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those objects. Article 229 of that instrument, in its concluding part, directs distinctly and unmistakably that the legislature “shall provide that every parish may levy a tax for the public schools therein, which shall not exceed the state tax: provided, that with such tax the whole amount of parish taxes shall not exceed the limits of parish taxation fixed by this constitution." It is apparent that the legislature of 1888 bore this article in mind when the section in question was framed; as the very word “may” which is found in the constitutional provision is repeated in the section. The law-giver says: The police jurors of the several parishes may levy, etc. Had the word "shall” or “must” been used, it manifestly would have been employed in excess of the power delegated by the constitution, unless the word “may,” therein found, was really designed to mean either “shall” or “must," and was intended to be imperative, from all stand-points, on the police juries. It cannot be argued, however, that the word “may” in the article has that purport, for it is glaring that the framers of the organic law did not so propose; but merely contemplated to continue in existence, to some extent, a pre-existing statute on the same subject, namely, act No. 23, § 28, of 1877, p. 36, which provided that police juries are authorized to levy a tax for the support of common schools, which shall not exceed two mills, etc. So that, in order to ascertain the meaning of the word “may” in section 54 of act 81 of 1888, recourse must be bad to the concluding sentence of article 229 of the constitution, in which it is used, which requires the legislature to vest police juries with the power of levying the tax; and, in order to realize the meaning of that word in that article, reference must be had to the legislation in esse at the date of the adoption of the constitution. By this process the purport and meaning of the word “may” in the statute of 1888 are readily ascertained to be permissive, and not mandatory. Therefore the section under consideration must be read as meaning that the police jurors of the several parishes, etc., are authorized to levy, etc., and cannot be viewed as imposing upon them absolutely the duty or obligation to levy the tax.

It consequently follows that the term used is not mandatory, but permissive only, and that the propriety of the levy of the tax is faculative or optional with police juries, who in their wisdom may or not exercise the prerogative. Having been clothed with discretionary powers only, and not burdened with any duty, it can not be claimed that they can be forced by any judicial authority to exercise it one way or the other, and that the relators have any standing in court to claim the tax as a matter of right. It is therefore ordered and decreed that the judgment appealed from be reversed; and it is now ordered and decreed that the application for a mandamus herein be refused, with costs.


STATE 0. HENDRICKS et al. (Supreme Court of Louisiana. August 27, 1888. 40 La. Ann.) 1. PLEADING-SPECIAL PLEA-EFFECT.

A defendant who files a special plea is to be judged on that plea, and none other. All else is admitted. Hence a surety who denies his signature to a bail-bond, which is an act under private signature, on a proceeding to forfeit the same. the accused not appearing when called, is barred from all other defense, the signature once

proved. 2. SAME.

The principle applies whether the proceeding, which is intrinsically civil, be con

sidered as civil or criminal in form. (Syllabus by the Court.)

Appeal from district court, parish of Jackson; R. D. BRIDGER, Judge.

Action by the state against James Hendricks, and D. M. Jameson, the surety on his bail-bond. Judgment was rendered annulling the judgment of forfeiture of the bond, and releasing the surety. The state appeals.

R. E. Milling, Dist. Atty., for the State. E. E. Kidd and F. W. Price, for appellees.

BERMUDEZ, C. J. The state appeals from a judgment of the district court annulling a previously rendered one forfeiting the bond of the accused, and · condemning the surety therein to pay the amount thereof,—the former failing to appear at the term when he was called to do so; the latter failing to produce then and there his body. It appears that Hendricks was arrested by a justice of the peace on the charge of larceny, and was released on a bond for $300, with D. M. Jameson as surety therein, conditioned, substantially, that if the above-bounden Hendricks shall appear at the jury term of the district court at the town of Vernon, Jackson parish, commencing on the first Monday of February, 1888, to answer the charge of larceny, and shall there remain from day to day, and term to term, and shall not depart thence without leave of court, the obligation to be null and void; otherwise to remain in force. It further appears that a true bill was found against said Hendricks on February 11, 1888, and that a bench-warrant was issued for his arrest, which took place on August 18th following, he having failed to appear on August 14th preceding, when the bond furnished by hin was forfeited, and the surety, Jameson, condemned to pay the amount thereof. On the day following that of the forfeiture, Jameson took a rule to rescind the judgment nisi, on the sole ground that he had never signed the bond; which rule was discharged by the court. Subsequently, the surety took another rule, averring other grounds for which the judgment of forfeiture should be annulled. This rule was treated as an answer putting at issue the right of the state to demand the forfeiture. After hearing, the district court annulled the judgment of forfeiture, and released the defendant as surety. From this judgment the state appeals.

