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(45 La. Ann.) STATE ex rel. BREAZEALE, District Attorney, v. CANNON, Sheriff. (No. 366.) (Supreme Court of Louisiana. Oct. 12, 1893.) ACTION TO REMOVE SHERIFF - APPEAL BY STATE -BOND

In a suit under article 171 of the constitution to have a sheriff declared ineligible because he is a defaulter, the quietus of the auditor, although given after his election, the receipt of the parish treasurer and receipts of the auditor, the manner in which the police jury makes its settlements with the tax collector for amounts paid the parish treasurer, to show that this was only a partial payment, and parol and written testimony as to the fact of defalcation, are all admissible in evidence. The suit to remove ineligible officer for defalcation is conducted under article 171, and not articles 196. 201. In a suit of this kind the state does not have to give bond for an appeal.

(Syllabus by the Court.)

Appeal from district court, parish of Avoyelles; A. V. Coco, Judge.

Action by the state of Louisiana, on the relation of Phanor Breazeale, district attorney, against Clifton Cannon, sheriff of Avoyelles parish, to remove defendant from office. There was judgment for defendant, and plaintiff appealed. Defendant now moves to dismiss the appeal. Motion denied, and cause remanded.

Phanor Breazeale, Dist. Atty., for appellant.

*

"No person who, at any time, may have been a collector of taxes, whether state, parish or municipal, ** shall be eligible to any office of honor, profit or trust under the state government * ✶ ✶ until he shall have obtained a discharge for the amount of such collections and for all public moneys with which he may have been intrusted." Article 171, Const. 1879.

A discharge is a quietus or receipt in full, issued by the competent authority in conformity with law. 33 La. Ann. 721.

The only competent authority to grant a discharge to a tax collector for poll taxes collected by him is the school board to whom it is due. Id. 722.

The president of the police jury has no authority in law to grant the sheriff and tax collector a quietus or discharge for taxes and licenses due the parish. The only legally constituted authority to grant such discharge or quietus is the police jury. Id. 721.

In a suit like the instant one, the sole question is eligibility vel non, and is dependent on the existence of a quietus or discharge; and long, intricate, and confused accounts of a fiduciary officer cannot be inquired into. Id.

The right of the state in its organic law to prescribe qualifications for holding office is undeniable.

The state having, in her organic law, prescribed the qualification of age, fixed at the minimum of 21 years, in a suit to inquire into an officer's eligibility on the ground

that he was not 21 years old, it would be folly to inquire whether or not he was indebted to the state or parish, and had not obtained a discharge, as required by article 171, Const. 1879.

So, in a suit to test the eligibility of a sheriff on the ground that he had not ob tained a discharge or quietus from the proper authority, it would be equally fallacious to inquire into his age.

There is no analogy whatever between the Reid Case, 45 La. Ann. 162, 12 South. 189. and the instant case.

Defendant is estopped from opening an inquiry which he had prevented plaintiff from opening.

The case of District Attorney v. Echere ria, 33 La. Ann. 718, is relied on by plaintiff as containing the law applicable to this instant case.

A quietus can be given to the tax collector only by the school board, in so far as relates to its poll tax. Section 4, Act No. 120 of 1880.

Thomas Overton, John C. Wickliffe, and Joffrion & Joffrion, for appellee.

An appeal bond is necessary to support an appeal by plaintiff in a suit under the intrusion into office act.

Action under article 171 of the constitution to remove defendant from the office of sheriff and tax collector by reason of noneligibility in not having obtained a discharge previous to his re-election.

To go behind the "discharge" of article 171 of the constitution, there must be some allegation of error, fraud, or irregularity to authorize the proof.

The discharge cannot be collaterally inquired into, but must be directly assailed, and the defect or irregularity clearly set out, so as to put the defendant on his proper defense.

The fact that defendant objected to plaintiff's going behind the discharge does not estop the defendant from proving the discharge itself. Plaintiff cannot make the denial of the discharge the basis of his demand, and then prevent defendant from proving the discharge.

The receipt of the parish treasurer is the primary evidence whether the collector has paid into the parish treasury the moneys collected by him on account of the parish and school fund, as the receipt of the auditor is the best evidence as to whether he has discharged his liability to the levee and state funds. State v. Reid, 45 La. Ann. 162, 12 South. 189.

