to him by law. 12 An. 079.
   The opinion of the court was delivered by

McEnery, J.

The accused was indicted for murder; tried, convicted and sentenced. He has appealed. The defendant was indicted for the murder of Edmond Bembell. The copy of the indictment served on him two entire days before the trial, in accordance with Sec. 2997, R. S., charged him with the murder of Edmond Kembell.

The accused was entitled to have a true copy of the indictment served on him. 3 An. 50.

And if an imperfect copy is served on him he has the right, on making objection at the proper time, to delay the case until a correct copy is served on him. 12 An. 679.

The defendant made objection to going to trial before the jury was impanelled. The objection was timely. 3 An. 50; 23 An. 620; 27 An. 206; 38 An. 476.

The doctrine of idem sonans does not apply to the case at bar. The initial letter in the copy of the indictment served'on the accused is changed so as to make the name entirely different from the name in the indictment, and the sound of the names is distinct and different — conveying the idea.of distinct persons.

It is therefore ordered, adjudged and decreed that the verdict and sentence appealed from be avoided, annulled and reversed, and set aside; and it is now ordered and decreed that the case be remanded to be proceeded with according to law.


text:
    No. 1414.
    The State of Louisiana vs. Newton J. Causey et al.
    The drawing ami placing oí a disqualified person on a grand jury, as a member thereof, and the subsequent removal of such person from it by the court, after impanclment, on objection, for proper disqualification, do not so vitiate or infect that body as to paralyze it and blot it out of existence.
    An indictment presented with a true bill by the body, as it remained constituted, is valid, and should not be quashed, although the motion be made before conviction.
    The fact that a fair and impartial jury has been obtained, pending a motion for a change of venue, is a sufficient answer to refuse the application.
    Its actuality demonstrates its possibility.

      An indictment which charges a “lying in wait, shooting, attempt to murder and felonious intent,” in terms which show aeoneurrenee in point of time, can not he successfully levelled against, by a motion in arrest.
    APPEAL from the Twenty-second District Court; Parish of Ascension. Duffel, J.

      R. M. MeCulloh and John D. Ogden, District Attorney, for the State, Appellee:
    1. The drawing of one incompetent member on a grand jury does not vitiate that body. Secs. 4, 5, 6 and 10, Act 44 of 1877; State vs. Foster, 31 An. 84; State vs. Washington, 83 An. 1403.
    2. Where the incompetent grand juror has been setaside, the “sixteen” of Act 44 of 1877, being not sacramental, the remaining “fifteen ” can find a bill. State vs. Swift, 14 An. 827; 15 An. 193; 8 R. 618; People vs. Butler, 8 Oal. 485; People vs. Hunter, 34 Oal. 65; People vs. Gateswood, 20 Oal. 147; A. and K Kncy. of Law, p* 466, and note to page 6, Yol. 9.
    3. There is.no injury to a defendant by a finding of the indictment by a jury composed only of fifteen members at the time of the finding, because the smaller the number among whom the twelve are to be found to concur, the more secure is the defendant from being indicted. Bishop Grim. Pro., Yol. 1, p. 505, Set*. 855.
    4. Unless an abuse of discretion be clearly shown, the decision of the judge on a motion to change the venue will not bo interfered with. 11 An. 607; 30 An. 364; 31. An. 91; 38 An. 459.
    5. There is no fixed rule defining what shall or shall not be considered proof that a fair and impartial trial can not be had. A. and 1C. Bncy. of Law, p. 100, Vol. 3. There is no error in postponing the consideration of amotion to change the venue until an attempt is made to impanel a jury. Ibid, p. 99.
    6. The fact that a fair jury is obtained, is an answer to the affidavit for the change of venue. 33 Gratt (Va.). 880; Ibid, p. 100.
    7. An indictment is sufficient when the words “then and there” arc otherwise supplied. 35 An. 622. “While” means time during which; and an indictment, charging the shooting with intent, under See. 790, R. S., 1870, to have been done while lying in wait, is good.
    8. An imperfect averment of time is cured by. Sec. 1068, B. S. of-1870, or. if not, being a merely formal defect, it should have been urged before plea. See. 1064, R.S. 1870; 11 An. 163.
    9. “With intent wilfully, feloniously, andwitli malice aforethought, to commit the crime of murder,” is not a conclusion of law, but one of fact, the intent being specifically qualified thereby as murderous, and the word “commit” being an averment of action meaning “to perpetuate,” “to enact.” 35 An. 622.
    10. Where an indictment follows the statute, and the defendant insists upon its insufficiency, it is for him to show satisfactorily why the offence should have boon charged in a different manner. 13 An. 243.

