author: Poché, J. Todd, J.

text:
    No. 159.
    E. Martin, Tutor, vs. John Lake, Sheriff, et al.
    Article 342 of the Civil Code, which, prohibits the sale of a minor’s property for less than its appraised value mentioned in the inventory, applies only to sales provoked by his tutor, during the courso of his administration, and not to sales under execution, either of judgments, or by executory process for the foreclosure of a mortgage executed by the tutor with the authorization of a competent court, under the advice of a family meeting.
    In such a mortgage *t is competent in law for the tutor to waive the benefit of appraisement* in case of execution, and to agree to pay attorney’s fobs in case of suit for collection.
    A stipulation for usurious interests in such a mortgage, when the interests are capitalized, cannot entail a forfeiture of the interests, and much less vitiate the whole contract.
    APPEAL from the First District Court, Parish of Caddo. Taylor, J.

      Land & Land for Plaintiff and Appellant.

      Alexander & Blanchard for Defendants and Appellees.
   On Motion to Dismiss

The opinion of the Court was delivered by

Poché, J.

The ground of the motion is that the amount in dispute 'does not exceed two thousand dollars.

From the evidence in the record, admitted on this point without objection, we are satisfied that the reasonable value of the lands in controversy does exceed the amount of the lower limit of our jurisdiction,, hence the motion must be denied.

On the Merits.

Tiie following facts substantially have given rise to this litigation :•

Plain+iff, as the natural tutor of his minor son, asked and obtained of a competent family meeting, the authority to borrow the sum of $1200 for the account of the minor, and to secure the loan by a conventional mortgage on the lands now in controversy, which constitute-the entire estate of the minor. The necessity for the loan was represented to be to discharge a legal indebtedness of the minor, consisting of a pre-existing mortgage, of taxes and of other items amounting; together, to about $1000.

The family meeting whose proceedings were duly homologated by the court with full knowledge of all the facts, specially authorized the-loan with interest of 12 per cent per annum; and further empowered the tutor do stipulate for attorney’s fees in case of suit for collection, and to waive the benefit of appraisement in case of execution.

The tutor then executed a note for $1344, to represent the capital of the loan, and the interests lor one year capitalized, and also executed, the mortgage in accordance with the authority thus vested in him.

At the maturity of the note, the holder seized the lands under executory process; they were sold without appraisement and adjudicated! to a third person for $801.

Plaintiff now sues for the nullity of the sale and relies on the following grounds:

1st. That immovables belonging to a minor cannot be sold for less-'than their appraised value, or without appraisement.

2d. That a minor could not be bound for attorney’s fees in case of" suit for collection.

3d. That the rate of interest stipulated in the mortgage was usurious.

He is appellant from a judgment rejecting his demand.

1st. His first ground of nullity involves two legal propositions: First, that a minor’s property cannot be sold for less that its appraised value mentioned in the inventory; second, that a waiver of the benefit of appraisement by a tutor on behalf of his ward, under the advice of a family meeting, is reprobated by law, and is, therefore, null and void.

His main reliance is on art. 342, of the Civil Code, which provides in •substance that the minor’s property cannot be sold for less than the .amount of its appraised value mentioned in the inventory.

The first inquiry which the purview of the article suggests to the legal mind is to ascertain what sale, and under what authority the sale •contemplated is to be made.

The answer is suggested by the preceding article which reads: “The .sale of the property of the minor shall be authorized by the judge, and made at public auction, after having been duly advertised in the man■ner prescribed for other judicial advertisements,” etc. The reading of this article and the fact that both articles are included in the Code with the title “of the administration of the tutor,” make it very clear "to our minds that the prohibition is intended to apply only to sales under probate proceedings, as part of the tutorship administration and not to forced sales, either in execution of judgments or under executory process.

This construction is rendered certain by the provisions of art. 345, which in precise terms excepts from the operation of the prohibition, ■sales made in execution of judgments, or for licitation among co-heirs.

Reasoning by analogy and guided by the provisions of arts. 990, 991 and 992 of the Code of Practice, our jurisprudence has recognized another exception and has firmly settled the rule that, in sales of succession property for the purpose of paying debts, minor’s property could be sold for less than the appraised value of the same. Towles, Admx. vs. Weeks et al., 7 La. 312; Carter vs. McManus, 15 Ann. 641; Succession of Hood and Wife, 33 Ann. 466; Succession of Escaraguell, 36 Ann. 155.

In the case of the Hood succession we had occasion to make a thorough investigation of the law on this subject, and we therein refer to numerous decisions which contribute to crystalize the rule now under consideration; and we there showed that the appraisement to be followed at the sale, could be made for the purposes of the sale, and was not necessarily the appraisement mentioned in the inventory.

Having demonstrated the nature of some of the exceptions from the rnle of prohibition, we are left to consider if the enumeration of sales in execution of judgments does not necessarily include sales under •executory process. It seems to us that there can be no doubt of the • correctness of the proposition. A mortgage can be foreclosed by ex-ecutory process only, and precisely, in so far as it imports a confession ■of judgment.

Hence ii follows that after the foundation of the seizure is laid, its. execution should be precisely similar to that of a judgment. The logical conclusion is incorporated in the Code of Practice. Under the heading'of'executory process, the Code, (Art. 744,) says:

“When the sheriff sells property which he has seized conformably to the provisions contained in this chapter, he must cause the same appraisements to be made, and observe the same delays and formalities as are prescribed for the sale of property seized in execution.

It thereupon follows as a legal proposition that sales of minor’s-property under executory process can be made for less than the appraised value, as well as it can be accomplished in sales in execution of judgments.

We now come to plaintiff’s contention touching the legal prohibition of the tutor’s waiver of the benefit of appraisement.

Numerous decisions of this Court go to show that a similar waiver in a contract of mortgage by a person of full age is not reprobated by law, and that it will be enforced in the courts of this State. Broadwell vs. Rodriguez, 18 Ann., 68; Insurance Company vs. Bagley, 19 Ann., 89; Jouet vs. Mortimer, 29 Ann., 206.

Now, plaintiff does not contend, and our jurisprudence could not sanction the assertion, that a legal contract of a minor, acting through his tutor, under the advice of a family-meeting duly homologated by the court, is not as binding upon him as a similar contract would be-on a person of full age and sui jm-is. The legal object and tho legal effect of the authority conferred by the law to tutors when advised' and empowered thereto by a competent court under the advice of a family-meeting, to perform certain contracts for and in name of the-minor entrusted to their charge, are to assimilate such contiacts in every particular to the acts of persons of full age.

We know of no provisions in our law, and we have been referred to> none, which would remove the waiver now under discussion from the operation of this indisputable rule.

We therefore conclude that such a waiver, when duly authorized, is. not in conflict with any prohibitory law, and is binding on the minor in whose name and for whose account it has been made.

2d. These considerations afford a complete solution to the second ground of nullity invoked by plaintiff, touching the alleged want of' authority of the tutor to stipulate for the payment of attorney’s fees in a contract for a minor.

3d. The contention about usurious interest is answered by Article-2924 of the Civil Code, on the subject of usurious interest when capitalized. The only penalty, even if the interest were usurious, would-be the forfeiture of the same, but it could not extend to the nullity of the whole contract.

The views which we have just expressed were substantially those of our learned brother of the District Court, whose clear opinion in this case has been of appreciable assistance to us in our study of the case.

Plaintiff complains of the ruling- of the District Judge in compelling-him to elect between his action in nullity aud his demand for damages and he calls our attention to his bill of exception on this point.

Under our conclusions as announced this bill loses,all practical importance. As his demand for damages has not been passed on, it will not be barred or affected by our decree, and his rights to urge it. in a separate action are thus fully reserved.

Judgment affirmed.

Mr. Justice Todd dissents, and will later express his views.

Dissenting Opinion.

Todd, J.

Granting that the articles of the Civil Code referred to* in the opinion, touching the sales of the property of minors, do not apply to sales made by judicial process in execution of judgments-against them, or the enforcement of contracts made in their behalf, I am not prepared to concur in the proposition that the tutor of minors can, with or without the advice of a family-meeting, consent that this, property shall be sold without the benefit of appraisement.

The law has by express terms ordained the manner in which contracts may be enforced, judgments executed, and judicial sales conducted. At one time it was held that even major persons sui juriscould not by their conventions deviate from this mode—could not waive the appraisement prescribed by law for sales made under legal process in satisfaction of judgments or orders of seizure and sale. Levicks vs. Walker, 15 Ann., 245.

Since, it has been held that such or like waivers could be made by persons of full age, doubtless on the principle that the contracts and agreements of such persons was a law unto themselves. But this principle has never before been extended or applied to tutors, administrators, or those acting in a like fiduciary capacity. Tutors, with the advice of a family-meeting, may, in specified cases, enter into contracts of mortgage binding on the property of minors; but they must contract both as to the mortgage and to its enforcement within the clear and defined limits of the law, and when either the tutor waives •or renounces tile benefit of appraisement or any other benefit that the law accords in such proceeding, and a family-meeting advises such waiver or renunciation, I think the action of both is ultra vires and /consequently null, as well as any order founded on such proceeding.

If appraisement can be waived, so may advertisement and every •other formality that the law prescribes in such cases, and it might •even be agreed that the sale should not be made by the sheriff, but by some other person. Indeed, I see no limit to the renunciations that may be made, liable to affect seriously the interests of minors specially under protection of the law, if so great a benefit in their favor as the benefit of appraisement can be waived or renounced, as sanctioned by the majority opinion in this case.

