author: Watkins, J.

text:
    12,782.
    Corporation of Amite City vs. Lawrence Holly and Mrs. Lawrence Holly.
    Whatever be the view concerning the gravity of the offence against a State law, the very fact that the Legislature authorizes the towns and cities of the State to deal with the same subject by ordinances indicates that to the Legislative mind the act also properly constitutes one of those petty offences which are regarded as local injuries.
    The public welfare requiring the maintenance of peace and good order, as well as of careful sanitary regulations in towns and cities, renders' summary proceedings in many cases a necessity; aud no occasion is presented for the inauguration of the revolution that must follow the announcement of the doctrine that a jury trial is an indispensable prerequisite.
    The provisions of Article 92 of the Constitution of Ls79, which confer upon municipalities within the State cognizance of cases arising under police regulations, authorize the enactment by the Legislature of laws enabling them, by appropriate ordinances, to put same in force; and they constitute an exception to the general rule announced in Article 7 thereof, which guarantees to an accused person the right of trial by jury — notwithstanding the two offences appear to be identically the same.
    y^PPEAL from the Municipal Court of Amite Oity. Sowell, J.

      W. H. McClendon for Plaintiff, Appellee.

      W. B. Kemp and O. N. Ogden for Mrs. Holly, Defendant, Appellant.
    Argued and submitted May 4, 1898.
    Opinion handed down May 30, 1898.
   The opinion of the court was delivered by

Watkins, J.

A fair statement of this controversy is found in the brief of counsel for the plaintiff and appellee, from which we make the subjoined extract, viz. :

This is an appeal by defendant from a judgment of the Mayor’s Court, sitting in Amite City, Tangipahoa parish, inflicting a fine of fifty (§50) dollars upon defendant for selling whiskey without a license within the corporation of Amite City, said judgment and sentence being rendered under and by virtue of an ordinance passed by the Council of Amite City, acting under and by authority conferred by Act No. 8 of the General Assembly of 1896. No complaint is made or objection urged by defendant, either by pleading or brief, as to the regularity of the proceedings before the Mayor’s Court, or to the proceedings of the Council in adopting the ordinance under which the defendant was tried and sentenced.

“ The demurrer and plea to the jurisdiction, filed and in the record, p. —, in substance simply attacks Act No. 8 of 1896, upon the ground that said act is unconstitutional as violative of Arts. 5, 6, 7, 8, 47, 80 and 92 of the Constitution of 1879.
“Defendant in his brief appears to have abandoned the plea to the jurisdiction of the Mayor’s Court, and to rest upon the plea to the constitutionality of the Act No. 8.”
To much the same effect is the brief of defendant and appellant, as will appear by the following extract therefrom, viz.:
“But, may it please the court, we especially insist that this exception is well taken, to-wit: That the proceeding is violative of the bill of rights and Constitution of the State of Louisiana of 1879.
“Act 8 of 1896 authorizes city councils or municipal corporations to pass ordinances relative to the sale of liquor without first obtaining license.’
“Under this the council of Amite City passed an ordinance providing for the infliction by the mayor of a fine for the sale of liquors without license.
“The mayor under this ordinance authorized by this act imposed the fine in this case.
“And our contention is that the whole proceeding is void, because the ordinance was authorized by an act which is violative of the bill of rights which provides that in all criminal proceedings the accused shall enjoy the right to a speedy trial by an impartial jury.’ Art. 7, Constitution 1879.”

The record shows that the defendant, Mrs. Lawrence Holly, and Mr. Lawrence Holly were charged upon an affidavit in due form, “ with retailing liquors within the corporate limits of the town of Amite City without previously obtaining a license from the police jury, town or city authorities, all of which is contrary to the form of the ordinances of the said city in such cases made and provided and against the peace and dignity of the State.”

The section of the city ordinance under which the foregoing affidavit was made is of the following tenor, viz.:

“That no person or persons shall sell or retail spirituous or intoxicating liquors within the corporate limits of the corporation of Amite Oity, without previously obtaining a license therefor from the proper legal authorities; and any person or persons who may violate the provisions of this ordinance, on proper affidavit first made, shall be arrested, prosecuted and tried before the Mayor’s Court of the corporation of Amite City, and on conviction shall, for each offence, be fined by the mayor, not less than twenty-five dollars and costs, and not more than fifty dollars and costs; ,and in default of payment of both fine and cost in full, shall be imprisoned in jail for a period of ten days.”

The title of this ordinance is similar in terms to those contained in the section quoted — making mention of the fact that same is “authorized by Act No. 8 of the General Assembly of the State of Louisiana, approved June 26, 1896.”

To this proceeding the defendants tendered a demurrer, the substance of which is given above, to the effect that the aforesaid ordinance is founded upon an act of the Legislature which violates the bill of rights, and contravenes the guarantee which is contained in Art. 7 of the Constitution, and is therefore unconstitutional and void.

The provisions relied upon are as follows, viz.:

In all criminal prosecutions the accused shall enjoy the right to a speedy public trial by an impartial jury,” etc. Const., Art. 7.

The provisions of the statute are of the following tenor, viz.:

“That the City Councils of municipal corporations throughout the State are hereby empowered to pass ordinances authorizing the arrest and prosecution before the mayors or recorders of said corporations, of any person or persons selling liquors within the corporate limits, without having previously obtained a license; and the said ordinances may be enforced by fines and otherwise, just as ordinances against breaches of the peace in said cities are enforced.” Act 8 of 1896.

The act furnishes ample authority to the corporation of Amite City for the adoption of the ordinance, and the proceedings thereunder were perfectly regular in every respect.

On the trial Mrs. Lawrence Holly was found guilty and convicted and sentenced to pay a fine of fifty dollars and costs, or in default of paying said fine and costs that she be confined in jail for ten days; but Mr. Lawrence Holly was found not guilty and discharged. '

It is from that sentence and decree that Mrs. Lawrence Holly prosecutes this appeal, relying upon the unconstitutionality of the statute, because it, in effect, deprives her of the right of trial by an impartial jury,” as guaranteed by the Constitution.

Counsel refer us to the provisions of the Revised Statutes, which are to the effect that “whoever shall keep a grog or tippling shop, or retail spirituous liquors without previously obtaining a license from the police jury, town or city authorities, on conviction shall be fined not less than one hundred, nor more than five hundred dollars, and in default of payment shall be imprisoned not less than fifteen days nor more than four months.” Sec. 910.

And upon that statute counsel base their contention that the ordinance denounces as a violation thereof the same act which the statute denounces as a crime; and for that reason the Legislature could not constitutionally confer upon the mayor of Amite City the jurisdiction to try and punish the act, thus depriving the defendant of his constitutional right of trial by jury.

The first question is, whether the ordinance denounces the same act as Section 910 of Revised Statutes does; and the second is, if so, does the unconstitutionality of the act of 1896 result from its having authorized the ordinance.

(1) The ordinance declares “that no person or persons shall sell or retail spirituous or intoxicating liquors within the corporate limits of the (town) of Amite City without previously obtaining a license therefor, from the proper legal authorities,” etc.

The provisions of the two are substantially the same, with the exception that one applies to the State and the other to the town.

(2) The contention of the defendant’s counsel is, “ that the quality of the act is not changed by conferring jurisdiction upon a mayor’s court;” and they say, that “ it seems too evident for argument, that the court will not sanction an evasion of a constitutional right. If the State Legislature could not directly confer upon its courts the right to fine a defendant without a jury (trial), it could not a fortiori confer upon a municipal corporation this power violative of the bill of rights.”

On the other hand the contention is, that the legislative act and ordinance of the corporation of Amite City thereunder, contemplate police regulation merely, and that, as such, same is protected from constitutional impairment.

• The Constitution provides that “ no judicial powers, except as committing magistrates in criminal cases, shall be conferred on any officers other than those mentioned in this title, except such as may be necessary in towns and cities, and the judicial powers of such officers shall not extend further than the cognizance of cases arising under the police regulations of towns and cities in the State.” Const, of 1879, Art. 92.

The question then is, whether the statute of 1896 does more than authorize municipal corporations in towns and cities of the State to pass ordinances which are in the nature of police regulations therefor, for if the provisions of the statute can be so considered they are constitutional and valid.

Quite a similar contention arose and was decided in State vs. Fourcade, 45 An. 717 — the defendant having been prosecuted under a city ordinance for selling watered or adulterated milk within the city of New Orleans.

¡gin that case one of the defendant’s contentions was that the city ordinance was illegal, because the State, by legislative enactments, had “taken and resumed exclusive control and jurisdiction for itself of all matters of offence and punishment contained in said State legislation in antagonism with, or on the same subject matter of these municipal ordinances; that the passage and effect of said statutes are to render illegal, null and void for the time being said ordinances, and as long as said statutes are in force the said city ordinances are branded with illegality and unsusceptible of enforcement.”

While it is true that the exact question which is here presented was not propounded in its present form in that case, yet it was in effect, that is to say, that the defendant was being prosecuted twice for the same offence — once under a State statute and once under a city ordinance.

Or that as the same offence was denounced under a State law and a city ordinance in force at one and the same time, it was possible for him to be prosecuted under both, and this would be in violation of the constitutional flat, that no one shall be twice tried for the same offence.

On that contention, our opinion makes this observation, viz.:

“ Defendant urges that he is charged with an act which the city contends she has the right to punish, although the identical act is for the same purpose denounced and punished asa State offence; that for the same act which the State has made a State offence, the municipality has no right to institute a municipal prosecution and punish as a municipal offence; and that the State having now constituted the offence one, against the State, he can not, through the instrumentality of the ordinance, be deprived of his constitutional right of being charged only through an indictment, or an information, and of being tried by a jury.”