      E. N. Pugh and R. N. Sims for Defendant and Appellant:
    The declaration of Art. 3 of the Constitution of Louisiana (Art. 5 Amendments to Federal Constitution and 14th Amendment), that “ No person shall be held to answer for a capital crime unless on a presentment or indictment by a grand jury, is jurisdictional, and no court of Louisiana has authority to try a prisoner without indictment or presentment in such eases.
    The indictment here referred to is the presentation to the proper court, under oath, by a grand jury duly impanelled.
    Without such indictment there is nothing which the prisoner can be “held to answer.” A trial is void. There is nothing to try. 121 U. S. 1; BBng. 71; 22 Ark. 16, 127, 198; 19 Tex. 107, S2; 12 S. and M. 68; 7 Yerger, 27; 17 Wis. 674 ; 9 Rio. 9; 63 Ala. 126; 12 Rio. 562; 18Tex. 629 ; 98 U. S., 154;1 Utah, 226 ; 3 Utah, 488.
    The foreman and fifteen jurors, drawn as required by law, constitute the grand jury. The number being fixed by law, neither more nor less will suffice. The exact number must be on the panel, otherwise there is no “grand jury.” 3 Utah,488 ; 9SU S. 154; 18 Tex. 682; 19 Tex. 49; 5 Eng. 71;22 Ark. 127, 198; 18 Tex. 627.
    In this ease at no time was there a grand jury, for only the foreman and fourteen jurors were on the panel. Never at any time was there a panel o£ sixteen good and true men. 12 Rio. 562.
    The action of the judge on the trial for the application for change of venue was illegal and against the law. 37 An. 454; 36 An. 87.
    The indictment is fatally dofeclivc in not alleging that the specific acts'reqnircd to make the offence concurred in point of time. Where intent at the time the offence is committed is a necessary ingredient in it, it is as necessary to state the intention in the indictment as any other of the facts and circumstances which constitute the offence. Arch., p.50; 33 An. 921; 8 U. 600, 602, 612; 21 An.347; 35 An. 632 ; 42 An. 275.
   The opinion of the court was delivered by

Bermudez, C. J.

The defendant, Causey, was indicted for lying in wait and shooting with intent to murder, and, on conviction, sentenced to hard labor for five years.

On appeal, he complains that the trial judge illegally overruled the several motions made by him to quash the indictment, to change 1 the venue, for a new trial, and in arrest of judgment.

I.

The motion to quash, seasonably made, rests upon the ground that the indictment .was presented with a true bill, by a body of men who did not constitute the legal grand jury, to which he is entitled under the Federal and State Constitutions, in this: that the said body was composed of fifteen men only; though qualified, the sixteenth member, after the drawing and impanelling, having been discharged by the court, in other cases, on complaint based on the fact that he was an alien, and, therefore, incompetent.

it appears that on the first day of the term the foreman of the grand jury was selected by the judge, and fifteen others were drawn by the sheriff from the jury box; that these sixteen men were duly sworn and charged as the grand jury in and for the parish of Ascension for the opening term; that thereafter they reported two true bills of murder against certain parties, which were quashed at their instance on the ground that one of the panel was not a good and competent juror, being an unnaturalized citizen; that said person was removed by the court from the jury who subsequently reported a bill against the defendant in this case, which was duly presented and accepted. Thereupon the defendant moved to quash the indictment, as stated. The court declining to do so, a bill was reserved to the refusal.

The question presented for solution is novel, important, and may well be stated as follows: Whether the drawing and placing of a disqualified person on a grand jury, and the subsequent elimination of such person from it, after impanelment, on complaint, for disqualification, so vitiates or infects that body as to paralyze it and blot it out of existence at once and absolutely.

The contention is that the grand jury must, at the moment of impanelling, be composed of sixteen qualified members, one selected foreman by the judge, and fifteen drawn, all as provided by law.

It is therefore agreed that, unless the sixteen members be, each and all, qualified at that time, the body is not a grand jury, and that a true bill found by them on an indictment is not jurisdictional; that it does not justify the prosecution, and that a conviction on a charge returned on such indictment is violation of both Federal and State Constitutions.

It is therefore conceded that, when the empanelled grand jury is composed of sixteen qualified members, it has a legal existence and can lawfully discharge its functions, and that it can not be put out of life, should any of the sixteen members, not required to find a bill, die or absent himself.

The proposition is now well established, that although a grand jury may be composed of one or more disqualified members, the irregularity can not be successfully invoked after conviction, and, therefor.e, that a verdict rendered on an indictment presented by such .grand jury remains unassailable by the accused.

■ This implies the correctness of the proposition that the mere disqualification of a person placed on such grand jury, is not in itself such a fact as absolutely deadens the body; for, if such were the case, the irregularity could not be cured, either by tacit or formal waiver, a thing which, indisputably, can be done.