I therefore dissent.


source: Caselaw Access Project

author: Todd, J.

license: Public Domain

text:
    No. 148.
    The State of Louisiana vs. Henry Jackson.
    Where in a trial for murder a juror stated on hig voir dire, til at lio lived in the neighborhood of tile plantation where the homicide was committed and heard of the facts attending it immediately after its occurrence, and had formed and expressed an opinion concerning it, and that opinion was against the accused; and that the deceased was a close friend of his, and is thereupon challenged for cause hy the accused, and the challenge overruled, and he is sworn as a juror, the peremptory challenges of the accused being exhausted,

      Meld: That the ruling was erroneous and so much to the prejudice of the defendant as to vitiate tho verdict.
    APPEAL from the Eighth District Court, Parish of East Carroll. Deloney, J.

      J. JS. Bansdell, District Attorney, for the State, Appellee.

      J. M. Kennedy for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant tried for murder, was convicted of manslaughter and sentenced to fifteen year’s imprisonment at hard labor.

Among other grounds urged in support of his appeal, he complains of a ruling made by tlie trial judge to his prejudice in the empanelling of the jury, touching the competency of one of the jurors.

This juror, one Lewis Henderson, was called and sworn on his voir dire and stated substantially that he had heard all the facts and circum stances respecting the killing, just after it was done, and had formed and expressed an opinion, and that was against the accused, and that the deceased was a close personal friend of liis, but tliat, notwithstanding all tills, he could give the accused a fair erial, etc. He was challenged for canse by counsel for the accnsed, and the challenge overruled ; and lie. was sworn as a juror and sat upon the trial of the case. All the peremptory challenges of the accused having been previously exhausted.

We think the ruling was wrong, and the. accnsed was seriously prejudiced thereby. We can scarcely conceive it possible that a man should have no bias against one whom he firmly believed had wantonly killed Ivis close friend, or that lie could be perfectly fair and impartial as a juror sittiug on his trial for the killing. If the law permitted one thus circumstanced to pass upon and determine the guilt or innocence of an accnsed, we might well believe that the constitutional guarantee ■of a fair and impartial trial for all charged with crime, was the veriest mockery.

This Court has frequently held that one was not incompetent .as a juror, because ho may have formed and expressed an opinion of the guilt or innocence of the prisoner; provided, there was an assurance that such opinion would yield to evidence and was unaccompanied by prejudice, hut it has never gone so far as to declare him competent when that opinion,-formed in a case of homicide for instance, was coupled with a close friendship for the deceased, or other like conditions calculated to wield a potent influence over the mind and judgment.

For these reasons it is ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed and the verdict set aside, and the cause remanded to he proceeded with according to law.


author: Manning, J.

text:
    No. 146.
    Succession of B. L. Saunders.—On Oppositions of Saunders Heirs and Gee Heirs.
    Successive decisions of tlxis Court have established the doctrine that the prescription of judgments may he interrupted in the same mode and by the same means that proscription of other debts may be interrupted.
    A former suit against the same defendant personally will interrupt proscription when the latter suit is agains'- him as executor, and in it the heirs of the original plaintiff are plaintiffs and the form of the Litter suit is an opposition to accounts, the thing demanded being the same in both.
    The testimony of the defendant iu this first suit is admissible on the trial of the .second and its admissibility is not affected by the fact that the first suit was dismissed for want of jurisdiction.

      The heirs of a decedent must recover the principal sum left in the executor’s hands as the basis of a usufruct with interest from the usufructuary’s death, and the heirs of the usufructuary are entitled to interest thereon from the time the executor ceased paying" it to her death. The payment by the executor to the usufructuary of interest through several years is an election on his part to retain the fund at interest,

      \ PPEAL from the Second District Court, Parish of Bossier. XJL Drexo, J.

      Watleins, Scarborough & Oarver, for Opponents and Appellees:
    1. Interest is due on any balance found to be owing by an administrator from the date of the judgment establishing the debt. The amount must be considered due ex contractu. 3 A.. 574, St. Andre vs. Rachal. •
    The syndic of a succession found, after an examination of his accounts, to owe a balance to the estate, should bo condemned, like a creditor or executor, to pay interest tbereon at the rate of five per cent, a year from date of jmdgment, 10 R., 479, Succession of Desorme ; 9 A., 376, Bass vs. Chambliss.
    An administration will be condemned to pay interest on the balance shown to be due, though the petition contains no demand for it. 7 A., 69, Graves vs. Barnes ; C. P., 1007*
    “ An administrator owes but one account to the legal representatives of the deceased, and the judgment of court, rendered contradictorily with che heirs, should * * ascertain the balance due to the estate; such balance bears interest at the rate of five per cent, from the time of rendering the account,” etc. 12 R., 215, Succession of Thomas ; 36 A.; 240, Succession of Touzanne.
    Sums of money, the usufruct of which has been given, shall be put out at interest on good security with the consent of the owner, or that of the judge. R. C. C., 563. And a failure to do so was a violation of duty by the executor and -binds him for its payment*
    2. Prescription begins to run against a right only when the power of enforcing the right has arisen. The right of the Saunders heirs was suspended until the death of the usufructuary; hence no prescription commenced to 'run until the death of the usufructuary. 32 A., 637, Perault vs. Perault; 32 A,, 1037, Succession of Parmer.
    3. A suit to revive is not the only way of interrupting prescription against a judgment. It may he interrupted in the same modes as debts evidenced by written obligations. 34 A., 413, Levy vs. Calhoun; 30 A., 1071, Succession of Patrick.
    A suit brought in a court without jurisdiction interrupts prescription. R, O.O.,3518; 33 A., 848, Satterly vs. Morgan; 27 A,, '«0, Sorrell vs. Laurent.
    4. The judicial and extra-judicial declarations of a party, as well as his evidence on a former trial, are admissible against him. 7 R., 440, Closman vs. Barbancy; 14 A., 727, Alford vs. Huey & Randolph.
    A party is judicially estopped from disputing op gainsaying in one suit what has been alleged in another. 31 A., 81, Byrne vs. Bank; 22 A., 251, Dalton vs. Viasca.
    5. The executor must he sued for an account in the parish where the succession is under administration. 17 A., 277; 23 A., 568, 550.
    6. Judicial admissions are .the highest evidence against a party, and are admissible, although the suit has been decided or discontinued. 5 R., 326 ; 3 A , 492; 5 A., 315 ; 4 O. S., 445; 1 N. &, 442; 5 KT. 178; 1 R., 546; 12 R., 445, 558; 7 R., 438; 5 R., 4.
    A witness’s written evidence may be offered to discredit or contradict him. 7 O. S., 209 ; 3 R., 171.
    7. A tableau of distribution when filed by an administrator must be advertised. R. O. O., 1064.
    "When heirs have presented themselves and demanded to be pub in possession of the ostate (R, O. Q., 1193; P., 1000 et seq,), and the executor has filed an account, opposition may be filed thereto after the lapse of three days, if the same has not been approved aDd homologated. C. P.,1004; 9 La., 48 Longhottom vs. Babcock; 7 La., 344, Guffert vs. Minor; 25 A., 331, Succession of Hogan.
    8. “The testimony of plaintiff in his own favor, to establish a large claim agavnst a succes sion should he received with the greatest caution, It is, in itself, of the weakest character and unless strongly corroborated, cannot serve as a basis for a judgment of recovery.

    “ Under 2282 B. O. 0. the circumstance of his being a party may diminish the extent of his-credibility.”
    Again: ‘ It is not because a plaintiff swears affirmatively to the existence of a debt in his favor that the court is bound to take his testimony as conclusive. Surrounding circumstances and the absence of corroborating proof may weaken it (particularly in a suit against a dead man) as to render it insufficient for a foundation for a judgment of recovery.” Cutler vs. Succession of Collins, 37 A., 95; Succession of Drum, Manning's Unreporfced Cases.
    The doctrine announced in the two preceding cases is completely destructive of the testimony furnished by the unsupported affidavit of the executor’s attorney, and on which he relies solely for judgment of over §6000.

      Jack (& Disrmilces for Defendant and Appellant:
    “All judgments for money, whether rendered within or without the State, shall he prescribed by the lapse of ten years from the rendición of said judgment unless revived.” Art. 53, now Art. 3547, C. C-; 21 A , 295; 23 A , 587; 24 A., 211.
    A judgment condemning an executor to pay to the surviving widow one-ninth of the net proceeds of the estate to he hold in usufruct during life, and condemning the heirs for specific amounts in money previously received on partition is a moneyed judgment and subject to the ten years’ prescription. 37 A., 221, and cases cited above.
    Presciiption on judgments cau only be interrupted by proceedings of revival or by acknowledgments of the judgment debtor in writing. 30 A., 1071; 34 A., 413. The right of usufruct expires in ten years by non-user. C. C.
    When a party has it in his power to administer evidence which will remove all doubts as to the matter of issue and fails to offer it, the doubts will he construed against him. 20 A., 363.
    Every presumption will be adoptod against a litigant who suppresses evidence that will-illustrate his case. 2 A., 28; 7B., 32; 1 A.,1; 5 A., 324; 6 A., 165; 7 A., 544 ; 10 A., 132-
    In order that testimony taken in one case may be used in another the parties must be the same and the issues substantially identical. 16 A., 88; 7 B., 438; 1 A., 391; 7 A., 106 14 A., 727; 24 A., 604.
    In a proper case and under a proper showing, evidence taken in one case may he used in-another, as where the witness is absent, sick, dead or insane, but the rule is not to b& invoked at will and as of right to the surprise and detriment of the adverse party. 4 H. S., 449; 7H. S., 267, 283; 1 L., 320; 15 L., 43; 1 A., 391.
    Testimony taken in a case where the court was without jurisdiction ratione materies et ratione persones is coram non judice and cannot be used in another case, especially where the parties and issues are different. 8 H. S., 449.
    “The judicial confession must he taken as a whole; it cannot be divided.” C. 0.,2291. see also C. P.,356; 4B., 144;‘9 B., 125; 20 A., 464-5; 3 H. S., 454; 9 B., 146, 163; 6 H.’ S., 533; 11 A., 380
    Parts of records are inadmissible. 30 A., 29; 19 L., 526; 3 A., 594; 29 A.. 213.
   The opinion of the Court was delivered by

Manning, J.