And our opinion then states that defendant further assumes that the momeut the Legislature declares that the commission of a particular act shall be punishable by the State as a State offence, the commission of the same act, which up to that time, as being violative of a municipal ordinance, would be, in the strictest sense, a municipal offence and triable as such, must cease to be so triable, and the procedure in regard to the prosecution be forced to conform to the constitutional requirements which govern State crimes.

• From the foregoing statement of the question and extract from our opinion, it appears that the only difference therefrom which the instant case presents is, that the State law denouncing the offence was enacted prior, to the enactment of the statute complained of as illegal; that this difference in the date of the adoption of the two statutes can not affect the legal principle involved in any way — the simple question being, whether they can both stand, and be enforced at one and the same time.

In the Fourcade case we declined to entertain the defendant’s contention and affirmed the judgment appealed from; and in so doing our opinion collates a large number of pertinent authorities. From one of the cases cited — McInerney vs. City of Denver, 29 Pacific Reporter, 516—we make the following extract, viz.:

“ The Legislature may undoubtedly delegate to municipal corporations power to adopt and enforce by-laws or ordinances on matters of special local importance, even though general statutes exist relating to the same subject.
An ordinance must be authorized and must not be repugnant to a statute over the same territorial area; but if there be no other conflict between the provisions of the statute and ordinance, save that they deal with the same subject, both may be given effect. The resulting or correlative doctrine is now too firmly established to admit of serious question; that the same act may constitute two offences, viz.: a crime against the public law of the State, and also a petty offence against a local municipal regulation.
lC The weight of authority likewise fully sustains the view that a prosecution and punishment for one of these offences is no bar to a proceeding for the other,” etc. — citing numerous authorities.

The opinion further says :

Whatever be the view concerning the gravity of the offence against a State law, the very fact that the Legislature authorizes the city to deal with the same subject by ordinance indicates, that to the legislative mind the act also properly constitutes one of those petty offences regarded as local injuries. The public welfare requiring the maintenance of peace and good order, as well as of careful sanitary regulations in cities and towns, renders summary proceedings in many cases a necessity; and we are not now prepared to inaugurate the revolution that must follow the announcement of the doctrine that a jury trial is an indispensable prerequisite.
* # * :{« *j« $
An ordinance is not in the constitutional sense a public law. It is a mere local rule or by-law; a police or domestic regulation, devoid, in many respects, of the characteristics of public or general laws,” etc.

This court entertained and expressed a similar view in State vs. Labatut, 39 An. 513. See also Mayor vs. Meuer, 25 An. 1193, and State vs. Callac, 45 An. 27.

In State vs. Gutierrez, 15 An. 190, our predecessors dealt with a similar question arising under provisions of the Constitution of 1852, which were quite similar to those of 1879, now invoked, and held, that they were perfectly harmonious, and in the course of their opinion said:

The Art. 108, guaranteeing the right of trial by jury, is the general rule to'which the Art. 124 forms an exception; the former proclaims a right; the other recognizes a class of eases to which that right does not extend. In other words, the Art. 108 has no application whatever to that class of offences which are to be tried summarily without the intervention of an impartial jury of the vicinage.”

To the same effect is State vs. Noble, 20 An. 325.

For like reasons we must hold that Art. .92 of the. Constitution of 1879 constitutes an exception to the general rule which is announced in Art. 7 of that instrument which guarantees to an accused person “the right to a speedy public trial by an impartial jury,” etc.

On this hypothesis, we are-of opinion, that the apparent uneonstitutionality of the statute complained Qf can be satisfactorily explained, and proceedings under the ordinance in question reconciled and rendered compatible with those under the Revised Statutes.

Counsel for the defendant raise in their brief an alternative issue, which was not set up in the demurrer they filed in the mayor’s court on the trial.

It is of the following tenor, viz. :

“At the time of the alleged offence the parish of Tangipahoa, at a public election, had prohibited the sale of liquors within its borders. It is therefore abolished the imposition of licenses as a source of revenue, and with this abolition the criminal machinery set up to enforce the collection of licenses fell.
“ It has been since that time both illegal and impossible to obtain a license for the sale of liquors; and it would seem most absurd that a fine should be inflicted upon a citizen for failing to secure a license, or for selling liquor without a license, when it was physically and legally impossible for him to obtain such license.
“ It might be perfectly practicable for the city ordinance to supplement the State enactment and provide a fine for the sale of liquors, but this was not done. The proceeding was against him for the sale of liquor without a license, under an ordinance made when it was proper to be so made, but which ceased or fell necessarily when the sale of liquor was prohibited.
“ We therefore ask the court if our arguments should not prevail on the merits, to remand the case in order that we may show that, at the time of the alleged sale of the liquor without a license, that by law it was impossible to obtain such liceuse, the parish of Tangipahoa having adopted at a popular election prohibition.’’’

We are of opinion that the issue presented on this appeal is one of law, namely, the constitutionality ml non of Act No. 8 of 1896, and that alone; and there is no force in the application to remand presented for the first time in briefs filed in this court, and it must be refused.

But we think it proper, that in affirming the judgment, the rights of the appellant be reserved in that respect.

Judgment affirmed.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 12,781.
    J. P. Flournoy and Wife vs. Shreveport Belt Railway Company et al.
    Persons manning and operating, street cars are expected to be careful at the crossings. The company must exercise reasonable care to provide men enough to properly control a train consisting of a motor car and a trailer. At deep grades leading to railroad crossings there should be a motorman and conductor aboard the train and in charge. There was only a motorman. The injuries, occasioned by the collision between the street cars and the passing train at the crossing, were injuries for which the defendant company must be held responsible in damages.
    APPEAL from the First Judicial District Court for the Parish of Caddo. Land', J.

      T. Alexander for Plaintiff, Appellee.

      Joel Edwin Dean and Wise & Herndon for Defendants, Appellants.
    Argued and submitted March 23, 1898.
    Opinion handed down April 4, 1898.
   The opinion of the court was delivered by

Breaux, J.

The object of this suit was to recover damages for injuries received by plaintiff in a collision between the train of the defendant company and the train of the Texas & Pacific Railway Company on the twenty-fourth day of July, 1896, at about six o’clock P. M.

As the train consisting of two .ears, one trailer and the motor car of the defendant Belt Line Street Railway, started to move down a steep grade to a railway crossing, the passenger train of the Texas- & Pacific Railway was about to pass. It had given the usual signal and was on schedule time. The Belt Street Railway, sliding down without restraint, collided with the moving train of the Texas & Pacific Railway. The motorman did not stop his cars as required by the regulations of the municipality, and the common rules of safety to passengers.

‘The greatest part of the forward end of the defendant motor car was taken off, and some damage was done to the passing train of ■the Texas & Pacific.

The plaintiff jumped off at the same time that other passengers jumped from the street car, and was injured.

Regarding her injuries the attending physician testified that her bruises and wounds showed that she had sustained a great shock.

She received a blow on the head, bruising it, and injuring the superorbital nerve. She had a severe contusion on the upper jaw bone. She had bruises on the shoulder, caused by the fall, and on her face. The plaintiff in consequence could not, during some eight or ten days, attend to her household duties. She remained several months under medical treatment and suffered pain.

We pass to the manner the car was operated.

The witnesses agree that the presence of two men, the motorman and conductor, is needful in running two cars, a trailer and motor car, on uneven ground-, or over steep grades, as was the case here.

The necessity was more urgent from the fact that the motorman had only been recently employed as motorman. There was nothing about the train not. in good order. The cars and appliances were inspected every night, and no defect was discovered about them immediately after the accident.

The loss of control of this train, and its gliding down the rails and colliding with a passing train, was manifestly owing to the inexperience of the motorman, or the absence of an additional man to assist in properly applying the back brakes. In either case the company was responsible for the injuries received.

In accordance with the agreement of counsel, the evidence taken in case of Russel against Shreveport Belt Railway Company was used and read as evidence in this case as far as applicable.

The verdict of the jury was for one thousand dollars. After having considered all of the testimony we are constrained to reduce the amount to seven hundred and fifty dollars. We feel confident that the jury must have overlooked one fact in arriving at the verdict, to which we can not do otherwise than give effect. When one suing chooses to fix the amount by any act or deliberate utterance we can not well avoid giving it effect. She consented to accept that amount.

It is therefore ordered, adjudged and decreed that the judgment appealed from is amended by reducing the amount of the judgment from one thousand dollars to seven hundred and fifty dollars. And that appellee pay the costs of appeal.

Blanchard, J., recused, having been of counsel,


text:
    No. 12,579.
    H. Laroussini vs. Philip Werlein.
    The court in the first suit decided, as to plaintiff’s demand, that he (plaintiff) had no cause of action to compel the defendant to sign a contract of lease and rent notes.
    This ruling did not conclude the plaintiff from prosecuting suit for any“right not necessarily covered by the ruling.
    Where the judgment does not decide certain issues, and this is made manifest by the decree itself, the decision will not support the plea of res judicata.

    A PPEAL from the Civil District Court for the Parish of Orleaus. King, J.

      Henry Denis and Branch K. Miller for Plaintiff, Appellant.

      Edwin T. Merricle and Lazarus, Moore & Luce for Defendant, Appellee.
    Argued and submitted March 23, 1898.
    Opinion handed down April 4, 1898.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff brought this action in Division E,” Judge King presiding, on an alleged verbal contract of lease.

Defendant averred, by way of exception: no cause of action; estoppel, for the reason that in the first suit plaintiff declared on a written lease, and in this suit he claims on a verbal lease.

The facts are that plaintiff brought suit in the first case in Division “ B,” Judge Theard presiding, on April 9, 1895, against the present defendant, in which he stated that the defendant had been his lessee since June 30, 1890, under the terms of a lease expiring September 30, 1895; and that in March, 1895 in anticipation of the expiration of the terms of lease, he contracted and agreed to renew the lease for five years on the terms stated in the petition.

