scen the hostlers at work, frequently, in the yard, prior and up to the time he was hurt, handling and moving switch as well as road engines. That he had seen Wright handling switch engines all along up to that time. That he did it in the yard every time it was needed, every day, up to the time plaintiff was hurt. S. L. Stinson, for defendant, testified that he was an engineer for the defendant at the time plaintiff was hurt, and had charge of the engine that hurt him. That he was right there, and had charge of it, at the time; was on the ground; had the gland valve off, and was packing it. That he did not put on steam, and did not know there was a man on the engine. That no one except himself had the right to get on the engine, or to open the throttle. That it was a switch engine, and he did not direct any one to move it. That he had been off the engine but two or three minutes when plaintiff was injured. That an engine cannot be packed, with steam turned on. On the cross-examination he testified that Ed Wright was a hostler, and that hostlers handle road engines in the roundhouse and yard; that, when an engine comes in off of the road, they run it in on one of the pits, where it is cleaned out, and the hostler takes it and puts it away; that witness was the engineer of the switch engine, and had taken it in there to get the fire box cleaned out, and to get coal, water, and sand; that Ed Wright had no business on this switch engine, in the yard for supplies, or to move it; that this engine had a fireman, who was standing right there. T. H. Hill, for defendant, testified that hostlers take charge of engines coming in off of the road, and are not allowed to move any other engines; that witness was assistant foreman of the roundhouse at the time plaintiff was hurt; that plaintiff was working for witness from January to October. But witness stated that he could not say whether hostlers ever moved any other engines than road engines or not. Ed Wright testified in behalf of defendant that he was on the engine at the time plaintiff was injured, and turned the throttle of the engine to let the steam on to move the engine. That he was hostler. Stinson, the engineer, had charge of the engine. That witness had verbal orders at and prior to that time, from the roundhouse foreman, that hostlers should not handle switch engines; that is, should not move them. That the engineer was the only person who had the right to move the engine. That it was against the verbal orders he had received, to open the throttle at that time. He stated on the cross-examination that the roundhouse foreman gave him the orders, and he could not remember whether they were in writing or on the bulletin board, and witness had been working in the roundhouse a month. He also stated (using his language, largely) that it had not been the custom, to any extent, for hostlers to move

switch engines in the yard, up to and prior to the time of plaintiff's injury, but he could not say how much; that he might have seen it a time or two, but it was not often; that he was not furnished with any printed rules; that he could not say he had seen hostlers move switch engines every day. It was not a common practice. O. B. Gifford, a witness for defendant, testified that he had been the master mechanic of defendant for three years; that hostlers, at the time plaintiff was hurt, had verbal orders not to handle switch engines; that he could not say positively that he had ever given Ed Wright verbal instructions not to do so; that witness did not have superintendence over the roundhouse, but of everything in the mechanical department, including switch and road engines, and it was the business of the foreman of the roundhouse to inform new men of verbal rules, and he had given instructions to said Wright in July, 1890, that hostlers should not handle or move switch engines; that Ed Wright had been hostlering for the roundhouse only a short time. Upon the introduction of all the evidence the defendant requested the court to give, among others, the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "I charge you, gentlemen of the jury, that it is not necessary for you to believe that the hostler was a trespasser or intruder upon the engine, for you to come to the conclusion that he did not have charge or control of the engine." (2) "I charge you, gentlemen of the jury, that the hostler might have had, under the evidence, the right to get upon the engine, and at the same time would not necessarily have had charge and control of the engine, when upon the same." (4) "If you believe from the evidence that the engineer, Stinson, had the charge and control of the engine at the time the packing was blown out and plaintiff's eye was injured, then you must find for the defendant." (5) "I charge you, gentlemen of the jury, if you believe the evidence, you must find that defendant issued orders in July, 1890, that the hostlers must not move or handle switch engines." (6) "I charge you, gentlemen of the jury, that, as a matter of law, the hos tler and engineer could not have had charge or control of the engine at the same time." (7) "If you believe the evidence, you must find that at the time the plaintiff was injured there was in force a rule of the defendant forbidding a hostler to handle or move a switch engine." (10) "If the jury be lieve the evidence in this case, they cannot find that it was a custom for hostlers on defendant's road to move switch engines at the time plaintiff was injured."

