jection was made in a case of comparatively recent date. The court in that case was unanimously of the opinion that a confession is admissible "under the instruction of the court to the jury that the evidence was admissible only against the accused," and was not to affect others prosecuted and tried jointly. State v. Johnson, 47 La. Ann. 1230, 17 South. 789.

The next objection presented in behalf of the appellant grows out of the fact that Jake Sims, with whom, as we before stated, Mays was tried, became a witness, and said that Mays (appellant), with whom he was being tried, "hired him [witness and defendant Sims] to haul the bale of cotton" in question to Ruston, and "sell it for him." (Brackets ours.) To this appellant, Mays, objected, in substance, on the ground that the testimony of the defendant jointly prosecuted with him incriminated him, and that that was its only purpose and end. The court overruled the objection and admitted the testimony. In the narrative of the bill reserved to the ruling the court states that pains were taken fully to instruct the jury not to give any effect to the testimony as against Mays, the joint defendant, now the appellant; "that they should acquit defendant Mays unless they should find from the evidence introduced in the case other than that introduced in behalf of defendant Sims, or testified to by him, sufficient to justify conviction of defendant Mays." We are constrained to hold that defendant Sims was entitled to testify in his own behalf. We take as settled that the one accused with him could not have that right curtailed by contending that the testimony had the effect of incriminating him. The extent of his right was to have the effect limited to the defendant witness Sims. This we have seen was done by the court. The evidence was received only as to the accused who chose to testify. It was restricted as to its effect to him alone. The goods alleged to have been stolen were found in his possession. In accounting for the possession he could be heard in his own behalf. If he chose to accuse any one he fancied, it remained for the jury to determine, in so far as he was concerned, whether or not he was telling the truth. This testimony could not have any effect in law against any one, not even the one with whom he was prosecuted. The court must presume, under the rule laid down in repeated decisions, that the jury heeded the instructions of the court, and that they gave no importance, as against any one else, to the testimony of a witness who was seeking to obtain his acquittal from the charge brought against him. The testimony was not laid before them as against Mays. We do not think that we would be warranted in assuming that the jurors none the less persisted in considering it as against him despite the instruction received by them.

In oral argument at the bar, counsel for the defendant forcibly argued that under

prior rulings of this court in cited decisions infra the testimony was not admissible; that a witness can be heard in his own behalf, but that he should not be heard to incriminate one with whom he is jointly tried; that that is the reasonable conclusion to be drawn from the decisions which we will cite in a moment. We have not found these views in consonance with our analysis of these decisions. The court held in the first in point of time of the cited decisions that one defendant jointly tried with another is not to be called to testify for or against his codefendant, but it was not held that he should not be permitted, under proper instructions to the jury, to testify in his own behalf. "One of several defendants jointly tried, who becomes a witness for himself, is a witness as for all purposes, and his testimony while a witness in his own behalf is in no way incompetent merely because it may be injurious or beneficial to a codefendant. The fact that, as usually happens, he tries to exonerate himself by casting the guilt upon his associate, while it may bear upon his credibility, is otherwise immaterial." Underh. Cr. Ev p. 77. In this state an additional safeguard is laid down, requiring the judge properly to instruct the jury that this testimony is of no weight against his codefendant. We have carefully considered the decisions cited. We have not succeeded in arriving at the conclusion that either holds that a defendant cannot be heard to testify in his own behalf, even if the defendant incriminated the other defendant, provided that under proper instructions the effect of the testimony is restricted as before mentioned. "The statute permits an accused to testify voluntarily on his own behalf." State v. Angel, 52 La. Ann. 486, 27 South. 214. In another case, of date inore recent, the court said that the testimony of a witness in his own behalf was admitted, but not in behalf of the two other persons charged. State v. Breaux, 104 La. 540, 29 South. 222. We do not interpret these decisions as holding that one defendant cannot be heard to testify in his own behalf, provided the jury is properly instructed to attach no importance to it as relates to another being tried. The question of credibility is left to the jury. They are to determine what effect is to be given to the statement of an accused intent upon saving himself. The courts, as we read the authorities upon the subject, must have concluded that the impairing effect of the fact that an accused testifies in his own behalf and the admonition of the court that his testimony must be restricted in its effect to him alone would be protection enough to another party to the defense.