He alleged substantially that the agreement of renewal was verbal, but was complete, that “ in no manner to make the contract dependent' upon writing;” it was understood at the time, that at some future date the evidence of renewal would be reduced to writing.

It is alleged when Werlein, the defendant, was called upon to sign he declared that he had changed his mind. He refused to sign.

In this first suit defendant in his exception averred that the petition was premature; in the second place (in the alternative) that the petition disclosed no cause of action.

Defendant admitted that he was in possession under the first lease and alleged that he desired to obtain a new contract of lease in writing, to commence after the determination of his first lease.

That he had interviews with plaintiff upon the subject and had “ even fixed upon the amount of compensation ” offered by him to plaintiff, but he denied that other important stipulations had been adjusted; he averred that it was understood between them that the contract was to be reduced to writing, and that no contract was to be considered as complete until reduced to writing; that he was not called upon to sign a contract of lease covering the terms and conditions as he understood them.

The judge of the District Court decided: “ that as to plaintiff’s demand that defendant be ordered to execute and sign a written renewal of lease, and accompanying rent notes; the exception of no cause of. action herein be maintained, and that said demand be rejected.”

“As to plaintiff’s demand for the recognition and enforcement of the alleged lease between himself and defendant, for the right to issue execution for amount, monthly instalment “of rent as it shall become due and five per cent, attorney’s fee on the total amount of rent to become due; the exception of prematurity herein be maintained, and that plaintiff’s said demand be dismissed as of now-swii.”

On appeal this court reviewed the issues passed upon by the District Court and entered the following decree.

“ The judgment maintaining the exception of no cause of action is affirmed.” Laroussini vs. Werlein, 48 An. 13.

Subsequently plaintiff filed a'second suit claiming on a verbal lease as before stated, to which defendant filed an exception as already noted.

The District Court sustained the plea of res judicata.

From the judgment plaintiff prosecutes this appeal.

The object of the first suit, as we appreciated the issues, was to compel the defendant to sign rent notes and a contract of lease.

We understood that the gravamen of defendant’s objection was leveled against the specific performance claimed by plaintiff. In his brief that issue was argued and attracted our attention.

The decision was that the defendant could not “be ordered and forced to execute and sign a written renewal of lease.” We affirmed the decision in its entirety for reasons assigned in our opinion in the case cited supra. Our judgment applied to the issues directly adjudicated by the District Court, as shown by our quotation from the decree. The original decree of the court a qua “ limited the issues in terms, and to that extent it became the decree of this court.”

No other issues were included in or concluded by the judgment.

The question the court decided was: “Did plaintiff have the right to compel the defendant to sign a lease and notes for rent?” This is the question that came to us for decision from the District Court.

There was not a real trial of the matter at issue, save as made evident by the decree of that court.

The points must have been considered in order to give rise to res judicata.

The decree informs us that they were not.

The plea is not to be upheld by inference or arguendo.

In Wells, Res Judicata, p. 241; with reference to an issue growing out of a contract, the opinion was expressed:

“ The court entirely ignored that defence, and did not pass upon it at all. It makes no part of the judgment rendered in the case, and hence it can not be set up as included in the judgment as an element to support the plea of res judicata. Hoggatt vs. Thomas, 35 An. 298; Fink vs. Martin, 5 An. 104.

■ A decree of res judicata applies only to matters directly adjudicated.

Of two questions the court decides one only; and expressly so states; the other question remains undecided and unaffected. The plea of res judicata does not apply unless the decided question is inseparably connected and carries with it a decision of the accompanying question which was not in our view the case here — i.! e., in the pending case.

11 Actually adjudicated issues must in general be involved in the final judgment in order to be conclusive.” Bigelow on Estoppell under heading Res Judicata.

In our judgment the basis of the first suit was deficient; the defendant could not be forced to sign the contract of lease. This conclusion did not carry with it a decision of the other issues; in case plaintiff had a right remaining in spite the fact that the defendant declined to sign the contract of lease.

The counsel for the defendant argued that' plaintiff should be es-topped by judgment in the former suit from alleging any indebtedness of the defendant.

In our opinion there is no basis for the estoppel, for the reason that there was no adjudication in the former suit — that defendant was not indebted on any remaining claim he urges. We pass exclusively upon the question of res judicata.

All the other?questions, both as relates to plaintiff or defendant, remain unaffected by our decree.

It is ordered, adjudged and decreed that the judgment appealed from is annulled, avoided and reversed in so far as it decrees that any other issue has heretofore been decided in the case (save that the defendant could not be forced to execute and sign a written renewal of lea£e"and[accompanying rent note) in respect to exception in parenthesis, it is affirmed; in all other respects it is annulled, avoided and'reversed.

It is ordered, adjudged and decreed that the case be reinstated on the docket, and proceeded with according to law. Costs of this appeal to be paidjby appellee.

Blanchard, J., takes no part in the decision.


author: Miller, J.

text:
    No. 12,853.
    State of Louisiana vs. Thomas O’Leary.
    The verdict guilty of shooting with intent to kill, on an indictment for shooting with a dangerous weapon with intent to kill and murder, necessarily implies shooting with a dangerous weapon charged in the indictment, and the express words not in the verdict, are supplied by the implication. State vs. Smith, 38 An. 479; 34 An. 529; 1 Bishop’s Criminal Procedure, Sec. 1005.
    The verdict is to be deemed a conviction for the offence of shooting with intent to kill included in the offence the indictment charges. Acts No. 43 and No. 44 of 1890; 49 An. 1011.
    A PPEAL from the Criminal District Court for the Parish of Orleans. Baker, J.

      M. J. Cunningham, Attorney General, and R. H. Marr, District Attorney, for Plaintiff, Appellee.

      J. Q. Flynn for Defendant, Appellant.
    Submitted on briefs June 4, 1898.
    Opinion handed down June 22, 1898.
   The opinion of the court was delivered by

Miller, J.

The accused appeals from the sentence on the conviction for shooting with a dangerous weapon with intent to kill and murder.

On the rule for a new trial the ground was taken that the District Attorney in his argument commented on a previous trial of the accused for another offence. We find in the record no bill of exception presenting the question and can not notice it.

The motion in arrest of judgment is based on the ground the verdict is not responsive to the charge and states no crime known to the laws. The offence for which the accused was indicted is shooting with a dangerous weapon with intent to kill and murder. R. S. See. 792; Acts Nos. 38 and 44 of 1890. The verdict is guilty of shooting with intent to kill. The verdict, it is contended, is defective because it omits the words with a dangerous weapon. The argument treats the verdict as special, and defective because not stating all the essentials of the offence. While we recognize that special verdicts must embody the ingredients of the offence, it is equally true that verdicts will not be construed as special in their character, when on a fair construction they respond to the indictment as finding the accused guilty of the crime charged, or what, in legal effect, is the same, guilty of the crime included in that charged. The indictment charges the accused with shooting with a dangerous weapon, to-wit, a pistol, with the felonious intent, him, the said M. F., to kill and murder. The verdict guilty of shooting with intent to kill must be deemed to imply with as much force as if expressed, with a dangerous weapon. The verdicts of juries, as it is put by one of the leading text writers, are framed by laymen; need not be couched in technical form; any words that convey the idea to the common understanding will be deemed adequate, and all fair intendments will be made to support the verdict. 1 Bishop Criminal Procedure, Sec. 1005. Our predecessors sustained the verdict on the same statute in the form of that here, against the objection there made, that the verdict did not contain the words, with a dangerous weapon, deemed implied. State vs. Smith, 38 An. 479; State vs. Cognovitch, 34 An. 529. The intent to kill is the less serious intent embraced in the statute and in the indictment. The verdict is in effect guilty of shooting with a dangerous weapon with intent to kill, not a special verdict but responsive to the indictment.

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

Nioholls, O. J., dissents.


text:
    No. 12,818.
    State ex rel. John Van Halen vs. Hon. F. A. Monroe, Judge Civil District Court, Parish of Orleans, Division C.
    The general rule is that injunctions should not be dissolved on the ex parte application of defendant and the writ of certiorari will issue to reinstate the injunction when ■ dissolved on such ex parte application without any hearing of the plaintiff.
    QN APPLICATION for Writs of Certiorari and Prohibition.
    . Simeon Belden and John P. Montamat for Relator.

      Dart & Kernan for Respondent.
    Submitted on briefs April 22, 1898.
    Opinion handed down May 2, 1898.
   The opinion of the court was delivered by

Miller, J.

The relator seeks by the writs of certiorari and prohibition to review the action of the lower court in dissolving on bond the injunction obtained by plaintiff to restrain the execution sale on the judgment of the Firemen’s Building Association against the relator as tutor of his minor children.

• The petition for the injunction in substance averred that the alleged debt of the association for which they recovered judgment had been in great part paid, that the papers evidencing the payment were in posession of the association and the petition contained other allegations deemed necessary to entitle the plaintiff in the injunction suit to demand the nullity of the judgment and an injnnction against its execution, the petition assigning another ground against the execution, that under it the property of the succession of the deceased wife of the plaintiff in injunction was seized, and about to be sold. The injunction was dissolved on the ex parte application of the association on the bond required by the order of dissolution, and was followed by the sheriff’s sale and the adjudication to the association of the property the sale of which was sought to be enjoined.

The judge of the lower court in his answer to the relator’s application states that the answer in the suit of the building association admitted a portion of the debt sued for, that the property subjected to the judgment was not that of a succession, and he conceived that the bond required by the order of dissolution was ample to protect the interest represented by the relator.