B. L, Saunders died in Bossier parish in 1852, and G-. W. Thompson qualified as dative executor and sold the property of the. estate. The widow of Saunders, Hannah P. Gee, recovered a judgment of the executor in 1854 for the usufruct of one-ninth of the property. Gee v. Thompson, XI Ann., 657. She was unable to give security and therefore the fund remained in Thompson’s hands and he paid her the annual interest to June 17, 1874. In 1882 she brought suit in Natchitoches parish against Thompson to recover the interest since that date which wo dismissed last spring for want of territorial jurisdiction of the lower court. These proceedings have the same object, and as the usufructuary has died, the heirs of Saunders claim the principal,'viz the one-ninth of the estate left in Thompson’s hands.

The questions are presented in oppositions to the final account of the executor which he filed in 1885 under a rule of the heirs.

Prescription is pleaded to the Gee judgment which was rendered in December 1854. It is not denied that the judgment was regularly paid up to June 1874. It was for interest on a specified portion of a fund and was annually satisfied. If the judgment were prescriptible, and the opponent Gee contends that it is not, being merely for the recognition of a right of usufruct, it would begin to run from June 1874, and the suit in 1882 interrupted it under the doctrine of Sue. Patrick, 30 Ann. 1075, recognized as established in Levy v. Calhoun, 34 Ann. 413.

It does not matter that the suit of 1882 was against Thompson individually and this is against him in a representative capacity. The cause of action is the same, the thing demanded is identical, and the parties are substantially the same. Nor is the fact that the former suit was in another court a prevention to its interruption of proscription. Levy v. Calhoun, ut supra.

A preliminary question of the admission of Thompson’s evidence is presented. It was taken in the Natchitoches suit and he was not present in the trial in Bossier whence this appeal comes. Its rejection is claimed because the suits are not identical in cause of action or in the parties, and was taken before a court without jurisdiction of the suit.

The objections are not tenable. The evidence would be admissible -on the ground that it is the admissions of a party to the suit, Hood v. Chamblis, 7 Ann. 106, but it is more. It is the declarations under oath o'f the party himself touching the identical subject of this suit made in .another wherein his adversary was the same as now, and it is himself that is objecting to hearing his own sworn explanations of his own long-past transactions and not his adversary.

Tiie executor’s liability for interest to the usufructary is denied, and in support of that position it is said that as the money was left in his-hands because the usufructary did not give bond and withdraw it “the executor, whose relation to the fund is precisely that of owner, is no-more obliged to put out the money at interest for the nse and behoof of the usufructuary than he is to give the bond or special security for him.”

The Code directs that money upon which there is a usufruct shall be put at interest with the consent of the owner and if he refuse, by authority of the judge. Rev. Civ. Code, art. 563. We do not find it necessary to say upon whom lies the duty of forcing the investment of the money, whether upon the executor or the usufructuary. The executor’s counsel admits that his relation to the fund is that of owner, though of course the Saunders heirs were the ultimate owners of it, and as he failed to invest it in the obligation of any one else he must be held under the circumstances of this case to have invested it in his own, in other words to have retained the money in his own hands at interest. His conduct shows this to have been done. His payments of the interest through twenty years to the usufructary show his own construction of the matter, and Ms reasons for not continuing them will not bear scrutiny. He says he had in those twenty years paid Mrs-Gee more than the sum originally in his hands, as every one does who pays interest on a debt long enough. His contention is that the whole sum was absorbed by the annual payments to Mrs. Gee and therefore neither her heirs nor the Saunders heirs were entitled to anything.

The lower court gave judgment to the Saunders heirs for one-ninth of the estate, that being what had been left in the executor’s hands, viz $3,444.44 with interest from judicial demand, and to the Gee heirs for the unpaid interest upon that sum from the time the executor had ceased paying her, this time being erroneously stated 1884 instead of 1874, from which latter date it should run. The interest in favour of the Saunders heirs should run from the usufructuary’s death.

We do not think the judgment needs correction save in these particulars. There are some objections made to certain items of the account as not having any voucher. The. business is of long standing, and the executor swears he paid them and has lost the vouchers.

Tt is ordered and decreed that- the judgment of the lower court is amended so that interest upon the one-ninth of the estate shall run in favour of the Saunders heirs from the death of the usufructuary, and that the interest upon the same in favour of the Gee heirs shall run from June 17, 1874, to the death of the usufructuary, and as thus-amended that it is affirmed.


author: Fenner, J.

text:
    No. 151.
    The State of Louisiana vs. J. W. Redmond.
    A continuance on the ground of absent witnesses may be properly refused when the facts expected to be proved are so vaguely and indefinitely stated as not to exhibit their character or materiality.
    After one motion for a continuance has been tried, submitted and decided, the court is not bound to entertain a second motion on the same ground merely differently stated.
    The overruling of a challenge of a juror for cause, even if improper, is not ground for reversal when the juror was peremptorily challenged and when the panel was completed without exhaustion of defendant’s peremptory challenges.
    "When the defendant has elicited evidence tending to discredit a witness of the State who had sworn that his reason for not sooner informing against defendant was fear of the latter, evidence offered to sustain his credibility, by proving that he had declared his fears of defendant at the time and that such fears were reasonable owing to the character and conduct of defendant, is not inadmissible.
    APPEAL from tlie Fourteenth District Court, Parish of Cameron. Bead, J.

      M. J. Oumiinghami, Attorney General, and A. J. Kearney, District Attorney, for the State, Appellee.

      ■J. JB. Buttles, for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The convicted defendant assigns the following errors In the proceedings:

1st. The overruling of two motions for a continuance, on the ground of absence of witnesses.

The first motion was overruled on the ground that tlie satement contained in it as to the facts expected to be proved by the absent witnesses did not disclose the materiality of the testimony. The statement was that he expected to prove by the absent witnesses where he was at the time the offense was alleged to have been committed, and that it was impossible for him to have committed said offense.” This statement is entirely too vague and indefinite to support the motion, as a matter of right. After the judge had refused this motion counsel excepted to the ruling. He then asked permission to make another and more specific application for continuance, which the judge granted under the impression, as he declares, that the former motion and the exception to the ruling thereon were abandoned.

Tlie second motion, containing a more specific statement of the facts expected to be proved by tlie same witnesses, was thereupon filed, and was taken under advisement until tlie following morning. On the opening- of court, and after reading of phe minutes, counsel insisted upon Ms exception to the ruling on his first motion, and asked that the minutes should he corrected so as to note his said exception and secure his right to have it made of record. The judge, thus apprised that both motions for continuance were insisted upon, overruled the second on the ground that a second motion for continuance should not be •entertained when based substantially upon the same subject-matter which had already been tried and decided on a former motion.

We cav.not say that the judge erred. The court was not bound to hear repeated motions for continuance on the same ground. The privilege of making the second motion was matter of grace and not of right, and the party was bound to submit to conditions imposed by the court. If he chose to insist upon his first motion and his exception to the ruling thereon,'that exhausted his right, and the court had the unquestioned power to refuse to entertain the second motion based ■on the same grounds merely stated in more specific language.

We have repeatedly signalized our indisposition to interfere 'with the large discretion necessarily confided to trial judges in matters of •continuances, except in cases of rulings manifestly arbitrary and unjust. This is not such a case. State vs. Clark, 37 Ann., 128; State vs. Johnson, 36 Ann., 852; State vs. Foster, 36 Ann., 877.

2d. The overruling a challenge of a juror for cause. This assignment is robbed of all force by the fact that the juror was challenged peremptorily and did not serve, and a jury acceptable to defendant was completed without the exhaustion of one-half of the peremptory ■challenges allowed him by law.

3d. Exception was taken to the overruling of objections to certain testimony on the ground that it was hearsay, and to certain other testimony of the same witness on .the ground that it was a mere opinion of witness. 'It appears from the statement of the judge that counsel for accused had elicited evidence tending to discredit the testimony •of prosecuting witness, who swore that he had not informed sooner .against accused because he was afraid the latter would kill him. To rebut tiiis attack on his credibility and to sustain his statement, the State offered to prove by the brother of the witness that the latter had •expressed his fears to him at the time, and also that the fears were reasonable on account of the desperate character and conduct of ■accused.

We think the evidence, under the circumstances, was properly, admissible.

Judgment affirmed.


author: Pociié, J.

text:
    No. 167.
    The State of Louisiana vs. Solomon Williams.
    An indictment which did not comply with the requirements of the statute which creates or defines the offense sought to be charged therein is iatally defective and cannot sustain a conviction.
    An indictment obarging that the defendant “did feloniously and of his malice aforethought kill and murder,” etc., is not good in la^, under Section 1048 of the Revised Statutes which provides that the defendant should he charged with having “feloniously, willfully and of his malice aforethought killed and murdered,” etc.
    Courts are powerless to dispense with legal requirements in criminal pleadings.
    APPEAL from tlie Thirteenth District Court, Parish of St. Landry. Hudspeth, J. -

      John A. Ogden, District Attorney, for the State, Appellee:
    The words 1 ‘feloniously and oí his malice aforethought” are sufficient in an indictment for murder, and the indictment is not vitiated by the omission of the word willful. 27 Ann. 572; Archhold's Cximinal Proceedings pp. 881 882, bottom of page.

      W.- O. Perrault and O. W. JDulioy for Defendant and Appellant:
    1.The Statutes of Louisiana denounce the erime of willful murder only. It. S., Sec, 784.
    2.The word willful is the distinguishing characteristic between the statutory offenses of-murder and manslaughter.