This brings us to a consideration of the grounds brought up in the second bill of exceptions. The statement of the judge made part of this bill does not, in our view, present an objection which would justify us in setting aside the verdict and sentence. He sets

forth that the state had introduced her evidence. Then followed Sims, who introduced his, and, lastly, Mays followed with his evidence. The court then inquired of the district attorney if the state had any rebuttal testimony to offer, to which this officer replied, informing the court he had no further testimony. At this time counsel for Sims said that he had other testimony. To this application the district attorney answered that he had no objection. Mays, through counsel, objected. The court overruled the objection, and admitted the testimony for the reason, we are informed by the narrative in the bill, that one of Mays' witnesses testified that Sims had confessed his guilt. The court then heard testimony regarding the reputation for truth and veracity of the witness to this confession. The court adds, "These alleged confessions had been first raised by defendant Mays after the evidence of Sims had been closed." We take it from this statement that this was not a mistaken reopening of the taking of evidence, nor a rebuttal of rebuttal testimony. The statement of Sims' admission of guilt was made after Sims had closed his testimony, and he had no opportunity to meet it. He was for that reason, permitted to offer a witness with the view of impeaching the veracity of the incriminating witness. Even if the admission of this testimony had been offered somewhat late in the trial, it would fall within the rule allowing some latitude to the trial judge in this respect. State v. Woods, 31 La. Ann. 267; State v. Hebert, 39 La. Ann. 319, 1 South. 872; State v. Gonsoulin, 38 La. Ann. 459.

A motion for a new trial was filed. It was overruled. It brought up points by the bill of exceptions which have already been decided. It does not require any further attention from the court, as it presents no new issue. The court sets forth in this bill. "The court refused the new trial because the law and the evidence justified the conviction of the defendant Mays." Defendant moved the court to correct the judgment on the ground that the indictment charged no crime, as it failed to show that the "cotton was taken with the intent to appropriate to his (the taker's) own use, and fails to allege that it was taken with the felonious intent of depriving the owner of the same. The indictment sets forth the property, and by whom it was owned, and charges, then and there found, did then and there feloniously steal, take, and carry away, contrary to the form of the statute.'" This was held sufficient in State v. De Serrant, 33 La. Ann. 979. It having been decided in the just-cited case that the criminal intent was sufficiently shown by averring that the act was feloniously committed, and that it necessarily followed that it must have been committed lucri causa, and to deprive the owner of the property, we have not found good reason to set aside the rule previously laid down. We have re

viewed the proceedings as carefully as we could, and have not found error or irregularity which would justify the court in setting them aside.

It is ordered, adjudged, and decreed that the sentence and judgment be affirmed.

(106 La.)

STATE v. COLLETTE et al. (No. 14,201.)1 (Supreme Court of Louisiana. Dec. 2, 1901.) CRIMINAL LAW-INSTRUCTIONS.

Where defendant in a criminal case asks for an instruction which would be correct only under an exceptional state of facts, he must preface the instruction by a predicate which would bring it under the operation of this state of facts.

(Syllabus by the Court.)

Appeal from judicial district court, parish of Plaquemines; Robert Hingle, Judge. Baptiste and Mayer Collette were convicted of larceny, and appeal. Affirmed.

A. E. & O. S. Livaudais, for appellants. Walter Guion, Atty. Gen., and Albert Estopinal, Dist. Atty. (Lewis Guion, of counsel), for the State.

Statement of the Case.

NICHOLLS, C. J. In the indictment against defendants it was charged that they, in the parish of Plaquemines, "ten barrels of oysters, of the value of ten dollars, of the goods and chattels of Alfred Rodi, then there being found, unlawfully, wilfully, and feloniously did take, steal, and carry away." Accused moved to quash the indictment, averring that they were not bound to answer the same; that under the laws of this state the matters in said indictment contained were not sufficient in law to warrant an accusation of larceny; that under the law the ownership in the property charged to have been stolen should be absolute and perfect, and not imperfect and dependent on conditions. The motion was overruled, and the case went to trial, resulting in the conviction of the accused. The defendants moved for a new trial, which was refused, and defendants appealed. No bill of exception was taken to this ruling of the court, and in the absence of such a bill, under wellsettled jurisprudence, it does not come before us for review.