The "discharge" of article 171 of the constitution applies to moneys actually collected. It does not refer to moneys not collected. The constitutional fiat is aimed, not at default, but default with dishonor. The court cannot add to the condition, or extend the penalty to other causes not enumerated in the constitution. Cooley, Const. Lim. p. 178

While the discharge is intended to apply to moneys actually collected, and "takes effect independently of whether the collector has procured a final settlement of his general account or not," the quietus is a discharge covering moneys collected as well as uncollected, and is preceded by a final settlement.

Where defendant shows a discharge, he is entitled to its protecting shield. Some respect is due to the act of the officer charged to verify the account. If there is error in the discharge, a liability remains, but the remedy would have to be sought other than in the constitution. The constitutional penalty does not attach to such a case, lacking, as it does, in the element of default.

MCENERY, J. The appellee has filed a motion to dismiss the appeal on the ground that the appellant has executed no bond. The state is the appellant, and, as there is no one contesting the office, the state brings this suit in her own interest, and is therefore not required to execute a bond for an appeal. This suit is instituted by the district attorney of the tenth judicial district, on behalf of the state, under section 2593, Rev. St., to have the defendant sheriff declared ineligible, under article 171' of the constitution of the state, to hold the office of sheriff. The petition alleges that the defendant was elected sheriff of the parish of Avoyelles in 1888, and that as sheriff he was ex officio tax collector; that he was reelected sheriff in April, 1892; that, having failed to obtain the proper discharge from the proper authorities for all public moneys collected by him in his official capacity during his first term of office, he was ineligible to hold said office; and that his reelection was null and void. There was judgment for the defendant, and the state has appealed.

An exception was filed to the suit on three grounds: (1) That the requisite number of citizens under articles 196 and 201 of the constitution and Act 135 of 1880 were not joined in the suit. This suit is not instituted in pursuance of said article and said act. It is under article 171 of the constitution, declaring the officer ineligible for a failure to pay over public moneys collected by him. It is not only to remove him from office, but to declare his election a nullity and the office vacant. (2) That the petition disclosed no cause of action. The allegations are specific, and proof to sustain them would result in a

The article reads as follows: "No person who, at any time, may have been a collector of taxes, whether state, parish or municipal, or who may have been otherwise entrusted with public money or any portion thereof, shall be eligible to the general assembly or to any office of honor, profit or trust under the state government, or any parish or municipality thereof, until he shall have obtained a discharge for the amount of such collections and for all public moneys with which he may have been entrusted."

judgment in behalf of the state. The allegation in the exception that no allegation has been made that would authorize a reopening of the settlements made with the authorities with whom he was compelled to settle is untenable, for this is the fact to be established,-whether or not he has made the settlements required by law. In this ruling we have passed on the third ground of exception. The exceptions were properly overruled. The defendant answered with a general denial, and specially denied that he was a defaulter when elected sheriff. There are very many bills of exception in the record reserved by the district attorney and the defendant to the introduction of evidence. The plaintiff offered to prove by the parish treasurer that the sheriff had a settlement with him, as shown by his books, at which he paid $7,983.62 for taxes of 1891, and the sum of $22.50 for licenses of 1891. The evidence was objected to by defendant on the ground that it was irrelevant to the fact at issue, which was a procurance of discharges for all sums due, and required by article 171 of the constitution. The evidence, we presume, was offered to show that the sheriff paid that sum and no more, and had never received a discharge for balances due by him. For such a purpose it was admissible, and the same may be said as to the other questions asked the parish treasurer. The fact that he was parish treasurer after the sheriff was elected to office is immaterial. The treasurer of the school board was introduced by the state as a witness, and questions similar in character were addressed to him, and the same objections made as to the questions asked the parish treasurer. For the same reasons given, the evidence should have been admitted. Extracts from the parish treasurer's books were offered in evidence by plaintiff, and objected to as not being authentic. Being extracts from public archives, the official records of the parish, they were prima facie evidence, and should have been admitted. State v. Lake, 14 South. 126, (decided this term.) The defendant offered in evidence the quietuses from the auditor of public accounts for taxes and licenses for certain years. The state objected on the ground that they were dated after the election of defendant, and because the plaintiff charges that the defendant did not have them before he was elected sheriff, and for irrelevancy. The objections were sustained. It should have gone to the effect of the evidence. The ruling was erroneous. At this stage of the case plaintiff offered in evidence document No. 3, purporting to show that the police jury had granted no quietus to the defendant. It was admissible to show this fact, as the police jury was the body authorized to grant the quietus. Defendant, on renewing the introduction of his evidence, offered the receipt of the president of the police jury for taxes paid. It was competent, relevant, and important evidence in