    3.‘‘In all indictments for murder it shall he sufficient to allege that the deed was done feloniously, willfully and of his malice aforethought.” R. S., Sec. 1048.
    4.The same section provides that in cases of manslaughter it shall ho sufficient to allege that the accused ‘‘feloniously did slay and kill the deceased.”
    5.In the prosecution of crimes denounced by our statutes, the indictment must aver the-crime to have been committed in the language of the statutes denouncing the same, and when not done the indiotment is fatally defective.
    6.Sec. 1048 of E. S. having set forth what is a sufficient allegation to be contained in charges of willful murder, any averment less than therein prescribed is fatally insufficient. 36 An. 99, 29 An. 601-2-3, 20 An. 147.
   The opinion of the Court was delivered, by

Pociié, J.

The defendant appeals from a conviction of murder and. a sentence of imprisonment for life, and invokes relief under a motion in arrest of judgment.

His complaint is that the indictment under which he was tried does not contain the required averments of the crime of murder, and is therefore fatally defective.

The defect is alleged to consist in the omission of the word “willfully” in the description of the crime of murder.

That portion of the indictment reads: That the accused “did feloniously and of his malice aforethought kill and murder Henry Phillips,” etc

Section 1048 of the Revised Statutes, taken from the act of 1855, which prescribes the mode of charging the crime of murder, reads as follows:

In an indictment for murder or manslaughter it shall not be necessary to set forth the manner in which, or the means by wbicli, the death was caused; it shall be sufficient in every indictment for murder' to charge that the defendant did feloniously, willfully, and of his-malice aforethought kill and murder the deceased; and it.shall be sufficient in every indictment for manslaughter to charge that tlih defendant did feloniously kill and slay the deceased.”

The object of the statute was to carry out in special cases the general object of the statute of Í805, to eliminate from our criminal pleadings the unnecessary prolixity of the pleadings under the common law-Under the rules of that system, the indictment under consideration would have been glaringly insufficient for many reasons, both in the body and in the conclusion of the instrument. Under the provisions-of the act of 1855, those defects are eliminated from discussion, and the question is whether the present indictment is sufficient under the simplified form required by the amending statute.

In our opinion the indictment did not comply with the requirements, of the statute, as simple as they are, and it is therefore defective.

The District Attorney contends that the word “ willfully” is synonymous with the words “feloniously” and “of his malice aforethought,” and that its meaning is necessarily included in the other words.

A serious difference of opinion may exist on that proposition.

But we do not propose to discuss it, nor is its solution necessary to-the case in hand. The use of the word is declared to be necessary by the Legislature, and we have no power to strike it out of the statute. Ina recent case we had occasion to discuss a similar requirement of Legislative will, and we then said: “ This Court cannot accept as sufficient, less than what the law prescribes should be sufficient.” Green’s case-36 An. 99. The Legislative mandate is imperative, and we cannot disregard it. In our opinion, the law-maker, in prescribling the form contained in the statute, did not intend to deal in harmless or useless-tautology, but he sought to convey a substantial meaning by every word used in the form prescribed.

Courts cannot safely hold that the Legislative intent is nob conveyed by the words used in a statute, unless the words or the language to be construed are glaringly ambiguous or clearly redundant.

The language of the statute under consideration is clear, unambiguous and unequivocal; the object of the statute was to eliminate, useless-utterances from a legal proceeding, and the letter of the prescribed form cannot be discarded in order to seek its spirit.

Hence has flowed a wise and safe rule of construction, sanctioned by a strong current of respectable judicial precedents, that in criminal pleadings, when a crime to be charged has been created or defined by a statute, the offense should be described in the words of the statute. ’

The only exception applies to cases in which the offense is charged in different words, if such words clearly convey the real meaning- of 'the language used in the statute. Waterman’s U. S. Criminal Digest p. 342 sec. 221,222, p. 343 sec. 223,230; Wharton American Criminal Law, sec. 399 400.

But the District Attorney contends, and we are aware, that in the ■case of Harris, 27 An. 572, this Court held different views and reached a different conclusion. We have fully considered that case, and after mature reflection we have concluded not to follow it. We find better •doctrines and a closer obedience to law in the enunciations of the Court in more recent cases, which clearly, although impliedly, reverse that •case. State vs. Thomas 29 An. 601; State vs. Green 36 An. 99; State vs. Green 37 An. 27.

Injustice to the trial judge in this case, we must state that in his reasons overruling the defendant’s motion on the point at issue, he expressed views in accordance with-our present conclusions, and that he reluctantly shaped his course under the ruling m the Harris case.

In view of the discrepancy on this point in our reports, wo have given to this subject more than usual care, thought and study, and our conclusions, although we are always reluctant to disturb the verdicts of .juries, force us to give relief to the accused in this case.

It is therefore ordered, adjudged and decreed that the sentence appealed from be set aside, that the verdict of the jury be annulled, .avoided and reversed, that the indictment against the accused be quashed, and that he remain in custody to await the further action of the Parish of St. Landry.


text:
    No. 165.
    The State of Louisiana vs. Gus. Logan.
    :State vs. Johnson, 37 Ann. 422, maintaining sufficiency of jury oath to find verdict “according to the evidence,” affirmed.
    APPEAL from the First District Court, Parish of Caddo. Hides, J. ---

      M. J. Grain, District Attorney, for the State, Appellee.

      8. P. Watts, for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The only exception presented is to the form of oath :administered to the jury, being to find a verdict “according to the evidence.” It has no merit. State vs. Johnson, 37 Ann. 422. State vs. Winson (this day decided).

•Judgment affirmed.


text:
    No. 158.
    The State of Louisiana vs. William Nicholls.
    An indictment charging burglary and larceny in a singie count is not bad for duplicity.
    A verdict of “guilty of burglary and larceny” is equivalent to a verdict of “guilty as charged in the indictment,'*• and is good as a verdict of burglary in the particular man* ner charged. Had the verdict been for larceny alone, or had the sentence imposed penalties for both offenses, different questions might arise.
    APPEAL from tlie First District Court, Parish of Caddo. Sides, J. —-
    If. S. Orain, District Attorney, for the State, Appellee.

      Bl. Bandolph for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The indictment in this case charged the prisoner with burglary and larceny in a single count. The jury returned a verdict of “guilty of burglary and larceny.” The Judge sentenced the prisoner to pay a fine of one dollar and to imprisonment in the penitentiary for three years. Counsel for accused asked the Court to instruct the jury that “they might return a verdict of burglary but not of larceny,” which the Court refused to give. After verdict a motion in arrest was made on the ground of duplicity in the indictment, and on the further ground “that the verdict is not responsive to the indictment, under which a verdict for burglary alone could have been rendered,” which motion was overruled.

These are the errors assigned, and 011 which we have to pass.

The objection to the indictment on the ground of duplicity is clearly untenable under the authorities. Bishop Cr. Proc., Sec. 439; Bishop Cr. Law, Sec. 1062; Wharton Cr. Law, Secs. 1615, 560-5, 617; State vs. Brown, 35 Ann, 1059; State vs. Johnson, 34 Ann. 49; State vs. Depass, 31 Ann. 489.

As to the instruction asked that “the jury might convict of burglary but not of larceny,” its refusal might have raised a nice question if the verdict had denied the burglary and convicted of larceny alone. Mr. Wharton says: “If the prisoner bo charged that he feloniously and burglariously broke and entered the dwelling-house of J. S., and then .and there certain goods of J. S. feloniously and burglariously did steal, ■etc., the indictment comprises two offenses, namely, burglary and larceny; and therefore he may be acquitted of the burglary if the case be' ■ so upon the evidence, and found guilty only of the larceny.” Wharton 'Cr. L., Sec. 1615.

Mr. Bishop, on the contrary, holds that, in order to convict of larceny alone, it must be laid in a separate count; and that, “ if a single count of the indictment charges liim with breaking, entering and stealing, the offense charged is single, being burglary committed in a particular manner.” Bishop Cr. L., 1062.

But it is not necessary to decide this question in this case, because-the verdict convicts of the burglary. Even under Bishop’s doctrine, an indictment charging burglary and larceny in a single count is good as a charge of “ burglary in a particular manner;” and, ^y parity of reasoning, a verdict for burglary and larceny is a good verdict for “burglary in a particular manner”—indeed, here it is quite equivalent to a. verdict of “guilty as charged in the indictment.”

The sentence of the Court was single and inflicted a penalty entirely appropriate to the crime of burglary alone.

We, therefore, think the verdict responsive to the indictment, and' that defendant’s rights were not affected by the refusal of the instructions asked, whether such refusal was error or not, which we do not. find it necessary presently to determine.

Judgment affirmed.


author: Pochií, J.

text:
    No. 164.
    The State of Louisiana vs. James Redwine.
    Evidence taken in support of a motion for a new trial, in criminal caaes, will not be considered on appeal unless it be incorporated in or attached to a bill of exceptions taken, from the refusal of a new trial by tbe judge a quo.

    APPEAL from the First District Court., Parish of Caddo. Hides, J. -

      ]£. 8. Grain, District Attorney, for the State, Appellee.

      8. P. Watts for Defendant and Appellant.
   The opinion of the Court was delivered by

Pochií, J.

The complaint of the defendant is that one of the jurors-who tried his case was a felon and an ex-convict, on which gro und lie-had moved for a new trial.

His counsel has omitted to incorpórate the evidence offered in support of his complaint in his bill of exceptions, and under our jurisprudence we cannot consider the same.

The rule is now well established that evidence in criminal cases taken in support of any plea or special defense will not be considered by this Court, unless incorporated in a bill of exceptions. The practical result of defendant’s omission in the jiremises is that we have no-evidence of the alleged disqualification of the juror of whom he complains. State vs. Ewen, 32 Ann. 782; State vs. Nelson, 32 Ann. 842; State vs. Miller, 36 Ann. 158. Under this showing we have no power to-entertain His point, and lienee the defendant can obtain no relief at dun-hands.