We have no occasion to deal with any question raised by the petition for the relator save that arising on the dissolution of the injunction, on the ex parte application of the Building Association. The purpose of the relator is by the exercise of our supervisory jurisdiction to have that dissolution set aside, and to prohibit the sheriff from proceeding any further under the execution of the association. Constitution, Art. 90.

The Code of Practice provides that injunctions may be dissolved when the dissolution will not work irreparable injury to the plaintiff seeking that relief. O. P., Art. 308. It is strenuously urged it was not competent to dissolve on bond an injunction the execution of a judgment sought to be annulled on the grounds stated in the petition for that writ. We do not find it necessary to consider that issue, but on the other ground taken by the relator we are of opinion that in this case the plaintiff in the injunction suit was entitled to notice and a hearing on the motion to dissolve, and the lower court was without power to dissolve the injunction on the ex parte application of the Building Association. Marin vs. Thierry, 29 An. 362; State ex rel. Moore vs. Judge, 37 An. 118; State ex rel. Gas Light Company vs. Judge, 37 An. 285.

Since the relator’s application to this court a paper has been filed in the clerk’s office expressing the unwillingness of the Building Association to bring to trial the injunction suit and reinstate the injunction, but the relator objects to the filing of the paper and insists, we presume, to our action on his petition.

It is therefore ordered, adjudged and decreed that our previous order be maintained, that the order dissolving the injunction of relator be set aside, the injunction reinstated to await the trial of the relator’s suit and to abide the judgment in said suit.


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    No. 12,859.
    State ex rel. Montgomery Thrower vs. Judges of the Court of Appeal.
    The decree of a court of appeals does not become final by the mere disagreement of the court arising on the application for a rehearing.
    One of the judges was of the opinion that the judgment handed down was erroneous, the other judge that it was not erroneous.
    Where two judges can not concur for any reason in regard to their decree, the court shall select a district judge to sit in the case to determine with the other members of the court, after having considered the merits of the controversy, whether the judgment should become final by refusal to grant a rehearing, or whether it should be reversed, or whether other disposition should be made of the case.
    There was no ground for decision in the matter involved.
    QN APPLICATION for Writs of Certiorari and Mandamus.

      B. F. Samuels for Relator; Respondent Judges pro se.

    Submitted on briefs June 13, 1898.
    Opinion handed down June 20, 1898.
    Rehearing refused June 30, 1898.
   The opinion of the court was delivered by

Breaux, J.

Relator sets forth in his application, that a judgment was pronounced in his favor by the District Court; that the defendant on the 5th of May, 1897, appealed from the judgment to the Court of Appeals of the parish of Orleans.

That in the latter court, a judgment was rendered on the 14th of January, 1898, affirming the decision of the District Court; that the defendant applied for a rehearing. It appears that one of the judges was in favor of granting a rehearing and the other was opposed to granting the petition for a rehearing.

It results, he (relator) urges, from this — i. e., the disagreement, in views of the judges, of the Court of Appeals — that he is entitled to a final judgment. He applied to the clerk of the Court of Appeals for a certified copy of the judgment in order to have the judgment executed. This copy the clerk declined to issue.

In the alternative, he (relator) avers, that he applied for the appointment of a judge ad hoc to have the grounds for the rehearing considered and decided. This application was not granted. In answer to the rule nisi, which issued on relator’s application, the judges of the Court of Appeals returned that the foregoing statement is in substance correct.

The organ of the court, Judge Dufour, annexed a copy of his carefully prepared opinion in the case in question, and made it part of his return. The only grounds urged on appeal by the appellant in the case, we are informed by the respondent court, were, that there was no “note of evidence,” and “no evidence of record” to authorize a judgment.

The Court of Appeals in the first instance found that the suit was on a note; that the judgment contained the usual recital which gave rise to the presumption that the District Court rendered a decision upon proper evidence. The Court of Appeals, in its decision handed down with the concurrence of the two judges, quoted at length from Smith vs. City, 24 An. 20, and cited Graham vs. Rice, 23 An. 393; Simmons vs: Howard, Prestons & Barrett, 23 An. 604; Cooley vs. Broad, 29 An. 73.

On the application for a rehearing, a difference of opinion arose with reference to the legality of the judgment handed down.

One of the members of the court, Judge Ogden, in pleasant terms regarding his colleague, the organ of the court, with whom he had at first agreed, recalled his concurrence and stated that, in his judgment, the court had drifted into an error which should be corrected; in his view a “statement of facts” or “evidence of some sort” was needful in order to reverse a judgment on appeal. Our understanding cf the position of our learned brother is, that the cases are tried over on appeal without giving weight whatever to the judgment appealed from. He cited Graham vs. Rice, 23 An. 393; Simmons vs. Howard, Prestons & Barrett, 2 An. 604; Smith vs. City, 24 An. 20, and Jones vs. Neville and Wife, 9 Rob. 478.

Judge Dufour, also wrote an opinion on the application for a rehearing and cited a number of decisions to sustain the proposition, that there is no fault on the part of the appellee, where the record does not contain the evidence which the trial judge .said was heard, and that under the law it is incumbent upon the appellant to have a statement of facts prepared before appealing. That in case of its absence from the record of appeal, the court will presume that the judgment was rendered on sufficient evidence. The honorable judge in his return, in addition states that the whole controversy is before us, and that it may as well be disposed of, under the authority conferred upon this court by Art. 101 of the Constitution of 1898.

The asserted finality of the judgment rendered by the Court of Appeals on the original hearing brings up the vital question for our determination.

We are not of the opinion that the judgment was final. While it is true that the court had agreed upon a judgment, its finality under the law was made to depend upon the continuing agreement of th.e court until a final disposition of the case.

The court disagreed in regard to the application for a rehearing as to whether it should or should not be granted. One of the judges, we have seen, was of the opinion that by the disagreement the judgment became final, and the other, that the judgment should be reversed for-the reason that the judgment was erroneous.

The judgment, in our view, was not a final judgment under one or the other of the Constitutions (1879 or 1898). The concurrence needful to the finality of the judgment, we take it, relates as much to the final judgment on rehearing as it does to the judgment after the first hearing of the cause.

The right of appeal is a favored right. It should not be curtailed. It is only where those who seek the right fail to comply with statutory requirement that it is lost. Here there was no omission in the application for a rehearing. The right to have the grounds urged, considered by the court, was absolute. Why should that right be brought to naught by the disagreement of the court? While referring with all the attention we could command to both the article, of the Constitution of 1879 and the article of the Constitution of 1898 on the subject, we did not find a word, phrase or sentence lessening the extent of the right to be heard on appeal, in case of the disagreement of the court. On the contrary, the statutory regulation is: the court shall consider the reasons adduced in the petition for a rehearing. The one losing is as much entitled to have his reasons for rehearing considered on his application for a rehearing as he is entitled to'have them considered at any prior period in the proceedings.

It naturally follows, “ when two judges can not concur, for any reason, the court shall select a district judge or judges to sit in the case.” Art. 102 of the Constitution of 1898.

In our view the case should be reinstated for further proceeding and a district judge selected as required in ease of non - concurrence; and the question, whether it is proper to presume that the trial judge had sufficient evidence before him to justify his judgment, considered and decided. It follows, that in this matter, the Court of Appeals should pass upon all questions needful to a final determination of the case. With reference to the controversy before us, we consider our task at an end.

We beg to differ from the learned brother who sets forth in his return to the rule nisi issued by this court that we may now assume jurisdiction of the merits of the controversy and determine whether or not the judgment involved was erroneous, because it was not affirmatively shown by “ a statement of facts ” ornote of evidence of any sort,” that it was rendered on sufficient evidence. It is, we think incumbent upon the court seized with jurisdiction to complete the work and write the final judgment.

The Oourb of Appeals has nob certified to this court any question or proposition of law for determination as required by Art. 101 of the Constitution of 1898. To resume, relator prayed to have the judgment declared a final judgment.

This we must decline to grant. In the alternative he prayed for the appointment of a third judge.

This application should be granted under Art. 102 of 1898, by the appointment of a district judge, to sit in the case.

It is therefore ordered, adjudged and decreed that the writ of mandamus, which issued in this case, be made peremptory, a judge selected, and the question decided in accordance with the views before expressed.

The costs of this certiorari and mandamus to be paid by the party to the suit who will be cast in the final decision of the case.


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    No. 12,755.
    Allie A. Airey vs. The Pullman Palace Car Company.
    On Writ op Certiorari and on Appeal as Relates to the Pullman Palace Oak Company, Originally One op the dependants.
    As to this defendant, the suit was dismissed on an exception of no cause of action.
    Subsequently, through inadvertence, a judgment was signed against this defendant. The court a qzia afterward signed the judgment it was intended to sign in the first place. The error was complained of, both in the petition for writ of certiorari and in answer to the appeal. It was manifestly an error; the judgment against the Pullman Palace Oar Company, based upon the error, was of no value whatever.
    On the Merits as Relates to the Texas & Pacific Railway Company.
    As between the passenger and the railroad company, the latter is responsible to the former for a breach of a contract of carriage growingout of the negligence or oversight of employees of the Pullman Car Company.
    It devolves upon the railróad company, through the employees of the parlor car company to timely arouse passengers to enable them to get off at the station of their destination. A passenger carried beyond destination may have a right of action. The contract of the passenger is not subject to limitation of responsibility, if any such responsibility was stipulated between the parlor car company and the railroad company.
    Loss of time, “expenses occasioned” and “inconvenience” are elements of damages proven.

      On Application poe Weit op Ceetioeaei.
    The copy of the record was complete.
    The issue involved in the application for the writ was considered and disposed of in the same case (title as above) on appeal.
    There is no ground for the writ. It is discharged.
    APPEAL from the Civil District Oourt for the Parish of Orleans. Bightor, J.