It therefore follows, that such body, notwithstanding the presence of such defect in its organization, has an actual existence, sufficient to enable it to perform functions hypothetically lawful.

It can not be denied that, where a grand jury is irregularly composed, in part of one or more persons clearly disqualified by law, and such person or persons participate in the finding of a bill, whether as part of the twelve constituting the quorum, or of the others, an accused is now recognized the right, on proper, timely motion, to have the indictment quashed, and this, because the charge was not found by qualified jurors, in as much as all the members who find a bill must be absolutely competent.

Nevertheless, it is quite difficult, and it may be said impossible, to logically conclude, where the bill is found by at least the txoelve members who constitute the quorum, although the number of all be not actually sixteen, the finding is necessarily void and unjurisdictional.

It is not sacramental that a grand jury shall be, like a petit jury in criminal cases, composed of a certain given number of persons.

It may be constituted by law with twelve, eighteen, twenty, or any other reasonable number of persons, a certain stated proportion of whom composing a quorum, is competent to transact business.

Neither is it sacramental that all the members shall be present and participate in the finding, when such can be found by a quorum.

That which is sacramental is that the members who participate or concur in the finding, must be qualified and competent jurors, under pain of nullity of their action.

This is precisely what occurred in this case.

The members of - the grand jury who found the bill were all qualified to act and find the bill they did.

It is no more indispensable that the members of a grand jury, in-, excess of the twelve required for a quorum composed of qualified members, should be qualified to give validity bo the action of that quorum, than it is that two of the members of this court should be qualified to give vitality to a judgment rendered by the remaining qualified three.

Under the circumstances of this case, it is manifest that the trial judge could not have sustained the motion. His power to fill the vacancy was most questionable. Had he quashed the indictment for the cause stated, he would have disorganized and completely disabled the body, as no other could have been formed before the next term of court, thus, meanwhile, clogging the wheels of criminal justice in his jurisdiction.

In the oral and printed argument of the able counsel for the defence, reference is made to a number of cases from other jurisdictions, in which, it is claimed, that courts of last resort have ruled in a sense favorable to the position taken by him.

The reports containing the rulings invoked are not within our reach at this place. It may be that, in the cases mentioned, the indictments were quashed, because found by members of the grand jury, one or more of whom, who had participated in the finding, were disqualified from serving on such jury, or because of some other reason which we would recognize as sufficient.

However, if it were otherwise, we would be slow to adopt too liberal interpretations of criminal laws, which should be strictly construed for the benefit o£ both State and accused.

Public interest, a proper administration of law, a speedy trial of offenders for conviction or discharge, for the security and well-being of persons and property in society, imperiously demand that, while an accused must be protected in the assertion and vindication of all such of his rights as entitle him to a fair and impartial trial, the corresponding rights of the commonwealth against the commission of crimes and the escape of guilty parties from punishment on questionable technicalities and casuistic quibbles, in cases in which no injury was sustained, must be equally respected and shielded.

To conclude on this subject, it is appropriate to repeat the language used by this court in the case of State vs. Humphreys, 35 An. 967, viz.:

“Niceties in judicial construction of criminal statutes, such as that urged upon us here, were deplored by Lord Hale more than two centuries ago, when he wisely and feelingly said, “ that the strictness required in indictments had grown up to be a blemish and inconvenienee in the law, and the administration thereof, and that more offenders escape by the over easy ear given to exceptions to such indictments than by the manifestation of their innocence, and that the greatest crimes have gone unpunished by reason of these unseemly niceties.”

II.

On certain averments, under the provisions of the law in such matters, R. S. 3892,' the accused moved for a change of venue, and on suggestion of the district attorney that an effort be made first toward procuring a jury out of the regular venire for the week, so as to ascertain the fact, the court, over defendant’s objection, proceeded to the formation of the jury, which was in due course regularly constituted and impanelled.

The district attorney then proposed to take up the motion for a change of venue. This was done notwithstanding defendant’s objections, and the motion being denied, the trial of the case was proceeded with, a bill being reserved.

The contentiomis, that the accused had a right to make the motion, and that it was the duty of the judge, after hearing the evidence, to pass upon it, and that the judge did not hear any proof, but, considering the fact of the formation of the jury, denied the motion.

It is useful to state, that each of the jurors, when called, was ■sworn and examined on his voir dire, and testified that he was competent to try the accused fairly and impartially.

There exists no established or fixed rule defining what shall be ■considered proof that a fair and impartial trial can not be had. It has been held that the court is not precluded from acting in part on personal knowledge possessed by it. Gisce vs. Schultz, 60 Wis. 449.

