down a certain" outhouse, to-wit, a barn, thereby complying with the statute, which declares that every person "who shall willfully or maliciously set fire to or burn any outhouse," stable, or barn, etc., shall, upon conviction, suffer imprisonment at hard labor. The ground, presumably, is abandoned, for it is not argued in counsel's brief. The point was passed upon in the case of State v. Philbin, 38 La. Ann. 964, in which it was held that the words, viz. "feloniously, unlawfully, and maliciously," are sufficient in an indictment under section 841 of the Revised Statutes. The words may be conjunctively used, as "willfully and maliciously," or disjunctively,-"maliciously or willfully." The use of either of these qualifying terms is a legal compliance with the statute. State v. Price, 37 La. Ann. 218. The points urged before the court are that there is error, in that the record does not disclose the presence of the accused at the trial, except after the evidence had been introduced and the argument closed. A bill of exception was reserved to the court's ruling, over the defendant's objection, admitting the testimony of a witness to prove the confession of this defendant, a child between the age of 10 and 12 years. The grounds of objection are that the state had not laid the basis for the introduction of the confession. The evidence of this witness was written down, and annexed to the bill, and is now, without objection, before the eourt. A bill of exception was also reserved to the court's ruling admitting the testimony of the witness to prove the intelligence and criminal capacity of the accused. Relative to the presence of the accused during the trial, the minutes prove that the accused was arraigned on the 20th February, 1883. The following was entered on the minutes on the 25th August, 1893: "Trial of case resumed. Evidence closed. Argument of counsel heard, and accused found guilty as charged, the accused and his counsel being present." The record affirmatively shows that he was present. The entry is sufficient to establish that he was present at every important stage of the trial. A special entry, it is true, should have been made, noting the presence of the accused at every important stage during the trial. Such omissions of the clerk should be avoided. But the entry, as made, makes it evldent that the accused was present during the trial. State v. White, 33 La. Ann. 1221; State v. Askins, Id. 1253; State v. Price, 37 La. Ann. 215. The admission of defendant's confession presents the second ground of defense. It is contended that the state did not affirmatively show that the confession was free and voluntary, and without inducement or persuasion. The witness to whom the confession was made says: "The accused made a confession to me. I did not offer to take this confession. any manner. He made the confession free and voluntary, with his own free will. I remember the substance of all he said in that conversation, and can repeat the substance of all he said in that conversation." The cross-examination which followed after the testimony in chief did not elicit any fact establishing that the confession was not free and voluntary. There were no circumstances of duress or violence shown, nor the least menace. The trial judge, who presumably knew the parties, was satisfied that there had not been any undue or improper influence brought to bear. The records do not disclose that his ruling relating to the foundation upon which the confession was admitted is erroneous. I did not threaten him in The last ground of defense is disclosed in a bill of exceptions to the judge's ruling in permitting witnesses to testify as to their opinion of the intelligence of the accused. Counsel contends that the ability to commit crime must appear from the circumstances of the particular case. The following are the judge's reasons narrated in the bill of exceptions: "The inquiry as to the capacity is not limited to the facts and circumstances attending the commission of the act, but may be shown by extrinsic proof." A child under the age of 12 years is presumed to be incapable of crime, but the presumption may be removed by proof that he had sufficient capacity to understand the wrongfulness of his act. Rice, Ev. p. 26. Blackstone says: "Under seven years of age, indeed, an infant cannot be guilty of felony, for then a felonious discretion is almost an impossibility, in nature." He adds: "Convictions have been had of infants between seven and fourteen." But in all such cases the evidence of that malice which is to supply age ought to be strong and clear, beyond all doubt and contradiction. Broom's Legal Maxims announces that malice sup plies the want of mature years; that between the ages of 7 and 14 years an infant is deemed, prima facie, to be doli incapax; but that the ordinary legal presumption may be rebutted by strong and pregnant evldence of mischievous discretion, for the capacity of doing ill or contracting guilt is not so much measured by years and days as by the strength of the delinquent's understanding and judgment. "No act done by any person over seven and under fourteen years of age is a crime, unless it be shown affirmatively that such person had sufficient capacity to know that the act was wrong." Steph. Dig. Ev. arts. 25, 26. The question does not relate to the competency of the witnesses in matters of opinion evidence. The records do not disclose the character of the evidence sought. The question and the objection are general