Hewitt, Walker & Porter, for appellant.. R. H. Kerr and J. Q. Cohen, for appellee.

HARALSON, J. There was evidence tending to show that hostlers had been in the

habit, before plaintiff was injured, of indulging the practice of moving switch engines about the engine yard of defendant, from which the jury might reasonably have found that the practice had come to the knowledge of the company, and was pursued by its acquiescence, notwithstanding the fact, the jury might have believed from the evidence that the company had promulgated verbal rules against such a practice. The question propounded to the witness Ed Wright on his cross examination by plaintiff, "Was it the custom and habit of hostlers to move switch engines in the yard, up to and prior to the time of plaintiff's injury?" as far as the objection made to it, that such custom of violating the rule would not tend to make the defendant liable, was properly allowed. And so, the other question propounded to plaintiff as a witness was proper, viz.: "Had you seen Ed Wright handling and moving switch engines around there, in the yard, before you were hurt, and up to that time?" The object of these inquiries, evidently, was to make it appear that hostlers, in the time inquired about, had been in the habit of indulging a practice of moving switch engines about the engine yard, from which the jury might reasonably believe that the practice had, from long indulgence, come to the knowledge of the company, and was pursued by its acquiescence, notwithstanding they might further believe from the evidence that the company had promulgated verbal rules against such a practice. Whittaker v. Canal Co., 126 N. Y. 544, 27 N. E. 1042. In this case it is well said that "a railroad company does not discharge its whole duty to the public by merely framing and publishing proper rules for the conduct of its business and the guidance and control of its servants, but it is also required to exercise such a supervision over its servants and the prosecution of its business as to have reason to believe that it is being conducted in pursuance of such rules." Railway Co. v. McDaniels, 107 U. S. 454, 2 Sup. Ct. 932.

The question as to what person, on the occasion of the injury to the plaintiff, had charge or control of the engine, is one of fact, properly left to the jury, with instructions, under the evidence in the cause. Generally, we would say, especially when he is on and running the engine, or has the actual custody, that the engineer has control of it. It may be, however, when he is not in the active manipulation of it, that other persons control it. It will not do so to say, therefore, as a matter of law, who has the control or charge of an engine at any particular time, when it is fairly inferable from the evidence that either one or the other of two persons may have such control. In each particular case, time, place, and circumstance must determine the question of immediate control. Railroad Co. v. Mothershed, (Ala.) 12 South. 718. In this case the evidence tends to show that the engine was a