The fact that a fair and impartial jury has been obtained, pending the motion for a change cf venue, has been held to be an answer to- the affidavit therefor. State vs. Gray, 8 West. Coast Rep., Nev. 12; Wright vs. Commonwealth, 33 Gratt., Va., 880; People vs. Plummer, 9 Cal. 298; Hunter vs. State, 43 Ga. 483; Ward vs. Morey, 1 Wash. Ter. 122; A. and E. N., V. 3, pp. 99 and 100, and notes.

Indeed, ab aetv, ad posse, valet eonseeutio — -the actuality of a fact demonstrates the possibility of its existence.

As a rule, applications of this character are addressed to the sound ■discretion of the trial judge, who may even act on his own knowledge, and, unless an abuse of such discretion is clearly shown, his decision is not to be interfered with. State vs. Ford, 37 An. 443.

The judge was satisfied with the test suggested, which had proved successful.

The fact that the jury was a fair and' impartial jury appears from the circumstance that, although they found the accused guilty, they recommended him to the mercy of the court, and nothing shows that the judge disregarded, as he might have done, their recommendation. i

In this instance, far from it appearing that the judge misapplied the law, it is evident that he had good authority to act and rule as he has done. On a review of his ruling, in this respect, we can not,, therefore, say that he erred, but, on the contrary, hold that he did not.

III.

The third ground of complaint is that the trial judge illegally overruled the motion in arrest, which was that the indictment was fatally defective in not alleging that the lying in wait, shooting and attempt to murder concurred in point of time, and also ‘ ‘ that the indictment, fail to charge that the defendant then and there entertained a felonious intent to murder.”

The motion, besides, avers that the indictment fails to charge defendant with the intent to.kill an'd murder, but solely “to commit the crime of murder, which is a mere conclusion of law.”

On appeal, the first ground alone is insisted upon, the second being, apparently, abandoned.

The indictment charges that the defendant Causey and Hamilton did, on the 25th of February, 1891, with force and arms, in the parish of Ascension, and within the jurisdiction of the Twenty-second District Court of the State of Louisiana, “while” lying in wait, wilfully, feloniously and of their malice aforethought, shoot one Thomas Moore Webb, in the peace of the State, then and there being with a dangerous weapon, to-wit, a double-barreled shotgun, with intent wilfully, feloniously and of their malice aforethought, to commit the crirq« of murder in and upon the said Webb, contrary to, etc.

It may be that the indictment could, or perhaps should, have more technically and fully set forth the charges against the accused; but an attentive consideration of the language used satisfies the mind that the lying in wait, the shooting, the attempt to murder, together with the felonious intent to murder, are charged with a concurrence in point of time; therefore, as coexisting with sufficient clearness and precision to put the accused on his guard for his defense.

A philological dissertation on the subject would subserve no useful purpose.

IV.

Nothing is said as regards the motion for a new trial, which on its face is not entitled to notice, and is therefore ignored. It contgins grounds which were the object of bills of exceptions, which have been disposed of.

Judgment affirmed.


text:
    No. 1415.
    The State of Louisiana vs. David Woodson.
    The refusal of the trial judge to order that the names of the petit jurors, previously drawn and placed on the list handed by the clerk to the sheriff, be put in a box and drawn therefrom, is not error, when such course was the usual mode of calling and selecting the members of the petit jury, in the local practice, in the absence of adverse legislation.
    APPEAL from the Twenty-second District Court, Parish of Ascension. Duffel, J.

      R. MeOulloh and John N. Ogden, District-Attorneys, for the State, Appellee:
    A grand jury drawn with one disqualified person upon it is not thereby vitiated. Secs. 4, 5, 6 and 10, Act 44,1877.
    The incompetent juror being excused, the remainingjfifteon can find a bill. 11 An.
    827; 15 An. 198; I’eotfie vs. Butler, 8 Cal, 485; A. and C. Kncy. of "Law, p. 6, Vol. 9. There is no injury to’ defendant by the finding by fifteen. Bishop Criminal Pro., Vol. 1, p. 505, Sec. 855.
    The denial of a motion made by the defendant, to order the names of the petit jurors to he put in the box aud drawn therefrom is not error. State vs. Kennedy, 11 An. 479.
    The practice is to call the jury from the list, and in the order' in which they arc numbered. State vs. Washington, 87 An. 828.

      N. JSF. Sims for Defendant and Appellant:
    Under our law, the grand jury must be composed of sixteen good and true men — that is, of persons possessing all the proscribed legal qualifications. One of these is that he shall be a citizen of the United S.tates. Act of 1880, No. 54,

      2. The selection of an incompetent person as a member of the grand jury vitiates the entire panel. A grand jury so organized can not find a valid indictment. The objection may be made at any time before plea. :}(> An. 193; 8 Rob. 513; Ibid, G16; 21 An. 551.
    3. The discharge of an incompetent juror from further service as a member of the grand jury can not legalize that already vitiated body. There is no law or authority in this State which warrants a judge in discharging one member of the grand jury. To discharge one he must discharge all of them. In the eye of the law, the incompetent juror, Noocntelli, was a member of that grand jury nntil its final discharge by the court. And his constructive presence vitiated tlie second indictment.
    4. It was error to refuse to permit the names of jurors selected to try the case, to be drawn from the jury box provided for that purpose. Act Xo. 44, of 1877; See. G; 3G An. 334.
   The opinion of the court was delivered by

Bermudez, C. J.