in term Opinion is competent evidence upon the subject of age, in the absence of positive testimony. The opinion of witnesses may be heard, in many respects, to establish sufficient capacity to know that the act was wrong. The rule under which opinion evidence is admitted as to sanity or insanity applies in proving the responsibility vel non of infants. The forms of law have been complied with, and the trial regularly conducted. The jury must have been satisfied that the defendant, at the time "that he committed the offense, knew it was wrong, and was aware of his legal responsibility for the commission of the crime. The legal presumption of his innocence on account of his tender years no longer exists." Willet v. Com., 13 Bush. 230. There are issues which must be considered settled after a verdict has been rendered in due form. The tender years of the defendant, should his conduct yield to good influence, will doubtless recommend him to another authority. To this tribunal is left the painful duty of affirming the judgment appealed from. (45 La. Ann.) STATE v. MILLER. (No. 352.) (Supreme Court of Louisiana. July 17, 1893.) CRIMINAL LAW-VERDICT-RESPONSIVENESS TO CHARGE. was The accused was charged with burglary, armed with a dangerous weapon. He found guilty of burglary without a dangerous weapon. The verdict finds all the circumstances which constitute the offense under section 850 of the Revised Statutes, except that the accused was not armed with a dangerous weapon.-an offense denounced under section 851 of the Revised Statutes. The offenses are cognate. The latter, the minor, is included within the terms of the major. The verdict is responsive, and warrants a judgment. (Syllabus by the Court.) Appeal from district court, parish of Natchitoches; Andrews, Judge. R. W. Miller was convicted of burglary, and appeals. Affirmed. Charles V. Porter, for appellant. H. P. Brazeale and John R. Land, Dist. Attys., for the State. The supreme court having no jurisdiction, in criminal cases, to review questions of fact, the evidence will not be examined for the purpose of determining (though reduced to writing, and made part of the record) whether it authorized a conviction, or the refusal of a new trial asked for on the ground it did not. 30 La. Ann. 401; 32 La. Ann. 526; 38 La. Ann. 497. A verdict of "guilty of burglary without a dangerous weapon" is responsive to an indictment charging the defendant with breaking and entering a dwelling house in the nighttime, armed with a dangerous weapon. Rev. St. 1870, §§ 850, 851; State v. Morris, 27 La. Ann. 480; Proff. Jury, § 436. BREAUX, J. Under an indictment charging the defendant with the crime of burglary, also with larceny, in a single count, armed with a dangerous weapon, the defendant was tried, and found guilty of burglary without a dangerous weapon. The counsel for the accused filed a motion in arrest of judgment on the ground that the verdict is not responsive to the indictment. The motion was overruled. From the ruling of the district court the defendant appeals. The verdict finds the defendant guilty of a part of the charge, but passes upon the whole by qualifying that the act was committed without a dangerous weapon. Section 850 of the Revised Statutes denounces the breaking or entering into a dwelling house with a dangerous weapon. Section 851 of the Revised Statutes provides that, if the accused person be not armed, he shall, on conviction, be imprisoned at hard labor not exceeding 14 years. The accused was found guilty of part of the charge, and virtually acquitted as to the residue. In thus limiting their verdict, it is brought within the terms of the case of State v. Morris, 27 La. Ann. 481, in which the issue decided is identical to that of the case at bar. In that case the prisoner was charged, under section $50, Rev. St., with having forcibly entered the house in question, in the nighttime, armed with a dangerous weapon, with intent to kill. He was found guilty, except that he was not armed with a dangerous weapon. The court decided that the verdict is responsive to the indictment; that the two sections, 850 and 851, form but one law; that, under a charge of forcibly breaking into a dwelling, armed with a dangerous weapon, with intent to kill, an accused may be found guilty of having forcibly entered the house in question without being armed with a dangerous weapon. From the evidence, it appears that the defendant has not been guilty to the extent of the charge specified; that, in finding him guilty to the extent the evidence warrants, the offense is within the terms of another statute. They are offenses of the same generic class. The offense found is of an inferior degree to that charged in the indictment against the accused. The verdict finds all the circumstances constituting the offense under the statutes. The difference in the penalty for the offenses under the sections in question, and the fact that they are separate statutes, does not preclude the possi bility of the offenses being of the same generic class. State v. Stouderman, 6 La. Ann. 286. The offense is of an inferior degree, and a minor offense included within the major offense. Counsel contends that the verdict is fatally defective, not being responsive to the indictment. It is true that the defendant is charged with a specific statutory offense, viz. the breaking and en tering a certain house at a time stated, with certain intent. The crime, as denounced, is the common-law crime of burglary without a