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in six months after the commission of the act・ was made known to an officer authorized to prosecute.

(Syllabus by the Court.)

Application by the state, on the relation of Walter Teague, for writs of prohibition and certiorari to Hon. Ben R. Edwards, judge of the Third judicial district court. Writs granted.

Richardson & Richardson, for relator. Walter Guion, Atty. Gen., and John C. Theus, Dist. Atty. (Lewis Guion, of counsel), for respondent.

BREAUX, J. Relator, contending that the prescription of six months bars a prosecution for a fine absolutely, asks that the judge of the district court be prohibited from enforcing the judgment of the court against the relator; and he further asks to be discharged, and that his bond be canceled. The facts are these: A charge was preferred against the relator, Teague, by information of the district attorney, for retailing intoxicants without a license. The information was filed on the 2d of December, 1901. On the day that the information was filed the defendant (relator here) was tried and convicted. He then applied for a new trial, which was not granted. He was condemned to pay a fine of $100 and costs, or to work the public works. Not having the right of appeal, he sues for the interposition of this court's authority in his behalf, under its supervisory jurisdiction. The judge of the district court, in his answer to the preliminary order issued, states that the bill of information contained the averments, viz., that the offense charged was not, within the period fixed by the statute, made known to an officer authorized to direct a prosecution; and he adds that the defendant (relator here) offered no evidence whatever to traverse this allegation. More than eight months had intervened between the day the act was charged to have been committed and the day that the information was filed. Defendant and relator's contention is that under Rev. St. art. 986, there are two terms of prescription; that the first term (the twelve-months prescription) can be negatived, but that it is different as to the six-months term of prescription, for the reason that the statute contains a special provision applying to the first, and not to the second or six-months term of prescription.

We are called upon to determine whether the district judge erred in overruling the plea of prescription invoked by the defendant. We think that the plea should have been sustained. The statute of 1855 (Act No. 121), embodied, as to prescription, in article 986 of the Revised Statutes, provides, that prosecutions are to be brought within one year after the offense has come to the knowledge of a public officer,-murder, arson, robbery, forgery, and counterfeiting excepted. This provision is in itself complete.

It applies to all offenses barred by the prescription of twelve months. Immediately after, in another and complete sentence of the section of the statute, it provides, viz.: "Nor shall any person be prosecuted for any fine or forfeiture unless the prosecution be instituted within six months from the time of incurring such fine or forfeiture." This is an action for the recovery of a fine, and six months governs the prescription. We have searched in vain for a provision of law which would justify the conclusion that the words, "within one year next after the offense shall have been made known to a public officer," bear application to the prescription of six months. The language of the statute is plain enough, as related to fines and forfeitures; that is, that they are barred by prescription of six months from the time of incurring such fine or forfeitures. We have carefully examined the articles of the Revised Statutes and the amendments made by Act No. 50 of 1894, and noted the repetition in each of the special provisions relative to prescription without any changes as related to the prescription of six months. The words of the statute, viz., "Nothing herein contained shall extend to any person absconding or fleeing from justice," evidently refer to both classes of crime,-that embraced within the twelvemonths prescription and that embraced within the six-months prescription,-for it is inserted after and follows both. But it is different as relates to the prescription of twelve months. The provision precedes the limitation applying to fines and forfeitures, and under no rule of construction can the words referring to the former crimes subject to the "twelve months' prescription from the date of the offense was made known to an officer" be held as applying to the provision following limiting the time as relates to fine or forfeiture to six months. Antecedents are not to be extended to what follows, unless clearly so intended. Gast v. Assessors, 43 La. Ann. 1104, 10 South. 184. We can conceive of no good reason why the language of the section just referred to must be taken and construed in connection with the language of the section just preceding, in which it is announced that prescription does not run until the commission of the offense has been made known to an officer having the power to direct an investigation and prosecution. That construction would be in direct opposition to the positive terms limiting the time to six months when a fine has been imposed or a forfeiture decreed. We are not of the opinion that the prescription can be negatived by averments which, in words not to be misunderstood, apply only to crimes and offenses prescribed by twelve months from the time before mentioned. We would not be warranted in holding that a rule applying to the prescriptive period of twelve months applies to the prescriptive period of six months as well. One, by the language of the law, is placed on a different footing from