We find in the transcript a bill of exceptions which had been prepared for the signature of the judge, but which, in fact was not signed. Counsel declare that they were not aware of this fact until their attention was called to it, when the case came on to be argued before this court, and that the failure of the judge to sign it was due to inadvertence. The bill of exception, as prepared for signature, recites "that the accused requested the judge to instruct the jury that, under the laws of this state, oysters are not 1 Rehearing denied January 6, 1902.

susceptible of ownership unless bedded within poles or marks clearly identifying them as private property; that the judge refused to give this instruction, and defendants reserved a bill of exceptions." Through the argument made on the trial, we are informed that the oysters which defendants were charged with having stolen were claimed to have been taken from the waters in which they were imbedded, and that the point which they desired to press was that oysters situated thus were authorized to be taken by the public unless the place in which they

were found had been staked off so as to disclose the fact that they were upon "leased bedding grounds." There is no recital in the bill of the testimony which had been taken on the trial, nor of the state of facts under which defendants were claiming to be justified in asking the court to charge the jury as requested. Had the bill of exceptions before us been signed as tendered, defendants could have derived no benefit from it, as the judge could not have done otherwise than decline to give the instruction as it was presented. This is too plain for discussion. Persons asking judges to give instruction which, if correct at all, would be correct only under exceptional circumstances and conditions, must preface the instructions by predicates which would make them, as given to the jury, contain correct propositions of law.

The motion to quash was properly overruled. Defendants do not claim that the indictment as drawn would not be a proper one charging larceny of oysters taken from an oyster establishment, for instance, in New Orleans. Their contention is that, by reason of the place and the conditions in which these particular oysters were taken, they were not objects of private ownership, and their taking was not larceny. Assuming this to be true, defendants' defense would have to be worked out by evidence to be adduced on the trial, and by special charges applicable to the state of facts disclosed by the evidence, and not by a motion to quash an indictment legally framed. The fact that the charge made therein might fail under evidence thereafter adduced does not affect the correctness of the indictment as found and returned.

We find no error in the judgments appealed from herein, and they are hereby affirmed.

(106 La.)

DE GRILLEAU et al. v. BOEHM. (No. 13,712.)1 (Supreme Court of Louisiana. Nov. 18, 1901.) SUPREME COURT-JURISDICTION ON APPEALPRESUMPTIONS.

1. This court is a court of record, and, sitting as an appellate tribunal, exercises jurisdiction only of matters which appear from the record to have been presented to, and considered by, the court of first instance.

1 Rehearing denied January 16, 1902.

2. Where a defendant in rule pleads thereto in the district court, in writing, whether the pleading be called an exception or answer, and, thereafter, and without further pleading, participates in the trial of the rule upon its merits, and there is nothing in the record to show the contrary, this court must presume that the only defense offered in the district court was that presented by the pleading filed, and hence, that the only issues to be determined on the appeal are those which are so presented.

3. In this case, the sheriff having taken a rule on the seizing creditor, the trustee in bankruptcy of the defendant, the city of New Orleans and the state of Louisiana, to show cause why certain funds, realized by him under execution, should not be distributed, the trustee objected and excepted to the proceeding upon two distinct grounds, and in writing, and, the objection being overruled, participated in the trial on the merits without further pleading. Held that, on the appeal taken by such trustee from the judgment rendered, this court can take cognizance only of the issues raised by the pleadings filed, and that if the objections presented by such pleadings are abandoned the judgment will be affirmed.

Blanchard, J.. dissenting. (Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; John St. Paul, Judge.

Action by A. De Grilleau and others against Lisette Boehm, wife of William E. Seebold. Judgment for plaintiffs. Rule by sheriff as to distribution of funds. From the Affirmed. judgment, claimants appeal.

See 105 Fed. 910.

Florance & Rosen, for appellant C. O. Wilcox, trustee of Mrs. Lisette Seebold, bankrupt. Arthur McGuirk, Asst. City Atty.. and Samuel L. Gilmore, City Atty., for appellee city of New Orleans. Dinkelspiel & Hart, for appellee civil sheriff of parish of Orleans. Carroll & Carroll, for appellees Mrs. A. De Grilleau and others. Francis C Zacharie, for appellee state tax collector

MONROE, J. It appears from the record in this case that upon the 13th of March, 1900, judgment by confession was entered in the civil district court of the parish of Orleans in favor of the plaintiffs and against defendant in the sum of $2,974.99, on a claim for the rent of a store in New Orleans, and, the delays being waived, execution issued upon the same day, and the contents of the store were seized, together with the right of occupancy during the unexpired term of the defendant's lease, and, after due advertisement, sold, by the sheriff, who received the proceeds. Thereafter, and whilst said proceeds were still in the hands of the sheriff, the defendant went into bankruptcy, and, upon June 7th, proceedings were taken in the state and federal courts, as follows: The sheriff took a rule, in the state court, alleging that he was in possession of $2,059.03, proceeds of property sold by him under execution in the above-entitled suit; that C. O. Wilcox, the trustee of the bankrupt defendant, was claiming the same; that the city of New Orleans and the state of Louisiana were demanding the payment of taxes there