dangerous weapon. The verdict referred to section 851 exclusively,-"Burglary without a dangerous weapon." Larceny is a statutory offense. A verdict of guilty of larceny would be unobjectionable. The same is true of arson, and every well-defined offense. Moreover, the statute itself characterizes the crime as a burglary. The jury returned that the accused is guilty of "such burglary" expressed in the statute. The conclusion of the district judge does not disclose error. It is therefore ordered that the judgment of the district court be affirmed, with costs. (45 La. Ann.) STATE . LANGSTON. (No. 384.) (Supreme Court of Louisiana. Oct. 25, 1893.) ASSAULT BY WILLFULLY SHOOTING AT ANOTHER INDICTMENT. Under section 792, Rev. St., which denounces the offense of assaulting another by willfully shooting at him, an indictment is fatally defective which charges that "A. B. did willfully make an assault upon C. D. by shooting at him." The characterization of the assault is essential, and the indictment should follow the statute. (Syllabus by the Court.) Appeal from district court, parish of Morehouse; R. W. Richardson, Judge. Zachariah Langston was convicted of as-. sault by shooting at another, and appeals. Reversed. S. T. Baird and J. H. Shepherd, for appellant. J. P. Madison and J. R. Land, Dist. Attys., for the State. Section 792 of the Revised Statutes de nouncing the crime of "assault by willfully shooting at," the assault and the shooting at being one and the same act, alleging the assault to be willful is equivalent to alleging the shooting at to be willful. PARLANGE, J. The defendant was charged with an assault upon one Richard Berry, by shooting at said Berry. The defendant was tried by a jury, found guilty, and sentenced to imprisonment in the state penitentiary for the term of six months. He has appealed, and he relies for the reversal of the verdict and sentence upon the error which he alleges to have been committed by the trial judge in overruling his motion for a new trial. The reasons for which the new trial was asked are (1) that the defendant is indicted, under section 792 of the Revised Statutes of the State of Louisiana, for assault "by willfully shooting at," and that the indictment charges him with willfully and feloniously making an assault upon one Richard Berry, by shooting at said Berry, and that the omission of the word "willfully," as qualifying the "shooting at," renders the indictment invalid and fatally defective; (2) that the offense charged is a statutory one, and the offense should be set forth in the language of the statute, which is not done in this indictment, and that the offense charged is not denounced as a crime by the statutes of the state of Louisiana. The indictment purports to have been drawn under section 792 of the Revised Statutes, which section makes it penal to "assault another by willfully shooting at" him. The question is whether, under such a statute, an indictment is good which charges that a defendant "did willfully make an assault upon another by shooting at him." The words "willful," "willfully," have a significance. The word "willfully" is not to be treated as surplusage, or as being immaterial, in the statute under consideration. On the contrary, it is essential to the description of one of the offenses denounced in section 792, Rev. St. That statute provides punishment for any one who commits a particularized assault, to wit, an assault by willfully shooting at another. It is perfectly clear that under section 792, Rev. St., a person could not be punished for committing an assault by a "shooting at" which would not be "willfully" done, within the indictment of that statute, and therefore the indictment must charge the "shooting at" to be "willfully" done. The defendant in the Brady Case, 39 La. Ann. 687, 2 South. 556, was prosecuted under section 792, Rev. St., and on a charge identical with the one in this case. In the Brady Case the indictment charged both the assault and the "shooting at" to be willfully committed. This court said: "Now, as the indictment propounds the charge of a felonious, malicious, and willful assault, by willfully shooting at, it is clear that it does contain a charge of an offense known to our laws, since the same is specially denounced in the statute under d'scussion; and as the language used in the indictment is already redundant by the qualifications of the assault which were not necessary under the terms of the statute," etc. This language shows that the views herein expressed are in conformity with the opinion in the Brady Case. The indictment in this case is fatally defective. It is therefore ordered that the verdict of the jury, and the judgment of the court appealed from, be annulled, avoided, and reversed, and that the defendant be detained in custody, subject to the orders of the fifth judicial district court for the parish of Morehouse, to await further prosecution or proceedings according to law. (45 La. Ann.) GEORGE et al. v. YOUNG, Tax Collector. (No. 374.) (Supreme Court of Louisiana. Oct. 18, 1893.) CONSTITUTIONAL LAW-"CADDO LEVEE" DISTRICT -ASSESSMENTS FOR BENEFITS. The produce taxes authorized by Act No. 74 of 1892 are local assessments, and enfranchised from the limitations of the constitution. The legislative judgment embodied in the act creating the Caddo levee district within defined lines includes the persons and property which are benefited by the improvement proposed. It should not be reversed by judicial interposition unless error