switch engine; that it was over an ash pit to be cleaned; that the engineer was on the ground, on one side, having a gland valve packed; that Ed Wright was a hostler, whose duty it was to move engines about the yard; that he had orders not to move switch engines; that notwithstanding these verbal orders he did move them frequently; that he got on the engine and opened the throttle, for the purpose, as he swears, of moving the engine, and caused the damage to the plaintiff. Under these circumstances, the trial court instructed the jury: "If Ed Wright was a mere intruder, and had no authority on the engine, and had no right there, and did not have charge and control of it, then any negligence he might have committed would not be imputed to the defendant, any more than if any other intruder had gone there and committed it." This instruction placed the matter before the jury in a legal and proper manner. They might have believed, under the evidence, owing to the view they took and their belief of it,-that Wright had, or that he did not have, instructions about moving switch engines in the yard prior to the time of this injury; they might have believed that he had control of the engine at the time he moved it, or that he was a mere intruder, having no business on the engine; and these were questions falling properly within their adjustment. Applying these principles to the charges requested, it appears that charges Nos. 1 and 2 requested by defendant cannot be sustained. They are liable to confuse and mislead. Wright was either, under the evidence, an intruder, or he was rightfully there, and had charge or control of the engine; and the charges serve to impress the jury that he had the right to get on the engine, without having authority to do anything after he got there, whereas, if he had no authority to move the engine, the evidence is wanting to show that he had any business on it. The third charge is not insisted on. The eighth and ninth are general charges, improper to be given where there is conflict in the evidence. Nos. 5 and 7 were properly refused. If such orders were issued, and such a rule was in existence, still there was evidence tending to show that the company did not require obedience of them, and sanctioned their violation, which evidence the charges ignore. No. 10 was properly refused, since there was evidence tending to show such a custom. Nos. 4 and 6 assert correct propositions of law,-the sixth, that the hostler and engineer could not have had charge or control of the engine at the same time; and the fourth, that, if the engineer had charge and control of the engine at the time the injury was inflicted on plaintiff, then the jury must find for the defendant. The evidence shows that the act of the hostler alone caused the injury, and there is no evidence that any joint control or authority over the engine had, by any competent au

thority, been conferred on the hostler and engineer; and the proposition seems to be a plain one that if such joint authority had not been thus vested in them, and the engineer, and not the hostler, at the time of the accident, was in control, then the hostler had no right to interfere to move the engine, and his conduct was that of a trespasser or intruder. For the error in refusing these charges, 4 and 6, the judgment must be reversed. Reversed and remanded.

(45 La. Ann.)

MURPHY v. MURPHY et al.

(Supreme Court of Louisiana.

(No. 11,337.)

Dec. 4, 1893.) CARRYING FINAL JUDGMENT INTO EFFECT - APPEAL FROM INTERLOCUTORY DECREE-JURISDICTION OF SUPREME COURT.

1. No appeal lies from an interlocutory order carrying into effect a final judgment. Said judgment can only be arrested on appeal or by injunction.

2. We have no control over a final judgment, and will not entertain an appeal from an interlocutory decree, ordering its execution, and review the judgment.

3. The supreme court has no appellate jurisdiction over a final judgment fixing the right of parties in property, and ordering a partition. It can only notice the mode of partition when brought to its attention in proper proceedings. (Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; Frederick D. King, Judge.

Action by Robert Murphy against William E. Murphy and another for partition of land, and for rents and profits. From an interlocutory decree carrying a final judgment into effect, plaintiff appeals. Appeal dismissed.

W. S. Benedict and Robert G. Dugue, for appellant. Jerome Meunier and Armand Pilie, for appellees.

On Motion to Dismiss.

MCENERY, J. This case was on appeal to this court, and the judgment of the lower court affirmed. 45 La. Ann. 12 South. 496. The parties in the judgment were referred to a notary to effect a partition between them of the proceeds of the property ordered to be sold. The rights and interests of the parties were fixed by the judgment. While proceeding to effect the partition, the parties disagreed as to their interpretation of the judgment which had been rendered by the civil district court, and affirmed on appeal. In the proces verbal of the notary, it is stated: "And thereupon the said Robert Murphy did call upon the said William E. Murphy to furnish a statement of the rents and revenues of said property on Marais street, and of the disbursements attending the administration thereof since 1st January, 1880, and the said William E. Murphy declared that he is unable at present to furnish the said statement, and the said William E. Murphy did thereupon present a statement of costs and charges in said suit of

