author: Ereaux, J.

text:
    No. 13,061.
    State of Louisiana vs. Henry Frierson.
    Syllabus.

      1. Evidence of threats made by the deceased though communicated to the accused, and evidence of the violent and dangerous character of the deceased j are not admissible, unless foundation be laid by proof of an overt act or hostile demonstration by the deceased.
    Helo: The ruling of the District Judge, excluding evidence of threat was not erroneous.
    2. Though the State has proven facts tending to show a previous difficulty between the deceased and the accused, that will not render admissible evidence of hostility and threats of deceased against the accused. Held : The State having sought to prove a common design of the defendants charged as principals, it affords no ground to admit evidence of threats.
    8. The court having properly excluded all evidence of threats, properly declined to instruct the jury on the assumption that evidence of threats had been admitted. Held : The District Court could properly decline to take facts, urged by the defense, as basis for explaining to the jury what constituted an attack or hostile demonstration.
    4. An instruction was given hypothetical as to the facts, and correct as relates to the law. Held : The assailant in a difficulty is not injured by the instruction that the aggressor cannot interpose the plea of self-defense in his behalf.
    ON APPEAL from the Sixteenth Judicial Dictrict Court for the Parish of St. Tammany. Reid, J.

      M. J. Cunningham, Attorney General, and D. 8. Kemp, District Attorney, for Plaintiff, Appellee.

      Benj. M. Miller for Defendant, Appellant.
    Argued and submitted February, 11, 1899.
    Opinion handed down March 20, 1899.
   The opinion of the court was delivered by

Ereaux, J.

The defendants, William, Henry and Joseph Frierson, ■were indicted for taking the life of John Peterson.

It appears that, on the day of the homicide, the accused and a few •others met the deceased and his party on the railroad track near Pearl River, and immediately after meeting the deceased, the accused shot .and killed him.

Five bills of exceptions set forth the points involved in this case.

The first bill was taken to the refusal of the district judge to admit testimony offered by defendant to prove threats made by the deceased .against the defendant, a short time prior to the homicide, which had been communicated to accused.

The second and third bills were taken to the court’s refusal to instruct the jury as requested by the accused.

The fourth bill was taken to the charge of the court, and the last, or fifth bill, was to the court’s ruling, denying a new trial to the •accused.

As relates to the first bill, witnesses for the defendant testified that just prior to the homicide, he, and those with him, met the deceased .and the parties with him, and the deceased then said: “Is that Joe Frierson?” at the same time cursing him; that appellant threw his left hand up, and toward the breast of Peterson, the person killed, and •said: “You stop;” but that deceased did not stop, and that, thereupon, the accused pulled his pistol and waved it, saying: “Look here, look here;” that the deceased then said, with an oath: “You; I know you too,” stepped back, put his hand in his hip pocket, exclaiming several times, “look out, boys, I’ve got him, I’ve got him.” 'The defendant swore that, believing from Peterson’s actions, that he was about to pull a pistol and shoot him or his brother, he fired three •shots at him, and Peterson fell.

The foregoing was principally the testimony of the defendant in 'his own behalf. The other witnesses for the defendant gave substantially the same account of the shooting.

In behalf of the State, witnesses testified that the deceased left his •pistol at home, and that he usually did not carry a pistol. His body •was searched one or two hours after the shooting, and no pistol was found. These witnesses also testified that the deceased was carrying •a side saddle at the moment he met the defendant.

Witnesses for the State, testifying- as to the occurrence at the time oí the homicide, contradict the accused as a witness, and the other witnesses for the defense. They heard no conversation between the deceased and the accused before the shooting.

The first witness who testified, said: “That the two crowds met,, and without anything being said, the deceased was shot;” and the other testimony of the State is corroborated in this respect.

The defense charge that the witnesses for the State had been drinking on the day of the shooting, and that they were under the influence of liquor, to a degree rendering them incapable of observing and stating correctly all that happened at the time of the killing.

The position of the defense, in argument, is that the district judge-does not deny the truthfulness of the testimony of defendant’s witnesses, but that, on the contrary, he, it may be well inferred, believed the account of the shooting given by defendant’s witnesses.

The district judge made the following statement, which forms part of the bill of exceptions:

“'The evidence, in the opinion of the court, entirely failed to show any overt act, or hostile demonstration, on the part of the deceased towards the accused, or any of his party, at the time of their meeting, which resulted in the homicide. The testimony of Henry Frierson, the only one of the accused convicted, distinctly showed him to be the aggressor at the time of the homicide.”

In another bill, in which the facts are narrated, the trial judge states there was a severance of witnesses, but the three accused were necessarily present. Further: “The court gave very little weight to the testimony of John McQueen and Elijah Frierson, and none at all to Sol Kilbe. This witness was apparently strongly biased, and his-willingness to testify to any circumstance favorable to the accused was apparent.”

The defendants, William, Joseph and Henry Frierson, were put on-their trial. William and Joseph were acquitted; Henry was found guilty of manslaughter, and sentenced to four years service in the-penitentiary.

Henry appeals from the verdict and the sentence.

With reference to the first point in the ease, we are not convinced that the trial judge erred in excluding the testimony offered to prove-threats made by -the deceased against the accused. It is well settled that circumstantial threats may be admissible in evidence, if the facts warrant their admission. In order that they may be admitted, itr must be shown that the person slain by some act evinced the intention of carrying out his threat; it must appear thát there was an overt act, that the defendant was in imminent danger.

But, in this case, there was no proof of an overt act. The weight of the evidence negatives the asserted attack by deceased, and it proves that defendant, not the deceased, was the assailant. The accused made the only hostile demonstration.

The statement of the accused, and of his witnesses, regarding the words of the deceased, and the motion of his hand toward his pocket in which it appears there was no pistol, is not only not corroborated by the witnesses in behalf of the State, but is contradicted by their testimony.

But the defense urges that this evidence is weakened and discredited by proof of the fact that the witnesses had been drinking, and that it does not outweigh the evidence of the defendant regarding the occurrence just prior to and at the time of the shooting.

The testimony of record does not prove that all the witnesses were under the influence of liquor. One only was under its influence, it appears, and even as to this witness, it does not prove that his condition was such as to prevent him from correctly noticing all that' transpired.

If the defense’s view of this testimony should be taken as accurate, the evidence on the part of the accused does not prove, with any degree of certainty, that the defendant, on the day of the killing, was attacked by the deceased. This, manifestly, was the opinion of the trial judge in excluding the testimony, and we have not found that he erred.

Two men, each in company with a few others, coming from opposite directions, meet by chance on the highway; one is unarmed, and encumbered with a saddle he is carrying, while the other, brandishing his pistol, says to him “stop,” and he does not stop. There is not, in this mere refusal to stop, any hostile demonstration such as to justify the taking of human life, or to warrant an accused in believing that his life is in danger, because some threats, he asserts, had been made by the deceased.

Appellant contends, upon another ground, that the evidence of threats, made by the deceased, should have been admitted.

Counsel’s insistance is that the State attempted to prove a premeditated intent upon the part of the defendants to kill or make an attack upon the deceased, and the State introduced evidence to the end of proving this intent.

That, in consequence, as we -take it, the question before the jury was not alone whether the deceased committed an overt act towards the defendants, but that the State, by introducing the evidence of hostility towards the deceased, cast a presumption into the scale against the defendants, which entitled the defendants to prove that the-deceased cherished hostility towards them.

In the absence of proof of an overt act, this evidence was not admissible. The testimony to show existing enmity was irrelevant.

“The rule is general threat, enmity, ill-will, are all inadmissible, unless proof be first given that there was an overt act of attack, and that defendant was in imminent danger.” Wharton’s Criminal Evidence, p. 757.

The second bill of exceptions taken to the refusal of the district judge to give the charge requested by the defendants, is not insisted on, as the instructions requested had been sufficiently given in the general charge. The bill being abandoned by the defense, we take up the next bill of exceptions.

The defendants requested the court to instruct the jury that “a threatening act or hostile demonstration is such an act or demonstration as is calculated to induce in the mind of the person to whom the-same is directed, the belief that an assault is about to be made on him, . or a weapon drawn for the purpose of assaulting him. The motion of the hand towards the hip pocket in a manner calculated to induce the belief that the person making the motion is about to draw a weapon, may be considered a threatening act or hostile demonstration, when considered in connection with proof of the dangerous and violent character of the person making such motion, or in connection with threats, or prior assault made by him against the person towards whom the motion is directed.”

This instruction the court refused to give to the jury; and the court included in the bill the statement that it had excluded all testimony of threats or dangerous character of the deceased, and that, in the general charge, the court instructed the jury as to what constituted a hostile demonstration.

The defense concedes that the evidence of threats by the deceased, and of the violent character of the deceased, which they insist was-admitted by the court, was not admitted, however, by the court to prove his threats and dangerous character.

The court states that no such evidence was admitted for any purpose. If the court erred in making this statement, it remains as a fact that the accused has had the benefit of the evidence, although it was inadmissible, a fact of which. he can scarcely be heard to complain.

If the judge is in error in his statement made part of the bill, we have not found that he, the accused, has any cause to complain, as his cause has not been prejudiced by testimony heard, though it appears at one time to have been excluded by the court, and subsequently admitted for another purpose. Under the circumstances, it affords no ground for a reversal of the verdict.