the other, for, we presume, sufficient reasons. The latter is of a less serious nature, and the lawmaking power may have intended not to subject it to delays as relates to the possibility of prosecution, but to make it subject to prescription, to be computed, as to time, from the day the act charged was committed. The date of the offense, as shown in the information, is within the six months previous to the date the charge was preferred. But this information contains the usual statement made with the view of negativing prescription. Besides, the bill of exception fixes the date, and shows that the information was not filed within the six months after the offense is charged to have been committed. This bill has every indicia of being correct. Prescription, as relates to date, presents a question of fact. When pleaded, the bill of exception may be consulted with the view of ascertaining correct dates. The bill must be presumed, until the contrary appears, to bring up a correct record of the facts needful in deciding the question of law presented. We do not think that, in view of the facts as brought up, the bill of information is controlling as to the date the offense is charged to have been committed.

These being our views, it only remains for us to make the writs of prohibition and certiorari perpetual, sustain the plea of prescription of six months as barring all proceedings against defendant, set aside the verdict and sentence, and order the accused to be released and his bond canceled; and it is accordingly so ordered, adjudged, and decreed.

(106 La.)

STATE V. WESTON. (No. 14,168.) (Supreme Court of Louisiana. Feb. 3, 1902.)

CRIMINAL LAW-INSTRUCTIONS-OBJECTIONS

-STATEMENT OF GROUNDS.

1. The time for urging objection to the charge of the judge to the jury is before the retirement of the jury. Such objections, if urged for the first time on motion for new trial, will not be considered by this court.

2. The grounds of such objections must be stated, so as to inform the trial judge of the nature of the objection, and afford him an opportunity to rectify the matter complained of. The degree of particularity required in stating these grounds will depend upon whether the objection is based purely on law or partly on facts. To challenge the correctness of a legal proposition involved in a charge, it is sufficient to point out the particular part objected to, and to say that it is not a legal charge; but to challenge the correctness of a charge because of its inapplicability to the facts, or because of its not stating the law with sufficient fullness, or in terms suitable to adapting it to the facts of the particular case, the respects in which the charge is deficient must be specified. (Syllabus by the Court.)

Appeal from judicial district court, parish of West Feliciana; Charles Kilbourne, Judge.

Nathaniel Weston was convicted of manslaughter, and appeals. Affirmed.

Samuel McC. Lawrason, for appellant. Walter Guion, Atty. Gen., and Robert C. Wickliffe, Dist. Atty. (Lewis Guion, of counsel), for the State.

PROVOSTY, J. This case is before us on two bills of exception,-the first, to a part of the charge to the jury; and the second, to the refusal of a new trial.