Murphy v. Murphy, which includes the charges of three hundred and forty dollars, the cost of appeal in said suit, to which item the said Robert Murphy objects, as he declares. And the said William E. Murphy further declared that, under his interpretation of the judgment aforesaid, all the costs of said suit are to be paid by the mass, and that, before a partition is made, the said costs are to be reimbursed to the parties respectively; that the proceeds of sale of said property on Marais street are to be partitioned between Robert Murphy and Miss Citye Ann Murphy, to whom the said property had been donated; that the said donation is annulled by said judgment in only so far as the rights of said Robert Murphy are concerned; and that the said William Murphy has personally no interest whatever in the proceeds of sale. And the said Robert Murphy denying that the said Miss C. A. Murphy has any interest whatever in the present partition, as he declares, and the parties hereto being unable to agree on account of the contestations arising concerning the pretensions set up by them respectively, I, the said notary, have suspended these proceedings, and do hereby refer the said parties herein to the court having jurisdiction." Plaintiff suggested to the court the proces verbal of the notary appointed to effect the partition under the judgment, and referred to that part of it above quoted. The court ordered that William E. Murphy show cause why the contention of plaintiff in said proceedings should not be complied with. The rule was tried, and the court ordered a statement and account of rents and revenues and disbursements attending the administration of the property from 1st January, 1880, within 15 days from 7th August, 1893, and ordered that the costs of appeal from the judgment ordering the partition, and fixing the rights of the parties in the property and its pro ceeds, should be paid out of the mass, and that, as Miss C. A. Murphy was a party defendant in the partition suit, the donation to her by defendant W. E. Murphy was annulled only so far as it purported to affect the right of Robert Murphy, as owner of one-half of the property. As to the other one-half interest in the property, it is no concern of Robert Murphy or of the court in what manner William E. Murphy, donor, and Miss Murphy, donee, may act. The plaintiff appealed from this order.

From the above statement of the proceedings in the act of partition, it appears that the court was carrying into execution a final judgment rendered by it. In the course of its execution, it placed an interpretation upon it which we cannot, under the present stage of the proceedings, notice. No appeal can be taken from the original judgment, as it has once been on appeal, and has been affirmed. No appeal can therefore be taken from an interlocutory order carrying into effect this original judgment. State ex rel.

Elder v. Judge, 30 La. Ann. 229; Whan v. Irwin, 27 I. Ann. 708; Boutte v. Boutte's Ex'rs, 30 La. Ann. 177; State ex rel. Remington Paper Co. v. Ellis, 45 La. Ann. —, 14 South. 308, (just decided.) The respective rights of the parties had been determined by a final judgment, and they cannot come here by a second appeal, to have the same judg ment reviewed. It must be executed according to its terms. If ambiguous, it ought to have been remedied by the appeal. In the instant case there is no room for a doubtful interpretation of the judgment, and the proceeding instituted by plaintiff in his opposition to its execution in the partition proceedings is, in effect, an attack on the judgment of partition, which is not allowed in the proceeding before the notary, who is the ministerial officer of the court. Traverso v. Row, 11 La. 498. We have no power over the final judgment, and we can only take notice of the mode of the partition under it, when brought to our attention in a proper proceed ing. Id. The appeal is dismissed.

(45 La. Ann.)

STATE v. JACQUES.

(Supreme Court of Louisiana.

(No. 11,342.)

Dec. 4, 1893.) CRIMINAL LAW-PLEADING DUPLICITY-CUTTING AND STABBING-OFFENSE UNDER ACT No. 44 or 1890 CONTAINED UNDER ACT No. 43 OF 1890INFLICTING WOUND LESS THAN MAYHEM.

1. One of the general rules of criminal pleading is that a count shall contain but one substantive charge. An exception to the rule is where one offense includes another, and the former could not be charged without also charging the latter. In such a case the defendant may be convicted of either offense, provided, always, that the allegations are sufficient.

2. If a pleader, in drawing up a charge under a statute, so enlarges upon it as to unnecessarily bring within the allegations in one count an adequate technical charge for another offense under another statute, the count is bad for duplicity.

3. The offense of cutting and stabbing under Act No. 44 of 1890 is contained in the similar offense under Act No. 43 of 1890.

4. The offense of inflicting a wound less than mayhem under section 794, Rev. St., amended by Act No. 17 of 1888, is not contained in the offenses under Act No. 43 of 1890.