If evidence be admitted in error or for another purpose than proof of threat, it will not supply the absence of violent assault, and give to the accused the right to have the jury instructed as if a violent assault had been made.

This brings us to the fourth bill of exceptions to the court’s charge, as follows: “If the jury believe, from the evidence, that at the time of the killing, the defendants, or any one of them, were the aggressors in the difficulty, the plea of self-defence can not be interposed in his or their behalf.”

In our judgment the charge was not erroneous. The defendants were prosecuted as principals and, as having “acted together, aided and assisted each other” in carrying out a common design.

The charge must be taken in connection with the case, and, in that view, the words of the charge are to be taken secundum subjectam ■ materiamj that is, with reference to the nature of the action.

The evidence shows if any one had cause to complain when the charge was delivered, it was not the appellant. As to him, the court, we think, stated the law correctly. He did the shooting, and the affair was between him and the deceased, and if he was the aggressor, the plea of self-defence could not, in law, be of any avail to him.

The fifth bill of exceptions was taken to the ruling of the district judge overruling the motion for a new trial.

The grounds were all contained in the bills of exceptions upon which we have already passed, save the ground that the court erred in admitting evidence that the defendants had fled from arrest. This ground was abandoned on appeal.

We reiterate, in answer to the recapitulation in the brief of the able and energetic counsel, upon which he asks the reversal of the judgment, as follows: That, urged counsel for accused, evidence of threats made by deceased against the life of the defendants, and communicated to defendants before the homicide, and the violent and dangerous character of the deceased, should have been admitted.

A. Because (said counsel for the accused) the evidence produced on trial proved the commission of an overt act and hostile demonstration of the deceased — that which we have in substance before stated; the evidence did not show the necessity of the extreme action taken by the defendant, or cause for apprehending great danger to his person.

B. Because, counsel said further, the State had laid the foundation for the introduction of such evidence by defendants, by attempting> ta prove a conspiracy on the part of the defendants against, .deceased in a previous difficulty with two of the defendants

In our judgment, the attempt of the prosecution to prove that •defendants had confederated to carry out a common design, and evidence of a previous difficulty connected with the design, as we understand, did not have the effect of laying a foundation to admit evidence of threat in the absence of proof of the “apparency” of the danger.

II. “Because the District Court erred in refusing to give the charge requested by defendants, defining a threatening act or hostile demonstration.”

There was no exception taken to the general charge; in the absence of such exception, under repeated decisions, we must take it that the •charge, as stated by the trial judge, was sufficient, and covered this objection, as relates to the attack.

III. “Because the district judge erred in charging the jury as requested by the State and excepted to.”

After a careful review of this ground, we conclude: The evidence revealed that appellant alone of the three indicted acted; as to him it follows that the charge was not erroneous.

We have, as carefully as we could, reviewed the proceedings of this case, and have not found ground to conclude that the accused can be relieved.

Therefore the judgment appealed from is affirmed.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 13,074.
    The City Item Co-Operative Printing Company vs. The City of New Orleans et als.
    Syllabus.
    1. The taxpayer of a municipal corporation has a standing in court to sustain averments of illegality of a corporate act.
    2. The power delegated to assessing boards to revise assessments, or to reduce them, is limited as to time, each year. Assessments and the revision of assessments are closed after the 20th of March, each year, subject to such changes in value of property assessed as the courts may decree. After the assessment has passed out of the hands of the assessing and revising officers, they have no further power as relates to the value of the property carried on the rolls.
    8. The assessment of property, as to value, is the same for the municipality as for the State; and a decree as relates to the latter, fixes it also as a basis of taxation for the former; and when revision and reduction is made as to one, it carries with it the assessment of the other at the same value.
    4. If a taxpayer has a standing in court in opposition to an act ultra vires, no compromise can be made to put an end to his right of action as relates to the act attacked.
    ON APPEAL from the Civil District Court for the Parish of Orleans. Rightor,' J.

      E. A. O’Sullivan for Plaintiff and Appellee.

      W. B. Sommerville, Assistant City Attorney, for City of New Orleans, the Mayor, the Comptroller, and the Treasurer, Defendants, Appellants.
    Denegre, Blair & Denegre for Crescent City Railroad Company, Defendant and Appellant.
    Argued and submitted February 21, 1899.
    Opinion handed down March 7, 1899.
    Rehearing refused March 20, 1899.
   The opinion'of the court was delivered by

Breaux, J.

This suit was brought by plaintiff, a taxpayer, to annul and set aside two ordinances of the Municipal Council as having been adopted in violation of the charter of the city, and in contravention of the Constitution and laws of the State.

An injunction was issued in accordance with the prayer of plaintiff’s petition. The following is a brief history leading to the compromise assailed:

The Crescent City Railroad Company, after having made application to the Board of Assessors, and to the Revision Committee, for reduction of its assessment, filed suit in the Civil District Court, and obtained writs of injunction against the Board of Assessors for the reduction of the assessments of its franchise for the years 1894, 1895, 1896 and 1897. Three of the suits were consolidated and decided by the court of the first instance (the fourth, for reduction of assessment for 1897, is still undecided in the Civil District Court).

The consolidated suits, on appeal for reduction of assessments for the years 1894, 1895 and 1896, have been decided by the Supreme-Court partly in favor of the Crescent City Railroad Company.

With reference to another company named in the compromise-assailed, the New Orleans City and Lake Railroad Company, the City of New Orleans had been in suit with it since 1889, and the city had finally obtained a judgment against it (the New Orleans City and Lake Railroad Company), ordering it to comply with obligations by paving and planking along the line of its road.

Early in 1898 the officers of the city became apprehensive and' uneasy about the city’s claim against this railway, and about the city’s claim against the Crescent City Railway Company for the-taxes it owed the city.

Regarding the former, the New Orleans City and Lake Railroad Company, the testimony disclosed that the planking ordered by the court’s decree was no longer desirable, and that part of the way had been paved with other material and, besides, it seems that the Board' of Health had advised, on sanitary grounds, against the use of planks-for paving.

The City Attorney had advised the chief executive officer of the-city, that, in his judgment, it would be impossible to execute the-judgment of the Supreme Court of the United States on the paving contract against the New Orleans, City and Lake Railroad Company.

Instead of specific performance, under the judgment of the United' States Supreme Court, the judgment debtor, the New Orleans, City and Lake Railroad Company, at first offered forty thousand dollars,. ■which the city declined to accept. Subsequently, this company offered forty-five thousand dollars.

Regarding the latter (the Orescent Oity Railway) the Supreme. Court had granted a rehearing; if the city gained the suit, it was thought that, even then, further litigation and delays might arise.. The city authorities then gave a hearing to terms of compromise,, which resulted in a compromise between the city and the companies.

The klayor of the city, after an agreement had been arrived at, was-authorized, by the Council, to settle the litigation between the city of New Orleans and the Crescent City Railway Company, upon payment within thirty days from the date of the publication of the ordinance-granting the authority, of the amounts due for taxes by the Crescent City Railroad, and the forty-five thousand dollars offered by the New Orleans, City and Lake Railway as a compromise.

The amounts assessed by the assessors were the following:

1894franchise ......................................$649,650 OF

1894 tax ........................................... 12,993 00

1895 franchise ..................................... 1,408,050 00

1895 tax ........................................... 28,161 00'

1896 franchise ..................................... 1,215,267 00

1896 tax ........................................... 24,305 34-

1897 franchise ..................................... 1,156,300 00'

1897 tax ........................................... 23,126 00'

1898 franchise ...................................... 575,000 00

1898tax........................................... 11,500 00'

From the foregoing, we can see that the compromise entered into-covered the taxes of four years, but the consolidated suits, decided, cover the taxes of three years, 1894, 1895, 1896.

This compromise between the city and the Crescent City Railroad Company was not to be carried out unless the New Orleans, City and Lake Railroad paid to the city the forty-five thousand dollars before stated, less credits for sums previously advanced to the city by the-New Orleans, City and Lake Railroad, on account of the judgment it owed to the city.

We are informed that the two companies, the Crecent City Railroad' Company and the New Orleans, City and Lake Railroad Company, were about to be controlled by one corporation or board, and that, in-consequence, the two companies were embraced within one act of compromise, covered by one ordinance.

Plaintiff’s grounds of attack are chiefly that the Municipal Council is without authority to adjust and settle suits; that the compromise was in effect a proposed donation to the Orescent City Railroad Com.pany, and that the City Council has no right to remit interest due on ■taxes, or postpone payments.

A judgment was rendered by the judge of the District Court, perpetuating the injunction, and declaring illegal ordinances 14,658 and 14,703, in contravention of the Constitution and laws of the State, .and in violation of the city charter.

From that judgment, the City of New Orleans and the Crescent ■City Railroad Company have appealed.

The foregoing is a sufficient statement of the facts for the purpose • of the decision.

The right of plaintiff, as a taxpayer, to stand in judgment was questioned by defendants in oral argument, at bar, and in the brief,

on the grounds, chiefly, that it had no interest involved, as it had paid its taxes, and could have no concern about those, who, like the Crescent City Railway Company, had been delinquent, and had effected a compromise, and, thereunder, a settlement of their taxes.