It is contended in behalf of the state that the objection embodied in the first bill cannot be considered by us, because, so far as the bill shows, the grounds of it were not stated at the time that it was made. Such is the rule. The grounds or reasons of an objection must be stated. An objection cannot be efficiently made in general terms. The idea being that the trial judge should be fully informed of the nature of the objection, in order that he may be afforded an opportunity to correct his charge if erroneous; and this to avoid the setting aside of verdicts for matters which could and probably would be rectified if properly and timely called to the attention of the judge. State v. McClanahan, 9 La. Ann. 210; State v. Chopin, 10 La. Ann. 458; State v. Beaird, 34 La. Ann. 105; State v. Sheard, 35 La. Ann. 513; State v. Melton, 37 La. Ann. 77; The Francis Wright, 105 U. S. 389, 26 L. Ed. 1100. The bill reads as follows: "Be it remembered: That on the trial of the defendant, Nathaniel Weston, for manslaughter, in this cause, the evidence on the part of the state having been affirmative in character, and that on the part of the defense negative in character, the court charged the jury, as part of the instructions given them for determining the guilt or innocence of the accused, the defendant herein, that affirmative evidence was rather to be believed, than negative evidence, when witnesses testifying to affirmative and negative facts are equally reliable, and were shown to have had equal opportunities for observation. To which part of the charge defendant, by counsel, objected as prejudicial to the defendant, and not a legal and proper charge to the jury, though the court had also charged, in connection with said part of the charge objected to, that the jury were the sole and exclusive judges of the evidence, and that it was the duty of the jury to weigh the testimony of all witnesses, and that it was in the province of the jury to accept or reject all or any part of the testimony of any witness, and that it was for the jury to judge of the credibility of witnesses.' That defendant's objection was overruled by the court, and said ruling seasonably and at the time excepted to, and the present bill of exceptions to said ruling, and to the part of the said charge excepted to, duly reserved, and which is now respectfully presented to the court for signature by defendant, through his counsel, S. McC. Lawrason. Charles Kilbourne, Judge." The only grounds of objection here stated are that

only enjoyed equal opportunities for observation, but had exercised the opportunities, so that under the doctrine of the Cases of Chevallier and Dorsey, cited above, their testimony was entitled to equal weight with the affirmative testimony; but if in these respects, and in the other respects specified in defendant's second bill, the charge was defective and objectionable, these were matters which the trial judge could have rectified if his attention had been called to them, and which the defendant cannot take advantage of, he having failed to call the judge's attention to them.

the charge is prejudicial, and not a legal and proper charge; and the question is whether this was a suflicient statement of the grounds of objection. We think that, in considering the degree of particularity with which grounds of objection must be stated, a distinction should be made, in the first place, between an objection founded purely on law, and an objection founded partly on facts (examples of the latter kind being objections to the admission of evidence, and objections to a charge because of its inapplicability to the facts of the case); and, in the second place, between an objection to the correctness of the legal The motion for new trial was based on proposition involved in the charge of the the same alleged error in the charge. In court, and an objection not to the correct- this motion the grounds of objection to the ness of the legal proposition, but to the charge are stated to be that the charge was adequacy or aptness of the terms made use objectionable, in that it "was misleading, of by the court in expressing it. The judge in that, among other things, it eliminated is presumed to know the law, and therefore from consideration the probability or imthe correctness of a legal proposition involved probability of affirmative or negative eviin a particular part of his charge is fairly dence, and the number of witnesses supportchallenged by a mere pointing out of the ing the affirmative and negative statements, particular part of the charge, and a state-respectively, and that such a charge trenchment that it is not legal; but he is not presumed to know the facts, and is not presumed to be infallible in the aptness or sufficiency of the terms made use of by him in stating legal propositions; and therefore objections founded partly on facts, or founded on the inadequacy of the terms made use of in stating the law on the particular point involved, should specify the grounds on which complaint is made. Viewing the instant case in the light of this distinction, we think that the grounds of objection were sufficiently stated to challenge the correctness of the legal proposition involved in the charge, but were not sufficiently stated to call the attention of the judge to any error resulting from the inapplicability of the proposition to the facts of the case, or from the inadequacy of the terms made use of in stating the law on the particular point involved. Taking the charge as a whole, we can see in it no error of law. It is not incorrect to say that "affirmative evidence is rather to be believed, than negative evidence, when witnesses testifying to affirmative and negative facts are equally reliable, and are shown to have had equal opportunities for observation." State v. Chevallier, 36 La. Ann. 81; State v. Dorsey, 40 La. Ann. 742, 5 South. 26. And also it is not incorrect to say "that the jury are the sole and exclusive judges of the evidence, and that it is the duty of the jury to weigh the testimony of all witnesses, and that it is in the province of the jury to accept or reject all or any part of the testimony of any witness, and that it is for the jury to judge of the credibility of witness." The charge may be objectionable, in that it does not explain what is meant by "negative evidence," as contradistinguished from affirmative evidence; and it is possible that the witnesses giving negative testimony had not