5. The permissible joinder of cognate offenses in different counts of the same indictment affords all the scope needful to present a charge under its different aspects.

(Syllabus by the Court.)

Appeal from district court, parish of St. Landry; W. C. Perrault, Judge.

Alcide Jacques was convicted, under Act No. 44 of 1800, of cutting and stabbing with a dangerous weapon, with intent to kill, and appeals. Affirmed.

E. P. Veazie, for appellant. E. B. Du Buisson, Dist. Atty., and M. J. Cunningham, Atty. Gen., for the State.

PARLANGE, J. The defendant was prosecuted under an information charging him

with cutting and stabbing with a dangerous weapon, under section 791 of the Revised Statutes, as amended by Act No. 43 of 1890. The jury found him guilty under Act No. 44 of 1890, which provides punishment for "whoever shall shoot, stab, cut, strike or thrust any person with a dangerous weapon with intent to kill." The district judge charged the jury that five verdicts might be found, to wit: (1) Guilty as charged; (2) guilty under Act No. 44 of 1890; (3) guilty of assault and battery; (4) guilty of assault; (5) not guilty. The defendant did not then ask for additional charges. The jury, after deliberating, returned into court with the following verdict: "We, the jury, find the defendant guilty with intent to commit manslaughter." The district judge then informed the jury "that the verdict thus rendered was ambiguous, and not stated with legal certainty;" and after further charging the jury as to the legal meaning and intent of section 791 of the Revised Statutes, and of Act No. 44 of 1890, he remanded them back to the jury room for further deliberation and finding. At this stage of the proceedings the defendant's counsel requested the court to further charge the jury that, if the evidence warranted, they could find a verdict under the following statutes, to wit: (1) Section 794, Rev. St., for inflicting a wound less than mayhem, with a dangerous weapon, or with intent to kill; (2) section 796, Rev. St., for assault and battery; (3) section 797, Rev. St., for assault. The district judge refused the additional charges. The jury retired a second time, deliberated anew, and returned a verdict of guilty under Act No. 44 of 1890. The defendant's counsel reserved a bill of exception to the refusal of the district judge to charge as he was asked, and, the defendant having been sentenced to imprisonment in the state penitentiary for the term of eight months, he has appealed. The defendant did not move for a new trial, nor did he move in arrest of judgment. No brief on his behalf has been filed in this court, and no assignment of errors has been made.

We are not concerned with the refusal of the district judge to charge a second time that verdicts of assault and battery and of simple assault were receivable under the information. Whether the defendant was entitled to such a charge or not, he had the benefit of it, and will not be heard to complain that the district judge refused to reiterate the charge. The point in the case is whether the defendant was entitled to a charge that a verdict could be lawfully returned under section 794, Rev. St. One of the general rules of criminal pleading is that a count of an indictment or information must contain but one substantive charge, and a count charging two or more distinct offenses is bad for duplicity. There are exceptions to the rule, one of which is that when an offense necessarily includes another, and when the major offense cannot be

charged without also setting out the minor, a count in such a case charging both offenses is not bad. The rationale of this exception is obvious. If the exception did not exist, it would be impossible to frame a valid indictment for an offense whenever the allegations required to charge it also described another offense. But when, without necessity, the pleader so enlarges upon a criminal statute as to bring within his charge under that statute another offense, denounced by another statute, the count is bad. When the charge for the major offense necessarily inIcludes a charge for the minor, a verdict as to either is responsive, provided, always, that all the necessary allegations to charge the minor offense are pleaded in the indictment or information.