It is manifest that the proceedings below were palpably irregular and unwarranted. After the judgment of forfeiture had been rendered, instead of asking that it be set aside and the matter reinstated as a motion by the state for the forfeiture, the surety made a solitary defense as though he had been called upon to answer a rule to forfeit, and that defense was that he had never signed the bond in question. The issue thus restricted was tried by the court, and determined adversely to the surety. Now, instead of applying for a new trial, the surety took a rule setting forth technical grounds tending to atfect the regularity of the bond, and of the proceedings under which it was furnished; and the state, instead of objecting to this mode of proceeding, prayed that the rule be treated as an answer. We deem it unnecessary to pass lpon any of such grounds, for the reason that it is a well-established principle of law, which has never been deviated from, that one who files a special plea is to be judged on that plea and none other. All else is admitted; and this, apart from the consideration that it may perhaps be claimed, as settled, that a surety who, upon the execution of a bond, obtained the release of an accused in actual custody, is estopped from gainsaying the regularity either of the bond or of the proceedings under which it was allowed.

This principle applies whether the proceedings be considered as civil or criminal. Intrinsically, the proceeding may be viewed as civil in character. It is based on a contract under private signature, on which a money judgment can be rendered, which may be executed on the issuance of a fi. fa. It is not a proceeding for the recovery of a fine inflicted for the commission of an offense. In so saying we do not lose sight of the fact that it has been treated as a criminal proceeding, in order to determine questions of jurisdiction in cases of appeals from judgments of forfeiture of bail-bonds. The rules laid down in the Code of Practice, on the subject of suits on obligations or acts under private signature, are in consonance with the above announced principle, and may serve as safe guides in the determination of the matter now under consideration. That Code provides that, when the demand is founded on an obligation, or an act under private signature alleged to have been signed by the defendant, he shall be bound in his answer to acknowledge or deny his signature, (Code Pr. art. 324; also Rev. Civil Code, art. 2244;) and that, if his signature has been proved, he shall be barred from any other defense, and judgment shall be rendered against him without further proceeding. Code Pr. art. 326. See, also, Burbank's Case, 9 La. Ann. 528; Bank v. Harrison, 24 La. Ann. 362; Pinckard v. Hampton, 22 La. Ann. 439; Cochran v. Perry, 12 La. 11; Ware v. Elam. 8 Mart. (N. S.) 329; Bradford v. Cooper, 1 La. Ann. 325. Now, the signature of the surety, after his denial thereof, was fully proved below; so much so that he did not complain on this appeal to the contrary. It therefore follows that he would not be heard on any other defense subsequently set up by him, and that the district judge erred in his finding. It is therefore ordered and decreed that the judgment appealed from be reversed; and it is now ordered and decreed that the rule of Jameson, the surety, to rescind the judgment de claring his bond herein forfeited be discharged; that said last judgment remain undisturbed; and that, accordingly, the state of Louisiana recover of the defendant D. M. Jameson the sum of $300, with legal interest from the date of forfeiture, August 14, 1888, per annum, and costs in both courts.

STATE 0. DORSEY. (Supreme Court of Louisiana. October 22, 1898. 40 La. Ann.) 1. JURY-SUMMOXING TALESMEN.

An objection to the effect that the names of persons who are summoned as tales jurors were not written on ballots and placed in the venire box, and drawn therefrom, but that same were called from a list that was made out and furnished to the counsel by the sheriff, will not prevail, in case it appears that the entire list was

exhausted before the panel was completed, 2. SAME-EXPRESSION OF OPINION--QUALIFICATIONS.