behalf of defendant. It may not have been for all the taxes due the parish, but, in connection with other receipts and evidence, it might show a full payment of indebtedness to the parish. Other receipts signed by the president of the police jury were rejected on the same objections, and bills reserved. The same ruling will apply to these bills. Quietuses were offered in evidence from the auditor, and rejected on the same grounds as those heretofore noticed. They should have been received. Defendant offered extracts from minutes of police jury on October 5, 1892, that the accounts of Cannon, tax collector for the years 1888 to 1891, both inclusive, and licenses for 1892, had been investigated by a committee appointed by the police jury, showing a complete settlement to that date with the parish authorities for parish taxes. It was relevant testimony, and material and important, in order to arrive at the fact whether or not the tax collector was a defaulter. Whether it had any effect as a defense because of its being filed after the election went to the effect of said evidence. There was therefore error in rejecting it. And this same ruling will apply to the rejection of the report of the examiner of public accounts, dated April 10, 1892. The objection went to the effect. If the report was true, it was important to the defendant. If incorrect, it could be contradicted. A number of receipts for taxes and licenses were offered in evidence, and rejected on the ground that they were not discharges for taxes. The objections went to the effect and they were erroneously excluded; and the same may be said of the receipts of the treasurer of the police jury, signed by "L. Barbeuer, Ph. Treasurer." T. T. Fields was offered as a witness to prove the manner in which the police jury made its settlements with the tax collector. We see no reason why the evidence should not have been admitted, as it might have an important bearing on the settlements made with the police jury. The members of the police jury were offered in evidence for the same purpose, and rejected on the same ground as the rejection of Fields' testimony. For the same reasons, in reviewing the objection to his testimony, this evidence should have been received. Cannon, the defendant, was put on the stand, and the object of his testimony was to show that he had made full settlements of all taxes due. The objection to the questions propounded to him went to the effect of his testimony. The fact at issue was whether or not he was a defaulter, and parol, as well as written, testimony may be received to show a complete settlement with the several authorities to which taxes were due, in the same manner that the same kind of evidence may be received to prove the fact that taxes are due, and to contradict, for instance, receipts for taxes where none have been paid. The plaintiff in rebuttal

offered in evidence the certificate of the clerk of court, dated May 10, 1893, to show that no discharge or quietus had been recorded for parish and state licenses and taxes, or for the poll tax or levee taxes. The recordation of the quietus had nothing to do with the fact of defalcation. It is proved that the defendant has quietuses for taxes for some years. The nonrecordation of them cannot destroy the fact of their existence. The case will be remanded.

In the opinion we have carefully abstained from expressing any views as to the effect of the evidence which was rejected by the district judge, and whether the facts to be adduced on the trial will bring this case within the rulings of the case of State v. Reid, 45 La. Ann. 162, 12 South. 189, or the Echereria Case, 33 La. Ann. 709. The record is so barren of admitted evidence that it is impossible for us to say what bearing the evidence rejected would have in deciding the case on its merits. Both the state and defendant apparently have been restricted within too narrow limits. It is therefore ordered, adjudged, and decreed that this case be remanded to the lower court, to be proceeded with according to law.

(45 La. Ann.)

(No. 11,286.)

STATE v. FRISCH. (Supreme Court of Louisiana. Nov. 20, 1893.) EMBEZZLEMENT-RATIFICATION BY PARTY INJURED.

So far as the right of the state to pursue and punish a criminal is involved, the subsequent ratification of the act by the party injured will not bar a prosecution by the state. (Syllabus by the Court.)

Appeal from criminal district court, parish of Orleans; James C. Moise, Judge. Frederick Frisch, having been convicted of embezzlement, appeals. Affirmed.

Evans & Dunn, for appellant. M. J. Cunningham, Atty. Gen., (Lionel Adams, of counsel,) for the State.

MCENERY, J. In the brief of defendant it is stated: "We abandon all bills of exceptions in the record except the fourth bill of exception." The fourth bill is as follows: "Be it remembered that on the 27th day of February, 1893, this case came up for trial, as appears in evidence; that a Mr. Jules Sugg, one of the witnesses for the state, reached New Orleans on the 6th day of August, 1893; that defendant was absent from the city at the time for the benefit of his health; that as soon as he learned that Mr. Sugg, a partner of the firm of Gassner & Co., was in the city, the defendant returned to the city, as soon as possible; that he reached the city on the 26th day of August, 1893; that on the 28th day of August, he, the defendant, and Mr. Sugg, of Gassner & Co., met in their office, had a long and full conversation concerning the

