sworn to were shown by his return, which, in another specification, are alleged to be false and fraudulent. State v. Kellam, 4 La. 495. Specifications 1, 2, and 3 and 9 are of official acts, alleged to be misfeasances, committed before the defendant sheriff was inducted into office after his election to a second term, on 19th April, 1892. These fall under the second and fourth grounds of defendant's exceptions. The defendant sheriff has been uninterruptedly in office since the commission of the acts complained of. There was, by his re-election, no interruption in his official tenure. At no time was there an interregnum. He was, by the constitution, to continue in office until his successor was elected and qualified. He was his own successor, the identical officer in both terms against whom charges are preferred. The intention of article 201 of the constitution' is to remove from office an incumbent who has been guilty of any of the offenses mentioned in article 196 of the constitution while he is in office. It is immaterial, therefore, whether they were committed during his present or immediate preceeding term of office. His inability to hold the office results from the commission of said offenses, and at once renders him unfit to continue in office. The fact that he had been re-elected does not condone and purge the offense. The sheriff was elected in pursuance of the provisions of the constitution declaring what acts committed by him should be sufficient for his removal. This constitution was made by the people in their sovereign capacity, and by electing an officer they cannot modify its provisions. In the election of defendant no question was submitted by which articles 196 and 201 were changed. Neither of these articles specify in what time a suit to remove an officer shall be instituted, whether in one term or another. Nor do they specify any limitation as to the offense. We must therefore conclude that the articles were intended to remove an unworthy officer while in office, irrespective of the fact whether the act complained of was committed during his first or a subsequent term.

But we are not without authorities and precedents on this point. The learned counsel of defendant urge, however, that a suit under article 201 of the constitution cannot be assimilated to proceedings by impeachments. The effect of the conviction may be different, but the laws applicable to the com

'Article 201 provides: "For any of the causes enumerated in article 196, district attorneys, clerks of court, sheriffs, coroners, recorders, justices of the peace, and all other parish, municipal and ward officers shall be removed by judgment of the district court of the domicil of such officers," etc. Article 196 provides for the impeachment of state officers "for high crimes and misdemeanors, for nonfeasance or malfeasance in office, for incompetency, for corruption, favoritism, extortion or oppression in office, or for gross misconduct or habitual drunkenness."

The

mission of the offense are the same. great weight of authority is that an officer may be impeached while in office for acts committed in a prior term. Trial of Judge Barnard, Court of Impeachment, New York; Trial of Judge John McGunn, Court of Impeachment, New York; Trial of Judge Prindle, Court of Impeachment, New York. And in a late case of State v. Hill, (Neb.) 55 N. W. 794, it is stated in the opinion of the court that the ruling in the case of Judge Barnard during his second term for acts committed in his first term of office has been followed in the case of Judge Hubble of Wisconsin, and on the trial of Gov. Butler of Nebraska. In this case the supreme court of Nebraska says, in its opinion: "There was good reason for overruling the plea to the jurisdiction in the three cases just mentioned. Each respondent was a civil officer at the time he was impeached, and had been such uninterruptedly since the alleged misdemeanors in office were committed. The fact that the offense occurred in the previous term is immaterial. The object of the impeachment is to remove a corrupt or unworthy officer. If his term has expired, and he is no longer in office, that object is attained, and the reason for his impeachment no longer exists; but if the offender is still an officer he is amenable to impeachment, although the acts charged were committed in his previous term of the same office." We concur in these reasons. This court intimated in State v. Cheevers, 32 La. Ann. 946, that it entertained the same views as expressed above. It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended so as to reverse the decree sustaining exceptions as to specifications 1, 2, 3, 9, and in other respects it be affirmed, appellees to pay costs of appeal, and case remanded to be proceeded with in due course of law.

sentenced to imprisonment for life in the state penitentiary, and he has appealed. The facts of this case, as shown by the bills of exception, are as follows: The defendant and John Williams had an altercation, during which the defendant said that, if Williams did not pay him 25 cents, he would knock Williams' head off. They then played at dice until the defendant had lost his stake. Defendant then went to a house 100 yards distant to procure a Winchester rifle. He stated to a woman who was in the house that he wanted the rifle to kill a hawk. The defendant returned with the rifle to the place where Williams was,-some 30 or 40 minutes having elapsed since the defendant had left Williams,-and when the defendant came within 20 feet of Williams he shot the latter in the back, killing him without warning, and while the latter was on his knees, playing at dice. The judge a quo certified that there was no hostile demonstration by Williams against the defendant, and that, while Williams did hold an ax during the time of the altercation first mentioned, he made no attempt to strike with it. The finding of the judge a quo on this point is not open to review by us in this case.

The defendant complains that he was not permitted to offer evidence to show that Williams had made threats against his life. He further complains that he was not allowed to show the dangerous character of the deceased, and that the deceased had murdered a man in Alabama, and another in Slidell, La., and was a fugitive from justice. This evidence was offered by the defendant in mitigation of the offense. Under the settled jurisprudence of this state, a defendant in a prosecution for murder will not be allowed to offer proof as to the dangerous character of the person whom he is charged with having murdered, unless a hostile demonstration by the deceased against the defendant is first proven. The same rule applies to threats. Nor, in this case, was the offered testimony admissible for the purpose of mitigating the offense. In State v. Robertson, 30 La. Ann. 340, this court held that, in a trial for murder, evidence as to the dangerous character of the deceased cannot be admitted, even in mitigation, unless the defendant first shows that he was attacked by the deceased, and was aware of the latter's character. The instant case does not contain a single element of self-defense, nor any fact upon which defendant could, in law, claim a mitigation of the offense charged. He has escaped the extreme penalty of the law. No injury has resulted to him, in law, from the exclusion of the proffered testimony, and, without injury shown, this court will not disturb the verdicts of juries in criminal cases.