is evident, and no possible benefit can inure to the owners of lands. The exact proportion of benefits cannot be established in levying "local assessments" for public improvements. The levee tax is due, although the benefit from the line of levees is not immediate and direct. It is not manifest that the plaintiffs are not benefited, and that they cannot at any time he brought within the immediate benefits intended in establishing the Caddo levee district. (Syllabus by the Court.) Appeal from district court, parish of Caddo; S. L. Taylor, Judge. Action by Mrs. P. P. George and others against John S. Young, tax collector, to restrain the collection of certain taxes. Plaintiffs had decree, and defendant appeals. Reversed. Wise & Herndon, for appellant. Bell & Randolph, for appellees. The specific acreage and produce taxes authorized by Act No. 74 of 1892 are not taxes, in the strict legal sense, but "local assessments" or "forced contributions," requiring no constitutional warrant, but rest for their validity on an inherent function of government; are enfranchised from the restraints of the constitution, but are subjected to the limitation of commensurate benefit to the particularized property on which said assessment or contribution is imposed. 43 La. Ann. 15, 8 South. 906; 43 La. Ann. 337, 9 South. 49. The ad valorem or 10-mill tax provided for in said Act No. 74, while it may be a tax, eo nomine, imposed by virtue of article 214 of the constitution, is not enfranchised from the constitution's restraints, and a fortiori is not relieved from the primordial restriction underlying all exactions by virtue of the taxing power: "Taxation and protection are . reciprocal." As a corollary to the foregoing, any dis1rict tax, assessment, or forced contribution imposed by a board of levee commissioners, for the purpose of building levees to protect the property of said district from overflow, on lands that, by the location and construction of the levee, are thrown "outside the breastworks," and between the levee and a navigable stream, is illegal, and ultra the power of the levee commissioners, for the reason that said lands cannot possibly receive any benefit, but positive injury, from the levee constructed or proposed. When a board of levee commissioners so locate and construct a levee on a navigable stream as to leave lands in front of the levee so constructed, and between it and said navigable stream, it excludes said lands from its taxing district, inasmuch as the levees thus established according to law become the banks of said navigable stream, and the land thus thrown out becomes a part of said .banks, or the bed, of the river, the use of which is in the public, and not intended to be protected from overflow. Rev. Civil Code, art. 457; Henderson v. Mayer, 3 La. 567. BREAUX, J. The plaintiffs and appellees are owners of land situate within the limits of the Caddo levee district. That district embraces all that portion of the land subject to overflow in the parish of Caddo, within stated boundaries. The provisions of the act creating the district are similar to the other legislative acts creating levee districts for the protection of lands and property from destruction or damage by flood. Lands and other property in the district are subjected to taxation, local assessments, and forced contribution to raise funds for the purpose of the act. They (plaintiffs) claim exemption from the levee taxes sought to be collected under the terms of the act, and assign for reason that their lands are left out, and are not protected by levees; that they receive no possible benefit, but positive injury; and that any tax, contribution, or assessment imposed and levied is illegal, and not within the powers of the levee commissioners. They interpose objection to the assessment imposed under section 6 of the act, and to the special assessment under section 7. The evidence shows that the levees at this time afford no protection to plaintiffs' land: that they are between the levee and the natural banks of the river; that they derive no benefit from the location and construction of the levees, but, on the contrary, are damaged; that they are more exposed to overflow than prior to the construction of the levee built by the state, being part of the system of state levees in the parish of Caddo, as located by state engineers. Adjudications upon the subject of local taxation for local improvements have been frequent. As early as the case of Yeatman v. Crandall, 11 La. Ann. 220,-not the first adjudication upon the subject,-it was decided that the legislature might lawfully erect any portion of the state it might see fit into a district for special local improvement, and assess the cost exclusively upon the district. One of the justices in that case yielded his opinion, expressed in several dissents, and concurred with the court in holding that the article in question, and similar articles under the constitution preceding, were not intended to apply to municipal or local taxation for improvements. In the present decade, also, a number of adjudications have been made. In the last decided case, (Minor v. Daspit, [La.] 9 South. 