Judgment affirmed.


author: Poci-rÉ, J.

text:
    No. 153.
    The State of Louisiana vs. Dennis Boyd.
    'In a capital caso the action of tlio District Judge wlio orders the trial of an accused on the same day that ho is arraigned, iu the unforeseen absence of his chosen and retained counsel, and refuses to attorneys appointed to him by the Court more than three hours’ time to prepare their defense, is erroneous iu law and unjust to the accused.
    Under such circumstances, his refusal to postpone the trial for two judicial days will be reversed on appeal, and the case remanded for another trial.

      Drew, J. —- PPEAL from the Second District Court, Parish of Bossier.

      J. A. IF. Lowry, District Attorney, and M. G. JElstner for the State, Appellee.

      J. D. Watkins, J. JE. Reynolds and J. II. Keyser for Defendant and Appellant. -
   The opinion of the Court was delivered by

Poci-rÉ, J.

The principal complaint of the defendant, who lias beén sentenced to death under a conviction for murder, grows out of the alleged refusal of the trial judge to allow him sufficient or reasonable time to prepare for his defense.

The record shows that between tlie date of the indictment and that of tlie arraignment the accused had secured the services of a prominent attorney of that bar to defend him, and that on the day of his trial his chosen counsel was absent from the Court, without his knowledge. In the meantime he had on two occasions been warned by the -Judge to he ready for trial, and on the suggestion of the Judge that there might he some misunderstanding touching the employment of his chosen counsel, the accused was tendered counsel under appointment •of the Court. The offer was declined by the accused, who stated that he preferred to be defended by the attorney of his own choice.

He was arraigned on the day primarily fixed for his trial, and his ■attorney being absent, the Court appointed two members of the Bar to defend him, and allowed them three hours for the preparation of •tlieir case.

At the expiration of that time they presented a motion, supported by tlie affidavit of the accused, stating that they bad not had reasonable time to prepare his defense, and asking a postponement of the trial from that (Friday) to the Monday following, on which day the (Court would sit, by which time they could be ready for trial, and on which day they expected the attendance of defendant’s chosen counsel.

Their motion was overruled and the trial proceeded.

We think that their request was reasonable and legal, and that the Judge’s refusal was erroneous. This case falls withiu the scope of the ruling in Horn’s case, 34 Ann. 100, and it must share the same fate.

Counsel for the State strenuously contend that the circumstances of' this case are precisely similar to those presented in Berry Johnson’s case, 36 Ann. 852. But in this they are mistaken. In that case the counsel of the accused had abandoned his client and had notified him thereof; in the instant case the accused had not been abandoned by his attorney, whose attendance he had every reason to expect. The record shows that three days previous to the day of trial that counsel had personally ordered witnesses to be subpoenaed, under his own signature, hence the accused was guilty of no laches in making no efforts-to secure the services of other counsel. Again, in Johnson’s case the accused had been arraigned one week previous to his trial, and in this case the defendant was arraigned on the very day of his trial only.. This of itself was an irregularity which this tribunal cannot countenance.

In the case of the State vs. Chenier, 32 Ann. 103, this Court, through. Judge Spencer, used the following emphatic language on a similar irregularity : “ The prisoner must be arraigned and must plead to the-indictment before the case can bo set down for trial or tried.”

“It may be that in this particular case no prejudice was wrought to-the accused. Still we think it unsafe to sanction such irregularities in, capital cases.”

The accused in the instant case was clearly entitled to the short and reasonable delay which he asked of the Court, when confronted with a trial for his life in the unforeseen and unexpected absence of Ms counsel, and we must presume that he has suffered injury from the refusal of the same.

We feel constrained on that account to reopen the case.

It is therefore ordered that the verdict and sentence appealed from, be annulled and set aside, and that this cause be remanded to the-lower court for further proceedings according to law.


text:
    No. 157.
    The State of Louisiana vs. John Kervin.
    The ruling of the trial judge that no overt act, threat, or hostile demonstration had beeni proved and therefore that no foundation had been laid for the admission of proof of the-character of deceased, is final unless manifestly arbitrary and not of sound legal discretion.
    It is not within the province of the jury to decide whether a foundation has been laid for* proof of the deceased’s character. That question cannot be submitted to them from the very nature and mode of procedure in a criminal trial.

      The judge who presides at> a criminal trial must necessarily have heard the evidence sub mitfced to him of overt acts, threats etc. aud he is not compellable on a motion for a new trial to review his own ruling that such evidence was insufficient to admit proof of character, nor can he be complained of if he refuses to hear evidence to shew that he was-wrong in his ruling on the trial in that regard.
    APPEAL from the Second District Court, Parish of Bossier. Drew, J.

      J. A. W. Dowry, District Attorney, and J. D. Watkins, for the State,. Appellee.

      Snider & Smith for Defendant and Appellant:
    Under plea of self-defence if the evidence as to who committed the direct overt act he uncertain, or contradictory or cii cumstantial, evidence as to the character of the accused for violence must be admitted. 2 Bishop’s Crim. Pro., Secs. 613, 615, 616, and authorities in notes.
    Under plea of self-defence, if the evidence [admitted prior to the act of collision between the parties) he circumstantial, and showing any contention between the parties and it also tends to show who was the aggressor, then the character of the deceased for violence is a part of the res gestee, and it becomes a fact to be considered by the jury, just as it may have been considered by the accused at the instant he acted, in determining. whether or not the peril to life or danger of great bodily harm was apparently real and imminent. Statev. D’Angelo, 9 A.,48; Statev. Burns, 30 A., 679; Cotton v. State, 31 Miss., 504; Wesley v. State, 37 Miss., 327; Monroe v. State, 5 Ga., 85; Queensberry case, 3 Stewart and Porter, 308; Franklin case, 29 Ala., 14.
    “If there be an attempt to make out a case of self-defence, the general tendency of the-decisions in a majority of the States is to admit evidence of the brutal character of the deceased, or his threats against the accused.” Fields v. State, 47 Ala., 603; Bowles v,. State, 58 Ala., 335; Payne v. State, 60 Ala., 80; People vs. Taing, 53 Cal., 602; Davidson v. People, 4 Col., 145; Campbell v. People, 16 111., 17; Wilson v. People, 94 III., 299 ;. State v. Browne, 22 Kan., 222; Cornelius v. Commonwealth, 15 B. Monroe (Ky.), 546 ; State v. Hicks, 32 A., 1098; State v. Burns, 30 A., 679; State v. Chavis, 80 K. C., 353; Crabtree v. State, 1 Lea (Temí.), 267; Little v. State, 6 Baxt. (Tenn.), 491; Sims v. State, 9 Tex App., 586; Peck v. State, 5 Id., 611; U, Stater v. Mingo, 2 Curtis C. C.. 1; Com. v. Wilson, 1 Gray (Mass.), 337—all collated in Koto A to Sec. 116 of 3 Greenleaf’sEvidence, 14th edition, 1833.
   The opinion of the Court was delivered by

Manning, J.

The defendant was indicted for murder, was convicted of manslaughter, and was sentenced to imprisonment at hard labour for tea years. He relies for reversal upon the refusal of the judge to admit evidence ot the character of the deceased for violence aud presents the point in a bill and a motion for a new trial.

The defendant’s counsel concedes that such testimony is inadmissible unless there has been proof of some overt act of violence of the deceased, or of threats or hostile demonstrations' by him, and he insists that such proof was made but the judge has not given it th& weight it deserves.

The homicide was committed at a church and shortly after tlie religious exercises had closed. In his reasons appended to the bill tire judge after stating the evidence says no proof liad been made of any assault or hostile demonstration by the deceased at the time of firing by the accused, and that the latter had not placed himself within the ride of law that permitted the reception of proof of violent character.

Of necessity the trial-judge must decide whether the proper foundation has been laid for tlie admission of evidence of character, and that foundation is proof of an overt act of attack at the time or threats or hostile demonstrations. In State v. Ford, 37 Ann. 443, the ■ distinction between evidence and proof was pointed out, for while some evidence was introduced by the defendant touching threats and hostile demonstrations of the deceased, counter-evidence was introduced by the State, and on weighing the whole the judge decided that neither threats nor hostile demonstrations were proved. Ho points out the fact that four out of the five persons who were present distinctly testify that there were no threats nor hostile demonstrations and this evidence was satisfactory to him.

Tlie ruling of the judge was not arbitrary but was the exercise of a ■sound legal discretion based upon a careful review of the whole evidence and when that is the case we are hound to take his ruling as conclusive.

Tlie defendant’s counsel contends that all this evidence about overt acts and threats etc. should go to the jury and be weighed by them. But how would a criminal trial proceed or be ai ranged if this were the case? The law is clear that proof of overt acts, threats, etc. must be made before evidence of violent character is admissible. If the jury is to decide whether the evidence on those matters is proof, they must go out and find that fact and then return to tlie box, announce their finding and if favourable to the defendant the judge must then •admit the evidence of character. A jury trial thus conducted would be an anomaly.

There is another point behind this presented by the motion for a new trial.

The defendant offered the testimony taken in writing on the preliminary examination and the notes taken oil the trial by an assistant counsel for the State to prove to the judge that the evidence of threats - etc. was sufficient to admit evidence of character.

We must say this is novel. It is making the judge review his own •ruling on the trial and offering evidence to him to shew that his estimate of the evidence on the trial was incorrect, and that on a matter1 he had adjudged and was beyond recall. As to the evidence on preliminary examination the law requires that the evidence on the trial shall amount to proof of threats etc. before character can be inquired into, and while the judge might admit the notes of counsel on either side to refresh his own memory, if his recollections of the testimony are clear there is no obligation on him to take the notes of others. The judge who presides at the trial must be supposed to have heard all the evidence on such a matter as that. It is addressed to him directly and is offered to him in order that he may decide whether it is sufficient for the purpose, and when he has not only heard it but recites it and declares it insufficient as a foundation for the admission of other evidence upon another matter, his ruling must be final necessarily unless-manifestly arbitrary or not of sound legal discretion.

