text:
    No. 11,874.
    State of Louisiana vs. John Jones et al.
    It is not permissible for a trial judge to require the testimony intended to establish the basis for the introduction of dying declarations in evidence to be reduced to writing, in case there is no disagreement between him and defendant’s counsel as to what that testimony is.
    To render dying declarations admissible in evidence it is only necessary to show, preliminarily, that they were made under a sense of impending dissolution, which soon thereafter occurred.
    A declaration of a party accused, made previous to the homicidal assault, does not come under the operation of the rule that requires a basis to be laid for its introduction. It Is alone applicable to proof offered by an accused of communicated threats made by the deceased. Such previous declarations of the party accused are admissible for the purpose of showing animus, or malicious intent.
    The fact of a confession having been made under excitement, and while in a state of great nervousness, does not deprive it of the character of a voluntary statement. Nor is it deprived of that ch iracter solely for the reason that it was made to the jailor while he was in close confinement.
    It is not competent for an accused to show, upon cross-examination of the jailor as a State witness, that he had, at different times, several days subsequent to the making of the confession, made contrary statements. They are self-serving declarations, and do not fall within the category of res gestee.

    Notwithstanding all witnesses pro and con are placed under rule and removed from the court room during the introduction of the testimony, it may be permissible for the judge to allow a person who was present and heard the testimony of others, to testify in case he is satisfied that the evidence of such person was made known, on the spur of the moment, to the party offering him, provided no fraud is intended, and no injury is suffered by the adverse party.
    APPEAL from the Tenth Judicial District Court for the Parish of Avoyelles. Coco, J.

      M. J. Cunningham, Attorney General, and Phanor Breazeale, Dis trict Attorney, for Plaintiff, Appellee.

      Joffrion & Joffrion and A. J. Lafargue for Defendants, Appellants.
    Submitted on briefs November 9, 1895.
    Opinion handed down November 18, 1895.
   The opinion of the court was delivered by

Watkins, J.

From an unqualified verdict, on an indictment for murder, and sentence of death, the two defendants — John Jones and Henry Simmons — prosecute this appeal, relying on several bills of exceptions which they reserved during the progress of the trial.

I.

As it is officially stated by the trial judge in his assignment of reasons for his rulings, that bills of exception one to six, inclusive, being reserved by counsel representing the defendant John Jones, and not by counsel representing Henry Simmons, the testimony adduced and about which controversy arose — the dying declarations of James K. Bond, deceased — had no application to the last named person; and that the subjects matter of same were germane, and therefore considered them together, we will follow the precedent and do likewise.

In bill number one the statement is made that objection was urged to the admissibility of the testimony of a State’s witness introduced for the purpose of laying the basis for the introduction of the dying declarations of James K. Bond, who is designated in the indictment as the party who was murdered by the defendants; and the judge was requested to allow the defendant to have same reduced to writing, and reserved objection to his refusal to do so.

The remaining five of the same series are of the same tenor.

The judge says:

“ It will be noticed that these bills, two, four and six, contain the facts quoted by counsel themselves, and that portion of the evidence relating to the basis is embraced within quotation marks (“-”) made by counsel.

“This is as true and authentic evidence as the court can require, upon the question of proper foundation. The court is therefore in possession of the facts quoad these bills, and the simple question remains as to whether the court acted properly in admitting the dying declaration.”

He further says in relation to bills one, three and five:

'“ If I understand correctly the doctrine established in 41 An. 143, it is only when there exists a disagreement between counsel and the court as to what the evidence is, that the court should have it trans-scribed by the clerk. When there exists no such disagreement as in the present case, it is a vain and useless consumption of time, which the court should not require.

“ Doubtless counsel took the evidence down as it fell from the lips of the witnesses, as the evidence which he transcribes in his bills of exception is identical with that appearing upon the notes which I kept of the testimony.”

And as if to more fully show that he acted upon the evidence of those witnesses, he says further, that it, “ in connection with the physical facts and circumstances which surrounded the case, satisfied me that the dying declaration of the deceased was made while he was in the full possession of his mental faculties, and under consciousness that he had but a very short time to live.” ■

We have examined with care the case cited by the court, and the decision upon which counsel for the defendant, Jones, evidently relies, State vs. Seiley, 41 An. 143, and find that it substantially bears out the conclusion of the trial judge, for it says:

“We have, on the partof defendant, a demand that the testimony of witnesses on this collateral issue be reduced to writing as detailed to them, for the express purpose of bringing it up for review on appeal, in order to have a question of law determined.

“We have, on the part of the trial judge, a distinct and emphatic refusal of the defendant’s request, because his counsel had enjoyed the opportunity of having them incorporated in a bill of exceptions .

“The judge did not rest his conclusions on the adequacy of that statement, but at once proceeded to make a different version of the facts, and rested his conclusions upon it. In so doing he clearly demonstrated the fact that, if the defendant’s counsel did have ample opportunity to incorporate the facts in a bill of exceptions, it was, at the same time, rendered invaluable to him by his own, possessing as it does the weight of his authoritative sanction.

“ Under this state of facts the accused appears in this court, practically deprived of the evidence on which he solely depends, and is necessitated to rely upon that to which the judge has certified.”

But how widely differentia the situation of this case. The defendant’s counsel embodies in his bill of exceptions the testimony of which he makes complaint; and the judge accepts his statement, and says it corresponds exactly with the notes of evidence he made during the progress of the trial. State vs. McCarthy, 44 An. 323; State vs. Nash and Barnett, 46 An. 194.

It is quite impossible to see in what manner the defendant has been injured by the judge’s declination to permit the evidence to be reduced to writing and incorporated in the transcripts. He has had, and will have, the full benefit of it in this court.

But, as we understand counsel’s argument, he complains that at the time the objection was urged and the ruling was made no evidence had been introduced, and that, under the decision, in the Seiley case, he had a legal right to have the evidence reduced to writing, and that we must take up the bills of exception seriatim and decide them in their order; and that proceeding in that order, we must hold the judge’s ruling erroneous.

But we must take the case as we find it, and we find all the bills of exception occurring in rotation, with but one answer of the judge to all of them.

Presumably all of them^were filed at the same time, and examined by the judge and decided at the same time. Indeed, they all bear the same date of filing, June 3, 1895, and that date is contemporaneous with the judge’s ruling.

Conceding counsel’s right to have had the bills signed and the judge’s reasons assigned, at the dates of his rulings, yet we can not doubt the judge’s authority to act as he did under the circumstances related; and, considering them, we feel it to be our duty to decide accordingly.

As the defendant has had the full benefit of the testimony he relied upon, we are not justified in vacating his ruling’.

II.

The substance of the testimony which appertains to the admissibility of the dying declarations, as shown by the defendant’s bills of exceptions two, four and six, is that an offer was made to send for a doctor, and the deceased’replied that “ There is no use; I’ll be dead before he gets here;” and that he soon after died — that is to say, within an hour.

The question is, therefore, whether statements made by the deceased concerning defendant Jones’ complicity in his homicide, at the time, is competent evidence against him.

In State vs. Keenan, 38 An. 660, this court said: “Dying declarations are those made under a consciousness of impending death, which, however, the defendant need not express in direct terms. His bodily condition and appearance, his conduct and language, as well as statements made to him by his attendants, may be considered, and his consciousness thence inferred. State vs. Scott, 12 An. 274.

“We do not conceive it to have been necessary that the deceased should have said that he believed he would die immediately, but regard it sufficient, if the facts detailed were such as to indicate that the deceased was conscious, at the time of making his declaration, of his approaching dissolution.

“ To render such declarations receivable in evidence, the deceased need not have been, at the time, in articulo mortis. It was only necessary that same should have been made under a sense of impending dissolution which soon thereafter occurred.

“To this sense of approaching death the law attaches the solemnity of an oath, and impresses upon'a statement under it the character of evidence.” Vide State vs. Judge Spencer, 30 An. 365; State vs. Daniel, 31 An. 95; State vs. Trivos, 32 An. 1086; State vs. Molisse, 36 An. 920; State vs. Newhouse, 39 An. 862; Wharton’s Crim. Ev., Sec. 282.

We are of opinion that the evidence quoted fulfils the conditions requisite to the admissibility of the declarations of the deceased, in evidence, as dying declarations.

But defendant’s counsel further insists that there is nothing in the record to show that the statements of the deceased were contemporaneously made. It is evident to our minds that the statement itself furnishes complete evidence of that fact, for it was made during the hour that intervened between the homicidal assault and his death.

III.

The district attorney having introduced a witness and proposed to prove by him certain alleged admissions of the defendant, Jones, his counsel moved the court to have the testimony reduced to writing, on the ground that it was necessary that a basis should be first laid for its introduction; and this request having been refused by the judge, he retained bill of exceptions number seven. And when, thereafter, the district attorney proceeded to interrogate said witness with regard to the defendant Jones’ admission, his counsel urged the further objection that the testimony was inadmissible, until a sufficient and proper basis had been first laid, and this objection having been overruled by the judge, he retained the bill of exceptions number eight.

