trial as between Watkins and Matilda Cooper was error. The judge had been fully advised, he states, from the trial of the cause against Philipps, what the issues in the cause would be; and we must assume, in the absence of an affirmative showing to the contrary, that his ruling was right. The question of severance is one very much under the control of the trial courts. No The complaint made by accused as to the time and manner of obtaining talesmen, and of the time and manner of impaneling the jury, is of the most technical character. injury whatever to the appellants from the course pursued is suggested. The talesmen tendered seem to have been accepted without complaint. We do not give to the eleventh section of Act No. 135 of 1898 the strict construction which appellants wish to have placed upon it, and to make the exercise of the right of the judge to order talesmen to be summoned by the sheriff in a criminal case conditioned absolutely upon the prior exhaustion of the list of regular jurors or of talesmen drawn by the jury commission. trial of criminal cases would be greatly hampered if each case had to be forcedly postponed until the jury commissions could be called together to fill up an incomplete jury. We think the court may, in anticipation of the exhaustion of the regular panel, direct the sheriff to summon talesmen. That course The was held authorized in State v. Moncla, 39 La. Ann. 868, 2 South. 814, and we do not think the legal situation has been changed by the act of 1898. After defendants' counsel had concurred, as the court states they did, in the propriety and advisability of the course followed, they were scarcely in position to subsequently complain of it. Appellants complain of the refusal of the court to charge the jury upon the subject of the credibility of witnesses. The charges on that subject were grouped together, and it has been repeatedly held that, if any one of the instructions in the group is wrong, the judge in warranted in refusing the whole of the group. The application of this rule to the charges requested by the appellants evidently caused their complaint to fall. In reference to the matters covered by the bill on this subject, the following extract from 3 Rice, Cr. Ev. p. 293, is pertinent: He declares that the force of a witness' testimony depends upon the credit the jury think it entitled to, and no court has a right to lay down for a jury rules whereby they shall determine the force of evidence irrespective of the credence they actually give it in their own minds; citing People v. Jenness, 5 Mich. 310; People v. Wallin, 55 Mich. 497, 22 N. W. 15. They are the sole judges of the credibility of the witnesses. With that the court has nothing to do; and if they find from the evidence that any witness or witnesses have willfully testified falsely, they are at liberty to disregard the whole or any portion of such witness' or witnesses' testimony. The au thor refers to Stoffer v. State, 15 Ohio St. 47, 86 Am. Dec. 470, in which Mr. Justice Ramsey says: "An ancient maxim of the laws of evidence, 'Falsus in uno,' would seem to import such exclusion (exclusion of the entire testimony of the witness) by raising a presumption of law juris et de jure that a witness who was certainly shown to have committed perjury upon one material point in the case should be deemed wholly unworthy of credit upon any other, and his testimony be wholly rejected. In most of the cases brought to our attention in the argument where this maxim has been referred to, no attempt has been made to define its limits and proper application, while in many it has been very inaccurately used as applicable to witnesses who have been merely contradicted upon some material point, without raising any just imputation of perjury against them." The justice quotes from Starkie on Evidence to the effect that the doctrine of "falsus in omnibus" did not extend to the total rejection of a witness where misrepresentation has resulted from mistake or infirmity, and not from design; but, though his honesty remains unimpeached, this is a consideration which necessarily affects his accuracy. Rice declares that "the tendency of modern authority is to relax the application of the maxim; that the jury are not bound to wholly discredit a witness if his testimony as to material facts is corroborated by other credible and unimpeached witnesses. In Grimes v. State, 63 Ala. 166, the court said: "We are prepared to follow the line of authorities which hold the maxim is not a rule of law operating a disqualification of the witnesses to be given in charge to the jury as imperatively binding them; that it is to be applied by the jury, according to this same judgment, for the ascertainment, and not for the exclusion, of truth. The charge given by the judge is in accordance with this rule. It does not instruct the jury that they are bound to disregard the testimony of unimpeached witnesses, but left it to their sound discretion and judgment." The maxim, "Falsus in uno, falsus in omnibus," is not a rule of law, and should not be charged to the jury as such. Juries in this state are in criminal cases judges of the law and the evidence, and they should not be tied down by peremptory instructions from the court as to what their duty is in respect to any particular testimony, nor what their course in respect to the same should be as a matter of law. The right of the court to inform a jury what it might be authorized to do is something different from telling it what it must do. We think the judge went as far as he could legally be obliged to go in the instructions he gave to the jury on this subject. Rap. Law Witn. § 192. The court was correct in refusing to charge the jury that, if they had a reasonable doubt as