      Jos. N. Wolfson for Plaintiff, Appellant.

      Percy Boberts for Pullman Palace Oar Company, Defendant, Appellee.

      Howe, Spencer & Cocke for Texas & Pacific Railway Company, Defendant, Appellee.
    Argued and submitted April 7, 1898.
    Opinion handed down April 18, 1898.
   On the Merits.

The opinion of the court was delivered by

Breaux, J.

Plaintiff sued the defendant for damages growing out of a contract of carriage with which (the plaintiff urged) the defendant failed to properly comply.

Plaintiff, in feeble health, in June, 1895, came to this city to' undergo a surgical operation. After her arrival here she was taken sick with malarial fever; the intended operation was postponed. Though in a weak condition she decided to return to her home in the parish of Natchitoches. Her attending physician considered her sufficiently restored to health to make the trip.

Plaintiff boarded a west-bound train at about 7 P. m. She had a mileage ticket which she, when called upon, presented to the conductor. She also had a berth ticket, which entitled her to a berth on one of the sleepers of the train. Plaintiff stated that she requested the conductor of the Texas & Pacific train to awaken her in time to alight from the train at Cypress Station, and that he promised that he would. This promise is not denied. The train arrived at Boyce (a station east of Cypress) at about 3:45 in the morning. The conductor of the Texas & Pacific Railway and porter of the Pullman were relieved, being the end of their run, and another conductor and porter supplied their places. The new conductor inquired of the porter, servant of the Pullman, who had been on duty since 3 o’clock, whether they had any passengers for any way stations between Boyce and Shreveport.

He answered “No.” This new conductor stated that he had no other means of finding out the landing place of the passengers on the way. He could not himself go in the car and arouse the sleeping passengers. It would be very annoying tb them. Without notice to plaintiff the train passed Cypress. About twenty miles beyond that station plaintiff, who had arisen after the car had left Cypress, stated to the conductor that she wished to get off at Cypress. He stated in reply, that the train had already passed that station some distance. He requested her to get off at the next station, where there was a hotel, and he would commit her to trustworthy persons and see that she returned on the next train without any expense whatever to her. She declined the offer, and expressed the wish of going to Shreveport, where she had relatives, to which place she did go and remained about two weeks.'

During the time she was at Shreveport she was offered a return ticket by the defendant, which she declined to accept.

.Plaintiff alleged, and she stated as a witness, that her disappointment was very great when she learned that she had passed the station where she was to get off, to take the Natchitoches tap road on her way to her home, six'miles further; that it was quite a shock to her in her nervous and weak condition of health.

The Pullman Palace Car Company filed an exception of no cause of action. This exception was maintained on December 3,1896, and the suit against this company was dismissed.

The other defendant pleaded the general issue, and especially denied plaintiff’s charge of negligence.

On the seventh day of May, 1897, a judgment for ten dollars was entered in error and by oversight, against the Pullman Palace Car Company (although a judgment of dismissal had been entered in its favor some time previous).

On the sixteenth day of November, 1897, the judge of the District Court sought to correct the error by signing another judgment for the amount at which he had assessed the damages against the Texas & Pacific Railway Company; the remaining defendant after the suit against the Pullman Palace Car Company had been dismissed, as just stated. Plaintiff prosecutes this appeal from both judgments — i. e., from the two judgments signed.

No appeal was taken from the first judgment dismissing the action against the Pullman Palace Car Company, on the ground óf no right of action, which had not been signed.

We, in the first place, took up for determination the case against the Pullman Palace Oar Company, the issues in^that case being separate and distinct from those in the case against the Texas & Pacific Railway Company.

We are led to infer that the Texas & Pacific Railway Company admitted that an error had been committed, without, however, as we take it, its conceding that the judgment signed to correct the clerk’s blunder was correct.

Counsel for plaintiff expressly stated in argument that he did not expect, and that he did not desire, a judgment against the Pullman Palace Oar Company.

In view of this statement, and of the facts showing error, patent of record, we can not do otherwise than pronounce null the judgment signed against the Pullman Palace Car Company.

This company is before us as an appellee. ' It did not choose to appeal; no other alternative is left to us save to apply the rule that a reversal carries with it the cost of appeal.

We pass to the ease against the Texas & Pacific Railway Company, made a co-defendant of the Pullman Palace Car Company.

By reason of the business relations between the Pullman «Palace Car Company and the Texas Railroad Company, each,- in our judgment, may be made to respond in damages. As relates to negligence such as is here charged, they are in pari delicto. As we take it, these companies were operating trains unitedly and in a measure, at least, in common. The principle applicable was settled in Williams vs. Pullman Palace Car Company, 40 An. 417, in which this court held: The Railway Company was responsible to a passenger for the laches of the Parlor Car Company. He, the injured passenger in the case, as in the case before us for determination, held a ticket of the Palace Car Company, and a passenger ticket of the railway company.

The evidence discloses in the case here, with reference to arousing passengers, that the conductor made proper inquiry, and was not correctly notified by the porter. It is quite true that it is the business of the conductor to manage the train in his charge, according to regulations, which regulations do not, however, include the necessity of his personally arousing passengers in Pullman Palace Oars on arrival of the train at the place of their destination. This duty more particularly devolves upon the employees in charge of the sleepers. But this view of his service does not have the effect of lessening the railway company’s responsibility.

This court clearly approved, in the case cited supra, the principles set forth in several decisions in other jurisdictions, that the conductor and porter of the sleeper car company were in law, as relates to passengers, the railway’s servants and employees.

We have naught to do with the status of the Palace Car Company; whether it was or was not a common carrier. The plaintiff was traveling on a ticket evidencing a contract with the defendant. She could, in our opinion, hold the defendant railway company to the performance of the whole contract.

The plaintiff gave herself concern to notify those in charge as to where she was going.

Besides, the passenger check signed by the Pullman conductor was for a berth from New Orleans to Cypress. That was in itself proof of the passenger’s station to get off. This proof bound all concerned.

Her nephew, who accompanied her to the station in New Orleans, specially requested an employee of the parlor car to see that she was awakened in time to get off at the station to which she was going. In addition she had the assurance of the conductor, that she would be awakened in time.

Evidently some one among the employees was at fault, for the passenger, we think, had given notice enough.

The negligence of the porter or conductor of the parlor car was the negligence of the railroad company.

We are constrained to hold that the failure in duty of the Puilman porter was chargeable to defendant.

We are brought, by the conclusion to which we have arrived, to a discussion of the amount plaintiff was damaged.

This court has already decided that a railroad company carrying, in violation of its contract, a passenger beyond the designated station is responsible for damages. The amount in that ease was restricted to the actual pecuniary loss sustained. Judice vs. Southern Pacific R. R., 47 An. 258.

. It was determined in the cited case that plaintiff had avoided minimizing the inconvenience to which she was subjected.

The court applied the rule in case cited supra, that where one is entitled to the avail of a contract, and can save himself from loss growing out of violation of it, at small expense, it is a matter of duty, failing in which he can only charge the delinquent with such damage as the person claiming could not prevent.

This was also the view stated in Beers vs. Board of Health, 35 An. 1132, and “ in the absence of bad faith of the defendant Board of Health, no punitive damages were assessed.”

Judgment for nominal damages only was allowed.

The defendant contended that plaintiff did not in the least exert herself to reduce the damages, and that having chosen to go to Shreveport instead of accepting return fare and the opportunity to return by the next train, she was not entitled to her expenses while in Shreveport.

It was natural, after the passenger had passed the way to her home, for her to go further — i. e., to Shreveport, in order to find shelter and comfort among friends and relatives, instead of stopping, as she was requested by the conductor, at a town hotel, among strangers.

Other items for damages claimed are, urgent business requiring her presence at home, shock to plaintiff’s nervous system when she was informed that she had passed the station, humiliation and delay.

The asserted loss in a matter of business was not traced to the absence of plaintiff caused by the failure to stop at the station to which she was going.

Without a showing connecting plaintiff’s alleged loss growing out of her absence from home, a judgment allowing damages would be unwarrantable. There is no intimation of what she might have done had she been present to compel an unwilling tenant to pay a debt which he failed to pay. This indebtedness was the loss charged-The other element of damages, nervous shock to the system, is equally as untraceable to the negligence of defendant.

It was hot shown, after having passed the home station, that any symptom of sickness made its appearance, occasioned by defendants negligence or breach of duty.

We have not discovered any indication of disease for which the defendant can be held in damages.

It does not appear that it had other effect than the shock.

No one is expected to be of good cheer when taken away from the place of destination.

But it is not a proper element of damages unless injury is shown.

No injury or disturbance to health was proven.

There was no manifestation of physical weakness.

This brings us to the humiliation'to which plaintiff was subjected, alleged in her petition.

We do not think that word applies, or has any meaning in this case.

No-one was humiliated, or had the least cause to feel humiliated.

It was unquestionably a sore annoyance to have been forgotten, but nothing, so far as the record discloses, occurred having the least tendency to humiliate.

There remains for consideration the questions growing out of “ inconvenience,” delay and expenses.

This court has decided, in at least one case cited, supra, that they may give ground to claims for damages.

It is manifest that the plaintiff must have felt some inconvenience. She was subjected to a delay and made to disburse to meet expenses.

We think the amount should be larger than heretofore allowed— i. e., ten dollars. Absence from home and the inconvenience, if they amount to anything at all, can not in our view, be less than fifty dollars, under the circumstances shown.

It is ordered, adjudged and decreed that, as against the Texas & Pacific Railway Company, defendant, the amount of the judgment is increased, from ten to fifty dollars; to the extent of that increase the judgment is amended, and, as amended, it is affirmed at appellee’s costs.