The defendant was prosecuted for murder, convicted and sentenced to the extreme penalty.

On appeal, it is claimed, that the true bill against him was returned by a body of men who did not constitute the grand jury, ivhom, under the Constitution, an indictment could have been by legally found against him.

The charge is made, that the trial judge erred in not sustaining a motion to quash the indictment, because one of the panel of sixteen had been set aside by the court after impanelment, by reason of his disqualification as an alien, in consequence of which the grand jury never had a legal existence.

' A similar objection was raised by the defendant in the ease of the State vs. Causey, just decided, in which it was held that the motion to quash had been properly overruled.

For the same reason we must hold alike in the present instance.

The next objection is, that there was error in the court refusing to order that the names of the petit jurors on the list in the hands of the sheriff be placed in the box and drawn therefrom.

We know of no law, and have been referred to none, requirirfg such action. We have examined the authorities referred to (Section 6 of Act 44 of 1877, and State vs. Brooks, 86 An. 884), but fail to find that they apply and relieve the defendant.

On the other hand, we find that in State vs. Kennedy, 11 An. 479, a similar question was considered. It was there said:

“We have already intimated that the court did not err in refusing to put the names of the jurors in a hat or a box and draw them therefrom. This is done by statute in England, in ordinary cases •only, but even there, in those cases where the list is served on the accused, they call from the list in its order, but the accused has so little of a vested interest, so to speak, in the jurors that the State always exercised the arbitrary right of setting aside any of the jurors on the panel until it is gone through with, whereupon the jurors set aside are then called, and, if not challenged by the accused, they are sworn, unless cause is shown on behalf of the crown. Wharton, Cr. L. 839, note V.

“ Such is still the practice in the United States courts, and such was the practice in this State, from the passage of the act requiring the indictment and list of jurors to be served on the accused, until the enactment of the Statute of 1837, page 42, which took from the •State the power to set aside jurors and gave in lieu thereof six peremptory challenges. If it was not error in the State to set aside the jurors as called, at its pleasure, under the Act of 1804, it can not be error now, under the same statute, for the judge simply for a cause tending to facilitate the transaction of the public business, to commence at a particular number on the list and call the names consecutively until a petit jury is formed or the pannel exhausted.”

This ruling was not modified by any subsequent legislation, and the announcement thereby made was indorsed in the case of State vs. Kennedy, 37 An. 828, in which it was held that a complaint that the jurors were not called in the order in which their names appeared on the jury list, was ill-founded, thus recognizing the use of the list.

. The bill of exceptions taken to the rulings of the judge shows that he thus held “ on the ground that such was the usual mode of calling and selecting members of the petit jury.”

The correctness of the statement that such was the prevailing local practice, is not attacked. Silence in such a case implies an admission that such was the fact, and is decisive of the question, in the absence of contrary adverse infringed legislation.

Judgment affirmed.


author: Fenner., J.

text:
    No. 1392.
    The State of Louisiana vs. Thomas P. McCrystol.
    1. The terms “grand or petit juror” employed in Act 59 o£ 1878, embrace tains jurors lawfully selected and summoned, as well as regular jurors.

      2. The rule that penal statutes are to be strictly construed is not to he applied with Slicli unreasonable technicality as to defeat the purpose of' all rules of statutory constructions, which purpose is to ascertain and enforce the true meaning' and intent of the statute.
    3. Act 59 oí 1S78 is not confined to bribing or attempting- to bribe jurors actually impanelled and sworn to try a particular case, but applies to all jurors who have been lawfully selected and summoned to act as such.
    4. An information charging' an attempt to bribe a juror, in the language of the statute, specifying the particular juror, and the nature of the bribe offered, and setting forth the unlawful intent, conforms to all requirements of criminal pleading.
    A PPEAL from the Criminal District Court for the Parish of Orleans. Lx Marr, J.