ed on the province of the jury as sole judges of the facts, and, though inadvertently, amounted to a hint of the court's preference for affirmative testimony, and prejudiced defendant, whose defense was based on the negative testimony of many witnesses, in itself probable; said witnesses being state as well as defendant's witnesses, and the case of the state supported by the positive testimony of only one witness not positively discredited." It is needless for us to inquire whether these grounds were good or not, they not having been urged timely; that is, before the retirement of the jury. It is well settled that objections to a charge must be urged before the retirement of the jury, and cannot be urged afterwards. State v. Ryan, 30 La. Ann. 1176; State v. West, 45 La. Ann. 928, 13 South. 173; State v. Walker, 39 La. Ann. 19, 1 South. 269. See, also, the cases cited in the first part of this opinion. It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed, at the costs of the appellant.

(106 La.)

STATE v. HEARD. (No. 14,252.)
(Supreme Court of Louisiana. Jan. 3, 1902.)
INTOXICATING LIQUORS-ILLEGAL SALE-
FORMER CONVICTION-SALES ON
SUNDAY-INFORMATION.

1. A conviction for selling one drink of beer to Ben Barnes is not a bar to a prosecution for selling on the same day one flask of whisky to Austin Montgomery, unless the two sales are proved to have been one and the same transac tion, constituting but one sale.

2. The one word "Sunday" conveys all the meaning that is conveyed by the phrase "the twenty-four hours immediately following 12 o'clock Saturday night." Hence, under a statute forbidding stores to be kept open, or liquors to be sold, during the 12 hours immediately following 12 o'clock Saturday night, it is sufficient to charge that the unlawful acts were

committed on Sunday. Especially is this so where in the title of the statute the word "Sunday" is used to designate the samé forbidden space of time.

3. The hour at which the forbidden acts were committed need not be specified. It is sufficient to charge that they were committed on Sunday.

4. Whether the mere opening of a store on Sunday, without making any sales, violates Act No. 18 of 1886, commonly known as the "Sunday Law," quære. But every separate act of selling from said store on Sunday constitutes a separate violation of said act, subject to separate prosecution and punishment.

(Syllabus by the Court.)

Appeal from judicial district court, parish of Webster; J. T. Watkins, Judge.

Joe Heard was convicted of violating the Affirmed. liquor law, and appeals.

Stewart & Stewart, for appellant. Walter Guion, Atty. Gen., and Thomas T. Land, Dist. Atty. (Lewis Guion, of counsel), for the State.

PROVOSTY, J. The defendant was found guilty under an information charging him as follows: That he did "willfully and feloniously keep his saloon open on Sunday, and did then and there willfully and unlawfully sell, barter, and give to Austin Montgomery one flask of whisky out of the stock kept in said saloon, contrary to the form of the statute," etc. The law thus charged to have been violated by the defendant is Act No. 18 of 1886, commonly known as the "Sunday Law," which reads as follows: "That from and after the 31st day of December, 1886, all stores, shops, saloons and all places of public business which are or may be licensed under the law of the state of Louisiana or under any municipal law or ordinance and all plantation stores are hereby required to be closed at 12 o'clock on Saturday nights and remain closed continuously for 24 hours, during which period of time it shall not be lawful for the proprietor thereof to give, trade, barter, exchange or sell any of the stock or articles of merchandise kept in any such establishment."

Defendant moved to quash the information on two grounds, stated in the brief as follows: "(1) That the bills do not state that defendant opened his place of business at any time between the hours of 12 o'clock Saturday night and 12 o'clock Sunday night, or that he opened the place of business at any particular hour. (2) That he had already been prosecuted, tried, and convicted of the same offense, and that he was twice put in jeopardy for the same offense; that, if he had violated the law at all, it was opening his place of business on Sunday; and that each separate sale at the same opening and during the same interview constituted but one act or offense, for which he could only be prosecuted one time. Hence he pleads his former conviction in bar of this prosecution."