from; and that the plaintiffs in the case had notified him not to pay said money to said trustee; and he prayed that the parties named be ordered to show cause why the court should not direct him as to the disposition thereof. The trustee, Wilcox, presented a petition to the circuit court of the United States, alleging the seizure and sale, for rent, and the fact that the sheriff was in possession of the proceeds, as has been stated; that the defendant had made a surrender in bankruptcy of all of her property, including the said proceeds; that the adjudication in bankruptcy operated a stay of proceedings in the suit in which said seizure had been made; that the proceeding in the state court was founded upon a claim from which the discharge in bankruptcy would operate a release; that the levy by the sheriff had been made within four months prior to the adjudication in bankruptcy, and was discharged thereby; and that the sheriff was about to distribute said proceeds, and should be enjoined from so doing, and ordered to turn the same over to the petitioner as the trustee of the bankrupt. Upon this petition, a rule nisi was issued, and a restraining order was made and served, directing that the funds in question should be held until the further order of the court. And, in the meantime, the rule taken by the sheriff was also duly served. The plaintiffs herein appeared in the United States court, in answer to the rule nisi, and showed cause why the injunction prayed for should not issue; and, upon June 15th, the application of the trustee was denied, and the restraining order rescinded, and from this ruling the trustee appealed. Thereafter, upon July 3d, the rule taken by the sheriff, having been reassigned for that day, was called for trial in the state court, and the trustee made an appearance, as follows: "C. O. Wilcox, trustee of Mrs. Lisette Seebold, bankrupt, excepts to this rule, and objects to its trial (1) because there is pending an appeal, with supersedeas, from the United States circuit court for the Eastern district of Louisiana to the circuit court of appeals for the Fifth circuit, from a judgment on a rule, coupled with a restraining order, issued by the United States court aforesaid, on the application of exceptor, directing the sheriff of Orleans to pay over the funds in question herein to said trustee of said bankrupt, and that said sheriff remains restrained thereby; (2) that no judgment can be rendered in this matter during vacation, it being a judgment requiring signature and ordering payment of money, and being final in nature." From the note of evidence made at that time, it does not appear that the trustee made any other than the foregoing defense to the sheriff's rule to distribute. On the contrary, the recitals of the note, in so far as they bear upon that question, are as follows: Florance, on behalf of the trustee in bankruptcy of Mrs. Seebold, files an exception" (which is set forth as given above, after

"Mr.

which the note proceeds:) "The court rules as follows: The property sold under fi. fa. issued in this case, the proceeds of which are in the hands of the sheriff, having been seized before the bankruptcy proceedings were instituted, the first objection is overruled; as to the second objection, as to the trying of the case at this time, the court will allow the testimony to be taken to-day, and take the matter under advisement." There is nothing to indicate that any further grounds of defense were set up on behalf of the trustee, either in writing or orally; but the note of evidence contains the further recital that: "Mr. Florance, on behalf of C. O. Wilcox, trustee of Mrs. Lisette Seebold, bankrupt, and reserving the exception herein before filed to the jurisdiction of this court on the trial of this rule, offers in evidence, in support thereof, the motion and order of appeal and supersedeas in the case No. 12,878 of the United States circuit court for the Eastern district of Louisiana. And it is admitted that this motion for appeal and supersedeas has been perfected by the filing of the motion and bond. But this admission is made with the express reservation that an appeal and supersedeas from a restraining order is unheard of, and cannot operate to. stay proceedings in this court." The other parties defendant in rule having filed their answers, the trial proceeded, and, upon July 10th, the rule was made absolute, and the sheriff was ordered to pay to the city and state the taxes claimed by them, respectively, and to turn the balance of the funds in his hands over to the plaintiff in the suit. And from this judgment the trustee has appealed. It is admitted in this court that the circuit court of appeals subsequently affirmed the judgment of the circuit court, dismissing the trustee's application for an injunction, etc., and the objections urged by the trustee to the trial of the rule in the state court, based on the pendency of the appeal to said circuit court of appeals, and to the effect that said rule could be tried only in term time, have been specifically abandoned; and the trustee relies here, exclusively, upon other grounds, which, so far as appears from the record, were never presented to, or considered by, the district court, from which this appeal comes. Under these circumstances, and as this court is a court of record, and is sitting in this case as an appellate tribunal, with jurisdiction only of matters which have been passed on by the court of first instance, and as all such matters, so far as the record discloses, have been withdrawn from the controversy by the admission of the counsel for the appellant, we have no further function to discharge than to affirm the judgment appealed from. It may be, and no doubt is, a common practice in the district courts for a defendant in rule to answer orally, and, where no appeal is contemplated, the practice has its advantages. But the practice is equally common for such defendant to present all of his defenses at

one and the same time, where the defenses presented are reduced to writing, whether in the form of exceptions or answer, and when the party goes to trial upon the merits of the rule, without further pleading, this court cannot do otherwise, on the appeal, and particularly in the absence of anything in the record to show the contrary, than to presume that all the defenses that were urged are disclosed by the record. Judgment affirmed.