As in the previous instance, the judge coupled these two bills together in making the assignment of his reasons; and; thereto, he appended the substance of the witness’ statement.

It is to the effect that Jones said to the witness previous to the homicide, on an occasion when the deceased was passing by, that deceased did not like him, and that he did not like deceased, “ and this parish is too small for us both.”

The judge then states:

“The evidence was taken down by the court, and not by the clerk, as requested by counsel. There was no question of foundation for the admission of such evidence. It was a fact like any other that stood independent and alone, forming only a link in the chain of evidence. As a declaration made before the homicide, it could be admitted to show motive only, and as such it was admissible.

“Now, if the case had resulted differently, and Bond had killed Jones instead of Jones having killed Bond, and such evidence had been offered as communicated threats, it would have been necessary to show a hostile demonstration as a condition precedent to the admissibility of such threats, but as antecedent declarations show animus, they need no foundation to rest on.”

Our learned brother of the lower court has so completely and succinctly defined the legal principle involved in the two bills of exception that there is absolutely nothing further to add, and we approve of his ruling unqualifiedly. There is nothing in the Seiley case which is applicable to the issue raised. There is no question of law raised and to be decided by this court. The two bills present simply a question of the admissibility of evidence appertaining to the motive of the accused; i. e., his premeditation or malice aforethought. It was clearly within the province of the jury to decide that question and not for the court.

IV.

As bill of exceptions number thirteen, which was reserved by the counsel for defendant, Simmons, relates to the same subject matter, it may as well be disposed of in this connection.

He objected to the statement of a State’s witness, for reasons similar to those urged by counsel for Jones, and for like reason the court overruled it.

The statement of the witness was as follows, viz.:

“Henry Simmons told me on the day previous to the killing that he had a difficulty with the deceased. He said that the deceased had collared' him, Simmons. He said that no man could collar him and live. (That) the parish was not big enough for both.”

The judge assigned as his reason for denying defendant’s application, that “ the above were antecedent declarations, and were admitted to show motive only. No foundation was necessary to their introduction, and therefore there was nothing to open a note of evidence for. I refer to my reasons to bills 7 and 8, as applicable here.”

■For the reasons we have already assigned, we think the trial judge decided correctly, and his rulin? is approved.

Bill of exceptions number nine was reserved by the counsel of defendant, Simmons, to the admission of the testimony of a State’s witness, with regard to an alleged confession which was made by Simmons while he was in jail, “it not appearing that the confession was free and voluntary, and admissible in evidence;” and counsel for defendant moved the court to have the testimony as to the admissibility of the confession reduced to writing.

The judge states that there was no conflict between counsel and himself as to the facts testified to by the witness, referring to the testimony that is appended to bill of exceptions number ten.

Bill of exceptions number ten was reserved by counsel for defendant, Simmons, to the ruling of the judge in admitting the testimony of the aforesaid witness, on the ground that said alleged confession “ was made under circumstances of great; excitement and nervousness (when) accused was not in a proper (frame) of mind to make a free and voluntary confession.”

It appears that the witness was the jailor, and, as such, had the accused in his custody.

His statement is as follows, viz.:

“A day or two after they were in jail Simmons made a confession to him, without offering any inducement or makingj]any threat to him. He was in a cell with other prisoners, and was not chained or bound in any way. The accused looked greatly excited and very nervous, but that was due to no offer of violence or threats from any source whatever, as I was at the time the only one in jail, and unarmed.

$i< ^ ‡ ‡ ^ ‡

“He told me that he had fired the first shot, but had missed Bond and John Jones had killed him.’'”

The judge says qf this statement that it satisfied his mind “that the confession was voluntary and free, and not superinduced by undue influence,” and he admitted it with respect to Simmons only.

It is manifest that the confession of Simmons was voluntary, and uninfluenced by any threat or duress of any kind; and it was clearly admissible.

VI.

Bill of exceptions number eleven relates the circumstances of the judge’s declination to permit the defendant, Simmons, to prove different statements he had made with regard to the homicide, at variance with the statements of the jailer — his objection being that it was but the supplement of the alleged confession, and explanatory thereof.

The judge says he did not decline to hear the statement, but that the witness was permitted to make answer to the question propounded, and that his answer was as follows, viz.: “Yes; he (Simmons) did, some eight or ten days after this confession, make other statements tome;” and that thereupon the district attorney objected to these statements being admitted “ because they were self-serving declarations.”

He states that, iu his opinion, this objection was well grounded; but he says that “if these declarations had been made at the time that the confession was made, then they should have been admitted as part of said confession; but having been made long subsequent thereto they were clearly objectionable, and they were, therefore, excluded.”

In is quite evident that these statements constituted no part of the confession, and are inadmissible as part of the res gestee.

The judge’s reasons are conclusive.

VII.

Bill of exceptions number twelve appertains bo the testimony of a witness for the State who was introduced and testified in rebuttal, and contradicted the statement of the accused on an important and material point.

The contention of the defendant is that all the witnesses — those for the State as well as those for the accused — had been by order of the court marshaled and put under rule, and removed from the court house during the introduction of the evidence, and that witness whose testimony was objected to was present and heard all the testimony, and should not have been permitted to testify. The judge states that it appeared from the evidence, as well as the proceedings, that this person had not been summoned or named as a witness at the time of the marshaling of the witnesses, and he was not, consequently, placed under rule. That the district attorney had made the discovery, on the spur of the moment, that he could contradict the statement of the accused by this person, and that he thought it legal and proper, under this state of facts, for him to give his testimony.

Counsel for the accused have cited no authority in support of that contention; indeed they admit that “the facts are different from any previously passed upon.” They further say in their brief that “ we do not dispute the discretionary right of the court to exclude or not witnesses from the court room; but when the order has been given, it is fatal error to permit a witness who has heard all the witnesses to testify.”

That may be perfectly true; but it does not cover this case — the witness having been discovered after the testimony had been administered.

In State vs. Hagan, 45 An. 839, it was held to be “a question for the lower court, whether the conduct of a witness in remaining in court in violation of an order directing the separation of the witnesses, is ground for a new trial;” and it seems logical that it should be equally within the discretion of the lower court whether he could legally testify. The question is one which appertains, principally, to the regimen of the court, and to disobedience of its orders. If, as in this case, no fraud has been attempted, no injury has been suffered, and no disrespect intended, by the witness or the party introducing him, there is no apparent disqualification of the witness.

The trial judge exercised his sound judicial discretion in the premises, and we are not prepared, from anything that appears in the record, to say that he exercised it unwarrantably or arbitrarily.

This completes the examination of all the bills of exception, and we feel constrained to say that not one of them has been well taken, and we must affirm the correctness of the verdict and judgment defendants have appealed from.

Judgment affirmed.


source: Caselaw Access Project

author: McEnery, J.

license: Public Domain

text:
    No. 11,889.
    State of Louisiana ex rel. R. F. Hogsett, Sr., vs. J. H. Patin, Justice of the Peace First Justice Court of the Sixth Ward for the Parish of Iberia.
    In the exercise of the supervisory jurisdiction of the Supreme Court, when the proceedings in the lower court have been regular, the judgment will not be disturbed or reviewed because of the want of or the insufficiency of the evidence to sustain it.
    ^PPLICATION for Writs of Certiorari and Prohibition.

      Foster & Broussard for Relator.

      W. J. McCall for Respondent.
    Submitted on briefs November 4, 1895.
    Opinion handed down November 18, 1895.
    On Application for Writs óf Certiorari and Prohibition.
   The opinion of the court was delivered by

McEnery, J.

This proceeding invokes the supervisory jurisdiction of this court to annul a judgment in the court of the respondent magistrate for three dollars.

The complaint is that there was no evidence introduced by plaintiff to sustain his demand.

The record discloses that the case was regularly called for trial, the plaintiff and defendant both represented by counsel; the" case tried, argued by counsel and submitted. The record appears to be regular, and there is nothing in the record that calls for the exercise-of the supervisory jurisdiction of this court. State ex rel. Kramer vs. The Judges of the Parish Court of St. Tammany, 32 An. 219; State ex rel. Gooch vs. Robinson, 38 An. 969; State ex rel. Chandler vs. Judge, 43 An. 825; State of Louisiana ex rel. James A. Manning vs. Sherrard, Judge, 47 An. 1085.

The relief prayed for is denied and the rule granted discharged and the provisional writs issued vacated, the relator to pay costs.


text:
    No. 11,846.
    Mrs. E. M. Hudson and Husband vs. I. Garrett, Sheriff, et als.
    When an extension oí time has been granted to file the transcript, and the return day fixed, no days of grace are allowed.
    For informalities or irregularities in bringing up the appeal, the motion to dismiss must be filed within three days after the transcript has been filed; but for a failure to file the transcript, which presumes an abandonment^ the appeal, the motion can be filed at any time after the filing of the transcript.
    A PPEAL from the Fifth Judicial District Court for the Parish of Ouachita. Richardson, J.