settled. The ratification operates upon the act ratified precisely as though authority had been previously given. The principal may ratify the wrongful use of his money or property by his 'manager' or agent, and thereby establish the relation of debtor and creditor between them. Such ratification will remove the tort or wrong." "On the refusal of the trial judge to charge the jury as above, counsel for the accused reserved this, their fourth bill of exceptions." Upon this bill the following indorsement was affixed: "Per Curiam. I cannot concur in the statement of facts as given in this bill. There was no ratification of the defendant's authorized or unauthorized acts. Where the victimized firm suffered losses by reason of the defendant's unauthorized transaction, suit was brought against third persons, and a great portion of the money recovered. Criminal prosecutions were instituted as to others."

losses of Gassner & Co. and the defendant, | thorized act of his manager or agent is weil whereupon Mr. Sugg asked the defendant for a full and complete statement of the entire transaction, to make a full and complete writter statement,-that he, Sugg, might forward same to the Liverpool house of Gassner & Co.; whereupon the defendant then and there made out a written statement, fully, truthfully, and fairly showing how the losses occurred, and delivered same to Mr. Sugg, who read it over carefully, and mailed it to the Liverpool house. It would be well for the court to be informed that a settlement had been proposed by Mr. Sugg that the defendant should assume all the losses, amounting to thirty-six thousand eight hundred and sixty-six dollars and fifty-one cents, ($36,866.51;) that defendant declined to assume the losses which had occurred in speculation in the name of Gassner & Company, and for their account; that he did assume the responsibility for the losses of the money which he had overdrawn and used and lost for his own account; that, on the 10th day of September following, Mr. Sugg served upon defendant an account current, which is to be found in record, page - in which each item of overdraft from its date was mentioned, together with the charge of interest from its time of overdraft up to the 1st day of September, 1892, together with certain law charges of the firm of Gassner & Co., contracted, all of which will more fully appear by an inspection of said account current; that, after the second account current had been served as above mentioned, Mr. Sugg, of the said firm of Gassner & Co., requested the defendant to acknowledge the correctness of the said account current, in writing, which the defendant promptly acknowledged; that, on the 6th of October of the same year, the defendant was arrested and taken before the first recorder's court, and, after due proceedings had there, the case was transferred to the criminal district court; that at no time after the return of the defendant on the 26th day of August was any conversation held between the defendant and the firm of Gassner & Co., except when Mr. Sugg wanted the defendant to assume the responsibility of the entire losses, amounting to thirty-six thousand eight hundred and sixty-six dollars and fifty-one cents, ($36,866.51,) at which time it was agreed that the defendant's loss should be the sum of ten thousand five hundred and ninety dollars and thirty-one cents, ($10,590.31,) as appears in said account current; that on the trial and during the argument it was contended by defendant's counsel that the whole transaction had been ratified by Gassner & Co., through Mr. Julius Sugg; and that the tort, if there was a tort, in connection with the entire transaction, was entirely removed by the action of Gassner & Co., as related above." And the trial court was requested to charge the jury as follows: "The general rule as to the effect of a ratification by a principal of the unau

The indictment charges the defendant with embezzling $200, which was one of the items in the account current submitted to Gassner & Co. There was evidence before the jury of ratification by Gassner & Co. of all the unauthorized acts of the defendant, and had the proof been sufficient, as alleged by defendant, the law applicable to the ratification by a principal of the unauthorized acts of the agent would be applicable in a civil suit between the principal and the agent. But it has no place in a criminal prosecution when the act is of such character as to involve a crime denounced by the state as opposed to public policy. Embezzlement is an offense of this character. The loss to the individual is a matter to himself. It is optional with him to recover the amount due him in consequence of the embezzlement in the implied contract to reimburse him. But the crime concerns the public policy of the state, and no agreement, compromise, or ratification can make that which she has denounced as a crime an innocent act, leaving the offender free from the punishment attached to it. The offense of embezzlement is of that nature which the public takes notice of as injurious to itself. 1 Bish. Crim. Law, par. 232. Mr. Bishop says in the paragraph referred to: "Nothing can be more purely a tort to the individual alone than a simple larceny where there is no breach of the peace; no public loss of property, since it only changes hands; no immorality, corrupting the minds of the young; no person in any way affected but him who takes, and him who loses, the thing stolen. And as in larceny, so it is in many other crimes. public offense is committed, while only an individual suffers." Any agreement to suppress the crime would be contrary to public policy, and void, as the state has the right to pursue and punish the criminal. Mechem, Ag. par. 116; Shisler v. Vandike, 92 Pa. St. 447; McHugh v. County of Schuylkill, 67 Pa. St. 391. The case of Fagnan v. Knox, 66