BLANCHARD, J., dissents, holding that, it having been brought to the attention of the state court that proceedings in bankruptcy have been taken, all proceedings in the state court are stayed, and all matters at issue are to be referred to the court seised of the bankruptcy proceedings.

Under Code, § 2158, providing that a conveyance of substantially all of the debtor's property in payment of a prior debt, by which preference is given to one or more creditors, shall inure to the benefit of all creditors, but that the statute shall not apply to mortgages to secure debts contracted contemporaneously with their execution, a bill of sale is void which conveys all the grantor's property in payment of a prior debt, giving a preference, though a part of the consideration was the extinguishment of a debt evidenced by a mortgage contemporaneously executed on part of the property conveyed by the bill of sale, another debt past due being also a part of the consideration, and the bill of sale also including property other than that conveyed by the mortgage.

Appeal from chancery court, Coosa county; R. B. Kelly, Chancellor.

Suit by Simmons, Durham & Co. and others against A. B. Baxley and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Felix L. Smith and J. M. Chilton, for appellants. Whitson & Graham, for appellees.

TYSON, J. The purpose of the bill in this cause is to annul the preference secured to Baxley by the bill of sale of the payment of his debt over other creditors of the grantor, and to compel him, as trustee, to account for the trust property. Such a trust, if it exists, is in the nature of a lien, the enforcement of which is deemed to lie within the peculiar province of a court of equity. Bank v. Paulk, 125 Ala. 591, 27 South. 468. Under the statute (section 2158, Code) "a conveyance by a debtor, of substantially all of his property in payment of a prior debt, by which a preference or priority of payment is given to one or more creditors, over the remaining creditors of the grantor, shall be and enure to the benefit of all the creditors of the grantor equally; but this section shall

not apply to, or embrace mortgages or pledges or pawns given to secure a debt contracted contemporaneously with the execution of the mortgage or pledge or pawn, and for the security of which the mortgage or pledge or pawn was given." It is shown by the averments of the bill that the bill of sale was a conveyance of substantially all of the grantor's property to Baxley in payment of a prior debt due him, and that Baxley was given a preference or priority of payment of that debt under it over other creditors of the grantor. But it is insisted that the averments of the bill also show that the consideration for the bill of sale was the payment or extinguishment of the debt due Baxley, which was evidenced by notes secured by mortgage contemporaneously executed with their contractation on the property conveyed by the bill of sale, and which notes were given for the purchase of said property. The manifest purpose of this insistence is to relieve the bill of sale from the condemnation of the portion of the statute first above quoted, and to place the transaction within the exception ingrafted for the benefit of mortgagors and mortgagees. Whether the insistence be sound is not necessary here to decide. The exclusive consideration for the bill of sale was not the payment of the notes secured by the mortgage, but the extinguishment of another note for $30, held by Baxley, which was past due, entered into and formed a part of the consideration. So, too, the bill of sale conveyed property other than that conveyed by the mortgage, to wit, notes and accounts of the value of $300. To extend the exception made by the statute to a case like this, so as to relieve the bill of sale or conveyance from being a general assignment, would not only be a species of legislation, but would result in striking down the very purpose and policy of the statute. Doubtless, while the relation of mortgagor and mortgagee existed between Baxley and Robinson, the mortgage could not have been declared a general assignment, and it may be that its validity could not have been assailed by creditors. Cox v. Dry Goods Co., 125 Ala. 320, 28 South. 456. But, when the mortgage debt was paid or extinguished by the sale of the property conveyed by the mortgage and other property, and another debt was also paid, the sale became a new, distinct, and independent arrangement, and the relation of mortgagor and mortgagee was dissolved, and the new and different relation of vendor and vendee was formed, resting on a new and different consideration. Goetter v. Smith, 104 Ala. 490, 16 South. 534. The principles declared in Fouche v. Swain, 80 Ala. 151, have no application. In that case the conveyance was of the identical property covered by the prior mortgage, and was in extinguishment of the debt secured by it and no other.

Affirmed.