Judgment affirmed.


author: Todd, J. Manning, J.

text:
    No. 149.
    The State of Louisiana vs. Anderson Day.
    A conviction ior inflicting a wound less than mayhem is not responsive to the charge in an; indictment of cutting with intent to murder. The variance between the charge and the verdict is fatal.
    Parish of East Carroll. APPEAL from the Eighth District Court, . Deloney, J. -

      J. JE. BanscLeM, District Attorney, for the State, Appellee.
    Defendant and Appellant unrepresented.
   The opinion of the Court was delivered by

Todd, J.

The defendant was charged by information with cutting-one John Cullen with a razor with intent to murder, under Sec. 791r R. S.

He was convicted of inflicting a wound less than mayhem, an offense denounced by Sec. 794, R. S.

He appeals to this Court, and assigns as error that the verdict was not responsive to the charge and that the variance between the two-was fatal.

There have been frequent adjudications by this Court upon this point, and upon the authority of the same the assignment must be sustained. State vs. Murdock, 35 A., 729; State vs. Pratt, 10 A., 191; State vs. Johns, 32 A., 812.

It is therefore ordered, adjudged and decreed that the verdict of the jury and the sentence thereon be annulled, avoided and reversed, and the accused discharged. -

Dissenting Opinion.

Manning, J.

I dissent for the reasons set out in my dissenting, opinion in the Murdock case.


text:
    No. 150.
    The State of Louisiana vs. William George.
    Granting continuances of criminal cases is uniformly hold, to rest in tlie sound discretion, of tli© trial judge and his ruling will nob lightly be disturbed.
    A plea of insanity, tlio last resort of imperilled criminals, will surely not be listened to when the defendant’s own witnesses disprove it.
    Jurymen are not incompetent who have formed and expressed an opinion adverse to the prisoner if that opinion is based on rumour and they declare it is not fixed and will yield to evidence.
    APPEAL from the Eighth District Court, Parish of East Carroll. Déloney, J.

      J. J3. Bansdell, District Attorney, for the State, Appellee.
    Defendant and Appellant unrepresented.
   The opinion of the Court was delivered by

Manning, J.

The defendant was indicted for the murder of one Peggy Johnson and on conviction was sentenced to be hanged. lie relies for reversal upon several bills of exception and a motion for a new trial.

1. Iiis application for a change of venue was rejected for the reason that the evidence did not sustain it.

If the motion had stood upon tho testimony of the defendant’s own •witnesses, the ruling of the lower judge would have been amply justified. That testimony shewed affirmatively that there wa’s an entire .•absence of prejudice or feeling sufficiently strong to affect the verdict •of a jury.

2. A continuance was prayed to obtain the testimony of one Stovall. The judge refused it but postponed the trial for a week and Stovall then appeared and the defendant had the benefit of his testimony.

3. A continuance was prayed again to obtain the testimony of one Hibson wbo lived in Mississippi.

It was manifestly a device to gain time. The crime had been committed two years and more before tho trial, during which time the defendant had been a fugitive from justice until the last six months of it when he was confined in the parish jail. He had thus ample time to have obtained tbe attendance of his witness if he were obtainable. A letter was produced from him stating he should not come until just before the .trial but would be there then. Prom internal evidence as well as from other circumstances this letter has the appearance of being manufactured for the occasion. The affidavit supporting the motion for continuance states that Gibson saw the killing while the affidavit for a continuance because of Stovall’s absence states that the latter witness alone saw it, and therefore each contradicted the other.

It has been so often held that granting continuances rests in the ■sound discretion of the trial judge that the repetition of it is wearisome. State v. Finn, 31 Ann., 408; State v. Fulford, 33 Ann., 679; State v. Ford, not yet reported. The judge wisely exercised that dis•eretiou in the present instance in refusing the continuance.

4. A third motion for a continuance was made on the ground that the prisoner was insane, it being alleged that he had fits of insanity, one of them having overtaken him at the moment of the homicide and another having attacked him right there on the trial so that he was temporarily unable to make any suggestions to his counsel or to assist in Ms defence.

Unluckily for this last resort of imperilled criminals the doctors whom the defendant called to the stand to prove his mental wreck swore that in negro lingo he was “playing ’possom,” and as soon as the motion was overruled he did in fact recover his mental equilibrium and was vigilant and ready in prompting Iris counsel throughout the trial.

5. Sundry bills were taken to the refusal of the court to exclude jurymen for alleged incompetence. Their answers on voir dire were the usual ones, i. e. that they liad heard of the case in general rumour but not from the witnesses, had formed opinions adverse to the prisoner but they were not fixed and would yield to the evidence, and :such like.

We have had occasion more than once latterly to say emphatically ■that these and even stronger expressions do not disqualify jurymen. State v. Dugay, 35 Ann., 327; State v. McGee, 36 Ann., 206; State v. Birdwell, Idem, 859.

A motion for a new trial embodied all these objections that are the subjects of the bills and an additional one that the majority of the jurymen were negroes and that the defendant is a negro preacher and had small chance of escape from sucha thrall. But the result—an unqualified verdict that entails hanging—shews that these people may on •occasion be safely entrusted to assist in the administration of criminal justice.

Judgment affirmed.


text:
    No. 162.
    John Lake, Sheriff, vs. Parish of Caddo.
    A sound and philosophical rule for fc^e construction of organic as well as statutory law is. to ascertain the mischief it was intended to remedy and so to construe as to effect the remedy. Expressions are not to be taken in their technical sense but rather in their common acceptation.
    The Constitution has not used the words “criminal matters”in art 119 as importing “pending criminal causes” alone, but in a larger sense, and they include whatever appertains to sheriffs’ services in crimiual matters.
    Sheriffs are not entitled to compensation for serving the venire for the several courts, because summoning jurymen for the trial of criminal causes is service in criminal matters, and the Constitution has provided a specific compensation for those services which cannot he exceeded.
    APPEAL from the First District Court, Parish of Cacldo. Taylor, J.

      Land & Land and Alexander & Blanehardion Plaintiff and Appellee r
    1. Sec. 6 of act 94 of 1873 provides that sheriffs shall receive from the several parishes for summoning jurors on venires the same compensation as is fixed by law for other summons, i. e., 50 cents for service and 10 cents mileage. Act 101 of 1870 ; R. S. of 1870,. sec. 762.
    2. Act 44 of 1877 does not repeal said section either directly or by implication. It is silent as to compensation of sheriffs and liability of parishes for same.
    3. The summoning of jurors drawn on the general venire in the country parishes to serve in all classes of cases is not a service by the sheriff in “criminal matters” and is not within the purview of art. 119 of the Constitution of 1879. 30 Ann. 514.
    4. "When a charge for summoning a juror embraces the two items of serviug the summons- and mileage, an overcharge in the mileage does not forfeit the fee for the summons. “ The item of foes so omitted or overcharged " is forfeited. Sec. 4 of act 101 of 1870. Statutes inflicting a penalty or forfeiture should be strictly construed.
    5. Sheriffs are entitled to interest on their fees from date of rendition of services, and not from expiration of six months from said date, This provision applies to costs in pending suiis, and in such it has been held that the costs were collectible under fi. fa., if judgment was rendered before the expiration of said term. 5 Ann. 050. Sheriffs' fees, for summoning jurors do not require certificate of judge and clerk. 30 Ann. 514. They stand on same looting and should bear interest as any other debt.

      Wise & Ilerndon for Defendant and Appellant:
    1. Sheriffs have no right to charge for services rendered in criminal matters not included in the exceptions in art. 119 of the Constitution of 1879. Const.* 1879, art. 119.
    2. Act 44 of 1877 is the present jury law of this State. 35 Ann. 28, State v. Robert 'West.
    3. The summoning of the jurors for the regular jury terms of the district courts of this State is criminal services rendered by the sheriff, and for which he receives no compensation except 5500 for each representative the parish may have in the House of Representatives. Const, of 1879, art. 119 ; acts of 1877, No. 44; acts of 1870, act.101, sec. 2 ? Chitties Blackstone, 2 vol., 4 hook, p. 351.

      A. Act 101 of the acts of 1870 is the present feebill’for sheriffs in civil and criminal matters, subject to a reduction of 50 per cent in criminal matters, as shown by act 7 of 1877, extra. session.
    5. The sheriffs’ light to recover forfees and emoluments of office are prescribed by these years. Revised C. C., arts. 35, 38.
   The opinion of the Court was delivered by

Manning, J.

The plaintiff is the sheriff of Caddo parish and sues for fees for serving the venire at the several terms of the District court for five years commencing with the September Term 1880 and ending with the April Term 1885 both inclusive, amounting to two thousand two hundred and sixty 25-100 dollars.

The defence is that for summoning jurymen in civil causes the sheriff must look to the parties thereto, and for like service in criminal matters the Constitution has prescribed a maximum compensation regulated by the number, of Representatives a parish has in the lower house of the legislature, viz five hundred dollars for each Representative. The parish of Caddo lias two Representatives and it is admitted that the police jury thereof have regularly paid the plaintiff one thousand dollars annually during the time for which fees are now charged.

The verbiage of the Constitution is as follows;-Sheriffs shall receive compensation from the parish for their services in criminal matters (the keeping of prisoners, conveying convicts to the penitentiary, insane persons to the insane asylum, aud service of process from another parish and service of process or the performance pf any duty beyond the limits of his own parish excepted) not to exceed five hundred dollars per annum for each Representative the parish may have in the House of Representatives. Art. 119.