The first ground is not good. It was suf31 So-25

ficient to allege that the reprobated acts had been done within the forbidden time, without specifying the hour; and this forbidden time was designated just as effectually by the single word "Sunday," by which it is designated in the title of the statute, as by the lengthier and more cumbersome expression by which it is designated in the body of the statute. The time comprised within the 24 hours immediately following 12 o'clock Saturday night constitutes what is known as "Sunday," and is described with perfect precision by that one word.

Nor is the second ground good. The acts charged in the two informations, though both charged as of the same day are not necessarily one and the same. The act of selling one drink of beer to Ben Barnes, for which the first conviction was had, is not the same as the act of selling a flask of whisky to Austin Montgomery, which is the act charged in the second information. Proof of the one act could not support a conviction for the other, and this is the recognized test for determining whether the first conviction is a bar to the second prosecution. We do not say that the two acts might not in fact constitute one and the same transaction, out of which the prosecution might carve but one crime; but we say that, on the face of the papers, they constitute two distinct transactions. It would have been admissible for defendant to prove their identity; but the proof in the case, far from proving their identity, proves their severalty. There is in the record an admission to the effect that the two sales were "to different parties at different times on the same day." Hence they were in fact separate transactions.

But defendant contends that what is made a crime by the statute is the opening of a saloon on Sunday, and not the making of sale on that day. We cannot agree with that view. Whether the opening and the selling are not both and each made a separate crime, and might not both and each furnish matter for separate prosecution and punishment, might be a question; but certainly the selling is made a separate crime. All that part of the statute relative to opening might be stricken out, and a complete statute be left, denouncing the making of sales; and, on the other hand, all that part of the statute forbidding the making of sales might be stricken out, and a complete statute be left, making it a crime to open. The statute, in its title, is stated to be one "requiring all stores," etc., "to be closed on Sunday," and forbidding all selling, etc. That is to say, the statute is stated to have a twofold object: First, to require stores to be closed; and, second, to forbid sales. It is very questionable whether stores may be kept open, even although sales are not made; but it is very certain that the business of selling cannot be carried on on Sunday, even behind closed doors. In defendant's brief

we find the following: "The American & English Encyclopædia of Law states the law as follows: 'A conviction for making a sale on Sunday in contravention of a statute prohibiting sales on that day is a bar to subsequent prosecution for making other sales on the same day.' See volume 17 (2d Ed.) p. 604. For this authority the author refers to Crepps v. Durden, 2 Cowp. 640; People v. Cox, 107 Mich. 439, 65 N. W. 283; and Com. v. Moses, 15 Pa. Co. Ct. R. 224." Of the decisions here referred to, we have had access to but one,-that of People v. Cox, 107 Mich. 439, 65 N. W. 283. The syllabus of that decision, which correctly reflects the text, is as follows: "(1) 3 How. Ann. St. § 1997a, declares that all keepers of bawdy houses, or houses for the resort of prostitutes, shall be deemed disorderly persons. Section 9286 provides that every person who shall keep a house of ill fame, resorted to for the purposes of prostitution, shall be punished. Held, that a person cannot be punished for the same transgression under both statutes. (2) After a conviction for keeping a disorderly house, defendant cannot be convicted of the same offence on a date anterior to the former indictment, as the offence is a continuing one." It is clear that the decksion does not bear out the proposition in support of which it is cited. Plainly, the keeping of a bawdy house is a continuous transaction constituting one offense; and, being one transaction, it cannot be cut up into parts for the purpose of making out several crimes. Doubtless the two other cases cited would, on examination, be found equally unreliable as authority for the proposition they are cited in support of; otherwise they would be isolated cases. The wellestablished rule is that, where the selling of liquors is prohibited, each separate sale constitutes a separate offense. "Successive sales may clearly be successively prosecuted." Whart. Cr. Law (7th Ed.) par. 566.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court herein be affirmed at the costs of the appellant.