      W. H. Rogers, Attorney General; C. II. Luzenberg, District Attorney ; John J. Finney, Assistant District Attorney; W. L. Evans and Chas J. Theard for the State, Appellee:
    A tales juror is a petit juror, and is covered by the provisions of Act Xo. 59 of 1878, Act 59 ofIS7S; 38 An. 481; Act Xo. 98 of 1880, Section 5; Act No. 138 of 1877, Kx-Sossion; Act No. 54 of 1888, Section 3; (! Wallace, 395; 108 Massachusetts Reports, page 21. Sogwick on Statutory and Constitutional Raw, second edition, pages 282, 287 and 289. 41 An. 3.38.-
    Act Xo. 59 of 1878 does not apply merely to jurors actually impanelled and sworn to try a particular case, but to all jurors liable to jury service, from the moment their names have been drawn from the jury wheel. This is particularly true of the tales juror, drawn to serve in a specially designated cause.
    It is not sufficient ground for rejecting a juror of the regular panel, when tendered that his name has boon written Rowan instead of Bowen. This is idem souaiis.

    The only opinion which will disqualify a juror is a fixed, deliberate opinion, which will not yield to evidence. 32 An. 1241; 33 An. 889; 35 An. 317; 33 An. 792: 10 An. 741; 41 An. 1083.
    Moreover, it must appear that the accused was compelled to exhaust his peremptory challenges; otherwise he can not complain oven of an erroneous decision bythejudgo. 14 An. 461; 33 An. 315; 40 An. 741. v
    The jury are the solo judges of the evidence, and of its effect. The refusal of the lower court to grant a new trial, where the grounds of the application refer to questions of fact only, and to the effect of the testimony, will not be reviewed on appeal. 11 An, 478; 33 An. G79.
    Where the court has given a written charge, containing all that could possibly ho stated with regard to a particular question, its refusal to give an additionaland special charge as to the same matter, is perfectly proper, especially when the requested charge is so worded that it might perhaps mislead the jury. 33 An. 682; 12 An. 193, 197.

      A. D. Henriques for Defendant and Appellant:

      It is a general rule, that the special matter of the whole offence should he set forth in the indictment, or information, with such certainty that the offence may-judicially appear to the court. When special facLs aré an essential part of the otfonee, they must be'set out. Wharton’s Pleadings and X>ractice, Sec. 151; United States vs. Crinkshank, 92 U. L. 542; United States vs. Simmons, 96 U. S. 360: Copt. vs. Perry, 114 Mass. 263; State vs. Stiles, 40 Iowa, 148; State vs. Murray, 41 Iowa, 580.
    The indictment“ ought to contain a complete description of such facts and circumstances as constitute the crime without inconsistency or repugnancy.” In other words, it should distinctly specify everything which enters into the offence, but not necessarily more. Bishop Crim. Pro., Sec. 509.and See. 519.
    Indictments or information on a statute, it is requisite to follow not only the special rules which govern it, but those also which govern other indictments. The information must fully state the offence; and if this can not be done in the mere statutory words, it must be expanded beyond them. Wharton’s Pleadings and Practice, Sec. 220; State vs. Stiles, 3 An. 324; State vs. Bead, 6 An. 227; state vs. Delerno, 11 An. 648.
    An indictment under a statute ought with certainty and precision to charge the defendant with having committed the acts under the circumstances mentioned in the statute. State vs Stiles, 5 An. 324; State vs. Shepperd, .33 An. 1216; State vs. Mariis, 33 An. 1172; State vs. Gus. Johnson, 42 An. 560; Stale vs. Bead, 6 An. 227; State vs. Palmer, 32 An. 57L
    Where the legislative meaning is plain, there is not only no occasion for rules to aid the interpretation, but it is contrary to the rules to employ them. In construing penal statutes, courts can not take into view the motives of the law given further than they are.expressed in the statute, and the equity of a criminal statute will not be considered when its terms are positivo and free from doubt. Bishof) Stat., Crimes, Sec. 72, Sec. 193 and-See. 194, and note 8 to Par. 193; State ys. King, 12 An. 593; State vs. Smith, 30 An. 849; State vs Palmer, 32 An. 571': State vs. Peters, 37 An. 732; State vs. Backarow, 88 An. 319.
    section 3 of Act 59, approved March 7,1878, claimed to have been violated, expressly sets forth the persons, and class of persons upon whom an attempt or offer to bribe’ can be made, and among those named arc grand or petit jurors; and has plainly and in terms of no doubtful import declared that tales jurors are within its provisions, and the terms of the statute being plain and unambiguous, the equity of the statute will not be considered. State vs. Xurby, 41 An. 29s; Bishop Stat., Crimes, Sec. 72, See. 193 and Sec.. 194.
    By express statute of this State, the manner of drawing, selecting and impanel-ling grand, petit and'tales jurors for the parish of Orleans, is provided by Act 98 of 1880, p. 124, and Act 138, Extra Session, of 1877, p. 209.
    Talesmen are not regular jurors. State vs. Smith, 26 An. 63. Talesmen are legal substitutes for the regular venire. State vs. Creach, 38 An. 480.
    Our system of laws does not contemplate the use of talesmen in the trial of criminal causes until the regular venire is exhausted. State vs. James Atkinson, 29 An. 548: State vs. Thomas Boss, 30 An.1154; State vs Wyatt Creach, 8S An. 480.
    The common law method to remedy a default of jurors summoned, was to select tales de circumstantibns (such of the bystanders as were competent), but in Louisiana express provision is made therefor by statute. Act of 1877, Extra Session, p. 209.
    The credit of a witness may be impeached by proof that he has made statements out of court contradictory to what ho has testified to on the trial in matters relevant to the issue. 1st G-reenleaf, Sec. 462; Wharton Crim. Kv., Sec. 483; State vs. Colbert, 29 An. 715; State vs. Angelo, 32 An. 407.
   The opinion of the court was delivered by