      Boatner, Potts & Hudson for Plaintiff, Appellant.

      Henry Denis, O. F. Madison and E. T. Lamlein of Counsel for Citizens Bank of Louisiana, Defendant, Appellee.
    Argued and submitted November 9, 1895.
    Opinion handed down November 18, 1895.
    On the Motion to Dismiss.
   The opinion of the court was delivered by

McEnery, J.

The motion to dismiss the appeal is based upon the ground that the transcript was not filed within the legal delay.

On the application of the appellant the return day for filing the transcript was extended until the 20th day of May, 1895. It was filed on the 22d day of May, 1895, two days after the date fixed by the court for the filing of the transcript.

The law does not give any days of grace to the extended return day. Bienvenu vs. Factors and Traders’ Insurance Company, 28 An. 901; Cane vs. Caldwell & Kahn, 28 An. 790; Heller vs. Lochte & Cordes, 28 An. 45; Sun Mutual Insurance Company vs. Tom Bynum et al., 32 An. 28; Succession of Quin, 37 An. 391; Von Hoven vs. Von Hoven and Husband, 43 An. 1170; Archer vs. Gonsoulin, 46 An. 141.

The motion to dismiss was filed on the 7th June, 1895 — more than three days after the transcript was filed. The appellant contends that the motion was filed too late. The motion to dismiss is not based on any informalities or irregularities in bringing up the appeal, which would require the motion to be filed within three days; but it is based on the fact that the transcript was not filed in time, the presumption being that the appellant, failing to file it in time, had abandoned his appeal. In such a case the motion can be filed at any time. Dwight vs. McMillan, 4 An. 350; McDonogh vs. DeGruys, 10 An. 76.

The appeal is dismissed.


author: Breaux, J.

text:
    No. 11,909.
    State of Louisiana vs. Humphrey Means.

      Secondary Evidence. — The forged and altered instrument of writing was lost; the fact of loss was established to the satisfaction of the trial judge. The evidence noted in the bill of exception shows that the ruling was correct.

      Duplicity. — The charge of duplicity in the indictment must be timely urged and the ground correctly stated.

      Bill of Exceptions Signed. — A bill signed will receive the consideration of the court, although the trial judge adds as part of his note in the bill that it was not presented indue time and contradictorily with plaintiff’s counsel in compliance with the court’s rule.

      Insufficiency of the Indictment. — The forgery charged, and altering, were not alleged with the required certainty. The extent and character of the altering were not shown; whether the figures (it is alleged) were forged were of a material character, or merely marginal; whether the writing expressed was forged or only the figures.
    APPEAL from the Second Judicial District Court for the Parish of Bossier. Watkins, J.

      M. J. Cunningham, Attorney General, and A. J. Murff, District Attorney, for Plaintiff, Appellee.

      J. A. W. Lowry for Defendant, Appellant.
    Submitted on briefs November 9, 1895.
    Opinion handed down November 18, 1895.
   The opinion of the court was delivered by

Breaux, J.

The defendant was indicted for forgery. In each count the indictment sets forth that he did “ forge and utter ” a certain order on S. N. Arnold to pay to Humphrey Means the sum of two dollars and seventy-five cents ($2.75), signed by W. O. Vance, so as to change the amount of money to be paid in the order to the amount of twenty-nine dollars and seventy-five cents, by inserting the figure nine after the figure two and between it and the figure seventy-five, so as to make it read twenty-nine dollars and seventy-five cents instead of two dollars and seventy-five cents, with interest.

The indictment, on motion of the District Attorney, was amended by substituting the “name of Mrs. T. S. Arnold for that of S. N. Arnold, and adding per R. O. Stinson after the words W. O. Vance, making the forged and altered paper set out in the indictment to read: “A certain paper and order on Mrs. T. S. Arnold to pay Humphrey Means the sum of two dollars and seventy-five cents ($2.75), signed by W. O. Vance, per R. O. Stinson, so as to make and change the amount of money to be paid in the order to the amount of twenty-nine dollars and seventy-five cents ($29.75), inserting the figure nine after the figure two and between it and the figure seventy-five, so as to make it read twenty-nine dollars and seventy-five cents ($29.75), with interest, to defraud Mrs. T. S. Arnold and W. O. Vance & Co.”

As we understand the forgery charged was committed by inserting the figure 9.

The defendant was tried and convicted of forgery, from which he appeals.

He, during the trial, excepted to the ruling of the court and interposed a motion in arrest of judgment.

By the first bill of exception it is shown that the prosecuting officer offered to prove by parol the contents of the instrument for the forgery of which the defendant was being tried.

The defendant, by counsel, objected to parol proof of the order, on the ground that proper foundation to prove loss of the instrument had not been laid.

. The court overruled the objection and gave for reason that the instrument was lost.

The facts upon which the court based the ruling are set forth as part of the bill of exception and sustain the correctness of the ruling.

The second bill of exception sets forth two grounds of exception.

1. “A defendant can not be charged in one and the same count of a bill of indictment for forgery with altering an instrument and with causing the same to be altered.”

2. “ That when both figures and written words are used to express the amount to be paid on an order, the written words expressing the amount to be paid govern and make the order, and the figures are not material, and in such case forgery is not committed by altering the figures only of such an instrument as shown to the jury.”

Which said special charges were refused by the court on the following grounds, to-wit:

“The recollection of the court is that the special charges asked were substantially charged. There was no charge in writing and the notes of the bill have been laid aside and misplaced, as the rules of the court require all bills of exception to be submitted to the opposing counsel and the court within two days, which was not done. After the lapse of time and the great number of cases tried since this one, the court is not clear as to whether the statement made above by the counsel for defendant is true or not.”

The motion in arrest of judgment reiterates the grounds, upon which the bills of exception were taken.

The first ground of the bill is not sustained by the facts; the accused was not charged with causing the order to be altered. If he had, it would not have been duplicity in pleading. Bishop, Vol. 1, par. 435; Crim. Pro., Archbold, Vol. 2, p. 810.

Moreover, the plea of duplicity (if there was duplicity, in regard to which we express no opinion, as there is no necessity) was not timely urged.

Mr. Wharton says: “The better view is that it can not be made the subject of a motion in arrest of judgment.” Crim. Law, 7 Ed., par. 395.

To constitute a charge of alteration and forgery of an instrument it must be averred that it was altered in a material part. It does not appear with certainty whether the alteration was of a material part.

Of course, if the accused feloniously forged and altered the figures 2.75 so as to make them read 29.75 by adding 9 to a material part of the order, he is guilty of forgery; in other words, if there was no writing of the amount, and if the order read, pay 2.75, and was thus altered, it is forgery. But if the 2.75 was merely marginal, or in character marginal, as relates to a writing of the amount, it was not forgery. Bishop Cr. Pr., par 407.

The learned and careful Attorney General and the District Attorney, in the brief, are of the impression that the indictment and the amendment set forth sufficiently that both figures and the writing were altered.

We do not so read the indictment and the amendment. While there was no necessity, as the order in question was lost, to set it forth in the indictment in hsec verba (the substance suffices), it is obvious that it should have been averred that the writing was altered, if such was the fact.

As there is no question of prescription, and the accused will have to answer for any offence he may have committed, we have determined to quash the indictment and set aside the verdict and annul the judgment.

It is therefore ordered, adjudged and decreed that the judgment and sentence appealed from be annulled, the verdict of the jury set aside and the indictment quashed, and that the defendant be remanded in custody, subject to the orders of the District Court of the parish of Bossier.


author: Miller, J.

text:
    No. 11,806.
    John Calder & Co. and D. R. Calder vs. Their Creditors.
    The opposition to a syndic’s account requires proof of their debts from the creditors whose debts are opposed.
    That proof is not afforded merely by the insolvents’ books nor by testimony as to entries in them, not binding as against the creditors of the insolvent.
    Where it is apparent the proof exists material to the issue, but not furnished from misapprehension or other cause not implying any deslga to withhold the proof, or gross neglect on the part of the litigant, in such eases, in furtherance of justice, the court, reluctant to dispose of the controversy on an imperfect, record, will remand the cause. 8 Martin, 170; 6N. S. 603; 16 La. 477; 1 H. D. p. 94, No. 1.

      APPEAL from the Civil District for the Parish of Orleans. King, J.

      Horace E. TJpton, Henry L. Lazarus, E. N. Pugh, Samuel L. Gilmore for Syndics and others, Appellants.

      W. S. Benedict for J. &. M. Schwabacher, Opponents and Appellees.

      Frank L. Richardson and Philip H. 'Mentz for Patont & Patout, Victor Bolis, Walter S. Tonan and others, Creditors, Appellants.
    Argued and submitted November 6, 1895.
    Opinion handed down November 18, 1895.
   The opinion of the court was delivered by

Miller, J.