The right of a taxpayer of a municipal corporation to bring suit to test the validity of acts relating to taxation has been recognized by the courts, and the fact that he has paid his taxes does not make less his right to stand in judgment. Handy et al. vs. New Orleans, 39th Ann., 109, is a leading case upon the subject; citing Crampton vs. Zabriskie, 101 U. S., 601, from which we quote: '‘The action is regarded as having a public character, and as being a proceeding in which the public complains.” Under these and other decisions, the right of a resident taxpayer to sue, in order to prevent an illegal distribution of the money of a municipality, can not be denied.

Although the creditors of the city may have been provided for as to their claims, as stated in argument, yet there remains an interest enough in the taxpayer to enable him to oppose any illegal release of any one indebted to the treasury. The larger the amount in the treasury to the credit of its different funds, the less the liability of the taxpayer.

The suit is in the nature of a public proceeding to test the validity ■ of a corporate act.

We pass to the question of the power of the Municipal Council to •compromise with a delinquent taxpayer, and release him from payment of part or all of his taxes, while a suit for a reduction of his-assessment is pending before the courts.

It is well settled that corporations have such powers as are given to-them.

There are special laws applying in matter of taxation.

The Constitution specially prohibits the General Assembly, and it follows, subordinate municipal corporations, from releasing or extinguishing any tax indebtedness to the State, or due to toy of its municipalities.

It devolves upon us to determine, in the case before us for decision,, whether the tax indebtedness here of the Orescent City Railway was within the scope of the prohibition.

There had been a final assessment made.

While the assessing authorities have the rolls in their possession in an incomplete states they may reduce the assessment, but not after-the assessment has passed from their hands. All taxpayers have the right to appear before the Board of Assessors of the parish of Orleans-until the 20th of March, and in other parishes un-til the first day in November, and should be heard regarding over-valuation of property, but not after those dates.

The question of value of the property assessed after the filing of the-taxpayers’ suit, passes from the assessor and revising committees to the courts. The defendants urged that the assessment, as relates to those who appeal to the courts, is not complete; that not being complete, a compromise may be made as was made in the pending case. We have not found it possible to give our assent to that view.

The suit brought does not have the effect of suspending the assessment; it is legal to the amount the court finds in the value of the-property. Every person is taxed for the year, and the assessment dates from the day it was made, and not from the date of the final' decision of the court pronouncing it legal as to value (for a part or the whole) as carried on the roll.

We have just seen that the power of revision is limited by the-statute as to time. After the date fixed by the statute is passed, in the absence of expressed delegation of power to the assessor and committee of revision, we must conclude that reduction of assessment is-no longer possible save by the decree of the court.

In State and municipal taxation, the assessed value is the same. The same officer makes the assessment for both -the State and the-municipality; the same roll is used, and the same amount as to the value of each property assessed.

“The valuation put upon property for the purpose of State taxation .shall be taken as the proper valuation for the phrposes of local taxation in every subdivision of the State.” Constitution of 1898, Article 203.

It follows that no compromise can be made on the basis of property .being of less value when the municipality is concerned than when the State is foncemed.

But conceding for the discussion that an agreement is possible, ■regarding the value of property assessed, or the amount of taxation, the taxpayer still has an action to set aside a compromise, which action, the compromise itself can not put an end to and destroy.

Even where, as in the case before us for decision, there was not the least intentional wrong, and all that was done is marked by the utmost good faith, and to promote the city’s interest, yet the taxpayer of a municipal corporation may be heard, who urges that the act of the municipal authorities, relating to assessment and taxation, is ultra ■vires, and increases the weight of taxation.

We have read with painstaking care the two elaborate briefs filed on behalf of the defendants. The burden of their complaint is grounded upon the principle laid down by many courts in other jurisdictions in support of the proposition that municipal corporations have the power to effect a compromise of claims in which they are concerned.

The question covered by the last proposition does not arise in the case before us. We have naught to do with the city’s right, ordinarily, to compromise claims. We do not, for that reason, pass upon that question. This, as we thirds, disposes (without the necessity of any further comment regarding them) of all the decisions cited by •counsel regarding the compromise of claims, other than those growing •out of assessments or taxation.

But Revenue Laws are sui generis, and particularly those applying in the case before us for decision.

In order to create an interest in local government and to guarantee every right, the State accords to each taxpayer the right and privilege •of enquiring into the questions of assessments and taxation in which all are concerned. It results that a compromise regarding taxes, as made in this case, can not be made to operate as a hinderance to the •assertion of that right. However absolute may be the power of a city ■ council to compromise a claim, it can not effect such a compromise, as relates to assessment, as will prevent inquiry into its legality by a taxpayer.

Counsel for defendants urged that from the right given to the City •of New Orleans to sue and be sued, it resulted in the absence of prohibitory legislation, that the city has the same right to compromise that an individual has.

Ordinarily that may be; we are only concerned with the question before us, relating exclusively to the value of the property assessed, a •question which passes, as we take it, each year, from the Board of Assessors and local authorities to the courts, after the date set down in the statute. We take it also, that, after an assessment has been made, the value of the property can not be changed so that it will have less value, as relates to the city or the parishes, than the assessment ■for the State. Constitution of 1898, Article 225.

For reasons assigned, the judgment appealed from is affirmed.


text:
    No. 13,047.
    Mayor and Council of Alexandria vs. James A. O’Shee and Ira W. Sylvester.
    Syllabus.
    The dedication of the property claimed by defendants, to public use, was made to appear by evidence, conclusive enough to exclude the idea of private ownership.
    The property having been laid off, and dedicated to public use, the assessor was without authority to assess it for taxes, and the tax-collector without authority to sell it for taxes.
    ON APPEAL from the Tenth Judicial District Court for the Parish of Rapides. Hunter, J.

      John 0. Ryan and White & Thornton for Plaintiffs and Appellees.
    JET. H. White for Defendants and Appellants.

      Argued and submitted February 10, 1899.
    Opinion handed down February 20, 1899.
    Rehearing refused March 20, 1899.
   The opinion of the court was delivered by

Breaux, J.

Plaintiffs sue to annul two tax sales and a conventional-sale made by one of the defendants to his co-defendant, on a half interest in the property. This area of the land is one acre and three quarter acres, situated on the southwestern border of Alexandria.

Plaintiffs aver in their petition, in substance, that Alexander Fulton, in 1814, dedicated to the town, two hundred feet for the public use as a street, known as Tenth Street.

Defendants plead as a bar to plaintiffs’ suit, that plaintiffs aiti estopped from suing, for the reason that the property they seek to-recover was twice placed on the assessment roll under .the assessment; a sale made by one of the defendants to his co-defendant, of a half to “unknown owner,” for the year 1893 and for the year 1894. The assessment being ample to identify the property, that when the property on this assessment was offered for taxes, plaintiffs remained silent, and permitted the property to be sold for taxes, under which they are its owners. That they are further estopped, from the fact that for a long series of years, plaintiffs did not object to parties fencing in, and occupying a long strip of the two hundred feet they claim; and that these acts of omission to assert title, negatived any claim on the part of plaintiffs.

This exception was referred to the merits, and thereupon, a plea of prescription was filed, and. defendants, in their answer, invoked their possession for a period of over four years, under the following titles:

1. By the sale under assessment to “unknown owner,” April 13th, 1894, to O’Shee, duly íecorded.

2. By tax sale under assessment “to unknown owner,” June, 1895, to Sylvester.

3. By sale of O’Shee to Sylvester, and by sale of undivided one-half interest from Sylvester to O’Shee.

They claim the taxes they have paid and damages.

The town of Alexandria was incorporated, and its area as set forth in the charter of incorporation of that date, measured thirteen arpents front, more or less m front on Red River, with a depth of thirteen arpents, more or less. Alexander Fulton laid off the town, and it is claimed by plaintiffs, dedicated the land. There was a plat of survey referred to in the charter, as on file in the office of the parish judge. That plat is lost. The plat of survey in evidence shows, that originally, the town was bounded in front by Red River; west by Jackson street; east by Carson street, and on the south and rear by Tenth street; and that there were nine squares measuring from east to west, and the same number measuring from north to south. The streets all measure about fifty-four feet in width, except Carson street, measuring about one hundred feet. The blocks, the map in evidence shows, are over two hundred feet square.

One of the witnesses testified that he assisted McOrummins, parish surveyor in 1835, in surveying the town, and that Tenth street, the width of which is in contest here, was two hundred feet wide, and that all the property within the survey was corporation property, dedicated to the town, that it was intended for a street and pleasure ground. The surveyor made a map of his survey, the witness said, and ther-j remains in his possession, a portion taken from the original on which the rear boundary appears as “Commons' 200 feet,” as written on the map.

This map was introduced in evidence.

The testimony of this witness is in some particulars corroborated' by other testimony.

A Mr. Hilton, a very old gentleman, testified, that he had seen the original map of Alexandrians originally laid off, and that it embraced within its limits, Tenth street, as claimed by plaintiffs.

Plaintiffs called witnesses who denied the rights of the town in-general terms.

The judgment was for plaintiffs.

The defendants appealed.

The question of dedication vel non, is the important issue in the’ case. Owing to the loss of maps and papers, it was necessary to have-recourse to oral testimony to prove their contents. The plat to which-the charter refers, was lost.

The weight of the secondary evidence admitted on account of the' loss shows, we think, that Tenth street was two hundred feet in width, and that from the first it was intended that it should have that width, and it was always considered public property, owned by the corporation.