The expression of opinion which disqualifies a juror is a fixed, deliberate, and de

termined one, which will not yield to evidence.' 3. CRIMINAL LAW_TRIALINSTRUCTIONS-WEIGHT OF EVIDENCE,

It is not proper for the trial judge to charge that if one witness swears positively to the occurrence of a certain fact, and other witnesses, who had equal facilities of witnessing it, swear that if same had occurred they would have seen it, that the latter must prevail. It is necessary that the court should charge, in addition, that such witnesses exercised such facilities, and testified that no such occur

rence happened, in order that their evidence should preponderate, 4. SAME-MISCONDUCT OF JUROR_OBJECTION AFTER TRIAL

An objection that a juror held a whispered conversation with a person not connected with the court, and in the presence of the judge and the defendant's counsel, cannot avail the accused as a disqualification of the juror. He had the opportunity of requesting the judge to discharge the jury, and did not, and his complaint comes

too laie after he has enjoyed the opportunity of an acquittal. 5. SAME-USE OF LIQUOR BY JURY.

As a rule, it is safer to exclude spirituous liquors entirely from the use of the jury in a capital case; yet, if the proof shows that no injurious consequences flowed

from the use, no ground is furnished for the allowance of a new trial. 6. SAME-MOTION IN ARREST OF JUDGMENT.

A motion in arrest of judgment should concisely state the defects it complains of as being patent upon the face of the record. (Syllabus by the Court.)

Appeal from district court, parish of Morehouse; FRANK VAUGHAN, Judge.

J. P. Madison, Dist. Atty., for the State. Todd & Todd and Robert Whetstone, for defendant.

WATKINS, J. This appeal is prosecuted from a verdict convicting the accused of murder, and sentence to life imprisonment. His counsel urge various

As to the nature of an opinion on the case, which disqualifies one from acting as a juror, see Hall v. Com , (Pa.), 12 Atl. Rep. 163, and pote; People v. McQuade, (N. Y.) 18 N. E. Rep. 156, and note; Comfort v. Mosser, (Pa.) 15 Atl. Rep.

complaints against the rulings of the trial judge, and charge that same were prejudicial to him, and that he has not had a fair trial. We shall deal with them in the order of their occurrence.

1. During the process of impaneling the jury the regular venire was exhausted before same was completed, and the court ordered the sheriff to summon six tales jurors to complete the panel. The sheriff, having sumnioned said talesmen, returned into court a list of their names, and from which list the call was proceeded with in regular order, comiencing with the first. Objection was urged to this procedure, by the defendant's counsel, on the ground that the names of the tales jurors should have been deposited in the venire box, and drawn therefrom. Appended to the bill of exceptions is a statement of the trial judge to the effect that the list of jurors summoned was exhausted before the panel was completed. We have decided that in such event the accused suffers no injury, and that such an objection is not good. State v. Farrer, 35 La. Ann. 315.

2. One of the jurors, having been sworn on his voir dire, stated that he bad formed and expressed an opinion relative to the guilt or innocence of the accused; that same was a fixed opinion, but that he would be governed by the evidence. Thereupon defendant's counsel tendered a challenge for cause, and it was disallowed by the court. The judge assigns that the juror stated that he would disregard his opinion, and be governed by the evidence. If the opinion which the juror entertained was of such a character that it would yield to the evidence adıluced on the trial, it cannot avail as an objection to his competency. For it has been decided by this court that “the expression of an opinion which disqualifies a juror is a fixed, deliberate, and determined one, which cannot be changed. Id. 317. The opinion of the juror in question may be said to have been a fixed or decided opinion, but not an unyielding and determined one. It is not pretended-judging by the recitals of the defendant's bill of exception--that the opinion of the juror was formed from hearing the witnesses' testimony or statements; and it must therefore have been founded upon rumor, and could not have been a determined opinion, such as would be disqualifying. Furthermore, it does not appear that the particular juror in question sat upon the jury of trial, or that the defendant's peremptory challenges had been already exhausted when the objection was urged. Id. 315.