From the judgment of the lower court maintaining the opposition of various creditors to the amounts awarded to others on the account of the syndics-, this appeal is prosecuted by the syndics and the creditors whose claims were disallowed.

It is a familiar rule that an opposition to the account of a syndic or administrator puts the burden on the party whose debt is opposed to sustain it by proof, and neither the admission or books of the insolvent alone will make proof against creditors. Lemos vs. Duralde, 3 Martin N. S. 258; Lafon’s Heirs vs. His Executors, 3 Martin N. S. 707; Boissier’s Syndics vs. Belair et al., 1 Martin N. S. 481. The testimony in this case to meet,the opposition was that of the syndic and his clerk, and neither had any knowledge of the claims they were called on to prove except that derived from the books. Again, the witness, with no personal knowledge, but who speaks only from the entries in commercial books, has no knowledge that qualifies him to prove the debt. See White vs. Wilkinson, 12 An. 360.

These appellees are, as we infer, mainly planters whose alleged debts grew out of the shipment of their crops to the insolvent's, their factors. The debts claimed are on their books, and on the account of the syndic. The account is supported by his oath required by the rule of the District Courts. We can not accept the books or testimony as to their contents unaided by any other evidence, as proof against an opposition exacting, legal proof. Nor can we give greater effect to the syndic’s oath. But the record is forcibly suggestive that the appellants are creditors, who, placing undue reliance on the syndic’s affidavit and his statements and that of his clerk as a witness, have not administered the proof they could have produced. We are reluctant to dispose of the controversy finally, in this condition of the record and affirm a judgment which gives to the opponents a larger share of the fund than it is morally certain would accrue to them if the record contained the proof, the existence of which it indicates. We think justice requires the ease should be remanded.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, and the cause is remanded to be proceeded with in accordance with the opinion herein, and that appellees pay costs.


author: Nicholls, C. J.

text:
    No. 11,869.
    The State of Louisiana vs. Louis Martin, alias Bull Martin.
    1. Tlie rejection, on cross-examination, of a State witness, of questions propounded to liim to bring out (as part of a conversation to which witness had referred in his direct examination), certain statements which it was assumed had been made by the accused to the witness, is not a ground of complaint when these statements have gone to the jury through the testimony of this same witness, when on the stand in rebuttal, and also through the testimony of another witness.
    2. When instructions given by the judge to the jury correctly and fully state the law, it would be worse than useless to give additional special charges to them on points accurately covered. A multiplicity of charges only tends to confuse them.
    APPEAL from the Criminal District Court for the Parish of Orleans. Ferguson, J.

      W. J. Cunningham, Attorney General, and Charles A. Butler, District Attorney, for Appellee.

      II. C. Prevost and James C. Walker for Defendant, Appellant.
    Submitted on briefs November 9, 1895.
    Opinion handed down November 18, 1895.

      Defendant was indicted and tried on the charge of having killed and murdered one Ella Speed, and having been convicted of manslaughter and sentenced to the penitentiary, he has appealed.
    The questions submitted to the court are set out in the bills of exception.
    The first bill states that “on the trial of the ease Captain John Journee, of the police force, a witness for the State, having testified in answer to questions propounded by the District Attorney that on the following morning (the morning after the killing) the accused and Toney Martini called at his house, and Martini said: ‘ Here is Martin to surrender; ’ that after he dressed himself he immediately proceeded with him to the Third Precinct Station and locked him up;” the District Attorney then said to the witness: “He was not arrested, but surrendered to you on the following morning between 6 and 7 o’clock, at your house?” and the witness having answered “Yes,” the witness was then turned over to the defendant’s counsel, who propounded to him the following question: “You have told us part óf that conversation, now tell us all of it; ” but the question was not permitted to be answered, on the objection made by the District Attorney that what was said by the accused to the witness twenty-four hours after the alleged crime, being self-serving declarations, was inadmissible and irrelevant.
    • That prior to ruling upon the objection the judge required the jury to retire, and the jury having retired, the judge asked counsel of defendant the purpose of his propounding the question, and in answer thereto, counsel out of the presence of the jury stated, that part of the conversation sought to be elicited was to the effect that when Martini made the statement to Journee. “ Here is Louis Martin, he has come to surrender,” Louis Martin thereupon informed Journee as to the particulars of the accident, resulting in the death of Ella Speed; that Louis Martin stated to Journee that during the morning of the 3d of September deceased in some way got possession of his loaded pistol without his knowledge, and that he, Martin, in his effort to get back the pistol from her, and to keep her from any harm to herself, tried to take it away from her, and in the scuffle and struggle between the two for the possession of the pistol, it was accidentally discharged, and caused the death of Ella Speed. That all this took place as part of the same conversation between Martini, Journee and Martin at the time of the surrender referred to by Journee in his testimony; that said conversation took place on the 4th September, the day following the death of Ella Speed.”
    The District Court assigned as the reason for its ruling that “ the witness was asked to state what was said to him by the accused twenty-four hours after the commission of the alleged crime. It was not part of the alleged crime. It was not a confession. It was a declaration made by a defendant in his own favor which was sought to be introduced. It was a self-serving declaration. The accused could, and in fact did, subsequently swear to the facts attempted to be elicited from the witness Journee.”
    “That Journee testified in rebuttal and was asked to repeat the statement made to him by the accused at the time of his surrender to him, Journee — Journee acting at that time as Chief of Police. That no objection was made to the question and the witness gave to the jury the statement of the defendant relative to the killing; that Journee testified that this was the same conversation or statement that the attorney of defendant asked about when he was stopped by an objection by the State; that a witness for the defendant (Martini) testified relative to the same statement, as the whole would appear by their testimony annexed as part of the bill of exception; that the accused succeeded in getting the said evidence before the jury repeatedly and defendant was not prejudiced by the ruling.”
    The second bill states that the court refused to make, at the request of defendant’s counsel, the following special charge :
    “ If the jury are satisfied, after considering all of the evidence, that there is a probability of defendant’s innocence, the court charges that such probability of innocence is a just foundation for a reasonable doubt of his guilt and therefore for his acquittal.”
    The District Court refused this charge because it had charged the jury fully as to a reasonable doubt, and besides its general charges had, by request, made a special charge to the jury on the same subject. That it had instructed the jury “that the jury may be said to entertain a reasonable doubt when, after the entire comparison and consideration of all the evidence, they can say that they feel an abiding conviction to a moral certainty of the truth of the charge. That proof beyond reasonable doubt is such proof as precludes every reasonable hypothesis, except that which it tends to support. It is proof to a moral certainty as distinguished from an absolute certainty. That the two phrases, proof beyond a reasonable doubt and proof to a moral certainty are synonymous and equivalent. Each signifies such proof as satisfies the judgment of the jury as reasonable men and applying their reason to the evidence before them that ■ the crime charged has been committed by the defendant, and so satisfies them as to leave no other reasonable conclusion possible.”
    And further, that “the charge requested to be given, which was refused, was absolutely inconsistent and irreconcilable with the special charges given, and practically required the court to determine what evidence was sufficient to constitute a reasonable doubt — that the charge requested would, if given, have invaded the province of the jury.”
   The opinion of the court was delivered by

Nicholls, C. J.

Defendant took no exception either to the general or to the special charges given to the jury, and we assume he was satisfied with them as containing correct enunciatious of the law. His only complaint is that the court did not make the special charge which he requested should be made. When the charge actually made correctly and fully states the law, it would be worse than useless to have additional special charges on points already accurately covered. A multiplicity of charges only tends to confuse the jury. We think the charges given by the court more fully protected the accused than did the special charges requested.

We see no good ground of complaint as to the matters referred to in the first bill of exception. Giving the defendant the full benefit of accepting as correct his proposition that Journee should have been permitted to have detailed statements which defendant’s counsel assumed might have been made to him by Martin at the time that Martini said to him: “Here is Martin to surrender,” it is shown that the statements which he sought to elicit were afterward repeatedly given to the jury by Journee and by Martini. We do not see in what manner accused was prejudiced by the statements having been brought out on rebuttal of Journee instead of on his cross-examination. The substantial result to be obtained was to have the statements go to the jury, and this was done. Defendant had the benefit of the statements.

We notice that in Martin’s own testimony brought up with the records he denies having made the statements which were sought to be proved.

It is perfectly clear that if statements were made by him to Journee on the day after the killing they were not part of the res gestee, and that they were inadmissible. In this case there was no conversation at all by Martin at the time of the surrender, nor did Martini himself undertake to make any statement as to the occurrences of the day before, or to detail any conversation had by him with Martin; all that he did then was to announce a single fact — that Martin was on the spot to surrender.

We have been shown no grounds for setting aside the verdict and reversing the judgment.

The judgment appealed from is affirmed.


author: Watkins, J.