It is further ordered, adjudged and decreed that, as against the Pullman Palace Car Company, the judgment against it as appellee, dated the 13th day of May, 1897, is annulled and decreed void.

This appellee to pay its costs of appeal, and the appellant, as to this judgment, is to pay the cost of the District Court.

Application for Writ of Certiorari.

The relator applied for a mandate to have an error corrected.

He avers that the name of Pullman Palace Car appears as defendant, condemned to pay the sum of ten dollars to the plaintiff.

That the judgment was rendered against the Texas & Pacific Railway Company.

That by a blunder of the clerk, not discovered in time, a judgment written by him against the Pullman Palace Oar was signed.

The relator, to sustain his application, relies chiefly on facts which became known to him after the judgment had been signed.

As a general rule conclusions of fact can not be inquired into on writ of certiorari. The motion for the writ relates exclusively to •facts.

Besides the relator had a remedy by appeal to correct the error of which he complains. The remedy by appeal is adequate.

The decisions of this court sustain the rule, where the suit is to be decided in the last resort, and where there is an appeal the writ of certiorari will not issue. 0. P. 889.

There is no suggestion here of a diminution of the record. The writ is not applied for in aid of appellate jurisdiction.

The relief is sought exclusively under the supervisory power of this court.

In State ex rel. Keplinger vs. Perez, Justice of the Peace, 48 An. 1848, we said: The writ of certiorari (not in aid of appellate jurisdiction) is not the remedy to have appealable issues reviewed.

This decision, of recent date, conforms with a number of preceding decisions.

There is an appeal actually pending in this case.

It is therefore ordered, adjudged and decreed that the rule nisi is discharged, and the application for a writ of certiorari dismissed at relator’s costs.


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    No. 12,890.
    State of Louisiana ex rel. Henry Bezou, Recorder, vs. Judge of the Civil District Court for the Parish of Orleans, Division A.
    The office of Recorder, under the Constitution of 1879, was,not a constitutional office. 46 An. 830.
    The existing Constitution, as to those Recorders now in office,lis not retrospective.
    The statutory office of Recorder, under the. Constitution of 1879, as to those previously elected to that office, continue to he a statutory office under the existing Constitution.

      The authority of the municipal council to organize a tribunal to try the issues raised continues as it was prior to the existing Constitution.
    QN APPLICATION for a Writ of Mandamus and Prohibition.

      E. Howard MeOaleb, Albert Voorhies and F. D. Ghretien for Relator; Respondent Judge pro se.

      Samuel L. Gilmore, City Attorney, and Walter B. Sommerville, Assistant City Attorney, for City of New Orleans et als., Respondents.
    Submitted on briefs June 25, 1898.
    Opinion handed down June 28, 1898.
    Rehearing refused July 8, 1898.
   Application for Writs of Mandamus and Certiorari.

The opinion of the court was delivered by

Breaux, J.

Relator, who is the recorder of the Second Recorder’s Court of the city of New Orleans, complains of the refusal of the Judge of the Civil District Court to grant him the injunction for which he applied. The City Council, with a view to his trial upon charges of inability to properly discharge the functions of his office, have taken steps against him.

He (relator) called in question the authority of the council to hear and decide these charges. He sued for an injunction.

His purpose in applying for the injunction was to prevent the council from taking jurisdiction of the case.

The Judge of the District Court, respondent here, after having heard counsel in behalf of petitioner and of the city, refused to grant the injunction.

Relator thereupon addressed a petition to this court for a writ of mandamus to compel the District Judge to issue' an injunction directed to the mayor and members of the City Council.

Upon his application for a writ of mandamus a rule nisi was issued by this court. In this court, in support of his application for a mandamus, relator contends that, under the Constitution of 1898, he is a constitutional officer who-may be removed for cause by a judgment of the District Court under Art. 222 of the Constitution; but that the City Council is not vested with any such power.

Similar questions arose under the Constitution which preceded our organic law, recently adopted and now in force. At first, under that Constitution an extreme position was taken. It was contended at bar that a court of impeachment of the City Council of New Orleans, organized to pass upon charges preferred against one of the officers of the municipality, was not a legal body. That the proceedings of such a court would be an invasion upon the functions of the judiciary, to whom was specially delegated the power to determine all judical questions.

This court held in the case cited infra that the power of trial of municipal officers by the municipal council was not, in character, judicial, but that it was a power essential to the proper administration of municipal affairs — one necessary to good order and useful local government.

In the case to which we refer it declined to issue an injunction and arrest the action of the municipal council and held that an injunction restraining the council would be an interference with its functions.

The court gave expression to a decided unwillingness to interpose its authority prior to a hearing, or the least exercise of municipal discretion in the case. Non constat the court said, in substance, that there would be any resulting injury; that the legality or constitutionality of its action would be within judicial control under proper showing. State ex rel. Behan vs. Judges, 85 An. 1081.

The question was before this court a second time in another case which received our patient attention and consideration.

The point raised was: the Constitution having provided for the removal by the courts of designated officers for causes set forth, the Legislature was without power, because of the constitutional limitation, to prescribe other mode of removal by other authority. In other words, that the jurisdiction expressed in the Constitution operated upon the Legislature as a limitation' of power.

This court took an opposite view of the question and held that the convention, in adopting Art. 201 of the Constitution of 1879, evidently intended to establish special' and additional, and not an exclusive method of removal; that both the courc trial and the impeachment trial as provided could stand together. That they were different in origin of the power and the character of the proceedings, as well as the penalty and. its effects. The court also held that the recorders’ courts were part of the local or municipal government, and as such they were statute courts. State ex rel. Whitaker vs. Adams, 46 An. 830, 848.

We pass to a consideration of the similarity (or the asserted dissimilarity — counsel in behalf of relator contend) there is between the existing organic law and the Constitution it repealed.

Counsel for relator urged that, by reason of the change and .differ - •ence between the two instruments, the recorder selected to fill a statutory office has been, by the Oonstitution, promoted to a constitutional office.

It is first principle; Constitution and laws, as relates to their •effect, look to the future. They operate prospectively, save where the words employed make it manifest that it was the intention to give them a retrospective effect. Cooley on Constitutional Limitations, p. 76.

The words employed in the Constitution expressly relate to the future, as to the recorders of the city of New Orleans, who were in office at the date of the adoption of the Constitution. They (it is ordained) are to continue in the exercise of their functions and jurisdiction conformably to existing laws. Art. 122 of the Constitution of 1898.

As relates to “ existing laws,” the office was statutory under the Constitution of 1879; it is statutory under the existing Constitution; at least, as concerns those now in office.

We have grave doubts, considered in prospectu — i. e.. as relates to those who will hereafter qualify and fill the office under the existing Constitution — as to the intention of the Convention to make it (the recorder’s office) a constitutional office. We are quite confident, however, as to those now in office, that the legislation of the Convention did not mean it to operate retrospectively.

At the date the Convention opened its deliberations we had all accustomed ourselves to look upon the decision last cited as settling the question before us for decision. Had it been the intention of the Convention that it should have a retrospective effect, the words employed would clearly show the purpose of promoting those in office as recorders to a constitutional office. Instead, the affirmative words of the instrument, save as relates to jurisdiction, are that they shall, under the law, remain as they are. The law under which the relator is called upon to respond to charges before an authority of the municipality was on the statute book when he was elected-. It had been sustained by this court’s interpretation. He has less cause to complain than those who will hereafter be elected or appointed under the existing Constitution, who will come under the new order of things without having accepted the benefit of the old.

After all, it is a question of a tribunal to hear the charges preferred and decide whether or not they are sustained. The questions are not complicated, and it is perhaps advisable that trial be had.

Not long since, relator, an elderly man, was elected. Age, its infirmities and sickness are the only complaints made.

We are confident, before any tribunal of this State, temporary or permanent, every consideration and respect due to age will be shown, and that removal will follow the hearing only in case it is very evident that the relator is no longer equal to the task devolving upon a recorder. We, in the matter before us, dealt only with the cold letter of the law. It, and the precedents to which we have referred, left us only one alternative; that was to decline to grant relator’s demand.

It is ordered, adjudged and decreed that relator’s demand be rejected, and our rule nisi issued upon his application be discharged.


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    No. 12,888.
    State of Louisiana ex rel. Mrs. Lena Forstall vs. Hon. Fred. D. King, Judge of the Civil District Court, Division B.
    The relatrix having set out as grounds for relief by certiorari that the respondent judge had not passed upon a plea to the jurisdiction and other pleas in the course of his decision of a cause pending before him, and the proof made by his return shows that he had in point of fact passed upon and decided said pleas, said relief will be refused.
    QN APPLICATION for a Writ of Certiorari.

      Dinkelspiel & Hart ( J. Paris Childress of Counsel) for Relatrix.
    Respondent Judge pro se; Robert G. Rugué for O. J. Meyer, Respondent.
    Submitted on briefs June 25, 1898.
    Opinion handed down June 30, 1898.
   The opinion of the court was delivered, by

Watkins, J.

The grounds stated for relief are the following, viz.: That in the suit of O. J. Meyer vs. Lena Forstall, in the Fourth Oity Court, relatrix, as the party defendant, was sued for the possession of the premises No. 862 St. Charles street, city of New Orleans.

That the plaintiff made no allegation as to whether hé claimed the premises as owner or lessee; nor what the rental value of the premises were; nor that she was tenant under contract of lease; nor that she had defaulted in the payment of rent; nor that he had given her a legal notice to vacate the premises leased.

That she excepted to said proceedings on the ground that the Fourth City Court was without jurisdiction ratione materias, and also set up her lease of the property for the term of one year from the 9th of October, 1897, at a monthly rental of seventy-five dollars, and that, consequently, the amount due under the unexpired term of her lease exceeded the sum of one hundred dollars, an amount in excess of the jurisdiction of that court.