The maps in evidence, and the testimony regarding them, prove,, in our' judgment, that the town was originally divided into squares and streets, as described in the Bringhurst map in evidence, save that this map does not show an extension of the rear line beyond the fifty-three feet limit claimed by plaintiffs as being the width of Tenth street; but a number of witnesses testified that the street, according to thi memory of the oldest inhabitants, embraced the two hundred feet now claimed, and this is, we think, confirmed by the map; sustained by testimony enough, in view of the lost, original map, annexed to the charter of 1818. We think there is force in defendant’s theory, that Alexander Fulton, in laying off the town by division into squares of equal dimensions as indicated by the map, found it not possible to keep up the uniformity of the lot, and include the space of land now in contest. For that reason, Tenth street was left with the width claimed, and it was designated on the old maps as “Commons.”

In our judgment, the land in contest was owned by the one by whom the town was laid off, and the street was left by him as indicated by the maps; sustained as to their correctness by secondary testimony.

Defendants insist that the plans of a town or city, must distinctly show that the property was appropriated to public uses, and as public places, in order to justify the inference, that the original owner im tended to set apart the land for the use of the- public.

In the case before us, we think if is reasonably certain, that such was the intention of the original owner. No one has claimed the land. There never was “an unknown” owner of the property since the town -was laid off.

The ease here is easily differenced, in our view, from the cited case of Crossman vs. Vignaud, 14th La. 173, in which it was held, that an open space was private property that had been used as an alley as public, for upwards of thirty years, but it was not shown to have been designated as such on the plan of the town, or by any destination! to public use.

Here we conclude, the maps and the testimony show a designation of intention of leaving the open space at the time for use of the public. Whether it was left open for a side street, pleasure grounds, or commons, the use, as we take it, was for the public, and which right the public have not lost.

This being our view, it remains evident that the assessment of the land was an absolute nullity, and that the title which the tax collector undertook to place in the name of the defendants was also a nullity, .as well as the subsequent sale pleaded by them.

It is therefore ordered, adjudged and decreed that the judgment appealed from is affirmed.


text:
    No. 13,033.
    Mrs. M. C. Sealy vs. J. M. Cook, in re Harvert Sealy and Others, Applying for Certiorari or Writ of Review to the Court of Appeal, First Circuit, State of Louisiana.
    Syllabus.
    1. Plaintiff sold land to defendant. The price went to make np the amount of her paraphernal rights set forth in the act of restitution by her husband to her. The property conveyed by her husband to her in the act of restitution was received by the wife in part satisfaction of her paraphernal rights.
    Held : The wife was without right to recover judgment for the land she sold to defendant.
    Rile was precluded from recovering by the fact that the act of restitution covered the price at least in part. She could not hold the property sold to her by her husband and recover property she transferred to defendant. She did not show error or frand in matter of the restitution to her.
    The averments in the act of restitution were prima, facie true and correct.
    2. The Supreme Court, at the stage of the proceedings the question is presented, declined to make a decree enabling plaintiff to amend, in order that plaintiff may show error or marital coercion in matter of the restitution.

      W. A. Van JSoch for Relator; Respondent Judges for themselves.

      Graham, & Pearce for the other Respondents.
    Submitted on briefs January 14, 1899.
    Opinion handed down January 23, 1899.
    Rehearing Refused March 20, 1899.
   The opinion of the court was delivered by

Breaux, J.

The question for decision is, whether plaintiff was • hound by her contract in transferring a tract of land to defendant.

It appears from the evidence, that plaintiff conveyed the land to the •defendant, for the stated amount of three hundred and thirty-seven 50-100 dollars. The defendant, vendee of plaintiff, bound himself upon payment of the amount, to return the land to plaintiff. The 15th day of December, 1894, was fixed as the last day.upon which plaintiff would have the right to redeem the property upon payment of the price. The plaintiff did not exercise her right of redemption. She, instead, sold it to her brother, who brought suit to eject the one-in possession, who held under a lease of a date anterior to the date which the plaintiff was to redeem the property.

lie recovered judgment, and while it was in process of execution, the defendant enjoined plaintiff’s brother, to whom she had conveyed the property. In these proceedings defendant recovered judgment against plaintiff’s -transferee, upholding defendant’s right of possession. The court, however, passed only upon the right to possession, and did not pass upon the question of ownership between plaintiff and defendant. The terms of that judgment were, that it was not to have any effect, as related to any right plaintiff might have.

Plaintiff, transferee, after the judgment had been rendered, transferred the property back to her. She then instituted this suit for the land.

Her contention is, that the loan was not effected for her sepiarate use and benefit, but to the knowledge of defendant, to the use and benefit of her husband; that she signed the act of sale in error brought on by the fraud of defendant, who assured her, she alleged, that it was not a sale, but an act of mortgage.

The defendant in answer averred, that he had bought the land in good faith, and denied that he uttered a word or did anything to induce plaintiff to error.

He specially avers, “nothing was said by any one intending to mislead plaintiff; that she was an intelligent woman, and signed the act with the full knowledge of what it contained, after it had been read to ■ her in the presence of witnesses.”

He, also averred, that he did not know that the loan was intended for plaintiff’s husband’s use and benefit.

That the sale was made with the right of redemption, of which right, plaintiff had not availed herself, and in consequence, the property became his.

The Court of Appeals states in the opinion, a copy of which is before us, “there is nothing in the record that shows conclusively, that' the defendant knew that the'sale was made and intended to pay the-husband’s debts; but the inferences are very strong, that the defendant was aware of the nature and character of the whole transaction.” The court afterwards adds: “But under the view which we have taken of this case, we are not disposed to the conclusion that this fact materially militates against the rights of the defendant,” and holds that plaintiff is absolutely concluded by the recitals contained in the daiion en paiement, dated May 14, 1894, made by the husband of plaintiff to the plaintiff.

The Court of Appeals found as a fact, that on the 14th of May, 1894, the husband of plaintiff conveyed to his wife en paiement, property valued at one hundred and seventy dollars. The consideration set forth in the daiion en paiement was an indebtedness due by him to her of six hundred and thirty-seven dollars, and this amount included the amount of three hundred and thirty-seven 50-100 dollars, price at which the land had been conveyed by plaintiff to defendant.

The wife thereby charged her husband with the price of the property, which she afterward sought to recover on the ground that the loan was made to her.

She used that claim to give effect to the act of conveyance of property, by her husband to her.

Here, the application states, that the daiion en paiement was introduced in evidence over her counsel’s objection, “that it was the act of her husband, and could not be taken as evidence against her.”

Plaintiff in the application for a writ of certiorari avers, that the land is worth much more than the amount borrowed, at least twied more, and prays for a reversal of the judgment, or that it be remanded in order that plaintiff’s husband may testify. At the time the suit was tried and decided, the husband could not testify (the wife having died since, and her heirs made parties plaintiff), as a witness, and he .alone, it is urged, knows the true character of the transactions.

With reference to the value of the property, the court in its decision ■says:

“But the evidence tends to show, that the property is worth little, if •any, more than the amount advanced by the defendant, and we are impressed with the idea, that it would not materially benefit the plaintiff to hold otherwise in this case. The only effect of such a decree would' be to entail additional cost on the defendant of the seizure and sale of ■ the property.” The foregoing summary, we think, sets forth the substantial facts needful to our decision of the issues.

While the plaintiff was not absolutely concluded by her declarations contained in the act of daiion en paiemeni made by her husband to her, having selected him for her creditor and having received a part of the amount, she has no standing in court to sue and set aside the act of sale she made to the defendant without having first established that she was in some way imposed upon when she signed the dation en paiemeni.

The Court of Appeals, in answer to the application of the plaintiff for a writ of certiorari, state, that in the absence of any charge of fraud or error practiced by the husband on the wife in making the dation, she was bound by the recitals in the act of dation; that she could not retain the property acquired by virtue of the dation, and at the same time in a proceeding against" a third person, repudiate the consideration and recitals the dation contained and which was made' its basis, in the absence of a charge and proof of fraud or error.

“There was nothing in the evidence to show that the defendant “ knew that the consideration of the sale was for money to pay the “husband’s debts. It was an ordinary sale, with the faculty of re- “ demption, to secure the payment of loaned money.” But in view of the conduct of the parties, and more particularly, the plaintiffs, the' court held that the title of the nominal vendor had become completely divested.” We held the wife bound by the recitals contained in tbs act of dation en paiement,” citing Lichtenstein & Co. vs. Schlencker & Hirsch, 44th Ann., 108; Chaffe vs. Schoen, 34th Ann., 688.

A wife may show to be untrue or erroneous the declarations of am authentic act to which she was a party.

She is not estopped by the averments of the act.

She must, however, in some way, attack the act- This pliantiff in this case has failed to do and it is is not reasonable to apply for a remanding before this court and a decree setting aside the judgment of' both the Circuit Court and the District Court, in order to enable the plaintiff to amend the pleading and raise issues which should have been raised in the first- instance. We must, in cases arising hereunder Art. 101 of the Code, adhere especially to the rules- of practice. The rule nisi in this case is discharged and plaintiff’s application for a writ of certiorari is denied.


text:
    No. 12,959.