3. On the conclusion of the trial the defendant's counsel requested the court to charge the jury that, when one witness swears positively to a fact, and other witnesses, who were present and had equal facilities of seeing the transaction, swear that if the same had occurred they would have seen it, the testiinony of the latter is entitled to equal weight as that of the former, and should have as much force. This charge was declined by the judge. The counsel admit the force of the rule that when one witness swears positively to a certain fact, and other witnesses swear that they did not see the occurrence, the testimony of the former will be considered as outwrighing that of the latter. The reason for the rule undoubtedly is that the one is positive and the other negative testimony. But they insist that we have recently announced a doctrine that is compatible with their theory, and not at all inconsistent with the rule just stated; and they cite one opinion in State v. Cherallier, 36 La. Ann. 84. In that case we employed this language, viz.: “The rule is that when one witness swears positively that he saw and heard a fact, and another, who was present, merely swears that he did not see it, and the witnesses were equally faith-worthy, the general principles would, in ordinary cases, create a preponderance in favor of the affirmative, when the positive can be reconciled with the negative, without violence or constraint. Ev. idence of a negative character may, under particular circumstances, not only be equal, but superior, to positive evidence. This must always depend upon the question whether the negative testimony can be attributed to inattention, error, or defect of memory, and whether the witnesses had equal means and opportunities for ascertaining the facts to which they testify, and exercised the same.” (The italics are those of the writer.)

Conceding the force of the rule, and the foregoing qualifications, taken together, the requested charge was not a permissible one, because it was not formulated within its compass, and pursuant to its provisions. Defendant's counsel siinply requested the court to charge that, if one witness swears positively to the occurrence of a certain fact, and other witnesses, who had equal facilities of witnessing it, state that if same had occurred they would have seen it, this was not sufficient. He should have also stated, further, that such witnesses exercised such facilities, and testified that no such occurrence took place; for it does not suffice that they had the opportunity to see, but did not; that they were present, but did not have their attention attracted to it. These are merely negative averments; and such evidence is negative, and does not preponderate over, and is not entitled to equal weight with, the positive testimony of a single witness. The mere fact of persons being present upon the happening of a transaction, and having an opportunity to witness it, and who thereupon state that if such a transaction had occurred they would have seen it, is not equivalent to saying that they exercised the opportunity presented, and that no such an occurrence transpired. The charge requested was an improper one.

· 4. An application for a new trial was made on the grounds, viz. First, that while the trial was in progress, and after some of the jurors had been sworn, one of them held a whispered conversation with a person not connected with the court, and with whom he had no right to converse; second, the jury were allowed to indulge in spirituous liquors “during the trial of the case. The motion was refused, and defendants reserved a bill of exceptions. (1) On the trial of the motion it was stated by the deputy-sheriff, as a witness for the accused, that he saw a person, not connected with the court, engaged in a wbispered conversation with one of the jurors who had been sworn, and that he ordered bim away immediately. This occurred while the juror was sitting in the jury-box, and in the presence of the court. From this statement it does not appear that the juror was guilty of any improper conduct. He did not invite the conversation, nor participate in it. This occurrence took place in the immediate presence of the court. It was admitted by one of the de fendant's counsel, in the course of the argument here, that he observed it at the time it happened, and that he made no objection to the court, and did not, on that account, request that the jury be discharged. It is quite firmly settled that an objection to the qualification of a juror must be taken advantage of seasonably to be of avail to the accused, and this rule may be wisely extended to an objection to the conduct of a juror in this regard. The counsel bad an opportunity of tendering a seasonable objection to further proceeding with the trial before that jury, and did not; consequently his complaint comes with indifferent grace after he has taken the chance of an acquittal by the jury as constituted. (2) On the other branch of the motion the same witness testified that he asked the judge if there was any impropriety in giving the jurors a drink of whisky, as they said they were tired, and wanted it, and that he replied there was none. He states further, viz.: “I had Deputy-Sheriff Taylor to take a pint bottle of whisky to their room. The judge told me not to let them have enough to become intoxicated. The one pint is all that I know of." Was this a misdirection, or misdiscretion of the trial judge? It does not appear from the motion, or the evidence adduced on the trial thereof, that this occurrence happened after the trial, and during the deliberations of the jury upon their verdict; but we understand that it is specifically laid “during the trial of the case.” It was undoubtedly the duty of the judge to see to it that the comfort of the jurors was provided for, as well as their subsistence. In this instance, the representation was made to him that the members of the

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