That, nevertheless, judgment was rendered against her therein in favor of the plaintiff, from which she prosecuted an appeal to the respondent’s court suspensively.

That in the appellate court, the relatrix filed a plea of prematurity, but that on the final trial of said cause, the respondent affirmed the judgment without passing on said exception, or her plea to the jurisdiction of the court of first instance.

That during the progress of the trial of said cause plaintiff amended his claim in certain particulars, and thereupon proof was administered, but same was subsequently withdrawn with the consent of the court; and that she thereafter moved the court to strike out the evidence thus adduced, but unsuccessfully, and the respondent considered said evidence in violation of her rights.

Thereupon, the contention of the relatrix is, that she was entitled to have had her exceptions to the jurisdiction and prematurity passed upon; and she avers that the respondent exceeded its powers in considering evidence which had be'en tendered and received under an amendment which had been discontinued before the rendition of judgment therein.

That such proceedings are radically null, and vitiate and render null the proceedings had thereunder.

It is to remedy and redress the alleged illegalities in the aforesaid proceedings that the writ of certiorari was applied for.

The respondent makes the following return, viz.:

That the suit described was ■ brought to his court on a suspensive appeal, and that same was tried, decided and the judgment of the lower court was reversed and one rendered in favor of'the plaintiff; and that he so decided on the ground that the testimony adduced was not- sufficient to show the relation of landlord and tenant between the plaintiff and the defendant in-that suit, and hence did not establish that the city court had jurisdiction of the case, etc.

That upon a proper showing, a new trial was granted, and, upon the second trial, he pronounced an exactly opposite judgment, which resulted in the affirmance of the judgment which was appealed from —“the evidence having established, to respondent’s satisfaction, that the defendant * * , * occupied the plaintiff’s premises as a

tenant under a lease by the month at eighty-three dollars and thirty-three cents per month; that she had not paid her rent for several months; that she had been duly and seasonably served with a notice to vacate, prior to the instituting of this suit; that her landlord, the plaintiff, desired and was entitled to the possession of his property; that the city court had jurisdiction of the demand, and tha't its judgment was correct and ought to be affirmed.”

His return further states, that “ separate judgments were nob rendered on the exceptions of prematurity and want of jurisdiction, because the relatrix did not ask for separate rulings upon them; did not ask for any ruling at all upon them. But they were passed upon nevertheless.

He further represents, that it is the rule and custom of his court, “ in trying appeals from city courts, to take up and try together all pleas, defences, etc., made in the cause, and to pass judgment on the whole at one and the same time. This was done in this case without objection; and the court, when it affirmed the judgment appealed from, decided the exceptions of prematurity and want of jurisdiction were not well taken. That judgment, in terms, dismissed the exception to the jurisdiction, and it is that judgment which was. affirmed.”

With regard to the ground taken in respect to the amendment of the pleadings and the evidence thereon taken, the respondent’s statement is, that'it was made as plaintiff’s counsel supposed for the accommodation, and at the request of the defendant’s counsel; but upon his dissent from that proposition, same was promptly withdrawn.

He further states that the amendment was a purely formal one and therefore, in his opinion, altogether an unnecessary one.

The return has furnished a complete answer to all the grounds on which relief is demanded.

It is therefore ordered and decreed that our preliminary writ be set aside, and the demands of the relatrix be refused at her costs.


text:
    No. 12,858.
    State of Louisiana vs. Prosper Renaud.
    A letter written by a prisoner while in jail, and without being closed or sealed and handed to another prisoner to be sealed and mailed to a witness of the writer, is competent evidence against the accused, notwithstanding same may have been surreptitiously read by the person to whom it had been entrusted, and thereafter handed to a deputy sheriff, instead of being mailed.
    That proceeding can not be classed as an unreasonable search and seizure in a constitutional sense.
    A single declaration uttered during the progress of the trial by the father of the deceased,, apparently hostile to the accused,".and which was at once repressed by the judge, can not be view:ed as having unduly influenced the verdict of the jury against the accused,
    A PPEAL from the Twentieth Judicial District Court for the Parish of Ascension. Guión, J.

      M. J. Cunningham, Attorney General, andgG. A. Gondran, District Attorney, for Plaintiff, Appellee.

      B. MoCulloh for Defendant, Appellant.
    Argued and submitted June 13, 1898.
    Opinion handed down June 21, 1898.
   On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Watkins, J.

The ground of the motion is, that the transcript of appeal was not filed within ten days after the order of appeal was. granted; and under the law, it was out of time when filed.

That upon the 4th of June, 1898, the appellant filed a motion for-the extension of the return day of the appeal, and obtained an order-extending same; and that said order was unavailing because the time within which the appeal could have been filed, and within which the return day could have been legally extended, had already elapsed.

The record discloses, that the order of appeal was granted on the 20th of May, 1898, and the transcript was only filed on the seventh-day of June following.

The clerk of the District Oourt prepared and caused to be filed in this court, a certificate in which the fact is stated that “ he was-delayed in the preparation of the transcript by a search necessitated by the absence from the record of the letter filed and made part and portion of a bill of exceptions, reserved by defendant; and by a stress of other business, so he could not prepare the transcript until after the lapse of the legal delays for its filing in the Supreme Court.”

This certificate has not been traversed, and it clearly shows that it was not the fault of the appellant that the appeal was not filed indue time; but that of the clerk, if of any one.

But the statement of the clerk is that for good and sufficient-reasons he was unable to prepare the transcript in time.

True it is that the appellant might have filed his motion for an extension of time within the ten days allowed for bringing up the appeal, but owing to the particular cause assigned by the clerk, it. is not apparent that the defendant or his counsel was aware that the transcript would not be ready in time.

State vs. Bevell, 47 An. 48, is in point.

The motion to dismiss is denied.

On the Merits.

The defendant was indicted for the crime of murder, found' guilty by a verdict of the jury, and sentenced to the extreme penalty of the law; and from that sentence and judgment he prosecuces this appeal.

I.

The first bill of exceptions whieh attracts attention is one relating to the introduction in evidence by the State, of a letter written by the defendant to one Marcellin Renaud, while he was in jail, and ■delivered to a “ trusty’.’ 'thereto attached, for the purpose of mailing it to him.

The bill of exception relates, that the “ trusty” to whom he delivered the aforesaid letter, handed same to the deputy sheriff instead of mailing- it; and that was done without his knowledge or consent — said “ trusty” having first read same.

That the deputy sheriff retained possession of said letter for the purpose of using it in evidence against the defendant on the trial.

That counsel' for the defendant objected to the admission of that letter in evidence ou the ground “ that no man can be compelled to give evidence against himself, and that the illegal taking of said letter by the said officers of the law, and the introduction thereof in evidence, was a violation of the constitutional provisions of the United States guaranteeing a citizen against the unreasonable search and seizure of his property and papers and against being compelled to give evidence against himself.”

The said objection having been overruled, he retained a bill of exceptions.

The trial judge assigns as his reasons for overruling said objection, that the letter was written on a piece of paper which was furnished to the defendant by another one of the prisoners in the jail who was a kind of trusty,” and that when the defendant had written same he handed it to him and requested him “ to enclose same in an envelope and mail it.”

That after he had obtained possession of the letter thus written, the “ trusty ” read it, and then gave it to the jailer, who is deputy sheriff, and he delivered it to the District Attorney.

“ There was no force, violence or compulsion used in getting possession of the letter referred to, which was delivered by the accused voluntarily to the prisoner in jail, who gave it to the jailer, and, therefore, in my opinion, no unlawful seizure was resorted ■to as contemplated by the law prohibiting the seizure of a person’s papers.”

It seems to us that the judge’s opinion and ruling were correct on the plainest principles of reason and logic.

On the evidence adduced it seems perfectly plain that the defendant voluntarily parted with the letter he had designed for his friend. That it was indited on a scrap of paper and was neither placed in an envelope nor sealed. That the trusty violated the defendant’s confidenee by reading it and placing it in the possession of an officer of the law, who proposed to put it in evidence against him. That was simply the misfortune of the defendant, who was over-confident of the trustworthiness of his messenger.

There was surely nothing unlawful in this; and being unlawfully or wrongfully obtained would not render the letter inadmissible in evidence.

The letter was properly admissible in evidence as an admission of the accused; and same was not legally subject to the objection that its admission in evidence was the just equivalent of compelling the accused to testify against him *elf. The writing of the letter was voluntary, and its contents stand for themselves as an admission of the facts therein contained.

We think the judge’s ruling correct.

II.

The second bill of exceptions relates to the refusal of the judge to grant a new trial.

The ground of the motion for new trial is, that during the trial “there was much feeling in the court house ámong the bystanders, who were in large numbers; and that the jury must have been and were influenced by said feeling,” etc.

In addition to this statement, the motion makes mention of the circumstance of the letter and its alleged seizure and introduction in evidence against him, over his protest and objection.

The statement is also made, “ that while the District Attorney was arguing the case to the jury thef feeling in the court house found expression by a person saying aloud, so that all in the court house heard him, “ Put a rope on him,” etc, and that such expressions “ must have, and did affect the verdict of the jury,” etc.

The statement of- the judge for refusing to grant the rehearing is as follows, viz.:

“ That no evidence was introduced, nor was any evidence offered on the trial of the motion.
“It is true that the father of W. P. Rochelle, Jr., who, it is alleged, was killed and murdered by the accused, was in court during the time that the case was being argued by the District Attorney to the jury', who, while speaking and appealing to the jury to find a verdict of guilty, remarked: ‘ What will you do with.the accused?’ or words to that effect, exclaimed in the audience ‘ Put a rope around his neck!’ ”

The judge’s statement is that “ no other person made any remark, nor was any demonstration made;” and that he at once took the necessary steps to prevent a repetition of any such remark in court.