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    No. 11,802.
    State of Louisiana ex rel. The Mechanics and Traders Insurance Co. vs. Board of Assessors et als.
    While it is true that the actual situs of personal property which has a visible existence, and not the domicile of the owner, will, in many cases, determine the State in which same is taxable; that same is true of public securities and circulating notes which have acquired the character of property in the place where they are found, yet that rule only applies to such securities and bonds as are operated in market and have thus acquired a domicile or situs there.
    This rule finds an exception in the ease of an insurance company doing business in another State than that of its domicile, and that it is necessary to purchase bonds of that State and deposit same in the treasury as an indemnity for the payment of its risks therein. Such bonds are the avails and incidents of the insurance business and segregated from commerce, and are, consequently, taxable at the domicile of the company.
    APPEAL from the Civil District Court for the Parish of Orleans. Theard, J.

      John Q. Flynn and W. B. Lancaster for Plaintiff, Appellant.

      FI. A. O’Sullivan, City Attorney, and Henry Benshaw, Assistant City Attorney, for the City of New Orleans, Defendant, Appellee.
    Argued and submitted May 21, 1895.
    Opinion handed down November 18, 1895.
   The opinion of the court was delivered by

Watkins, J.

This suit relates to the assessment of relator’s property for the year 1893, and is quite similar to the suit of same title bearing the docket number 11,659, and this day decided in favor of the respondent Board of Assessors.

The relator seeks the cancellation of its assessment, which is composed of the following items, viz.:

1. Premiums in course of collection.

2. Bills receivable.

3. Bonds of the State of Georgia.

4. Certain shares of the Standard Guano and Chemical Company and National Acid Company.

In so far as the first and fourth are concerned, nothing need be said, for the course of reasoning and decision in suit No. 11,659 are strictly applicable and must control our decision in this suit pro tanto.

In so far as the bills receivable are concerned, no proof was administered to demonstrate their exemption from taxation, and there is nothing otherwise to show that relator is entitled^to the alleged exemption.

With regard to the Georgia State bonds, it appears that they aggregate twenty-eight thousand three hundred and fifty doilars in amount, are the property of relator, and are on deposit with the treasurer of that State.

The rule established in Liverpool and London and Globǝ Insurance Company (44 An. 760) is that credits due to a non-resident were assessable and taxable at the domicile of the owner; but that decision made an exception in favor of tangible assets and other personal property, and held that same were assessable at their actual situs.

But it has never been decided that tangible personal property could not be assessed at the owner’s domicile, notwithstanding its actual situs was abroad, in some other State or country.

State tax on foreign held bonds (15 Wallace, 300) is not to the contrary; for in that ease the court say: “ It is undoubtedly true that the actual situs of personal property which has a visible existence, and not the domicile of the owner, will, in many cases, determine the State in which it may be taxed. The same is true of public securities consisting of State and municipal bonds and circulating notes of banks. These by general usage have acquired the character of and are treated as property'in the place where they are found, though removed from the domicile of the owner.”

But that decision and others of like character only apply to bonds and other circulating notes which are operated in market and are bought and sold.

This is the exact illustration that is given by Mr. Burroughs, for he says that when a person who resides in one State has an agent in another State who loans, or invests money for him on notes or other evidences of debt, and then reinvests the proceeds of the loans in the same State, such notes or evidences of debt are taxable in the latter*>3Í'áte. Burroughs on Taxation, p. 60.

But such is not the situation of the bonds of the relator. They are owned by the insurance company, but they are not in circula - tion. They were doubtless purchased and placed on deposit in the treasury of the Státe of Georgia, as an indemnity to secure the fulfilment of the company’s risks in that State. These are taxable assets here.

The judgment must be amended so as to reject relator’s demand in toto. It is therefore ordered and decreed that the judgment appealed from be so amended as to reject relator’s demand in toto at his costs.

Mr. Justice Breaux dissents in this case for the reasons stated at length by him in State ex rel. Mechanics and Traders Insurance Company vs. Board of Assessors, No. 11,659, recently decided. Ante., page 1509.


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    No. 11,876.
    John Ward vs. Piercy J. Stakelum.
    In suits by lessors for possession of tbe leased premises the law authorizes the citation of defendant to answer after the delay of three days. R. 8., Sees. 2155, 2156; 37 An. 843; 44 An. 256.
    Wh en the monthly or yearly rent exceeds one hundred, dollars the District Court has jurisdiction of such suits. Rev. Stat., Secs. 2155, 2156.
    Dam ages for alleged wrongful conduct of the lessor, in seeking to obtain possession of the leased premises, can not be claimed by reconvention in a suit by the lessor for possession brought under the above cited sections of the Revised Statutes.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Frank McQloin for Plaintiff, Appellee.

      Louque <& Pomes for Defendant, Appellant.
    Argued and submitted June 24, 1895.
    Opinion handed down November 7, 1895.
   The opinion of the court was delivered by

Miller, J.

The defendant, sued for the possession of premises held under a lease from plaintiff, appeals from the judgment of the District Oourt decreeing delivery. The defences are that a three-day citation is illegal; that the Oity Oourt, and not the District Oourt, had jurisdiction; that the premises are not held under the lease, but under a contract disposing of the good will of plaintiff’s business, and there is also a claim for damages alleged to have been sustained by plaintiff’s proceedings to obtain possession.

The exception as to the citation and the jurisdiction are answered by the statute. It provides for the citation of three days, and for the institution of the suit in the District Oourt when the monthly or yearly rental exceeds one hundred dollars. See R. S., Secs. 2155, 2156; State ex rel. Matt vs. Judge, 37 An. 843; Godchaux vs. Bauman, 44 An. 256.

The claim of twenty-one thousand dollars damages alleged to have been sustained by the proceedings of the plaintiff, we do not think can be grafted on a suit for possession of leased premises. The defendant’s answer claimed a reformation of the contract of lease, alleging it was made in error for a fixed term, but should have been in perpetuity or for an indefinite period. There was before the lower court the written lease signed by defendant for the term specified; the letter of defendant requesting its renewal utterly Inconsistent with his present pretension; and there was also the sale of the good will of plaintiff’s business wholly silent as to the lease of the premises. If there had been any contract that defendant should occupy plaintiff’s premises indefinitely, in our opinion it would have found expression. Instead, we have the lease executed at the same time as the sale of the good will fixing the term at three years. There is, in our view, no basis to claim the lease was made in error, notwithstanding defendant’s testimony, confronted as it is by the written evidence and the plaintiff’s testimony.

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


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    No. 11,614.
    Louis Sincer vs. Widow and Heirs of M. M. Bell.
    The liability arising from negligence constituting the offence or quasi offence is to the injured party, but creates no liability one to the other of those to whom the negligence is imputed, hence if one of the wrongdoers pays the resulting damage, he thereby acquires no right of action against the other, least of all if he has settled with the injured party and been discharged from all liability. Civil Code, Arts. 2315, 2316.
    Such payment simply discharges the debt of the party who pays, fixed on him by the judgment, hence gives rise to no contribution from the other alleged wrongdoer, as contribution is on the theory that payment by one has discharged an. other from whom the contribution is due.
    The builder erecting a staging for his workmen will not be liable to a subcontractor— i. e., to do the painting of a building, for the damages he is made to pay arising from the fall of the staging which the workmen of the subcontractor choose to use, there being no contract of the builder to furnish them such staging.
    Nor will the builder be responsible for such damages to the subcontractor under the articles of the Code that fix on the master or employer, liability for the acts of his servant. Civil Code, Arts. 2317, 2320.
    APPEAL from the Civil District Oourt for the Parish of Orleans. Theard, J.

      Benjamin Bice Forman and Charles Forman for Plaintiff, Appellant.

      Charles F. Claiborne for Defendants, Appellees.
    Argued and submitted February 14, 1895.
    On the first hearing the judgment of the District Court was reversed.
    On rehearing the opinion of the court was handed down November 18, 1895.
   The opinion of the court was delivered by

Miller, J.

We have given to this case a re-examination under the light of an elaborate reargument.

It is a suit by plaintiff, condemned to pay damages for negligence, brought against the defendant, alleged to have been a participant in the negligence. The plaintiff and defendant, Bell, charged with negligence, were both sued by the parties claiming to be injured by that negligence, the falling of the scaffold on which the parties injured were standing, engaged at the time in the construction of a building. Bell, the defendant, was the contractor; Sincer, the plaintiff, the subcontractor for the painting, and the workmen employed by each were the victims of the fall of the scaffold. The basis of the suit for damages was the defect in the scaffold alleged as the cause of the fall, the fault being charged on both. Bell compromised and was discharged from all liability for the damages.

On the theory that both Simpson and Bell were chargeable with negligence, that would produce a liability to the injured party, but no liability one to the other of the wrongdoers. No obligation of Bell, under such circumstances, can be referred to any quasi contract or any offence or quasi offence committed by Bell with respect to Sincer. Obligations arise from contracts or quasi contracts, or quasi offences or the law. C. C., Arts. 1760, 2293, 2294, 2315, 3536; C. P., Arts. 326, 328.