Applying these principles to the instant case, it is evident that a verdict of "cutting and stabbing with intent to kill," under Act No. 44 of 1890, is clearly responsive to a charge of "cutting and stabbing with intent to kill and murder," under Act No. 43 of 1890, amending section 791, Rev. St. The offense denounced by the former act necessarily contains the offense denounced by the latter, and the information in the instant case necessarily contains all the required allegations for a charge under either act. But a charge of "cutting and stabbing with a dangerous weapon, with intent to kill and murder," does not contain the averments requisite for a charge of "inflicting a wound less than mayhem, with a dangerous weapon," under section 794, Rev. St., as amended. This court has held that it is essential, in an indictment under section 794, Rev. St., to allege the infliction of a wound less than mayhem, or words of equal import. Jackson's Case, 43 La. Ann. 183, 8 South. 440. And see Pratt's Case, 10 La. Ann. 191; Johns' Case, 32 La. Ann. 812; Parker's Case, 42 La. Ann. 973, 8 South. 473; Day's Case, 37 La. Ann. 785. A criminal pleader, who, in drawing up a charge under section 791, Rev. St., would so enlarge upon it as to necessarily bring within the allegations of the indictment an adequate technical charge under section 794, would produce a count which would be bad for duplicity. The joining of two or more charges in one count is not to be allowed, unless it be done under one of the well-recognized exceptions to the general rule stated. Duplicity is calculated to complicate criminal procedure, without benefit or reason, and to confuse juries. It may hamper the prosecution, or prove unfair to the defense. The permissible joinder of cognate offenses in different counts of the same indictment, under well-established rules, affords to the criminal pleader all the scope which is needful to present a charge under different aspects, so as to provide for variances between proofs and allegations, for the views of the court as to the particular accusation which will be borne out by a criminal transaction, and for the misapprehension of the guilty act by the ju

rors, if it be presented to them only under one of its forms.

The district judge states that, when the jury returned into court the first time, it was evident to him that their intention was to find a verdict under Act No. 44 of 1890, and that he therefore charged them anew as to Acts Nos. 43 and 44 of 1890. We concur with the district judge in his opinion as to the intention of the jury. But, whatever their intention may have been, the district judge did not err in refusing the irresponsive and ambiguous verdict, nor in rechar ging them as he did, nor in refusing to charge them that they might return a verdict under section 794, Rev. St. Such a verdict would not have been responsive. We find no error. Therefore, it is ordered that the judgment appealed from be affirmed.

(45 La. Ann.)

ROBIRA v. NEW ORLEANS & C. R. Co. (No. 11,291.)

(Supreme Court of Louisiana. Dec. 4, 1893.) STREET RAILWAY -VALIDITY OF CITY ORDINANCE -REGULATION OF RATES - UNREASONABLE D18CRIMINATION.

An ordinance of the city of New Orleans, stipulating, in the grant or franchise of a street-railway company to be operated on St. Charles avenue between Canal street and Carrollton, as the termini of its track, that it may charge the persons residing below Napoleon avenue a double fare from Canal street to Carrollton, while permitting persons who reside above Napoleon avenue to travel the whole distance for a single fare, is not subject to attack as an unreasonable discrimination, prohibited by the law governing the obligations of common carriers.

(Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; Frederick D. King, Judge.

Action by L. Robira against the New Orleans & Carrollton Railroad Company for being wrongfully ejected from one of de fendant's cars. Judgment for defendant, and plaintiff appeals. Affirmed.

Thomas F. Maher and Louis P. Paquet, for appellant. John M. Bonner, for appellee.

WATKINS, J. This is an action for the recovery of damages alleged to have been sustained by the plaintiff by being illegally and wrongfully ejected from one of the cars of the defendant at the intersection of St. Charles and Napoleon avenues on the 24th of July, 1892. When the defendant secured its franchise from the city government to run its cars through certain streets, an ordinance was passed which fixed and prescribed the rate of fare to be charged to all persons residing below Napoleon avenue at 5 cents from Canal street to Napoleon avenue, and 5 cents additional from Napoleon avenue to Carrollton, while the rate of fare for all persons residing above Napoleon avenue was only 5 cents from Canal street to Carrollton, the latter being privileged to pur