(106 La.)

GAUTHIER v. CASON et al. (No. 14,096.) (Supreme Court of Louisiana. Jan. 20, 1902.) EXECUTION-SEIZURE BY SHERIFF-TAX SALE -ASSESSMENT AGAINST PURCHASER

TACKING PRESCRIPTION.

1. Where a person's property is seized by the sheriff in execution of a fi. fa., the owner's possession is broken and replaced by that of the sheriff. It is the sheriff who thereafter holds possession of the property for delivery to the purchaser at the subsequent judicial sale. The owner's possession being broken after a judicial sale to another, he stands as a third person to the property.

2. Where the same property is afterwards sold at a tax sale under an assessment made in the name of the purchaser at the execution sale, there is no legal reason why the original owner should not hold possession under and for the tax purchaser, nor why he should not

later purchase it from him, and own and possess it for himself. Under such circumstances his title would be a new title, and he could, for purposes of prescription, tack on his author's possession to his own.

3. Where, under the pleadings, the purchaser of property at a tax sale is admittedly in good faith up to citation upon him in a petitory aetion, prescription acquirendi causa runs in his favor and those holding under him from the date of the tax sale.

(Syllabus by the Court.)

Appeal from judicial district court, parish of Tangipahoa; Robert R. Reid, Judge.

Action by L. S. Gauthier against F. S. Cason and others. Judgment for defendants, and plaintiff appeals. Affirmed.

E. North Cullom, Bolivar E. Kemp, Thomas Kleinpeter, Thomas H. Thorpe, and Andrew J. Morgan, for appellant. Stephen D. Ellis, for appellees.

Statement of the Case.

NICHOLLS, C. J. On the 7th of February, 1885, the sheriff of the parish of Tangipahoa, through one of his deputies, adjudicated to the plaintiff, L. S. Gauthier, in execution of a judgment he had obtained against Thomas Calmes, property described in the sheriff's return and sheriff's deed of sale as the "S. E. 4 of S. E. 4 of section 14, T. 5 S., of R. 7 E., containing 39.78 acres: also N. W. 4 of N. E. 4 of section 23, T. 5 S., of R. 7 E., containing 9.59 acres; also W. 1⁄2 of S. W. 4 and Frac. S. W. 4 of N. W. of Sec. 13, T. 5 S., of R. 7 E.; also 40 acres known as the 'Dr. Lea Tract,' in Sec. 14, T. 5 S., R. 7 E., in the Greensburg land district of La., containing 128.33 acres, together with all the buildings and improvements thereon,"-for the price of $400. The sheriff's return was recorded in the sheriff's book of sales on the 17th of February, 1885, in the sheriff's book of sales in the clerk's office of Tangipahoa on the 19th of Febru ary, 1885, and in the conveyance book of the records of the parish of Tangipahoa on March 20, 1896. The plaintiff, in his petition in this suit, avers himself to be still the owner of the property adjudicated to him. He avers that the 40-acre tract referred to as the tract known as the "Dr. Lea Tract" was the N. E. 4 of the N. E. 4 of section 23, in township 5 S., range 7 E., but was erroneously described in the sheriff's deed to petitioner as being in section 14; that his said property was correctly described in the assessment rolls of the parish of Tangipahoa. He avers: That the said tract containing 128.33 acres was entered by N. B. Calmes on March 19, 1855; that the 40-acre tract known as the "Dr. Lea Tract" was purchased of him by N. B. Calmes, and subsequently purchased on April 21, 1883, by Thomas Calmes, at a sale for taxes; that said lands were assessed for the years 1883 and 1884 in the name of Thomas Calmes, for the years 1885 and 1886 and 1887 in the name of petitioner; that he paid the state

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