Nor in our view can Sincer derive any action against Bell by the payment of the judgment. That judgment was against Sincer alone, adjudging him liable for negligence. Bell had settled and been discharged by the parties injured. There could be, as between Sincer and Bell, no contribution arising out of that payment, for contribution, when admitted, is on the theory that payment by one discharges another also.

There is a responsibility in damages for the acts of those for whom one is answerable. It follows that a principal compelled to pay damages for the acts of his subordinate has recourse on the subordinate. But this grows out of the relation of master and servant, and no such relation existed between Bell and Sincer. O. C., Arts. 2317, 2320.

The plaintiff, however, earnestly maintains there was the obligation on Bell’s part to furnish a safe staging for the painters in doing the painting. We have given attention to this branch of the case, as affording, if the contention was supported, the basis of plaintiff’s action. There is testimony that in fixing the price for thejexterior painting some allowance was made to Bell in consideration of Sincer being allowed to use the exterior scaffold. But the scaffold thal fell was inside. It was the impression of some of the members of this court, derived from the briefs and previous argument, that what was said with reference to the use by Sincer of the staging, extended to that inside as well as the exterior staging. We are constrained to yield this impression on a closer examination of the record. The witness who testified on this point, on re-examination, we find, corrected his previous testimony, and stated explicitly the conversation referring to the use of the scaffolding related exclusively to that on the outside. Indeed, the plaintiff himself, as a witness on the stand, placed the use of the scaffolding on the basis of a courtesy, not right, usually extended painters, who, it seems, follow the carpenters in their work. It seems to us the 'inevitable conclusion from plaintiff’s own testimony there was no express contract on which plaintiff could ground this action. We have also given attention to the evidence in respect to the custom on this point. The tendency of the testimony is that painters use the scaffolding put up by the builders. It is also in the record that painters exercise their option as to this, and put up their own staging when they choose to do so. Indeed, from the record of Roe vs. Sincer laid before us, in which the present plaintiff was sued by the heirs of the painter killed by the fall, we gather that the effort in his defence was to show the painters were expected to satisfy themselves as to the strength of the scaffolding as connected with the risk they assume. It was testified, too, that the employer furnishes the materials to make the staging if none is left by the builder; that the journeymen are to be the judges of the strength of the scaffold, and that is the custom. There is no intimation in that case of any obligation on the part of the builder to furnish the scaffolding. Of course, there was no issue of Bell’s liability. Still, the whole current of the testimony in all the records put before us, in our view, tends simply to show a custom perfectly natural, for the painters to use scaffolding left by the builder. But it is our conclusion no contract on the part of the builder in that respect to the subcontractor for the painting, arises from the custom relied on by plaintiff. We reach the conclusion there was no contract of Bell to Sincer. The question of prescription so elaborately argued is withdrawn from consideration by our determination there was no contract.

It is therefore ordered, adjudged and decreed that our former judgment be set aside, and it is now adjudged and decreed that the judgment of the lower court be affirmed with costs.


text:
    No. 11,730.
    Succession of Schuyler B. Steers.
    Where the domiciles of origin and selection are both domestic, the presumption of the revival of intention to return to the domicile of origin does not apply.
    The circumstances of residence, the establishment of a business place, the acquisition of a house for a residence, and the declaration of the party and the exercise of political rights, are usually relied upon to establish the a/nimus manendi.

    A domicile once acquired, is presumed to continue until it is shown to haye,been changed. To constitute this change, there must be a residence in the new locality, and an intention to remain there. Both must concur and are necessary-
    APPEAL from the Civil District Court for the Parish of Orleans. Theard, J.

      Bouse & Grant for Mrs. Helen C. Evans, Administratrix of Mrs. Kate Clark Steers, Plaintiff, Opponent, Appellant.

      William W. Howe for the Executor and Heirs of Schuyler B. Steers, Appellees.

      Thos. J. Semmes submitted a brief on Application for Rehearing.
    Argued and submitted March 12, 1895.
    Opinion handed down March 25, 1895.
    Rehearing refused December 2, 1895.
   The opinion of the court was delivered by

McEnery, J.

Schuyler B. Steers was born in the county of Otsego, State of New York, in 1832. He moved from there to Virginia; thence to Racine, Wisconsin; to' Columbus, Mississippi; to Shreveport, Louisiana, in 1869 or 1870, and to the city of New Orleans in 1876.

He married Mrs. Kate Clarke, who died June 1, 1888, in Otsego county, and her succession was opened there and also in New Orleans. Her sister, Mrs. Helen Clarke Evans, was appointed administratrix of her succession in Louisiana April 4, 1893.

Schuyler B. Steers, the husband, died in Otsego county December 13, 1889. He left a will which was there probated. He lived in New Orleans, engaged in commercial or manufacturing business many years before his death and acquired a large amount of property while residing here.

A copy of his will and a record of its probate in Otsego county were presented and filed in the Oivll District Court, parish of Orleans, by Frederick A. Savile, executor, and its execution ordered and letters testamentary were issued to him.

Savile, the executor, filed an account, and Mrs. Evans, administratrix of the succession of Mrs. Steers, filed an opposition, alleging that the executor had failed to account for rents and revenues derived from real estate belonging to said succession, and for the share of Schuyler B. Steers in the partnership of which he was a member. She also claimed that Schuyler B. Steers was indebted for the paraphernal funds of his deceased wife, which he had converted to his own use and which were administered by him, and for promissory notes, shares of stock in various corporations, which formed a part of the community existing between him and his deceased wife, which were converted by him after the death of his wife. The prayer in the opposition was in accordance with the averments in the petition.

After the filing of her opposition Mrs. Evans brought a separate suit against the executor, alleging the domicile of Schuyler B. Steers to have been, at the time of his death, in the city of New Orleans. The averments in this separate suit are similar to those in the opposition, and the prayer is that the share of Mrs. Steers, deceased, in the community be fixed and determined.

The answer of the executor denied that Steers was domiciled in New Orleans, and that there was any community existing between him and his wife, or the conversion of paraphernal funds, stocks, etc., or of any indebtedness to his deceased wife’s succession.

Mrs. Martha Perry and others, alleging themselves to be heirs of Mrs. Steers, intervened and joined the executor in resisting the claims of plaintiff and appellant. There was 'judgment for the intervenor and the opposition to the account was dismissed.

As to the immovable property acquired in Louisiana during the marriage, the lex rei sitse will govern. Story, Conflict of Laws, par. 423; 20 Johns. 267.

The evidence shows this to be incumbered, and there is no controversy as to the eventual interest of the heirs of Mrs. Steers in the property.

If, as contended by the executor, the domicile of Schuyler B. Steers was in Otsego county, at the time of his wife’s death, the personal property followed the law of the domicile, and it passed to the husband as a legal assignment by operation of the law of the domicile, and which is recognized extra-territorially. Id.

The most important fact, the only one at issue that can be determined, is the domicile of Schuyler B. Steers at the time of the death of his wife. There is no difficulty in ascertaining what the law defines as a domicile. It is the place where a man has his true, fixed and permanent home, and to which, when he is absent, he has the intention of returning. Tanner vs. King, 11 La. 175.

The main question to decide is where a person has his home, in the language of the Code his principal establishment,” and where he exercises his political rights.

Domicile may be either national or domestic. The former is one in which nationality a man is domiciled, and the latter in which subdivision of the nation. And in this respect the law of domicile in Louisiana, in relation to its different political subdivisions, may be ap - plied to the change of domicile from one State to another.

In not keeping in view the distinction between the two kinds of domicile, in some cases in this country, the domicile of birth, as recognized in England, has been given too much weight in estimating the value of the floating intention to return to the first domicile. The conditions which control the destinies of families in the two countries are materially different. In one it is a rule to keep families together. They grow up for generations on the same spot. Local traditions control them, and there is not entirely obliterated some influences of the feudal period. Here the customs, the habits of the people; their ceaseless energies, their continuous change from locality to locality, the sudden and dense population of new places, the desertion and abandonment of old ones, all show that the people are migratory, and not much influenced by birth, locality, or the local history of families.

Hence, we conclude that it will require the same facts only to show a change of domicile from the domicile of birth that it would require to show a change from one selected domicile to another. The revival of the intention to return to the domicile of birth does not apply when the domicile of origin and of selection are both domestic. American Leading Cases, 714.

To change from one domicile to .another there must be an intention to abandon the former domicile. A residence merely is not sufficient, as this may be for special purposes, such as for health, for recreation, for commercial purposes. The nature of the residence may rebut the presumption of the animo manendi. The intention to make a place his permanent home may exist, but this is not sufficient to establish a domicile unless the intention is accompanied by some act in furtherance of such intention. 5 Pick. 370; 5 Md. 186.