to the guilt of the accused, they must give them the benefit of that doubt, and find them not guilty; and this doctrine of reasonable doubt not only applies to the whole case, but to each and every incident connected with it. This statement is entirely too broad. The judge informs us that certain paragraphs from Sackett's Instructions to Juries on the question of reasonable doubt were read by him; that he considered the charges requested had been practically made, and the last one requested he did not think good law. The most serious complaint in the case is that of appellants that the court had stated to the jury that "there was one witness who had testified specifically to the commission of this crime." The occasion under which this declaration was made by the judge is not recited by appellants in their bill of exceptions, and it is easy to understand how, under certain circumstances and conditions, such a statement might be very prejudicial; but it by no means follows from the mere fact that it was made that it was calculated to injure, or did in fact injure, the accused. The court admits it was made, but states that when it was made by him it was in an effort to break the force of the testimony by calling the attention of the jury to the fact that the witness who had given it had been impeached, and the impeaching testimony was to be considered as all other evidence in the case. The court's action was in aid of the accused, not against them. Considering the situation as a whole, we are not prepared to say that the accused was injured, though the court may have erred (as we think it did err) in referring specifically to the testimony of a particular witness. We do not attribute the same serious consequences to the use by the judge of the word "crime" as counsel of appellants does. We must credit jurors with some intelligence, and we must assume that the jury must have understood, when the judge said that one witness had testified specifically to this crime, that he meant that one witness had testified to the crime charged, not to what he himself considered and believed to be a crime. We see no legal ground for reversing the judgment, and it is therefore affirmed. (106 La.) STATE v. BARRANGER. (No. 14,206.) (Supreme Court of Louisiana. Dec. 2, 1901.) CRIMINAL LAW-APPEAL-FAILURE TO FILE TRANSCRIPT. 1. In this case the delay for filing the transcript of appeal expired on the 2d of November, 1901. The transcript was filed on the 8th of November. The transcript of appeal must be filed within 10 days after the order has been granted. Failure to file within that time is fatal to the appeal. 2. Prior to taking out an order of appeal, the delay begins, as relates to a defendant, from the day the final sentence is passed upon the accused. As relates to the state, it begins to run from the date of final action in the district court resulting in the dismissal of the prosecution. 3. The statute provides that time within which to take an appeal begins to run from the date of sentence. The sentence, in so far as the state is concerned, is construed to mean the final action quashing the indictment, or in some other way putting an end to the prosecution in the tribunal of the first instance. In either view, the record of appeal was not filed in time. (Syllabus by the Court.) Appeal from judicial district court, parish of Terrebonne; Louis P. Caillouet, Judge. Harry Bari anger was convicted of bribery, and appeals. Dismissed. Winchester & Gagné, for appellant. Walter Guion, Atty. Gen., and W. P. Martin, Dist. Atty. (Lewis Guion, of counsel), for the State. BREAUX, J. Bribery is the crime for which the defendant was indicted on the 11th day of October, 1901. The indictment charged that, while serving as assistant marshal of the town of Houma, he had unlawfully received the sum of $25 as a bribe as an inducement to him to perform the duties of his office with partiality and favor. A few days after he had been indicted, through his counsel, he interposed a demurrer to the prosecution on the ground that the "statutes of 1878 [Act No. 59] and 1890 [Act No. 78] defining and punishing the crime of bribery, and all other laws on said subject, under which he is prosecuted, have been annulled and repealed by the constitution of 1898, art. 183." He interposed a motion to quash, on the ground that the indictment did not disclose under what statute he was being prosecuted; and, furthermore, that the indictment was defective. The indictment failed to inform him what duty of his office as assistant marshal he was charged with having been bribed to perform with partiality and favor. The judge of the district court overruled the motion to quash, but sustained the demurrer. The state, on the 23d day of October, 1901, applied for an appeal from the court's ruling sustaining the demurrer, and seeks to have the dismissal of the case in the district court recalled and set aside, and the prosecution reinstated. The appeal was granted on the day of the application for an appeal. Before this court the defendant filed a motion to dismiss the appeal. On Motion to Dismiss. The record of appeal was filed in this court on the Sth of November, 1901. Defendant, in his motion to dismiss the appeal, sets out that the delay for the filing of the record of appeal in the supreme court elapsed on the 2d of November, 1901; that appeals in criminal cases are returnable to the appellate court "within ten days from the order of appeal"; and that the statute invoked, viz. section 2 of Act No. 108 of 1898, is as controlling as relates to the state as it is as relates to the defendant. The prosecuting officers for the state contend that this act of the legislature does not limit of appeal." We have seen that the order of appeal