      J. S. Anderson vs. Dr. W. Thompson et als.
    .Syllabus.
    The act o£ incorporation of a manufacturing company was erroneously-drafted under Act 36 of the Acts of 188S, Instead of, as it should have been, under Section 681, et seq. of the Revised Statutes.
    The promoter and organizer of the company changed his position and sought to attack his own acts as a charter member and president of the company.
    Held - That he was estopped, that the incorporators, as relates to those with whom they have contracted, can not question the incorporation of a company it was possible to incorporate (though it may be a nullity as to third persons). A company, which the charter members attempted to incorporate and which has acted as a corporation, having in appearance, at least, full power and authority to act — a power and authority which induced others to enter into contract with it and invest money for the benefit of the company — is binding upon its promoters and organizers.
    ON APPEAL from the Civil District Court for the Parish oí Orleans. Monroe, J.

      Buck, Walshe & Buck for Plaintiff and Appellant.

      W. F. Brewer and Parkerson & Tobin for Defendants, Appellees.
    Argued and submitted March 10, 1899.
    Opinion handed down March 20, 1899.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff claiming' that he is defendant’s partner and not a shareholder of the Independent Ice Co., seeks to treat the latter as a mere fiction, and asks for a judgment dissolving the partnership, and decreeing the parties, respectively, owners of the property in proportion to their respective interests.

The fact is, that in 1896, plaintiff engaged in organizing a corporation under the provisions of Act 36 of 1888, for the purpose of “purchasing, manufacturing and selling” of “ice and distilled water.”

To this end he and four others appeared before a notary public, and signed an act of incorporation’. This act was published as required bylaw. ' ■

Plaintiff soon after spent above five thousand dollars in buying :necessary machinery and in putting up the plant.

Plaintiff avers that those who signed the act of incorporation with ihim did not subscribe to any stock; that no list of subscribers to stock •was ever recorded in the mortgage office, as required by Section 686 of the Revised Statutes. Plaintiff avers further, that, in that condition of affairs, he met defendant in the case. They agreed, that with a capital of fifteen thousand dollars, five thousand subscribed by plaintiff and ten thousand by defendant, they would carry on the business under the name of the corporation.

To the defendant was accorded the right of organizing a Board of Directors. The original incorporators, in order to enable defendant to accomplish this, resigned, and others were elected in their place. Under the name of the Independent Ice and Distilled Manufacturing •Co., Ltd., plaintiff and the defendant carried on the business of making and selling ice.

The concern prospered. It appears on the minutes of the company that in April, 1896, J. S. Anderson, L. Lederle, L. R. McCartney, Geo. Bonning, Louis O. Jacob, per proxy, held a meeting for the organization of the company, and that every one present agreed to take stock. 'The capital of the company was fixed at fifty thousand dollars. Anderson produced at the meeting a copy of a charter he had selected, being the .best out of several he had studied. This charter was afterward signed before a notary. Plaintiff was elected president and general manager.

Another meeting of the Board was held in the following May and the details of the business received the Board’s attention.

At another meeting held later, in the same month, it appears that -some of the members resigned and others were elected in their place, ■in accordance with the agreement entered into between plaintiff and defendant.

The defendant was elected president of the company, and plaintiff •the superintendent and general manager. Afterward, differences ■arose between plaintiff and defendant, and the former does not appear to have attended any of the meetings of the board of directors.

We are informed in behalf of plaintiff that he desired to increase the cacapity of the plant, but that defendant was unwilling to incur further expense to that end; that they had bought second-hand machinery with the view of increasing the capacity of the works.

After defendant’s refusal to increase the plant’s capacity by adding other machinery, plaintiff concluded to, and did sell, at a profit.

Another cause of difference was plaintiff’s demand for the payment ■of salary for services as manager. Plaintiff retained some of the collections and the proceeds of the machinery he had sold; defendant in return also drew an amount for his individual account.

The differences resulted in the defendant calling a meeting of the board, at which a resolution was adopted discharging plaintiff as an •employe, and seeking to exclude him from participating in the firm’s .affairs.

It was then that the suit before us for decision was brought. Plaintiff alleges, substantially, that defendant’s acts are cause enough for terminating the asserted partnership, and for liquidating its ■affairs.

Defendant pleaded by way of exception that plaintiff being one of the organizers of the company, was estopped from denying its existence, and, in consequence, his petition disclosed no cause of action.

The court admitted evidence on the trial of the exception; sustained the exception and dismissed plaintiff’s suit.

From that judgment plaintiff prosecutes this appeal.

While we are impressed by the fact that plaintiff did, in good faith, all in his power to organize a corporation, he committed the error of organizing it with only four others, when six should have been the number, as the corporation was a manufacturing company under Section 688 of the Revised Statutes, and not a corporation organized •under the act of 1888, “for the purpose of carrying on any lawful business or enterprise not otherwise specially provided for.” Again, he neglected having the list of subscribers recorded in the mortgage ■office; and lastly, he was in error in dealing with subscribers, who did not pay for shares or give an equivalent therefor.

These would afford the best grounds to grant the prayer of plaintiff’s petition if presented by a third person.

The plaintiff is not only not a third person, but, from the first, he was the promoter and organizer of the company, and received benefits from the business.

It is evident that plaintiff always treated the charter as binding until he discovered that he and defendant could no longer agree.

It was, as we take it, only then that he sought legal advice and discovered that there had been an oversight committed in organizing his-company.

Though the charter was a nullity, the business was carried on in a corporate name, and plaintiff, its promoter, consented to the proposal of defendant to put in a comparatively large amount in order to sustain its corporate existence.

In a board meeting of the company the defendant was placed in nomination for the presidency by plaintiff and was elected, and he, plaintiff, accepted a position under the charter at the same time.

As far as the record discloses, these were all exclusively corporate actions. Defendant, in all this, properly enough, so far as we know, sought to prosecute his own interest, and, in this, we judge that he met with some degree of success in a financial point of view. The plaintiff, as we gather from the evidence,' is not in a position to maintain that defendant was not induced to act upon the assumption of corporate existence of the company the plaintiff had organized, and of which he was, president at the time that defendant also became a subscriber as before stated.

The evidence does not disclose that defendant knew of the invalidity in the charter.

Plaintiff, as a witness, said that defendant insisted on going on under the name of a corporation in order that he might be relieved from any liability beyond hi-s subscription. Such was the understanding, we are informed, between plaintiff and defendant. This-being the condition, as between plaintiff and defendant, it must be held binding. Plaintiff chose .to agree to this stipulation and bind himself, we may say, and from it he has received benefits. He cahnot be released without violating the plain principles of reason and-good faith. Cintis vs. Meeker, 48 N. E. 399.

Moreover, he cannot question the legality of his charter of incorporation and of the company he attempted to incorporate, and which under his administration as-an officer, has acted as a corporation.

It is therefore ordered, adjudged and decreed that the judgment is: affirmed.


author: Blanchard, J.

text:
    No. 13,100.
    State of Louisiana vs. Solini Haines.
    Syllabus.
    1. The husband of a woman can not himself bo guilty of an actual rapoupon his wife, on account of the matrimonial consent which' she has given, and which she can not retract.
    2. To hold a husband ■ charged with rape upon a woman who is his wife, or to convict him, it must appear that the carnal knowledge of the woman constituting the rape was accomplished through a man other than the husband, and that the husband procured it to be done, or assisted the other in the execution of their common purpose.
    3. But where the “other man” in the case, demanding a severance, is tried' first and acquitted, the prosecution against the husband falls, since he can not be guilty of raping his own wife.
    4. The “face of the record” in matters pertaining to motions in arrest of judgment does not mean the face of the indictment. It embraces the record of the ease as made up to that point.
    5. To have a mere note entered on the record, “bill of exceptions reserved,” is, in a criminal case, no bill whatever. And it is not good practice, and not warranted by law, for the clerk only to sign papers drawn as bills of exception. Act No. 113 of 1896 does not authorize it. Bills of exception in-criminal trials should be signed by the trial judge.
    ON APPEAL from the Nineteenth Judicial District Court for the Parish of St. Martin. Voorhies, J.

      M. J. Cunningham, Attorney General, and James Simon, District. Attorney, for Plaintiff and Appellee.

      J. E. Mouton and Martin & Voorhies for Defendant, Appellant.
    Argued and submitted March 11, 1899.
    Opinion handed down March 20, 1899.
   The opinion of the court was delivered by

Blanchard, J.

This man was indicted for rape. The woman was: his wife.

That he is guilty of a heinous offense against her, a jury of hie» countrymen have so said.

They called it rape, qualifying their verdict, however, so. as to “save .his neck.” From a sentence by the court to' imprisonment for life, he appeals.

The question presented is unique and novel. Can a husband commit rape upon a woman who is his wife? That he can procure the commission of the crime upon her, or aid and abet its being done, and thus, 'under our law 'and criminal practice, make himself liable as principal along with the actual perpetrator, is clear.

But in this case the actual perpetrator — the one who in and by his •own person had carnal knowledge of the woman, who performed the act of sexual intercourse, and who was named and identified by the prosecutrix as having performed it — was acquitted.

Solini Haines, present accused, and Desire O. Thibodeaux were .jointly indicted for rape upon the person of Rose Moreaux. They were properly charged as principals. State vs. Prudhomme, 25th La. Ann. 522.

Thibodeaux demanded a severance, which was granted, and being tried first, was found not guilty.