We have no concern with the residence of Schuyler B. Steers in Virginia, Wisconsin or Mississippi. The question is was he domiciled in Louisiana at the time of the death of his wife on June 1, 1888?

In determining this fact we will proceed on the presumption that the law favors the continuance of domicile. 21 Penn. 106; 5 Pick. 370.

And that the original domicile continues till it is finally changed for another. Story Conflicts of Laws, par. 481; 10 N. H. 156; 10 Pick. 77; 1 Texas, 673.

Applying the law to the facts in the record, we are to ascertain whether Schuyler B. Steers acquired a domicile in Louisiana, and if so, did he abandon it, and acquire a domicile in Otsego county, Kew York.

The character of the residence can form no important part in fixing the domicile, unless it is of that character which rebuts the presumption of a fixed intention to remain.

It is, therefore, immaterial whether he lived in a hired house, boarding house, or his own dwelling. If it was his intention to permanently remain in Louisiana and his declaration and his acts show that he intended to remain for an indefinite period, as a place of present fixed domicile, it will constitute his domicile, though he may have had an idea, at some future time, of returning to the original domicile.

The civil law attaches almost equal importance to the place of business, and of residence, as fixing the place of domicile. Story Conflicts of Laws, par. 42.

But we think it more in keeping with our social conditions and political systems to accept the rules of the common law, to fix the domicile of a person where he has his home, and exercises his political rights. Such in fact is the concurrence of the decrees of the courts of this State.

While the presumption of original domicile continues until fixed elsewhere, when a person has acquired a residence elsewhere, this will be presumed to be his domicile until the facts establish the contrary. 2 Kent, 532.

Steers came to Louisiana in 1870 and located at Shreveport, lived in boarding houses, and also kept house, but did not purchase resident property. He bought and sold property. In the acts of sale he was described as being “ of the city of Shreveport.” He voted once there. In 1876 he came to New Orleans and engaged in the business of manufacturing and selling cotton presses. He lived here at boarding houses; kept house at one time on St. Charles avenue in 1885, and finally, with his son-in-law, purchased a residence in 1887, und with him kept house in New Orleans. The purchase price of the house and the household expenses were paid, two-thirds by Steers and one-third by his son-in-law, Savile. The inventory shows that his house was well furnished, indicating that it was prepared for a permanent residence. The inventory taken of the property, at which Savile, the son-in-law and executor, assisted, describes all the property, movable and immovable, in the succession, which amounted to some $80,000, as belonging to the community existing between Steers and his deceased wife. At the general election, 17th April, 1888, Steers registered and voted in the city of New Orleans. In all the public acts of sale passed to Steers of the property purchased in New Orleans, he is described as being of this city.” This declaration, of course, means that he resided in the city. All his acts and declarations go to show that he was identified with the interests of the State and regarded it at least as his present fixed domicile.

That the deceased contemplated going back to Otsego county at some future time, there is little doubt. He spoke of it as early as 1881, and in 1883 he bought a place called Lakeland, and fixed it up in a manner that would indicate that he expected, at least, to spend his declining years there. He was in the habit of going to Otsego county every summer, but would return to New Orleans in the fal or winter, and sometimes during the summer, to transact his business. That he and his wife were fond of the place, Lakeland, the evidence discloses, and that Mrs. Steers regarded it as a home is certain. In reference to the declarations which were offered in evidence to show the intention of making that the domicile of Steers, we are furnished principally those of Mrs. Steers, who, it appears, had no kindly feeling for the people of the South, or of the climate of this latitude. Steers, on the contrary, liked it, at least to the extent of its promoting his health, and it is not unreasonable that he should have said he liked the people among whom he had prospered. His will was made before the death of his wife in Otsego, in which he declared himself a resident of that county, and it was probated there. But this probate was after the death of his wife, whose heirs contend that at the date of her death he was domiciled in New Orleans. He voted in Otsego county 6th of November, 1888, and this act also was after the death of his wife.

Comparing and analyzing the testimony in the record, we are of the opinion that on the 1st June, 1888, Schuyler B. Steers had his domicile in the city of New Orleans. It is not to be disputed that the intention maybe afterward grafted upon the temporary residence in order to fix the domicile. It is not to be disputed that Sehuylér B. Steers had in the beginning a temporary residence in Shreveport, and his voting there, and his declarations in public acts may be received as evidence of his intention to make Louisiana his adopted State. And his declarations in seven public acts as to his residing in New Orleans, and his voting at the general election in 1888; his long residence in the city, and his manufacturing business betng located there, all show,- we think, conclusively, that he regarded Louisiana as his adopted State and the city of New Orleans as his domicile.

Under the Constitution of 1868 it was required that a voter should be a resident of the State. A registration certificate was requisite to entitle one to exercise the right to vote, and to this a sworn statement was made as to residence. When Steers voted in Shreveport he, under oath, declared that he was a resident of Louisiana.

Under the Constitution of 1879 the voter must be an actual resident of the State.

The fact to which Steers made oath when he obtained his registration certificate, upon which he voted, was that at the election he would be a resident of the State at least one year. The facts furnished the registrar of voters by him, to obtain the certificate, were that he resided at 220 First street; kept house there, was a ntanufacturer; had resided in the State twenty-five years, in fhe city of New Orleans twenty-five years, and this statement was signed by him.

These acts of voting were not impulsive. They were the result of deliberation. He had ample opportunity to reflect, as he had to prepare for voting, by obtaining a certificate which would entitle him to the privilege. Voting may not be conclusive evidence of domicile, as it may be shown that the vote was fraudulently east. But when there is no question of fraud, and it is the act of the party, supported by his oath, as to the right to vote, it is an important fact, in connection with residence, to fix the intention as to domicile. State vs. Steele, 33 An. 910; McKowen vs. McGuire, 15 An. 639.

And the same may be said of repeated declarations in public acts as to residence. Sanderson vs. Ralston, 20 An. 312.

A person may have a residence in one place and a domicile in another. He can have several residences, but only one real domicile. 33 An. 910, cited above.

Under the definitions of domicile in the Code we think Steers’ principal establishment was in New Orleans, where he was surrounded with his family, in a residence fixed with all the comforts of life, where his only business was conducted and where he exercised all his political rights, and in which place he had resided the greater part of each year for twelve years.

Lakeland had been purchased, no doubt, for temporary residence during summer, and which he had probably an intention of making his permanent home, as, according to the statements in the record, he was meeting competition in business by other patents claiming to be superior to his cotton press, and he may have regarded his business as closing its career.

But prior to June 1, 1888, he had done no act to carry the intention into effect. There is not sufficient evidence in the record that he had abandoned New Orleans as his domicile. After he purchased Lakeland he continued to reside in New Orleans the greater part of the time, and the fact of his voting in said city is an evidence that in April, 1888, he had not then fixed his domicile in Otsego county.

If the declarations of Steers in the act of mortgage on the Lake-land place, and the bonds secured by it, to the same effect, that Lakeland was his home, they are rebutted by his continued residence in New Orleans and the exercise of his political rights.

It is certain he could not acquire a domicile elsewhere while he continued to reside in New Orleans, keeping up his home, his business, and exercising his political rights. During his residence in New Orleans all the circumstances usually relied upon to establish a domicile occurred — his repeated declarations, the payment of personal taxes, the establishment of a place of business, the acquisition of a home and the exercise of political rights (Mitchell vs. United States, 21 Wal. 350). Having acquired a domicile in New Orleans, it is presumed to continue until it is shown to have been changed. The facts do not show that he acquired a new domicile in Otsego county, New York. It is not shown that he resided there with the intention to remain permanently. Id.; Fidelity Trust and Safety Vault Company vs. Preston, 28 S. W. Rep. 658.

The facts in the record do not enable us to issue any decree as to the amount of the community interest of the opponents. The partnership in which the deceased was a member has not been settled and there are many outstanding claims against the succession. Nor are we able to issue a decree in relation to the paraphernal funds of Mrs. Steers, alleged to have been converted by the husband. It seems that she received $5500 from her father’s succession, but we find no evidence that it went into the hands of the husband. She owned some shares in compress companies, but as those shares were acquired during the community, we are unable to say how or in what manner they were acquired by Mrs. Steers, whether purchased by her with paraphernal funds, or given to her by her husband in payment of paraphernal claims.

The residuary interest in the community of the heirs of Mrs. Steers can only be ascertained by a settlement of the succession in New York and in Louisiana.

• It is therefore ordered, adjudged and decreed, that the judgment appealed from be avoided and reversed, and it is now ordered, adjudged.and decreed, that a community of acquets and gains existed in Louisiana between Schuyler B. Steers and his wife, Mrs. Kate Steers, during the period of their residence in Louisiana to June 1, 1888, and that the plaintiffs and appellants, heirs of Mrs. Steers, be recognized as entitled to the residuary interest in the community, which would have gone to Mrs. Steers.

It is further ordered, that the rights of said heirs, opponents and plaintiffs, be reserved as to the paraphernal funds and separate property of Mrs. Steers, alleged to have been converted by her husband and the executor.