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N. Y. 525, was for malicious prosecution for the crime of embezzlement. The court, upon request, charged: "If you find that the defendant, prior to the complaint against the plaintiff charging him with embezzlement, settled with the plaintiff for the moneys, the defendant afterwards charged the plaintiff with having embezzled as and for a debt on a contract, expressed or implied, such fact would be evidence that the defendant did not believe the plaintiff had embezzled the said moneys." On appeal to the court of appeals the charge was held erroneous. Chief Justice Church, in the opinion of the court, said the effect of the charge "was to produce an erroneous impression." "The effect of it was to convey the idea that the settlement and payment of the amount claimed by defendant was evidence that no crime had been committed, and the defendant did not believe that there had been.

* The defendant had a legal right to settle with the plaintiff, and to receive payment for the amount abstracted as and for a debt upon an implied contract, and such settlement was no bar to a criminal prosecution, nor did it furnish evidence that the defendant did not believe that the money had been embezzled." In the case of People v. Hurst, (Mich.) 28 N. W. 838, relied upon by defendant, there was no question raised as to the "ratification" of the acts which constituted the embezzlement. It was a question of felonious intent,-whether the mere failure to pay the money indicated a design to cheat and deceive the owner. A candid admission of the debt was made at once on inquiry, and partial payment was made and security given at different times for the debt. No such question is presented here. The bill does not present the question whether or not the transaction between the parties had assumed the shape of the facts in the above case. The bill of exceptions does not show that previous to the settlement the transaction assumed the shape of debtor and creditor, or that in the settlement offered in evidence there was any such relation between the parties, other than the implied contract to make restitution for the amount embezzled. The defendant was convicted. We must presume that all the constituent elements of embezzlement were proved, and among them concealment. On this point there is no conflict. The question, then is, did the presentation of the account to defendant, or, as is alleged the account presented to Sugg, made out by defendant, at Sugg's request or demand, showing his wrongful use of money, in the management of the business, his acknowledgement of the account, and his promise to pay the amount converted by him, and his refusal to assume other obligations, constitute such a state of facts as to make the business relation between the parties that of debtor and creditor? We think not. embezzlement had been committed. Νο transaction between the parties could have

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1. An indictment for arson may charge the offense as willfully done or maliciously done, or each of the qualifying words may be used alone.

2. The entry, as made, noting the presence of the accused, makes it evident that he was present during every important stage of the trial.

3. It is shown that the confession admitted in evidence was free and voluntary, and it was therefore admissible.

4. Between the ages of 7 and 14 years, an infant is deemed, prima facie, to be doli incapax, but the maxim "malitia supplet aetatem" may apply. The legal presumption of incapacity may be rebutted by evidence of mischievous discretion.

5. Expert testimony is admissible to prove capacity for committing crime. (Syllabus by the Court.)

Appeal from district court, parish of Jackson; George Wear, Judge.

John Nickleson was convicted of arson, and appeals. Affirmed.

B. P. Edwards, for appellant.

John R. Land, Dist. Atty., for the State.

An indictment, under section 843 of the Revised Statutes of 1870, for setting fire to and burning an outhouse, charging that it was done "feloniously, unlawfully, and maliciously," is valid. 38 La. Ann. 964; 37 La. Ann. 218; Whart. Crim. Pl. & Pr. § 228; 1 Bish. Crim. Proc. § 436; Bish. St. Crimes. § 244.

A child under 7 years is conclusively pre sumed incapable of committing any crime. Between 7 and 14, the law also deems the child incapable, but only prima facie so, and evidence may be received to show a criminal capacity. The question is whether there was a guilty knowledge of wrong-doing. 1 Bish. Crim. Law, p. 209, § 368; State v. Jones, 39 La. Ann. 935, 3 South. 57.

The confessions of a defendant, made voluntarily, and without anything being done to induce or extort them, are admissible in evidence at his trial. 11 La. Ann. 736; 36 La. Ann. 206; Id. 572; 1 Greenl. Ev. § 219; Whart. Crim. Ev. § 631.

BREAUX, J. The defendant was charged with arson, under section 843 of the Revised Statutes; was tried, and found guilty. A motion to quash the indictment was filed, on the ground that the bill of indictment does not set forth, as charged by the statutes, that the act was willful. The indictment charges that the defendant "did unlawfully. maliciously, and feloniously set fire and burn

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