The indictment did not aver the woman to be the wife of Haines, but proof of this fact abundantly appeared in the preliminary proceedings leading up to the trial and at the trial itself.

The acquittal of Thibodeaux left Haines, the husband, alone charged with the crime of rape, and he was convicted.

After acquittal of the man who actually violated the person of the woman, the husband being present aiding and abetting, is there any longer a basis, a predicate, a foundation, upon which to rest the prosecution of the husband?

This is the question in the case.

While the husband is indicted as a principal, he could be guilty, of the crime of rape, in so far as his wife is concerned, only on the supposition and proof that he procured the offense to be committed upon her by another, or aided or abetted that other in so doing. For, if he were the one who forcibly and against her consent performed the sexual act upon her, there was and could be no rape. This is so, because the husband of a woman cannot himself be guilty of an actual rape upon his wife, on account of the matrimonial consent which she has given, and which she cannot retract. Archibold’s Crim. Pr. & Pl., Vol. 2, 158.

Therefore, while this husband is charged with rape on a woman who is bis wife, to hold him, or conyict him, it must appear that the carnal, knowledge of the woman, or act of intercourse with her, was accomplished through a man other than the husband, and that the husband, procured it to be done or assisted the other in the execution of their common purpose.

Thibodeaux was “the other man” in this ease. There is no pretense that any other than he and Haines are implicated. The woman charges no one else. The act was done at Thibodeaux’s house. She was well acquainted with Thibodeaux. She was kept against her will at his house all the day following the night on which the deed was committed, and then driven by him in a buggy to her father’s house, where she made her home. There is, thus, no question of his identification as the man who was with her husband when the rape was accomplished.

The woman’s testimony was that the husband held her down by the ■ throat while Thibodeaux performed the sexual act.

The husband, then, to be guilty of this charge of rape must necessarily have been the aider and abettor of another. The real principal in a case of this sort is the man who actually performed the act constituting rape, who had carnal knowledge by and through his person with the person of theVoman. The husband could not be this actor, for sexual intercourse by him with his wife, even effected by violence and' against her consent, would not, in law, be rape. Not being the principal in this sense, but being present aiding and abetting, he must be viewed as an accomplice in the crime of another man.

Our law declares that all parties present aiding and abetting in the commission of a felony may be indicted, convicted and punished a3 principals.

But while this is so, the common law distinction is not to be lost sight of. This distinction at- common law found expression in degrees of guilt. “A principal in the first degree,” says Blackstone, Com. Book 4, 34, “is the actor or absolute perpetrator of the crime; and in the second degree is he who is present, aiding and abetting the fact to be done.”

Our law has done away with this distinction so far as charging the crime and punishing it, but the reason upon which it rests remains- and must be applied in a ease like the instant one.

To make a man a principal in the second degree there must be a-principal in the first degree. That is to say, there must be one who ■ •does the act or thing without which there is no crime, and with respect to the doing of which the other, or principal in the second degree, was present aiding and abetting.

If there be no principal in the first degree, no one who does the act or thing constituting the crime, there can, of course, he no principal in the second degree.

The principal in the first degree is the one who actually commits the criminal act. By his act he is guilty without reference to the act of the other, or principal in the second degree; but the latter cannot be .guilty of crime unless the former actually perpetrates the act. One cannot be guilty of aiding and abetting the perpetrator of a crime without its first being shown that the crime has been actually committed by another. Mulligan vs. Commonwealth, 84 Ky. 232; Brown vs. State, 6 So. Rep. 459; State vs. Antoine and Vallere, 42 La. Ann. 945.

If Thibodeaux performed the act which constituted rape upon the person of the wife of Haines and the latter was present aiding and abetting, both are guilty as principals of the crime. But if Thibodeaux, on that occasion, which is the only one charged, did not do the act, then it was not done and Haines cannot be convicted. It is true, it is for the jury alone to determine whether or not the act was done, and by their verdict on the trial of Haines they said it had been done. By whom? Not by Thibodeaux; for, on the previous trial, the jury said he did not do it; that Rose Moreaux was not raped at the time laid in the indictment by him. If Thibodeaux did not do it and the husband did, the conviction of the latter is faulty, for the husband cannot per se he guilty of raping his wife.

The ease stands thus:

1. Thibodeaux exonerated from the charge by the verdict of not guilty as to him.

2. Haines declared, by the verdict of guilty as to him, to have committed the crime of rape upon Rose Moreaux.

3. Rose Moreaux was at the time of the act the wife of Haines.

We are constrained to hold that this conviction cannot stand.

The case as to Haines fell with the acquittal of Thibodeaux. Jt would be different if Haines had forced Thibodeaux by threats and violence, against his will and consent, to have sexual intercourse with the wife, who, herself, through menace and coercion exerted on part c-f the husband, had been forced to yield. In such case the husband .alone might well be found guilty of the crime and his unwilling in.strument of its accomplishment acquitted. But the case at bar is .altogether different. Everything negatives any suggestion that the .jury acquitted Thibodeaux on such ground. It is not pretended that they did.

The motion in arrest of judgment should have been sustained. By the bill of exceptions taken to the contrary ruling, the question herein discussed was properly brought before us.

From the record of the case as then made up, from the proceedings ■ of the trial up to that point, appeared the defect, the error, the inherent weakness, the intrinsic cause which vitiated the verdict and arrested judgment upon the same. The point made by the State, that the ruling of the trial judge on the motion in arrest of judgment cannot be reversed because such motion was not based upon errors patent upon the face of the record, is not considered well taken.

The “face of the record” does not mean merely the face of the indictment. It embraces the record of the case as made up to that point.

“A motion in arrest of judgment is not limited to the indictment, but may be made where there is error in any other part of the record.” Knoblock’s Crim. Dig., 42-43, citing I Bish. Cr. Pr., §1285, and Whart. Cr. Pl., §759.

We find in this transcript what purport to be bills of exception reserved by defendant to other rulings of the court. One of them is a mere note made by the clerk as follows: “Bill of exception reserved,” and found at the close of the judge’s ruling denying a motion to quash.

Two others are drawn in the proper form of bills of exception, but signed only by the clerk.

We taire this occasion to say that this is not good practice and not warranted by the law. There is no sanction for it in Act No. 113 of the Acts of 1896. Bills of exception taken on the trial of criminal causes should be regularly drawn and either state the facts, or have annexed to them the statement of facts taken down by the clerk, pursuant to Act 113 of 1896, and should in all eases be signed by the judge and filed by the clerk.

The bill taken to the ruling of the judge, denying the motion in arrest of judgment, is the only one in this record that comes up in proper shape. It was signed by the judge.

Eor the reasons assigned it is ordered, adjudged and decreed that the verdict of the jury herein be set aside, the judgment and sentence based thereon annulled and avoided, and that the accused be discharged from custody.


text:
    No. 13,051.
    Board of Aldermen of Opelousas, La., vs. John R. Norman and John A. Haas, (Consolidated.)
    Syllabus.
    1. Tlie fad that a particular uso of property is declared a nuisance by a town ordinance, does not make it such unless it is in -¡act so and is embraced within the common law or statutory idea of a nuisance.
    2. The thing or act complained of must come within the legal notion of a nuisance, and where it does not, no authority to remove or abate is derived from the ordinance declaring it a nuisance.
    3. But where a thing or act complained of is a nuisance, or must necessarily become such, a municipal corporation may, in the exercise of the police power, make regulations for its suppression and prohibition.
    4. Open cattle yards and pens within the corporate limits, where cattle in numbers are congregated and kept for feeding and fattening purposes— Held : To belong to that class of things which “must necessarily” become nuisances, and may be abated under a general prohibitive ordinance declar ing it a nuisance to so keep cattle within the corporate limits.
    ON APPEAL from the Mayor’s Court of the Town of Opelousas, 8. L. Eelrard, J.

      Lucius G. Dupre for Plaintiffs and Appellees.

      Kenneth Baillio for Defendants and Appellants.
    Submitted on briefs February 8, 1899.
    Opinion handed down March 20, 1899.
   The opinion of the court was delivered by

Blanchard, J.

The Board of Aldermen of the town of Opelousasadopted the following ordinance:

l'Resolved, That from and after this date it shall be considered' a nuisance for any person or persons to keep or feed homed stock in a quantity of twenty-five or more, for marketing, shipping, or any other purpose, within the corporate limits of the town of Opelousas.

“Be it further resolved, That any person or persons violating this ordinance shall be fined twenty-five dollars and costs for the first offence, and one hundred dollars and costs for the second offence, said fine and costs to be collected by the mayor in the same manner that other fines and costs are collected.”

Affidavits charging violation of the ordinance were made against defendants, warrants issued, they were arrested, tried before the MayoBs Court, convicted and fined twenty-five dollars each.

Both appeal. For the purpose of appeal their cases are consolidated by consent.

The appeal is based on Art. 85 of the Constitution of 1898, under which the appellate jurisdiction of this court extends to all cases in; which the constitutionality or legality of any tax, toll or impost whatever, or of any fine, forfeiture or penalty imposed by a municipal corporation, shall be in contestation whatever may be the amount thereof.

The contention of appellants is that the municipal authorities exceeded their power in adopting the ordinance in question; that the-same is ultra vires; and that the fine imposed under its provisions is-illegal and unconstitutional.