The contention is that summoning jurymen is not a criminal matter and therefore the fees for it are not included in this provision of the Constitution. To support this construction reference is made to the definition of matter in law by lexicographers and text-books as “a subject of complaint, a suit, a demand,” and to legislative expressions iu our own Acts wherein “criminal cases,” “criminal proceedings,” and •“matters of a criminal nature” are said to be used as synonymous, and the conclusion is deduced that “criminal matters” must mean a criminal case or proceeding pending in some court.

A sound and philosophical rule of construction of all law, organic as well as statutory, is to ascertain the mischief sought to be remedied and so to use the appliances the law has provided for its extirpation, that is to construe the law so as to make it effect the purpose for wliich it was enacted. Another equally sound rule of construction is that expressions are not to be taken in a technical sense but rather as commonly used, the object being to ascertain what was the intent of the law-maker rather than to confine his meaning to the import of the words as they would be used by a scholar or a pliilologian.

Discussing this last point first, it is apparent that the Constitution has not used the.words “criminal matters” in a technical sense nor even in a strictly correct sense, for it manifestly treats “conveying insane prisoners to the insane asylum” and “service of process from another parish” as criminal matters. Conveying insane persons to an asylum is in no sense a criminal matter, and civil process from another parish has sometimes to be served. Yet they aré treated as criminal matters, for what would be the sense of a provision of compensation for sheriff’s services in criminal matters at a fixed rate excepting certain specified acts, if those acts are not included in the criminal matters. If those acts are to be paid for and they are not criminal matters, liow can they be affected by a provision concerning criminal matters. When the Constitution says sheriffs may receive a certain compensation for their services in criminal matters except carrying lunatics to an asylum etc. it implies that but for that exception the sheriff could not be paid for that service because it is a criminal matter in the intendment of the Constitution, and if conveying lunatics to an asylum is classed among criminal matters by the Constitution, how much more is service of the venire for trying criminal cases to be thus classed.

Reverting to the other and broader rule of construction, what was the mischief to be remedied when the Constitution was making.

The public burdens had increased to an alarming extent in consequence of increased public expenditures. Taxation to meet them had been imposed, and this had become more and more onerous as prosperity waned and individual revenues diminished. The seductive cry for cheap government found an echo in every corner of the State, and when the Convention to frame a Constitution met in 3879 the uppermost thought was how to diminish the public burdens and satisi'y the demand for economical government.

Among the matters of increased expenditures there was not one that had attaiued the appalling proportions of the criminal expenses of the State. Over a third of a million of dollars was absorbed by them every year. This enormous sum was wrung annually from the pockets of the people to pay what in police-jury budgets is called criminal expenses. In some parishes ten thousand dollars per annum was required. An average of four thousand dollars for each country-parish and one hundred and twenty five thousand dollars for the City made up a heavy exaction the payment of which had to be repeated every year. These are matters of contemporaneous history and served to shew what was the mischief in that particular branch of the public service that imperatively required remedy.

The Convention applied the knife to the sore. Without concerning itself with the particular verbiage to be employed its impulse was to get rid of these annual drafts upon the people in criminal matters, and it did not care what the matter was for which these annual charges had been made, so it appertained to criminal expenses, the intention was to wipe them out and substitute a fixed annual allowance, not to be exceeded. In accomplishing this it never occurred to any member that the term “criminal matters” might not fit a definition in a law-dictionary, or that philological criticism might discover it to be less comprehensive than was intended, and so the beneficent endeavor of the Convention to give relief to the people would be thwarted. They used an expression that conveyed their meaning, viz whatever appertains to sheriffs’ services in criminal matters of every kind are included, and some services are meant that are not strictly included in that designation and so we will except these by name.

And this interpretation has been apparently accepted and acted on. Nearly six years have passed since the Constitution went into operation and this is the first suit wherein a claim beyond the fixed compensation has been before us. It was said at bar bv one counsel that several parishes had paid the extra charges without demur and by another that no parish had ever paid them. The practice of the parishes would have no weight with us in making a constitutional construction.

Every thing that serves to the' ascertainment of the intent of the law-maker is worthy of consideration. The withdrawal of the aunual sums given the sheriff and others for criminal matters was doubtless feared would reduce the revenues of their offices too much, for the clerks also can receive no compensation for their services in criminal matters. Art. 121. The offices of sheriff and tax-collector had been dissevered, and those of clerk and recorder had long been separate. The Convention united them and paved the way for cutting down criminal expenses.

We do not assent to the view of the defendant’s counsel that the jury-fee required to bo prepaid in civil causes is intended to pay the sheriff for summoning jurymen. It is intended to pay the jury, and if there were any practicable method of separating the venire for civil causes from that for criminal, the fees for serving the venire in the former would not fall under the rule of this cause.

And after all there is no hardship in cutting down the compensation of the sheriffs and clerks in these matters. In the beginning of our legislation a< American States he who should have proposed to pay court officers out of the State or local treasury for services rendered in criminal matters would have been laughed at for his pains. The State is sovereign and pays no costs. In her prosecutions of criminals she acts as custodian of the public safety. If the alleged criminal is condemned he pays all costs. If acquitted none are paid. No hardship was done for whoever accepted any office under these well understood conditions took it cum onere. Modern legislation professed to find an injustice in this and enacted that the State should pay costs in criminal matters and after a while she shifted the burden upon the parishes. The Constitution left the burden there but diminished its weight.

The judgment of the lower court was for the plaintiff after deducting $732.90 from his demand. It is error.

It is therefore ordered and decreed that the judgment of the lower court is avoided and reversed, and that there be now judgment in favour of the defendant rejecting the plaintiff’s demand and against him for costs in both courts.


text:
    No. 163.
    The State of Louisiana vs. George Vinson.
    State vs. Johnson, 37 Ann. 422, maintaining sufficiency of oatli to tlie jury to find a verdict “according to the evidence,” reaffirmed.
    Refusal to instruct the jury that they are judges of the law as well as of the facts, is flagrant and fatal error. The Constitution says that in criminal cases they shall be judges of the law, and instruction to that effect cannot be denied, though the court may expound to them the nature of their duties in relation to the law as laid down by the judge, which they should accept and apply.
    APPEAL from the First District Court. Parish of Caddo. Hides, J.

      M. 8. Orcdn, District Attorney, for the State, Appellee.

      J. W. Jones for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The case comes up on several bills of exception.

The first exception was to the form of oath administered, which was to give a true verdict “according to the evidence.”

After due consideration we have already determined that this oath ■is legal and sufficient. State vs. Johnson, 37 Ann., 422; State vs. Logan (decided this day).

We have listened to renewed argument on the question, but the reasons and authorities now presented were fully considered in the above •case, and we adhere to our conclusions therein announced.

The second bill of exceptions we now transcribe in full:

“ Be it remembered that on the trial of the above entitled suit, the •court charged the jury to take the law of the case as given by the •court, to which charge the defendant by attorney objected on the ¡ground that the charge was contrary to law in this: that the jury ■were the judges of the law of the case, but that great weight should 'be given to the law as charged by the court, which charge was refused "by the court. This bill (adds the judge) does not exactly employ the language of the court in the written charge. The sentence in full is: *You, the jury, will now apply the following j>resumptions and the facts proved to the law of the case as given by the court and determine whether the defendant is guilty or innocent of the crime.’ It is ■certainly the duty of the jury to hear the - charge and apply the evi«dence to it, whether they are bound by it or not. I think they are bound to adopt the law as given by the court. It is not and never has been within the province of the jury to decide what the law of a •case is.’ 30 Ann., 905. I also think, when an attorney argues to a .jury that they are judges of the law of a case, the judge should correct the heresy. To which ruling of the court defendant exc pted, etc.

(Signed): A. W. 0. Hicks, District Judge.”

The bill is not very skilfully drawn, but, taken as a whole, it clearly •exhibits a refusal of the judge to charge that the jury are judges of the law and his opinion that such a claim is heresy.

Such refusal involves a denial of a clear constitutional right of ■accused. Art. 168 of the Constitution, in plain terms, declares that -“The jury, in all criminal eases, shall be judges of the law and of the facts on the question of guilt or innocence, having been charged as to the law applicable to the case by the presiding judge.”

The point is settled by the paramount law and admits of no discussion or evasion. The judge is bound, in every case, when asked, to •charge that the jury are judges of the law, and refusal so to charge is flying in the face of the Constitution and is flagrant and fatal error.

In connection with such charge, the judge may rightfully and prop•erly expound to the jury their clear duty to accept and apply the law .as laid down for them by the judge. But that is by no means inconsistent with their being “judges of the law” in the sense of the Constitution. The relation which the jury bears to enunciations of law delivered to them by the judge, is very similar to that which the judge bears to valid and unambiguous statutes. The judge is bound, under his oath, to accept and apply the statutes, but that does not prevent him from being the judge of the law. So the jury is bound to accept' and apply the law as declared by the court, but that does not prevent, their being “judges of the law.” They weigh and consider the law as laid down by the judge and determine its meaning and apply it to-the facts proved, and are thus and in that sense judges of it, which is-the sense of the Constitution. In either case, the judge or jury might have the actual power to disregard statute or charge, and refuse to-recognize or apply them as law, but by so doing they would violate their duty and oath.

The doctrine has been clearly expounded in the Eord case, and' needs no further discussion. In several cases, the charges of judges enforcing the duty of the jury to accept the law as charged by the-judge, have been considered and sustained; but in each of them it appears that the charge had expressly instructed that the jury were-judges of the law and the facts. State vs. Ford, 37 Ann., 465; State vs. Johnson, 30 Ann., 905; State vs. Scott, 12 Ann., 386; State vs. Ballerio, 11 Ann., 81.

On this ground the case must be remanded.