was granted on the 23d of October, and the record was only filed on the 8th of November. We have seen, also, that the statute fixes a time within which the appeal must be brought up after the order of appeal has been issued. This, we think, disposes of the issues presented by the state, for obviously the appeal was clearly not within this limit after the order of appeal had been granted. But it is insisted that appeals are provided for only after sentence, and that, as there is no case in which the state may appeal after sentence, the delays fixed by the legislature, after the order of appeal has been granted, has no application. The appeal is to be moved for in open court during the term at which the accused was found guilty or the prosecution was dismissed for informality found by the district judge. This provision embraces both the delay for appeal by defendant or the state. Granted that the words "after sentence." of the statute, can have no application to the state, we have discovered no good reason why she should not be held bound, under the terms of the law, to take her appeal in open court before the court's term has reached its close. As to that matter, it does not appear to us that after final sentence dismissing the prosecution in the dis trict court the delay for taking the appeɛl begins to run as to the state, as it begins to run after sentence, another final action, as it relates to the defendant. The word "sentence," as relates to the state, may have a broader meaning than it usually has. "Sententia" is translated by Wainsworth in his Latin Dictionary, "judgment." Sohm, in his book entitled "Institutes of the Roman Law,” in several passages of the work refers to "sentence" as synonymous with "judgment." Bouvier defines "sentence" "a judgment or final declaration made by a judge in a case." Under the definitions, the state has no good cause of complaint. the time within which the state may appeal; that Act No. 108 of 1898, as well as Act No. 30 of 1878, which was intended as an amendment of the former, provides solely for appeals granted to the accused in criminal cases, and in no way affects the state. This contention on the part of the state is based upon the fact that section 1 of Act No. 30 of 1878 sets out that the motion for appeal (except in the First judicial district) must be filed during the term at which sentence shall have been pronounced, and in the First judicial district within 10 days after sentence. Section 4 makes appeals returnable to this court within 10 days after granting the order of appeal. And in this connection it is pointed out that the amending act, No. 108 of 1898, § 1, provides for appeals to this court in criminal cases within 3 days after the sentence shall have been pronounced, and all such appeals shall be returnable within 10 days from the date of the order of appeal. The state presses upon our attention that these two acts relate exclusively to appeals taken by the accused, and not by the state, for the reason that both of them fix the delays within which to appeal after sentence; that all appeals must be taken after sentence. From this the prosecuting officers argue that there is no case imaginable in which the state may appeal after sentence of the defendant, or where she would have an interest to appeal after sentence; and that, inasmuch as the acts cited above provide only for appeals in criminal cases after sentence, it follows that it was intended to provide for appeals granted to the accused, and not to appeals granted to the state. To the suggestion that the state is not entitled to an appeal, unless the authority is to be found in the acts of 1878 and 1898, the state assumes that her right of appeal is guarantied by the constitution, and that no act of the legislature, as in the case of a defendant, has provided a delay within which the state must apply for an appeal in criminal cases, or within which the same, when granted, should be filed in the appellate court. We are unable to concur in these views. We have not found it possible to arrive at the conclusion that the state has, as to time, an unlimited right of appeal, although we are not in the least inclined by construction to curtail the state's right to be heard on appeal. True, as contended on the part of the state, her right of appeal is granted by the constitution; (Supreme Court of Louisiana. Dec. 2, 1901.) but we think that a time has been fixed within which appeals by the state in such cases should be applied for and filed in the su preme court. We take up, in the first place, for our decision, the question of time within which the record should be filed after the order of appeal has been granted. It does not, in our view, admit of any question that the record must be filed within 10 days. The language of the act is quite plain,— "within ten days after granting the order We have not found it possible, from our point of view, to sustain the appeal. It is therefore ordered, adjudged, and decreed that the appeal taken in this case is dismissed. (106 La.) STATE ex rel. WYNNE v. LEE, Judge. (No. 14,111.) CRIMINAL LAW-RES JUDICATA-WRIT OF PROHIBITION-TIME FOR APPLICATION-CON- 1. A court vested with original jurisdiction ratione materiæ and ratione personæ is competent to pass upon the constitutionality of a statute under which a criminal prosecution is conducted before it, and its judgment therein is authoritative and conclusive so long as it remains the judgment of the highest court vested with such jurisdiction. 2. There is no inflexible rule with respect to the stage of the proceedings in the inferior court at which the application for the writ of prohibition must be made, and this court will literally use its discretion in the use of that writ, according to the circumstances of each case, where there is something yet to be done in excess of the jurisdiction conferred upon such inferior court. 