The contention of the town authorities is that the ordinance and it*enforcement is a proper exercise of the police power in respect to the-protection of health, safety and comfort of the inhabitants of the-town.

It will be observed that the keeping and feeding, itself, of homed' cattle within the corporate limits is not declared by the ordinance a. nuisance and prohibited; but the keeping and feeding of cattle in numbers is. It is declared that such keeping and feeding of cattle in-numbers aggregating twenty-five head or more, is a nuisance.

The ordinance, as to the keeping and feeding of cattle in such numbers within the corporate limits, is; thus, prohibitive, not regulative:-

Just .there comes in the objection and contention of defendants.

They dispute the power to enact a prohibitive ordinance on this subject. They acknowledge the power to enact a regulative one.

In such a case as this the jurisdiction of this court is confined to an inquiry into, and determination of, the question of legality or constitutionality of the ordinance imposing the fine, and-for this pur pose both the fact and the law of the ease are open to examination and decision. But the extent to which this examination into the facts may go, does not include the evidence on which the Mayor’s Court founded Us judgment as to the infraction, vel non, of the ordinance. With the facts of the case, in this sense, tending to show guilt or innocence of the accused, we have nothing whatever to do. State vs. Callac, 45th La. Ann. 29; State vs. Dean, Ib. 441; State vs. Fourcade, Ib. 721. The examination, therefore, which we shall make of the facts of this case will be limited accordingly.

It appears that defendants have a pen or pens located within the corporate limits of the town; that the number of cattle kept there were, usually, frbm 100 to 150 head; that these cattle were kept there for the purpose of feeding and fattening; that the pens are in closst proximity to a cotton seed oil mill, from which cotton seed meal, or cake, and hulls are procured for feeding the stock; that the pens are distant not more than 300 or 400 feet from private residences; that they drain into a small stream or bayou which runs through a part of the town; that the waters and banks of this stream are, and liable to be, unwholesomely affected by the same; that the pens are not kept in .such condition as to prevent this; that there are no appliances for the ■removal of the urine and droppings of the cattle kept there and the pens are not so arranged that the droppings and urine can be removed daily; that where cattle are kept standing on the ground it is impossible to remove the urine, which more or less becomes absorbed into the soil, and that it is not practicable to deodorize urine where cattle are fed on the ground.

We construe the ordinance to mean that no person or persons shall keep twenty-five, or a greater number of cattle, in any one place at a given time within the corporate limits, and to declare the keeping of .twenty-five head or a greater number, in any one place, a nuisance.

• We are asked to declare it beyond the authority of the municipality to -enact such 'an ordinance.

We cannot do so.

In saying this we fully appreciate that the fact that a particular use of property is declared a nuisance by an ordinance of a city or town does not make that use of property a nuisance unless it is in fact so and is embraced within the common law or statutory idea of a .nuisance.

Wood’s Law of Nuisance, Section 744.

It is fully conceded that the thing or act complained of must come within the legal notion of a nuisance and where it does not, no authority to remove it is derived from the ordinance declaring it a! nuisance. Ib. Section 744, and note.

But where a thing or act complained of is a nuisance per se} or must necessarily become a nuisance, a town or city may, in the reasonable exercise of the police power, malm regulations for the suppression and prohibition of the same.

When the thing sought to be abated is clearly a nuisance, one affecting or liable to affect the health of the town, the abatement may be made by the authorities of such town.

The possession of very extensive powers for the abatement of nuisances detrimental to public health and safety exists, as part of the police power, in municipal corporations. 11 La. Ann., 245; Dillon’s Mu. Cor., Vol. 1, Section 141.

Wherever protection to the lives, limbs, health, comfort and quiet of the citizen, and to his property, is needed to be extended, there the police power reaches; and in respect of acts such as that complained of herein it rests upon the principle embodied in sic utere tuo, ut alienum non laedas — an accepted maxim alike of the civil law and the common law.

Open cattle yards and pens, located and maintained as these are within the limits of an incorporated town, where cattle in numbers are kept for a long period of time to be fed and fattened for market, belong, we think, to that class of things which “must necessarily” become nuisances. It is within the ordinary experience of every observant man, who has had opportunities for judging, that they do, and the facts of the case at bar show that the pens in question are such. They are not safeguarded by the conditions, appliances, equipment, etc., to prevent their becoming offensive, to obviate the noxious exhalations and noisome smells incident to such places, nor even to minimize the same. . The drainage from the pens pollutes the stream which runs through the town and is liable to affect the health of the locality.

So, we think it established that the particular use of the property in question, declared by the ordinance to be a nuisance, is "in fact ” as •well as in law, a nuisance.

Being such, the police power of the municipal corporation, operating through the ordinance attacked, and its enforcement, reaches it and abates it.

It being shown that the pens as now located, arranged, equipped and maintained, are nuisances, it is no argument against the ordinance to say that under proper arrangement, equipment and regulation the use-to which the property is now put may become innoxious and unobjectionable. See A. & E. Enc. of Law, Vol. 1, p. 65, 2nd ed.

If it be possible for these pens, harboring a large number of cattle,, to be put in such condition as not to affect injuriously the health, the comfort, the quiet of the town, and they are so put, a case will be presented with respect to which the ordinance may perhaps have nO‘ application, and were such a ease now before us a different result might be reached.

We find no sufficient grounds for disturbing the judgment appealed from and the same is affirmed.


author: Blanchard, J. Breaux, J.

text:
    No. 12.980.
    C. H. Moore vs. H. C. Drew.
    Syllabus.
    1. Plaintiff, surety on a twelve months’ bond, paid it, and sues defednant, co-surety, for one-half of amount so paid, alleging insolvency of the principal and other co-sureties.
    2. Held : Under the facts and circumstances disclosed, equity and good conscience alike preclude his recovery.
    3. And in law he must be held responsible both for failure t.o take timely action, after he had paid the bond, to protect it by means of the property, the purchase price of which, with the vendor’s privilege retained, it represented ; and for the situation now existing, rendering subrogation unavailing, and preventing recourse against the property to recoup those who have paid it, or might now be held liable on its account.
    ON APPEAL from the Twelfth Judicial District Court for the-Parish of Calcasieu. Bead, J.

      Pujo S Moss for Plaintiff, Appellant.

      'Williams & Sugar for Defendant, Appellee.

      Argued and submitted December 22, 1898.
    Opinion handed down January 23, 1899.
    Rehearing refused, reasons assigned, March 20, 1899.
   The opinion of the Court was delivered by

Blanchard, J.

The Cane River Lumber Company conducted a saw-milling enterprise at Chopin in Natchitoches Parish.

It was not prosperous, became involved in debt and insolvent.

Various creditors brought suits and recovered judgments for a large amount in the aggregate, some of the judgments carrying recognition of vendor’s privilege and special mortgage upon the property of the company.

Executions issued, the property was seized and at the sale which followed was adjudicated to E. F. Wasey on twelve months’ credit. Whereupon Wasey executed a twelve months’ bond for four thousand, six hundred and ten dollars, with the plaintiff, the defendant and two other persons as his sureties.

This was on June 3, 1893..

The sheriff assigned this bond to the New Orleans National Bank, the ranking creditor of the insolvent concern.

The bond described the property sold, for the purchase price of which, in part, it was given, and stipulated retention of the vendor’s privilege.

It was not paid at its maturity. Interest thereon, from time to time, was paid, and extensions had,' under circumstances, however, that did not operate to release the sureties.

This continued down to April 2, 1897, prior to which time Wasey, the principal, and Kelsoe and Sandidge, two of the sureties, had become insolvent.

This left plaintiff and defendant the only solvent obligors of the bond.

The bond had been placed in the hands of attorneys for collection, •and on the date last mentioned the plaintiff arranged with the attorneys to take up the bond, paying part of the amount due in cash, and ■giving his promissory notes for the remainder at short maturities, which notes he duly met.

Subsequently he brought this action against defendant, his co--sure-ty, to recover one-half of the amount he had so paid, alleging the -insolvency of the principal and the other two sureties.

On behalf of defendant a plea to the jurisdiction of the court was tendered, on the ground that suit on the twelve months’ bond should have been instituted in the District Court in and for the Parish of Natchitoches, since it (the bond) had been given in the course of judicial proceedings there taken.

There is no merit in the plea. This is not a suit on the bond, but an action to recover money from defendant which plaintiff alleges he was obliged to. pay on his account, and was rightly brought in the' parish of defendant’s residence. The exception to the jurisdiction was properly overruled.

The defense, on the merits, is discharge from liability to plaintiff on account of the bond for the reason that by and through the acts and conduct of plaintiff defendant has been deprived of the right of subrogation to the vendor’s privilege, which the bond carried against property of sufficient value to have protected the sureties.

In an amended answer defendant charged, in substance, that by paying the bond plaintiff had merely satisfied his own debt; that Wasey, the nominal principal, in purchasing the property for which the bond was given, acted for the plaintiff; that the latter was the real principal in the obligation and not merely a surety thereon; and that defendant’s obligation on the bond was that of surety for plaintiff.

This amended answer was objected to by plaintiff on the ground that it contained defenses inconsistent with that set up in the original answer, thereby changing the issue.

The objection was sustained and defendant reserved a bill.

In the view we taire of the ease it is not necessary to pass upon the-question of practice here raised.