Fenner., J.

The defendant was tried and convicted under an information charging him with the offence of ‘ ‘ offering and attempting to bribe” a certain tales juror drawn and summoned to serve in the cause of the State vs. Natalie et al., better known as the Hennessey murder case. The offence is statutory, and is defined and punished by Act 59 of 1878.

The second section of that Act denounces the offence of actually bribing any of the officers enumerated therein, including any “ grand or petit juror," and it defines the offence as follows: to directly or indirectly give any sum or sums of money, or any other bribe, present or reward, or any other thing to any * * * grand or petit juror * * * with intent to induce or influence him * * * to execute any of the powers in him vested, or perform any duty of him required, with partiality or favor, or otherwise than is required by law,” etc.

The third section of the Act proceeds to define and punish the offence of attempting or offering to bribe, and provides as follows:

‘' That every person who shall offer or attempt to bribe any * * * grand or petit juror *’ * * in any of the cases mentioned in the preceding sections of this Act * * * shall, on conviction, be' fined in a sum not exceeding one thousand dollars, and suffer imprisonment in the penitentiary for a period not exceeding one year, and shall forever be disqualified from holding any office of honor, trust or profit in this State.”

The information under which defendant was prosecuted, charges the offence in the following terms, viz.: that defendant unlawfully, corruptly and feloniously did offer and attempt to bribe one Thomas J. McOabe, he the said Thomas J. McCabe then and there being regularly drawn and summoned to appear and serve as a tales juror in the cause of the State of Louisiana versus Peter Natali and others, then pending and on trial in Section B of the Criminal District Court for the parish of Orleans aforesaid, and numbered 14,414 of the docket of the said criminal district court, in the manner following, to-wit: that he, the said Thomas P. McCrystol, then and there, well knowing the premises, did unlawfully, corruptly and feloniously offer and promise to give and pay to him, the said Thomas J. Mc-Cabe, a large sum of money, to-wit, the sum of five hundred dollars. with the felonious intent, unlawfully, corruptly and feloniously to induce and influence him, the said Thomas J. McCabe, tales juror as aforesaid,.to perform the duty of him required by law, as a juror in said cause, with partiality and- favor toward the defendants in said cause, and otherwise than is required by law.”

Upon demurrer and on motion in arrest, the defendant assails the sufficiency of the information upon grounds which may be summarized as follows:

1. That the information does not charge the defendant with any crime denounced by law, because the statute only punishes the offence of bribing or attempting to bribe grand or petit jurors, and does not embrace tales jurors

2. That the information does not state |that the defendant was ever impanelled or sworn as a juror to try the cause of State vs. Natali, and that, therefore, he was not charged with any duty in the premises which he could perform “with partiality, or favor, or otherwise than is required by law.”

8. That the information does not set forth any fact or statement of facts with such certainty as to apprise defendant of the nature and cause of the accusation which he is calldd upon to answer. ■

I.

We have given close attention to the able and learned oral and written arguments advanced by the counsel of defendant in support of the proposition that tales jurors are not embraced within the terms grand or petit juror ” employed in the statute.

We admit the cardinal rule that penal statutes are to be strictly construed, and are not to be extended to cases not included within the clear and obvious import of their language; but this rule is not to be applied with such unreasonable and technical strictness as to defeat the very purpose of all rules of construction, which is to ascertain the true meaning and intent of the statute. We are not to invent doubts or magnify'quibbles, but are diligently to seek the legislative intent, as expressed in the words of the statute, aided by all other rules of interpretation, and when satisfied beyond all reasonable doubt of what that intent really is, it is our duty to apply and enforce it.