3. It is not too late to apply for such relief, where there is no remedy by appeal, upon an averment of want of jurisdiction, based upon the alleged unconstitutionality of the statute under which the applicant has been convicted and sentenced, if such application be made before the sentence has been executed. 4. The title of Act No. 49 of 1894 expresses but one object, and section 12 of said act does not go beyond the title, by denouncing the mere selling of drugs and nostrums, etc., as an offense; the offense there denounced consisting of the itinerant vender professing to treat and cure disease and deformity by the use of the drugs, nostrums, etc., sold by him, and by the other means mentioned. (Syllabus by the Court.) Application by the state, on the relation of G. W. Wynne, for writs of certiorari and prohibition against J. B. Lee, Judge. Writs denied. Goss & Sutherlin and W. C. Pegues, for relator. Walter Guion, Atty. Gen., and Amos L. Ponder, Dist. Atty. (Lewis Guion, of counsel), for respondent. Statement. MONROE, J. The relator having invoked the supervisory jurisdiction of this court, a writ of certiorari issued, together with a restraining order, and a rule nisi directing the respondent to show cause why he should not be prohibited from further proceeding, etc., as prayed in the petition. By way of return to the writ of certiorari, the respondent has forwarded a copy of the record called for, from which his reasons for the action of which the relator complains sufficiently ap pear; the case being as follows, to wit: An information was filed in the district court for the parish of De Soto charging that the relator, "whilst acting as an itinerant vender, did unlawfully sell, barter, and trade drugs, nostrums, ointments, and applications intended for the treatment of disease and injury, and did then and there profess to cure and treat disease and deformity with said drugs and nostrums, contrary to the form of the statute," etc. The accused (relator herein) moved to quash this information on the grounds that Act No. 49 of 1894, under the authority of which it purports to have been filed, contravenes article 29 of the state constitution of 1879 and article 31 of the present constitution, in that it embraces more than one object, and its object is not expressed in its title, and that it contravenes articles 2 and 6 of the state constitution, and the fourteenth amendment of the constitution of the United States. This motion having been overruled and a bill of exceptions taken, the accused waived arraignment, filed a plea of not guilty, was tried and convicted, and having moved for a new trial, and excepted to the refusal of the court to grant the same, was sentenced to pay a fine of $25. He thereupon applied for an appeal, which was granted and made returnable to this court upon August 22, 1901. Upon August 21st, however, he moved to set aside the order for appeal, and gave notice of his intention to apply to this court; and upon August 26th, alleging that he was without remedy by appeal, he made the application which we are now considering in which he avers that, for the reasons set forth in his motion to quash, the district court was without jurisdiction to hear and determine said cause, and should be prohibited from further proceeding therein, and he prays judgment accordingly. Opinion. There can be no doubt that the court a qua had jurisdiction to determine whether the objections which the relator urged to the constitutionality of the statute under which he was prosecuted were well founded, and its judgment that they were not well founded was authoritative and conclusive so long as it continued to be the judgment of the highest court vested with such jurisdiction. If the relator, being dissatisfied, had then invoked the supervisory jurisdiction of this court (the case being one in which no appeal lies), and it had been here held that his objections were well founded, and that the prosecution was unauthorized by any constitutional law, the district court might have been prohibited from proceeding with the trial; or if, after the trial and before sentence, such application had been made, with like result, as to its merits, the district court might have been prohibited from imposing sentence. Upon the other hand, if the relator had waited until after the sentence imposed had been executed, his application to this court would have been too late, as there would then have been nothing to be done by or under the authority of the district court; and the function of the writ of prohibition is to stay action about to be taken, and not to annul proceedings which have been completed. State v. Judges of Fifth Circuit Court of Appeals, 48 La. Ann. 1166, 20 South. 678; State v. Judge of Judicial District Court, 50 La. Ann. 109, 23 South. 97. As the matter stands, the application, whilst coming after the trial and sentence, is made before the execution of the sentence, and for the purpose of staying such execution; which, if the judgment to be exe cuted has no other basis than an unconstitutional law, the respondent is without the legal capacity to authorize. "There is no inflexible rule with respect to the stage of the proceedings in the inferior court at which the application for the writ [of prohibition] must be made, and the courts have liberally used their discretion in the use of the writ, according to the circumstances of each case, where there was anything to be done in a proceeding clearly in excess of jurisdiction." 16 Enc. Pl. & Prac. p. 1133; State v. Judge, 49 La. Ann. 1454, 22 South. 