In June, 1893, shortly after the purchase of the Cane River Lumber Company’s outfit by Wasey at sheriff’s sale, a new corporation was organized, called the Lake Lumber &' Shingle Company, Limited. It became the successor of the old company.

Its incorporators were Moore, the plaintiff, Drew, the defendant, George Lock, E. E. Wasey and J. T. Sandidge. All of these parties-were named in the act of incorporation directors of the company.

The capital stock of the corporation was fixed in the charter at' sixty thousand dollars, divided into shares of one hundred dollars each, to be paid for when issued, and the company was authorized to-do business as soon as $25,000 of its stock was subscribed and paid for.

Neither in the act of incorporation, nor in any paper attached' thereto, does there appear a list of subscribers to the stock, with the number of shares taken by each. The stock book of the company, however, shows certificates of stock issued to plaintiff for 199 shares, to Kelsoe & Sandidge for 88 shares, to George Lock, a business partner of plaintiff, for 1 share, to E. F. Wasey 1 share, and to defendant,. Drew, 1 share.

Not a dollar for any of this stock was paid into the treasury of the concern.

On the day of the incorporation the Board of Directors, named in the act of incorporation, met and organized by electing George-Lock, president, J. T. Sandidge, vice-president, and E. F. Wasey, secretary and treasurer.

No meeting thereafter of either directors or stockholders was held until May, 1897, four years later, when a quorum of the directors met and the secretary, he being one of the three directors at the meeting,, informed the other two that suits against the company had been filed by Lock, Moore & Co., and by H. C, Drew. Nothing was done at the-meeting.

Shortly after the incorporation, Sandidge, vice-president, disposed of his stock, as did Kelsoe, and the transfers were made on the books of the company. No other vice-president was, however, chosen.

Beyond adopting a charter, organizing a board of directors and issuing shares of stock never paid for, the company did nothing.

Wasey executed in its favor in August, 1898, following the incorporation, an act of sale, transfer and conveyance of the milling outfit and property which he had acquired on June 3, 1893, at sheriff's sale-in execution against the Cane River Lumber Company. The consideration was stated to be one thousand and twenty dollars cash and the-assumption of the twelve months’ bond he had given with plaintiff, defendant and others as sureties. No one appeared to accept this sale on behalf of the company, and no resolution was ever adopted by the board of directors, or authority given by the stockholders for this, purchase and assumption.

No effort whatever was made by the company to run the mill or-make use of the property thus conveyed to it. The mill lay idle in-charge of parties who seem to have been employed and paid by Lock, Moore & Co. Lock, Moore & Go. were not subscribers to the concern’s stock. What they had to do with the mill, or what interest they had in its affairs, justifying them in the expenditure of money in its ■behalf, does not appear, except by inference that they represent Moore, the plaintiff herein. Moore, as seen, was the principal stock.holder of the company, and he was the owner of more than one-third .of the shares representing the capital stock of Lock, Moore & Co., Limited, a large lumber manufacturing concern of Calcasieu parish. Lock, the senior member of the latter company, was apparently only nominally connected with the Lake Lumber and Shingle Company, for there was issued to him only one share of its stock, of the par value of one hundred dollars, enough, however, to make him eligible to the presidency of the concern, to which, as we have seen, he was ■chosen.

This Lake Lumber and Shingle Company seems to have been a mere paper corporation, under the guise of which the mill property was really held by Moore, the plaintiff, or by Lock, Moore & Co. for him, .or for themselves. If this be so, what he or they expended for its .keep, and which was afterwards used as the means for effectuating its ■formal transfer to them, was his own debt, or theirs.

At the time the plaintiff paid the twelve months’ bond which is the basis of this action, the company was the apparent owner of the ■property upon which the vendor’s privilege, retained in the bond, rested. It was the holder, of record, of the title, and if any force ¡attaches to the act of conveyance by which it acquired the title, it '(the company) was bound for the debt, which the bond represented, by reason of its assumption thereof.

Plaintiff took up this bond on the second of April, 1897. He thereby became subrogated to the rights attaching to the same,' including the vendor’s privilege. He could, at once, have proceeded against the property on which the privilege rested to enforce the same. He .did not do so.

Instead, we find that Lock, Moore & Co., his own business firm, filed, on May 1, 1897, a suit against the Lake Lumber and Shingle Company, claiming a judgment for $3,609.08, moneys averred to have been ■advanced to the latter company for the care and preservation’ of the mill property located at Chopin, and for paying taxes thereon. No privilege on the property for these advances was claimed, if any ex-isted; only an ordinary judgment was sought.

. No. defense was interposed by defendant company. Judgment by default was confirmed in favor of the plaintiffs in the suit. Execution followed, issued to the sheriff of Natchitoches parish, who seized •the mill property at Chopin, duly offered the same at public sale, and adjudicated it to Lock, Moore & Co., Limited, for the sum of four ■thousand one hundred dollars.

So that plaintiff’s business firm — a company in which he is inter•ested to the extent of more than one-third of its capital stock— became the purchaser and is now the owner of the property upon which the vendor’s privilege, securing the twelve months bond, had rested.

Notwithstanding the ordinary judgment under which this sale was effected, no steps were taken by the plaintiff, who had taken up the bond, to claim for it or for himself priority of payment out of the proceeds of the sale of the property.

And now, after he and his business associates have thus acquired :and held in ownership the property representing' the twelve months’ bond, he sues defendant to recover one-half of the bond itself.

He has the property, as well as the proceeds of its sale at the suit ■of his firm against the Lumber and Shingle Company, of which he was the real head and front, and now seeks a judgment against ■defendant for half of the amount paid on the bond.

Under the facts and circumstances of the case, equity and good conscience alike are against his pretensions in this regard. And in law he must be held responsible both for failure to take timely action, after he had paid the bond, to protect it by means of the property, the purchase price of which, with the vendor’s privilege, it represented; and for the situation now existing preventing recourse against the property to recoup those who have paid it, or might now be held liable •on its account. C. C., 3061, 2161, 2163; 2 R. 424; 5 Ann., 500; 13 Ann., 430; C. P., 710; 5 Ann., 513; H. D. p. 1540.

The transcript contains much that is immaterial to the true issue upon which the ease turns, regarded from the court’s point of view. And so we have omitted mention of the same herein.

It is, therefore, ordered and decreed that the judgment appealed from be and is hereby affirmed.

On Application for Rehearing.

Breaux, J.

Plaintiff urges that the judgment is erroneous because based upon the supposed facts that the twelve months’ bond was paid by him on April 2, 1897, and that the property of the Cane River Lumber Company, upon which the vendor’s privilege rested to secure the bond, was sold under the judgment of Lock, Moore & Co., Limited,. after the bond had been paid. Contending that he, plaintiff, did not pay the bond and did not get possession of it until after the sale of the property under the Lock, Moore & Co. judgment, his position is that no transfer and assignment, and no subrogation of rights under the bond, or in and to it, in favor of himself took place until after execution of the Lock, Moore & Co judgment, and, hence, he was in no position to assert superior claims on the property as subrogee of the bond at the time the lumber company sold it under its judgment.

This is utterly untenable. On April 3, 1897, plaintiff paid on the bond $2,286.20 in cash, and on that day gave his two individual notes, one for $1,531.67 due July 3, 1897, the other for $1,552.23, due September 3, 1897, for the remainder. This was a “taking up” of the bond by him, and while as between himself and the holder of the bond novation may not have taken place, and the holder may have retained possession of the bond until the last note was paid, it is none the less clear and certain that when he paid the $2,286.20 in cash he became, in law, the subrogee of the bond to that extent, and when in July he paid the first of the two notes, for $1,531.67, he became its subrogee to the further extent of that sum.

So that when, cn August 28, 1897, the Cane River Lumber Company’s property was sold and bought by Lock, Moore & Co. for $4,100 (being two-thirds of its appraised value), plaintiff, who was the “Moore” of that firm, stood as the subrogee of the twelve months’ bond, with its vendor’s privilege, for the sum of $3,817.87 already paid by him in cash on the bond to its holder. Not only that, but his individual note for the remainder of the bond was out, and the note was,, at the date of the sale, within six days of its maturity. The man having an interest to take up the bond, and who had done so to the extent mentioned, had, certainly, a full standing in law to claim the benefit of the vendor’s privilege at the time the property was sold, for the full amount he had paid on the bond, and we think, also, for the amount he was responsible for on his remaining outstanding individual note.

Yet he took'no steps whatever to assert his superior claim for priority of payment out of the proceeds of the property, over the ordinary judgment of his business firm.

Again, plaintiff urges error in the judgment to his prejudice because the court, in. its opinion, inadvertently referred to him as the present owner of the Cane River Lumber Company’s property. What was meant in that part of our opinion was that plaintiff’s firm had bought and become the owners of the property. After purchasing and holding it for over twelve, months they sold it to another. So that, at this time, they do not hold it. But the fact that after holding it a-year or more they sold it, in no manner alters the situation to the benefit of plaintiff. It remains that his business firm bought the property at the sale under their ordinary judgment, and retained the proceeds of the sale — plaintiff, then subrogated to- the bond for $3,817.87, all the while standing by in silence and permitting this to be done. And afterwards when Lock, Moore & Go., Limited, sold the same property to Cooley they received for their own account its proceeds, $4,500.

Rehearing refused.