It is further ordered that this case be remanded to be proceeded with in due course of law; appellee to pay costs of appeal.


text:
    No. 11,851.
    S. B. Denegre vs. Buchanan & Donan.
    When an apparently valid and regular adjudication to the State has been suffered to remain on the public records for several years, unchallenged by any party in interest, it will constitute a sufficient basis for a proceeding under the act of 1880, enacted in pursuance of the provisiens of the delinquent debt ordinance, notwithstanding said tax deed is shown by proof at the trial not to have been actually signed by the tax collector.
    A purchaser at said subsequent tax sale will be protected by the showing on the • conveyance records exhibiting a title to the State; and such record is sufficient to authorize the proceedings and sale by the tax collector.
    APPEAL from the Sixth Judicial District Court for the Parish of West Carroll. Ellis, J.

      Joseph E. Bansdell and Gray & McIntosh for Plaintiff, Appellant.

      G. T. Dunn for Defendants, Appellees.
    Argued and submitted June 12, 1895.
    Opinion handed down June 21, 1895.
    Rehearing refused December 2, 1895.
   The opinion of the court was delivered by

Watkins, J.

Mrs. S. B. Denégre, widow of J. D. Denégre, deceased, alleging herself to be the owner of a tract of four thousand one hundred and twenty acres of land which is in defendants’ possession under a tax title, sues for its annulment and revocation, and prays a decree placing her in possession thereof.

In answer defendant alleges his title is perfect and complete, and in the alternative pleads the prescription of three and five years liberandi causa as to all the badges of nullity alleged in either the tax proceedings or sale proceedings, and the prescription of ten years acquirenda causa as a muniment of title. And defendant’s further prayer is that, in the event of an adverse judgment, he have judgment for the amount of taxes paid since his acquisition of the property.

On the trial there was judgment in defendant’s favor, rejecting the plaintiff’s demands, and the latter has appealed.

Various charges of nullity are preferred against the tax title through which the defendant claims to have derived ownership of the lands in dispute. A fair synopsis is as follows, viz.:

That defendant claims the property by virtue of a pretended sale made by W. W. Bradley, sheriff and ex-officio tax collector, on the 1st of April, 1881, as per deed recorded in the book of ^conveyance. That at the time the said tax collector sold said property it was claimed by the State by virtue of a pretended adjudication made by R. K. Anderson, tax collector for the parish of Carroll, on the 4th of November, 1873, as per deed recorded in the conveyance office of West Carroll parish.

That said last mentioned adjudication to the State was absolutely null and void, for the following reasons, viz.:

1. That the advertisement of the land for sale for taxes did not appear three times within ten days, as the law required.

2. There was no previous publication of the delin quency of the taxes during the time required by law.

3. There was no notice given to the owner to pay the taxes prior to the pretended sale.

4. There was no seizure of the property by recording a description thereof in the book of mortgages.

5. That the property was sold for the taxes of 1866, 1867, 1868, 1869, 1870 and 1871, whereas tax collectors could not sell for back taxes beyond two years.

6. That the owner of the property was an absentee, and domiciled in a distant parish of the State, for whom no curator ad hoc was appointed, as the law required.

7. That no title was ever confirmed by the Auditor, as required by Sec. 9 of Act 47 of 1873.

8. That the property was assessed and sold in block, whereas Sec. 63 of Act 42 pf 1871 required land sold for taxes to be offered and adjudicated in lots of not less than ten and not more than fifty acres, in accordance with Art. 132 of the Constitution of 1868.

9. That the assessment is absolutely null and void as to 960 acres-in sections .14 and 15 township 21 of range 9, for the reason that the-land in section 14 is described as being in section 29 instead of section 21; and that the land in section 15 is described as being in township 26 instead of section 21 — there being in truth and fact no such township as 26 and 29 in the parish of Oarroll.

10. That the property was assessed to J. D. Denégre, and was sold for taxes due by the estate Of J. D. Denégre.

From the foregoing alleged nullities, the petition alleges the State had absolutely no title resulting from said adjudication, and the State was without power to convey any title to the defendant.

Of the adjudication made to defendant by Bradley, tax collector, in 1881, the plaintiff’s complaint is, that the iands in controversy were advertised in block in a confused mass with a large body of other lands situated in East Oarroll parish, and were consequently charged with taxes due on the whole body.

The further charge is made that there was an error as to the description of two hundred and forty acres of land.

By an amended petition plaintiff affirms that her allegation to the effect that the State acquired an apparent title from the tax collector in 1878 was in error, the fact being that the record does not show a deed in proper form, the one on record lacking the signature of the tax collector; and for that reason is not entitled to full faith and credit.

Thereupon the plaintiff’s averment is, that there never was any adjudication to the State by B. K. Anderson in 1873 of the lands in controversy; and that “ his attorney was led into error by the fact that the aforesaid document, as recorded in the parish of Carroll * * * purports to have been signed; and as the record purported to be a true copy from the book of conveyances of East Carroll parish, he took it for granted that same was correct, and that the deed had been signed by Anderson, until the testimony of J. D. Tompkins, clerk of East Carroll parish, was filed herein on the 7th of August, 1894.”

In answer to this amended petition defendant shows that Anderson, tax collector, sold on the 4th of November, 1873, the lands in controversy to the State of Louisiana, and made and executed a: good and valid title thereto, which was legally recorded. And it further shows that the same lands were sold in April, 1881, under Act 107 of 1880, and under the ordinance for the relief of delinquent taxpayers, and was purchased by the defendant, whereby he ac* quired- a good and valid title thereto.

This answer is supplemented by a reeonventional demand for taxes paid and interest, which may be subsequently considered.

It is our view that, under the supplemental petition averring that ■there “ never was any adjudication to the State” of the lands in controversy, all of the charges of nullity alleged to exist in the deed of the tax collector in 1873 are necessarily abandoned and eliminated from the case. This supplemental petition was inadmissible otherwise than on the theory assigned that the admission of the existence of a title was made in error of fact.

The plaintiff must, consequently, stand or fall upon the allegation of her amended petition.

The question is, in what manner or degree does this change of base affect the defendant’s title?

Considering the plaintiff’s admission in her supplemental petition ‘that the aforesaid document” — the deed of Anderson, tax collector, in 1873 — “ as recorded in the parish of East Carroll, purports to have been signed,” how is the status of defendant’s title in 1881 affected?

In our opinion, most materially. Forasmuch as a title to the Stat?, apparently signed by a tax collector and perfectly regular in form, had remained on the public record unchallenged by any person in interest for so many years, was certainly sufficient warrant for Bradley, tax collector, to proceed as he did, to advertise the lands in 1881, as lands which had been, theretofore, forfeited to the State for unpaid taxes of previous years. It afforded perfect and complete immunity to the defendant in becoming the adjudicatee at the afforesaid tax sale.

The fact of a deed to the State having remained so long unchallenged by any one; and the property being thereby subjected to sale as property which had been forfeited to the State; and the tax purchaser’s title having been recorded thereafter for more than ten years, it is too late for the plaintiff, in 1894, to question its validity.

It may be true that Anderson, tax collector, did not, either accidentally or intentionally, sign the act of sale, evidencing the adjudication; but of what possible consequence can that be to the defendant, who became adjudicatee at a tax sale made eight years after the registry of such a title, apparently signed and regular.

This court has frequently held, that in making seizure and assessments, a tax collector is bound to inspect the public records in order to ascertain therefrom in whose name the property now stands recorded. Prescott vs. Payne, 44 An. 650.

But inspection is all the law requires. • No other or further duty is imposed upon that officer.

Having made an inspection, and finding a deed to the State of record, the tax collector was authorized to accept the information the record afforded, and advertise the property for its delinquent taxes due prior to 1880, and assessed against it while standing in the name of the State.

There can he no serious question raised as to the regularity or validity of these proceedings.

In so far as the question of irregularity in the proceedings leading up to the sale in 1881 are concerned, it is only necessary to say that they are entirely inadmissible, under the interpretation which this court has given to the healing and curative statutes, in the Lake and Douglas cases, and others of equivalent import. The complaints relate to purely formal matters not appertaining to the original assessment of the property, as in the Auguste, and Fairex cases. Of course property assessed in the name of an owner deceased since the assessment must be collected in the name of the estate or the legal representatives of the decedent.

They could not be collected otherwise.

Under this state of facts, there is no occasion to apply the rules of prescription, notwithstanding that it is our impression that either five or ten years’ prescription is good. Giddens vs. Mobley, 37 An. 417; Barron vs. Wilson, 39 An. 403.

For, notwithstanding the property was adjudicated to the State for taxes in 1885, the defendant subsequently exercised his right of redemption, and reinstated his title. So long as the right to exercise redemption remains to the owner, the alienation remains inchoate, a. d the legal title, as well as possession, remains unimpaired.

Judgment affirmed.