421. We are therefore of opinion that the application, as made, should be considered on its merits. Upon the main issue, counsel for relator say in their brief: "The only questions raised by the application are that the object of the said act is not embraced in the title thereof, that said act embraces more than one object, and that the provisions of section 12 of said act are beyond the range of the objects expressed in the title," etc. And they contend that there are two objects embraced in the act, to wit: (1) "To regulate the practice of medicine, and to prevent the practice of medicine by unauthorized persons," which they concede to be a single object, covered by the title; and (2) "to prohibit the sale by itinerant venders of drugs," etc., which they claim is a distinct object, not covered by the title. The title of Act No. 49 of 1894 reads: "An act to regulate the practice of medicine, surgery and midwifery; to create state boards of medical examiners, and to regulate the fees and emoluments thereof; to prevent the practice of medicine, surgery and inidwifery by unauthorized persons; and to provide for the trial and punishment of violators of the provisions of this act by fine or imprisonment, or both; and to repeal all laws or parts of laws in conflict or inconsistent with this act." The following is the substance of the several sections which it seems necessary to consider: Section 1: That, after the promulgation of this act, no one, except those already engaged in such practice under existing laws, shall practice medicine in this state without the qualifications required by the act. Section 2: That, to entitle a person to practice medicine, he must satisfy the board of examiners created by the act that he is 21 years old, of good moral character, and possessed of at least a fair primary education, and must present a diploma from a medical college in good standing; having complied with which conditions, the board will issue him a certificate. Section 14: That any person practicing medicine without the certificate of the board shall be guilty of a misdemeanor, and on conviction shall be punished by a fine of not less than $50, etc., or imprisonment, or both. Section 13: That a person shall be regarded as practicing medicine who shall append the letters "M. D." or "M. B." to his or her name, or repeatedly prescribe or direct, for the use of any person or persons, any drug or medicine, or other agency for the treatment, cure, or relief of any bodily injury, infirmity, or disease, excepting farmers and planters on certain conditions. Section 12 provides "that any itinerant vendor of any drug, nostrum, ointment, or application of any kind, intended for the treatment of disease, or injury, or who may by writing, print, or other method, profess to cure or treat disease, or deformity, by any drug, nostrum, manipulation, or other expedient, in this state, shall, if found guilty, be fined in any sum, not less than twenty five dollars, and not exceeding one hundred dollars, for each offense, to be recovered in an action of debt before any court of competent jurisdiction, or shall be imprisoned for a term of not less than ten days or more than thirty days, or both fined and imprisoned." Act No. 13 of 1896 amends and re-enacts section 14, above referred to, so that, instead of being guilty of a misdemeanor and liable to criminal prosecution, a person practicing medicine without a certificate may be enjoined by the board of examiners, who may recover in the same suit a penalty of $100, with attorney's fees and costs. The questions whether the title thus recited expresses the object of the act, and whether the body of the act embraces any object not so expressed, were presented to this court, several years ago, in a case in which the board of examiners had proceeded against a person who had assumed to practice medicine without having obtained the requisite certificate; and the jurisprudence interpreting constitutional provisions such as those here invoked was exhaustively considered, with the result which may be stated in the following language of the Chief Justice, who, as the organ of the court, decided the case, to wit: "The act in question has but one single object.— the protection of the public from the practicing of medicine, in its different branches, by unskilled and incompetent persons. The various sections of the act have, all, direct relation to the enforcement of the purpose announced by the act" (title). Board v. Fowler, 50 La. Ann. 1358, 24 South. 809. It is true that the defendant in the case thus cited was not an itinerant vender, prescribing, and professing to effect cures with, the nostrums which he was engaged in selling, but was a person who assumed, and may have been entitled to assume, the character and dignity of a medical practitioner, but had not complied with the conditions required by the statute to entitle him to practice in this state. It can hardly be denied, however, that, if the general purpose of the act is to protect the public from unskilled and incompetent practitioners, provisions relating to venders who undertake to prescribe and effect cures with the nostrums which they sell are quite as germane to the purpose as the provisions which relate to persons who, without having had their qualifications tested, undertake to treat disease by the use of compounds sold by others. But the learned counsel for the relator call attention to the decision in the case of State v. Judge, 105 La. 371, 29 South. 893, and claim that it was there held that the itinerant vender referred to in section 12 of the act of 1894 is not to be considered a medical practitioner, but, for all the purposes of the act, is to be regarded solely as a vender of drugs and nostrums; and they claim, as we understand them, that, |