There appear two other bills of exception taken to the refusal of the judge to give to the jury certain charges on the subject of circumstantial evidence, which embodied the language of Rules 4 and 5 laid down by Mr. Wills in his work ou circumstantial evidence, p. 149-The judge refused partly because he considered the rules as too broad in their language, and partly because he thought the subject matter-had been properly covered by his written charge. He may be correct-in the first reason ; but, for his guidance, we may say that we do not find in his written charge any substantial equivalent for the rule-recognized by the authorities, that where a criminal charge is to Improved by circumstantial evidence, the proof ought to be not only consistent with the prisoner’s guilt but inconsistent with any other reasonable hypothesis. See State vs. Swayze, 30 Ann., 1327; State vs. Willingham, 33 Ann., 538, and authorities there referred to.

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

Judgment reversed and case remanded.


text:
    No. 166.
    Succession of Hannah P. Dickson.—Oppositions of Heirs and Creditors.
    Recording a judgment ordering a usufructuary to give bond and prescribing the amount of' tbe bond will not create a judicial mortgage in favour of those in whose favour the bond is to be given There is no judgment for money therein, nor ascertainment with precision of what sum is due, but merely that a bond be given in a specified sum.
    Judgments recorded in different parishes operate as judicial mortgages upon the lands in each parish from the respective dates of each recordation.
    Simulation may be proved by circumstances and presumptions drawn from the surround- - ings of the parties.
    APPEAL from the Second District Court, Parish of Bossier. Drew, J.

      Looney & Vance for the Administrator.

      J. D, Watlcins, J. M. Shepherd and It. J. Looney, for the Opponents...
   The opinion of the Court was delivered by

Manning, J.

The sole issues presented by these proceedings are the priority of the judicial mortgages held or claimed by the various-opponents. The administrator ranked them in this order.:

1. Judgment in favour of John Henderson et alius dated 2d June 1870, the date of record in mortgage-office not stated, to which prescription was pleaded and the plea properly sustained.

2. Judgment in favour of Thos. Poland of which W. R. Barstow is transferree recorded in mortgage-office Sept. 19, 1877.

3. Mortgage in favour of M. L. Dickson recorded Oct. 29, 1881.

4. Judicial mortgage in favour of W. R. Barstow recorded Sept. 17r. 1880.

5. Judicial mortgage in favour of the heirs of Michael Dickson— no date of recording mentioned, but we learn elsewhere it was recorded May 23, 1877.

Certainly the administrator could not have intended that these mort- - gages ranked in the order he has placed them, since the last is the first recorded and must prime the others if the judgment then recorded . could create a judicial mortgage.

The other opponents deny that it is a judgment for money, and we must recur to the object of the suit in which it was rendered and to ■ the terms of the judgment in order to ascertain its character.

The suit was against Hannah P. Dickson as administratrix of her ■ husband and usufructuary, and the prayer is that she be ordered to render a full account of her administration and to give-security asusufructuary. The judgment is as follows;—

“Wherefore, by reasons foregoing, and the law and the evidence .generally .being in favor of the plaintiff, Olympe Boisse, and the •opponents Palmer Dickson and M. Hugh- Dickson and tiie succession of Michael A. Dickson, and against the defendant, Hannah P. Dickson, widow of Michael Dickson, deceased,'it is ordered, adjudged .and decreed that said Hannah P. Dickson give security as usufructuary, that she will use as a prudent usufructuary would do the moyables and immovables of the succession of Michael Dickson falling to ■Olympe Boisse, Palmer Dickson, M. Hugh Dickson and M. A. Dickson, subject to her usufruct as established by this opinion and judgment, .and that she will faithfully fulfill all the obligations imposed on her by law as said usufructuary.

“ It is further decreed that said security as to Olympe Boisse be the .sum of one thousand dollars; as to Palmer and M. Hugh Dickson, to ■ each, in the sum of nine thousand two hundred and 55-100 dollars; and as to the succession of Michael A. Dickson, in the sum of six thousand seven hundred and eighteen and 55-100 dollars; and that this security be by special mortgage on land and immovable property, •or by bond and personal security, or both, to be approved by the -court.

“It is further decreed that the right of defendant to show further payments to Palmer, M. Hugh and M. A. Dickson or his succession be reserved.”

This is not a judgment for money or on a moneyed demand the recording of which in the mortgage-office could create a judicial mort.gage. Three of the heirs had become parties to those imoceedings' and the amount of the bonds ordered to be given was based on evi•dence taken therein relative to their shares, but it is not a judgment in their favour against the administratrix and usufructuary for any • sum of money found to be due them. Three other heirs were not parties and as to them no judgment of any kind was given.

The case was appealed and the judgment reversed, Boisse v. Dick- • son, 31 Ann. 742, and on another appeal this court reviewing the pleadings in that case said;— “the petition concluded with a prayer that the administratrix be cited, that she be ordered to account, and 'that she be required to give bond as usufructuary. This was the entire relief asked for.” Boisse v. Dickson, 32 Ann. 1150.

It was not until January 12, 1883, that a judgment was rendered ..against the administratrix for the ascertained amount of her indebted-mess and fixing it with that precision that on being recorded it could operate a judicial mortgage. All the other judgments and mortgages-appearing on the tableau antedate that.

Reference is made on the tableau to this last judgment as ascertaining the sums found due to the respective heirs thereby, but it cannot revert back to the first judgment, and the recording this first judgment can in no sense be considered as operating a mortgage for the-sums due in 1883. Indeed as we have seen the judgment of 1877 was-not for money at all.

The judgment below giving rank to this judicial mortgage on May 23, 1877, must be reversed.

The Poland judgment of which Barstow is transferree recorded; Sept. 19, 1877, and Barstow’s own judgment recorded Sept. 17,1880, will take effect upon the lands in the several parishes only from the date of their respective records. Judgments and mortgages recorded in Caddo prior to recording either of these must prime them, and the same holds good of the other parish.

Objection is made to the recognition of the Poland judgment iu favour of Barstow transferree that there is no proof of the transfer, but that proof was doubtless made in the proper place when the judgment was rendered or assigned. There is no pretence that the judgment is extinct or that the mortgage is not still alive and the heirs and other creditors have no interest in contesting the validity or actuality of the transfer. The administrator must take care that ho pays the real owner.

Tiie counsel for M. S. Dickson took a nonsuit on her claim No. 3-on the tableau.

Virginia H. Thomas opposed the tableau for non-recognition of her recorded judgment for $4,000. The allowance of this claim is opposed by tiie other heirs and creditors on tiie ground that it is a simulation, that tiie widow Dickson was induced by her daughter Virginia to execute her note for that sum and confess judgment upon it, but there was no consideration for it and it was in reality an attempt to give her that sum to the prejudice of tiie other heirs. Mrs. Dickson’s estate is insolvent.

Mrs. Thomas alleges that her mother owed her husband Capt. Tilomas four thousand dollars and her husband owed her the same sum, and the mother gave her the note in payment and the two debts were thus satisfied. We copy the testimony of Mrs. Dickson on the matter as it is printed in the brief of Mrs. Thomas’ counsel;

“She gave the $4,000 note in confession of judgment to her -daughter—she was sick and delicate—and not for services Capt. Thomas rendered. There was only one $4,000 note of that kind, and Mrs. Thomas asked for it for him, but witness does not know how it was drawn up. Her daughter asked her to do it, and she did it for ”her daughter’s account, as she importuned her so much, and not for ■ any debt she owed 'Capt. Thomas. There was no settlement of ■accounts with Capt. Thomas at that time.”

This is corroborated by the surrounding circumstances and simulation may be proved by them. The estate was insolvent and to all appearance inextricably confused. Children were pressing to save .-something, each for himself, and creditors were not less urgent. The mother yielded to the importunities of the daughter, and the note and confession of judgment were made the instruments to give verisimilitude to the arrangement, the object of which was to save this sum for the daughter.

The lower judge rejected the claim as the administrator had done .and we think rightly.

It is therefore ordered and decreed that the judgment of the lower ■court recognising a judicial mortgage in favour of the heirs of Michael Dickson dating May 23, 1877 is avoided and reversed, and in all other respects said judgment is affirmed, heirs thus cast paying the costs of • appeal.

On Application for Rei-ieaeing.

We are not asked to review our opinion but to make the decrée conform to it. The rehearing is granted.

On Rehearing.

The lower judge sustained the opposition of Mrs. Thomas and •amended the tableau- accordingly. He also recognized a judicial mortgage in favour of Palmer Dickson that had not been placed on the tableau nor mentioned in any opposition. We correct our decree so .as to give effect to the principles maintained in the opinion.

It is ordered and decreed that the judgment of the lower court recognising a judicial mortgage in favour of the heirs of Michael Dickson •dating May 23, 1877, is avoided and reversed said heirs paying the -costs of appeal; and that the judgment below sustaining the opposition of Y. H. Thomas is also reversed at her costs, and the judgment recognising a judicial mortgage in favour of Palmer Dickson is also reversed, and in all other respects said judgment is affirmed.


author: Eenner, J.

text:
    No. 147.
    The State of Louisiana vs. Cy. Landrum.
    .Affidavit for continuance which does not aver inability to prove the facts referred to otherwise than by the witnesses of whose absence complaint is made, is defective, and the refusal of the continuance is not error.
    APPEAL from the Twenty-seventh District Court, Parish oí Rich-land. Williams, J.
    P. JET. Toler, District Attorney, for the State, Appellee.

      EE. 0. Montgomery tor Defendant and Appellant.
   The opinion of the Court was delivered by

Eenner, J.

The affidavit for continuance, the refusal of which is the only error assigned, is fatally defective in this: that it fails to aver inability to prove the facts referred to otherwise than by the witnesses ■of whose absence he complains. State vs. Comstock, 36 Ann. 308. Bishop Cr. Proc., sec. 951 a.

Judgment affirmed.