In the language of the Supreme Court of the United States: “ We are not unmindful that penal laws are to be construed strictly. It is said that this rule is almost as old as construction itself. But whenever invoked it comes attended with qualifications and other rules no less important. It is by the light which each contributes that the judgment of the court is to be made up. The object in construing penal, as well as other statutes, is to ascertain the legislative intent. That constitutes the law. • If the language be clear, it is conclusive. There can be no construction where there is nothing to construe. The words must not be narrowed to the exclusion of what the Legislature intended to embrace; bub that intention must be gathered from the words, and they must be such as to leave no room for a reasonable doubt upon the subject. It must not be defeated by a forced and over-strict construction. The rule does not exclude the application of common sense to the terms made use of in the act, in order to avoid an absurdity, which the Legislature ought not to be presumed to have intended. When the words are general, and include various classes of persons, there is no authority which would justify a court in restricting them to one class and excluding others, where the purpose of the statute is alike applicable to all.. The proper course in all cases is to adopt that sense of the ¡words which best harmonizes with the context, and promotes in the fullest manner the policy and objects of the Legislature.” Hartwell’s Case, 6 Wall. 395; see to same effect: Com. vs. Inter. Liquors, 108 Mass. 21; Sedgwick’s Stat. and Const. Law, pp. 282-289.

Nothing could be clearer to our minds than that the terms “grand or petit juror ’ ’ employed in the statute, embraces, and were intended to embrace, tales jurors as well as regular jurors.

The-law under which tales jurors are provided in the parish of Orleans, is Act 138, of 1877, E. S., which provides “that whenever ou the trial of any criminal case in the parish of Orleans, where the accused is charged .with a felonious crime, the regular panel of jurors for the term has been exhausted and the jury in the case on trial is not complete, or when, in the opinion of the judge, in the case fixed for trial talesmen are or will be required to complete the jury, the judge shall enter an order on the minutes directing the criminal sheriff, or one of his deputies,' to draw such number of tales jurors as in the opinion of the court may be necessary to complete the jury, from the jury wheel containing the jurymen drawn by the jury commissioners, and hereafter ho tales jurymen shall be drawn from the bystanders in cases where the accused is charged with a felony.”

It is impossible to make any distinction, in the nature of their functions, between tales jurors thus drawn and the jurors of the regular panel. Both are jurors drawn and summoned for the sole purpose of forming a petit jury and serving as petit jurors.

In the narrowest and most literal definition of the word juror, it means “ a man who is sworn or affirmed to serve on a jury.” Bouvier, L. D., verbo, Juror.

In this sense, no one would be either a grand or petit juror until he was actually impanelled and sworn.

But all the statutes of the State and law writers universally apply the term juror to persons selected and summoned according to law for the purpose of serving as grand or petit jurors, whether they have been actually -impanelled and sworn or not.

Therefore, all persons who are lawfully selected and summoned to -serve as jurors are, in legal terminology, called jurors, and they are ■called grand or petit jurors according to the function they are intended to perform. In the cáse of the regular venire, after the grand jury has been selected, the remaining members are petit jurors, because they are held for the purpose of forming petit juries; and all tales jurors are petit jurors, because they are for no other purpose than to serve on a petit jury.

There is a distinction between regular jurors and tales jurors; but both regular ánd tales jurors are, in the sense of the law, -petit jurors when they are selected and summoned to serve on a petit jury. When such a jury is formed it is none the less a petit jury, because .it is composed of tales jurors, nor are the latter any less petit jurors because they were summoned as talesmen.

The purpose of the statute is equally applicable to tales or regular jurors, and it would attribute fatuity to the Legislature to suppose that it would punish the bribery of one class and not of the other. We are perfectly satisfied that the terms “grand or petit juror” •embrace all persons lawfully selected and summoned to serve on grand or petit juries, and hence that defendant’s case is covered by the indictment.

II.

What we have said above goes far toward disposing of the second 'objection; for we hold that the statute applies to jurors who have been selected and summoned, whether or not they have been impanelled and sworn. When thus summoned, the juror was fully charged with the-duty of performing all the functions of a juror which he-might be called on to perform, and to discharge those functions-without partiality or favor in the manner required by law. Theoffence of bribing, or attempting to bribe, him, “with the intent to-induce or influence ” him to violate that duty, is the offence denounced by the statute, and is not the less committed because the-accidents of the trial prevented him from actually serving on the jury in the case. A contrary construction would rob the statute of practical effect, because the opportunity to bribe is lost, or greatly limited, after the juror is impanelled, and subjected to the seclusion attending juries in capital cases.

The briber must get in his work while the jurors selected a-re accessible, and before they have been impanelled.

The case is governed by like considerations with those approved b3r us in the case of State vs. Tisdale, 41 An. 338.

III.

The information sets forth the offence in the substantial words of' the statute. It specifies the nature of the offer to bribe a named juror by promising to give him the sum of. $500, and the object, viz.: to induce him to favor the defendant in the particular cause in which he was summoned, by performing his functions as a juror with favor- and partiality towards him.

We fail to see any lack of certainty in the charge, or any failure-to apprise-defendant fully of the nature and scope of the accusation he had to meet.

Other points presented in the record have been waived.

Judgment affirmed.