He further states that said observation was made in an undertone, though he heard it, and presumes the jury heard it also.

But he further states that he is satisfied, however, that nothing was said or done sufficient to affect or influence the verdict of the jury.”

The foregoing recital of the facts is quite sufficient to carry conviction to any unbiased mind that nothing occurred within the presence and hearing of the jury, except the single spontaneous declaration of the father of the deceased, which even tended to influence the verdict of the jury; and it is evident that whatever effect same may possibly have had was speedily overcome by the repressive measures which were instantly resorted to by the judge.

Fairly considered, we think it could not have exercised any influence upon the minds of the jury which was prejudicial to the accused.

We are of opinion that no error is exhibited by the record which entitles the accused to relief at our hands.

Judgment affirmed.


author: Blanchard, J.

text:
    No. 12,856.
    State of Louisiana vs. Amos Caldwell et al.
    Accused were indicted by a grand jury composed of twelve, under the provisions of Art. 117 of new Constitution, and convicted by a petit jury of twelve, of whom /ess than the whole number concurred, under the provisions of Art. 116. The crime was burglary committed before adoption of Constitution of 1898. The defence was made that these provisions of the Constitution were ex post facto as applied to past offences, and that accused could be indicted only by a grand jury composed of sixteen, and convicted only by a concurrence of all twelve of the petit jury: Held, the provisions referred to operate changes in the method of procedure only, relate to the remedy and are in no sense ex post facto in character, and that Arts. 116 and 117 of the Constitution are self-operative.
    ON APPEAL from the Ninth Judicial District Court for the Parish of Red River. Hall, J.

      M. J. Cunningham, Attorney General, and C. C. Egan, District Attorney, pro tern., for Plaintiff, Appellee.

      W. A. Wilkinson and J. M. Pincus for Defendants, Appellants.
    Submitted on briefs June 13, 1898.
    Opinion handed down June 22, 1898.
   The opinion of the Court was delivered by

Blanchard, J.

Defendants appeal from a conviction and sentence on a charge of burglary and larceny.

The indictment was found by a grand jury composed of twelve under the provisions of the recently adopted Constitution of the State. It was met by a motion to quash on the ground that at the date of the alleged commission of the crimes charged the Constitution of 1898 had not been adopted, and, hence, the accused were entitled to have a grand jury empaneled, composed of sixteen of their countrymen, to pass upon the charges and return a true bill. It was further alleged as ground to quash that Art. 117 of the new constitution, authorizing a grand jury of twelve, is not self-operative and requires legislative action to carry the same into effect.

The motion was denied and a bill reserved.

There was no error in this ruling. The law is well settled that changes in the tribunal or method of procedure relate to the remedy, are always within the discretion of the law-making pow'er, and are in no sense ex post facto so long as they deprive the accused of no substantial right. Cooley Constitutional Limitations, pp. 272, 273, 361, 362; Am. and Eng. Ency. of Law, Vol. 7, p. 531.

That Art. 117 of the Constitution is self-operative is shown by its terms, which declare that its provisions shall “ go into effect on the adoption of this constitution.”

The court having charged the jury that nine of them concurring could find a verdict, defendants excepted and reserved a bill. The grounds of exception are that the crime is charged to have been committed at a time antecedent to the adoption of the present Constitution, that the provisions of the Constitution in reference to trial by jury are not self-operative, that they require legislative action, and that the enforcement of the same in the instant case would be to deprive defendants of -a substantial right. It is averred in the bill that one of the juryyu]Don a poll following the announcement of the verdict, refused to assent to the same, and from this it is insisted that no legal conviction has ensued.

In answer to this the trial judge says: “ Art. 116 of the Constitution of 1898 requires only nine of a jury to find a verdict in a case not capital. This is not ex post facto. It is a mere change in the remedy, or mode of procedure, which does not deprive the defendants of any right. Formerly no acquittal as well as no conviction could be had without the concurrence of twelve jurors. The change facilitates acquittals as much as convictions. It merely prevents mistrials. The change in the number of jurors who could convict is a mere change of remedy. This part of the Constitution is clearly self-executory. No legislation is necessary, or could add to, or take from, the provisions of Art. 116 as to the number of jurors

ry to find a verdict.

“ The first sentence of the article authorizes the Legislature to provide for the selection of jurors, but this provision has no relation to the remainder of the article. The third paragraph of the schedule of the Constitution of 1898 declares that the provisions of all laws inconsistent with it shall cease upon its adoption, except such as require legislation tó enforce them, and the eighth paragraph declares that the new Constitution is in full force and effect from and after May 12, 1898, except as otherwise provided in it. Article 116 is, therefore, now in force and was properly applied in this case.”

This is the first time the question has been raised under the recently adopted Constitution and the views above,- so tersely and clearly expressed by our learned brother of the District Court, who was himself a distinguished member of the convention which framed the new organic law, meet our full approbation.

Mr. Cooley-, in his work on Constitutional Limitations, pages 272, '273, states the law to be that so far as modes of procedure are concerned, a party has no more right, in a criminal than in a civil action, to insist that his case shall be disposed of under the law in force when the act to be investigated is charged to have taken place. Remedies must always be under the control of the Legislature, and it would create endless confusion in legal proceedings if every case was to be conducted only in accordance with tbe rules of practice, and heard only by the court in existence when its facts arose. The Legislature may abolish courts and create new ones, and it may prescribe altogether different modes of procedure in its ' discretion, though it can not lawfully dispense with any of those substantial protections with which the existing law surrounds the person accused of crime. « •

So, too, on pages 861 and 862, he declares the State may give a new and additional remedy for a right already in existence, and it may abolish old remedies and substitute new. If a statute providing a remedy is repealed while proceedings are pending, such proceedings will be determined thereby unless the Legislature shall otherwise provide. Any rule or regulation in regard to the remedy which does not take away or impair the right itself can not be regarded as beyond the proper province of legislation.

An ex post facto law is one which is enacted after the offence has been committed, and which, in relation to it or its consequences, alters the situation of the accused to his disadvantage (A. and E. Ency. of Law, Vol. VII, p. 525).

The term is a technical one and relates only to penal and criminal proceedings which impose punishments or forfeitures, and not to civil proceedings which affect private rights retroactively. Ib., Vol. Ill, p. 886.

It has been held that a law is not ex post facto because it changes the manner of summoning and making up the jury, as applied to past offences.

Nor because it reduces the number of peremptory challenges allowed the accused.

Nor because it increases the number of such challenges allowed' the prosecution.

Nor because it permits amendments to pending indictments.

Nor because it authorizes the jury to fix the punishment at the trial, which, under the law in force at the time the offence was committed, was fixed by the court.

Nor because it makes the court the judge of the law, whereas at the time of the offence the jury was. Am. and Eng. Ency. of Law, Vol. 7, p. 581 (note).

In all these cases it was held the change affected' the procedure only, and that the new law was applicable to the trial of the offence.

So, too, we must hold with regard to the case at bar. The accused having committed the offence before the new law went into operation, can non claim the impairment of any substantial right because of indictment, trial and conviction thereunder. The new law does but relate to the remedy, or procedure, which it is the province of the law-making power to enact for the ascertainment, prosecution and conviction of crime. State vs. Bates (Utah), 47 Pac. 78; Lynn vs. State, 84 Md. 67; State vs. Taylor, 134 Mo. 109; State vs. Gay, 18 Mont. 51; Amer. Dig. 1897, p. 962, Sec. 53 (g).

Another bill of exception is leveled at the ruling of the court a qua admitting the confession of guilt made by the accused to one Sol. Canningan, called as a witness for the State. The objection was that the confession was not free and voluntary, but brought about by inducements held out. ' Also that the signature of one of the accused to the letter wherein the confession was made was not proven.

The trial judge states the confession was not offered or received as to Hagan Clark, one of the defendants, and that as to the other two, Amos Caldwell and William Clark, the evidence showed the note was written by Caldwell in presence of Clark, and was concurred in by the latter, who signed it; and that this note contained the same recitals the two had previously made voluntarily to Canningan, who was entrusted by them with the note for delivery to the person to whom it was intended. It seems that Canningan was the friend of the accused and went to the jail to see them, taking some tobacco for them. While there he said to Caldwell and William Clark: “ If you will tell the truth about Mr. Carnes’ money probably he will help you.” Whereupon they told him to tell one of the parties (not Carnes) whose money had been stolen to come to them and they would tell him where his money was — that Hagan, meaning Hagan Clark, the other accused, had it. This was on Sunday. On Tuesday following Canningan saw the party (Mr. Terry) to whom the message was sent and delivered it. Whereupon Terry said to Canningan, Tell them to tell you.” Following this, Canningan again saw the parties and the incriminating note was written. All the parties accused and Canningan were colored. Canningan had nothing to do with the prosecution, was rather interested in getting the accused off as lightly as possible. He was the brother-in-law of William Clark. He was not commissioned by the prosecutors to see the accused and procure a confession from them. He merely expressed the opinion that Mr. Carnes would probably help them if they would tell the truth about the money. He made no promise and was authorized to make none. He was not in the service of either Oarnes or Terry and did not live on their plantations, but across the river some miles. away. We agree with the judge below that coming from such a source the mere suggestion that the prosecutor probably would help them does not amount to such an inducement as ought reasonably to attach such doubt to the confession as would exclude it.” Especially so when it occurred more than two months after the crime, when the accused parties were in no confusion and laboring under no excitement norspecial dread, and were free from improper influences.

We find no sufficient warrant for reversing the verdict and sentence appealed from, and, accordingly, the same stand affirmed.