49,) there was an additional ground, which is stated as follows: "That the particular land of the plaintiff is not subject to overflow, and is not protected by the levees built, or proposed to be built; that it requires no such protection, and can derive no possible benefit or advantage from the levees; and that, therefore, the assessments are a taking of private property for * * public purposes without compensation." Passing upon the question, the court says that "it is only where the assessment is so manifestly unjust and oppressive * that a court would be justified in overruling the legislative judgment." The legislature, necessarily has a large discretion on this subject. In carrying out this scheme of leveeing, it has defined the limits by following certain tines of lands subject to overflow. It was not possible, in defining these limits, to consult personal interests, or to except those lands not susceptible of receiving immediate benefit. These acts creating levee districts embrace entire areas. If exceptions were made, it would probably defeat the pur pose in adopting the law. Approximate or even remote equality would be an impossibility. Certain lands must, in the nature of things, receive much greater benefit than others. The exemption of certain lands from the operations of the law would defeat the legislative intent. Judicial interposition becomes delicate, and exceedingly difficult. To interpose, it must be made manifest that the property is permanently and intentionally excluded from all possible benefits. We quote from Cooley, Const. Lim. p. 502: "In many cases besides the construction, improvement, and repair of streets, may special taxing districts be created, with a view to local improvements. The cases of drains to relieve swamps, marshes, and other low lands of their stagnant water, and of levees to prevent lands being overflowed by rivers, will at once suggest themselves. In providing for such cases, however, the legislature exercises another power besides the power of taxation. On the theory that the drainage is for the sole purpose of benefiting the lands of individuals, it might be difficult to defend such legislation. But if the stagnant water causes or threatens disease, it may be a nuisance, which, under its power of police, the state would have authority to abate." The lands are included within the limits of the district. The benefits of the levee system, it is not the legislative intent to limit to particular lines. If the lands adjacent are overflowed and uninhabitable, those of plaintiffs must necessarily be valueless. These considerations governed heretofore in a well-considered case by a full bench. The organ of the court in the case was the organ of the court in the first case decided under the present constitution, (Charnock v. Levee Co., 38 La. Ann. 323,) and in the case of Manufacturing Co. v. Green, 39 La. Ann. 455, 1 South. 873. After a number of intervening years, these decisions were unanimously affirmed. In the last in point of date, the Minor Case, the question of the extent of the interest was involved. The doctrine laid down in that case applies to the case at bar. Public necessity demanded the adoption of a measure as a protection from overflow. The taxes imposed and collected under the measure adopted are not expended for the good of the few. It contributes to a system in which the whole state is interested. Without levee districts and levee protection, a large area of land would be uninhabitable. The value of all lands within these districts would amount to little, if anything, whether within the limits of immediate protection or beyond. In the general system of levees, every landowner has an appreciable interest. Plaintiffs in injunction also urge, in their defense against the tax, that the board of levee commissioners having located and constructed a levee on a navigable stream as to leave lands in front of the levee so constructed, and between it and the navigable stream, it excludes these lands from the taxing district. They become the banks of which the lands thrown out become a part, the use of which is in the public, and not intended to be protected from overflow. They refer to article 457, Rev. Civil Code. These lands are subject to a public servitude, which is well defined. The ownership remains to the owner of the land, and extends to the borders of the water. They exercise all the rights of owners over the "littoral," except those specially reserved in the public interest. That they are in the public does not change the title, and render them less subject to taxation. It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed. It is further adjudged and decreed that plaintiffs' demand be rejected and dismissed; that their writ of injunction be dissolved and annulled; that plaintiffs pay the costs of both courts. (45 La. Ann.) MERCHANTS' & FARMERS' BANK v. HER- 1. Mortgages can be executed to secure an amount to become due, and show sufficient consideration from the time that the promised amount is actually advanced. 2. The authority of an officer to bind a corporation in the management of its ordinary business, with the knowledge of the members and directors, held not to be shown by a resolution or other written evidence, but may be fairly implied. There being no proof nor allegation of fraud or unfair dealing, the plaintiff, a third person, cannot require an imputation of payment between creditors and a debtor to be changed, some time after it has been made, in compliance with a pre-existing agreement. (Syllabus by the Court.) Appeal from district court, parish of Caddo; Hall, Judge. Action by the Merchants' & Farmers' Bank against the Hervey Plow Company, Limited. Plaintiff had judgment, and to the property seized on execution the First National Bank filed a claim in third opposition There was |