The defendant further complains that, after he had shown by a witness that defendant's general reputation for peace and good order was good, he was not allowed to

elicit from the witness an answer to the following question: "What was the disposition of the defendant? Was it that of a man who would seek a difficulty, or that of a man who would avoid a difficulty?" The counsel for the state raised the objection that the question was leading, and that by it the opinion of the witness was sought to be elicited. The objection was sustained by the court. Strictly speaking, the question was leading. State v. Johnson, 29 La. Ann. 717. The defendant's counsel might have framed his question in an unobjectionable form. The witness had already testified that the defendant's general reputation was good for peace and good order, and the defendant had the full benefit of that testimony. Under the facts of this case, we do not consider that the defendant was injured by the refusal of the trial judge to allow the question to be answered.

Defendant's last complaint is that while he was on the witness stand, testifying in his own behalf, he was not allowed to answer the question, why he had killed the deceased, propounded to him by his own counsel. The trial judge states that the defendant had just testified at length how and under what circumstances he had killed the deceased, and that "the question was an attempt to admit evidence of previous threats, when no hostile overt act had been shown on the part of the deceased against the defendant at the time of the killing." Defendant's counsel urges in his brief that the trial judge could not know in advance of the answer what the object of the question was. But the counsel does not state what his object was, nor do we understand him as denying that the trial judge was correct in ascribing as the motive for the question a purpose to introduce proof of previous threats, which proof the trial judge had already excluded. If the trial judge was in error regarding the purpose of the question, defendant's counsel should have stated what the true purpose was; and, if that purpose had proven to be lawful, we are to presume that the trial judge would have allowed the question to be propounded and answered. Under the facts and circumstances of this case, we cannot surmise what other purpose defendant's counsel could have had than to elicit statements as to previous threats by Williams, and as to the character of Williams. The conclusion is almost irresistible, when we consider that the defendant's counsel did not disclose his purpose at the trial, and that he is still silent in this court as to that purpose. If the object was to elicit the testimony which the trial judge had already ruled out, the question was evidently improper. If the purpose was to show the motive, although no such claim is made, it seems clear that the defendant intended to testify that he was moved to do the killing by the threats of Williams, and by knowl edge of Williams' character. Such testi

mony was inadmissible, under the ruling of the trial judge and the facts and circumstances of this case, as coming from witnesses other than the defendant. It was equally inadmissible as coming from the defendant himself. In this regard he was on the same footing as any other witness. But it is Lot for this court to conjecture as to the purpose for which the question was asked. It was for the defendant to show the purpose, and that he suffered injury by the exclusion. He has done neither. We find no error entitling the defendant to a reversal of the judgment. Judgment affirmed.

(45 La. Ann.)

STATE v. WILLIAMS.

(No. 11,341.) Nov. 20, 1893.) CRIMINAL LAW-WITHDRAWING PLEA-DISCRETION OF COURT.

(Supreme Court of Louisiana.

The accused pleaded not guilty when he was arraigned. Subsequently, he substituted the plea of guilty of a minor offense to that charged. The plea was accepted by the state, and the case, called at the time for the trial, was, in consequence, not submitted to a jury. More than 10 months had elapsed from the date of his arraignment to that on which he applied to substitute the plea of not guilty to the plea of guilty. The motion to withdraw the plea was not timely made during the session, and granting the motion would have operated a continuance. The court states that the accused was represented by able and experienced counsel during the trial, and that the plea of guilty was not inadvisedly entered. The court, in proper cases, will freely exercise its discretion by allowing the plea of guilty to be withdrawn, and not guilty pleaded in its place, but such a discretion will rarely, if ever, be exercised in aid of an attempt to rely upon a mere dilatory or formal defense.

(Syllabus by the Court.)

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

Nick Williams was indicted for stabbing another with intent to murder. From an order denying a motion for leave to withdraw a plea, defendant appeals. Affirmed.

John N. Ogden, for appellant. M. J. Cunningham, Atty. Gen., and E. B. Du Buisson, Dist. Atty., for the State.

BREAUX, J. An indictment was found against the defendant on November 15, 1892, under section 791 of the Revised Statutes, charging him with stabbing and striking, with intent to kill and murder, one Henry Johnson. On the 16th day of November, 1892, he interposed a motion to quash the indictment, which was overruled. On November 25, 1892, he was arraigned, and pleaded not guilty. The case was assigned to be tried on that day. It was subsequently reassigned on several days. On the 20th day of September, 1893, the plea of guilty of a lesser

offense than that charged was entered. On the 2d day of October a motion to withdraw the plea of guilty was filed.

The case comes up for review on the bill of exception taken to the court's ruling overruling the motion to withdraw the plea of guilty. The court's reasons, as stated in the bill, are that the accused was represented by counsel, able and experienced, with knowledge of the facts and circumstances, who defended him during the trial; that the plea of guilty of an offense less in degree than that charged was made and entered more than 10 months after the arraignment of the defendant, and at a time when the case was called for trial, and nothing to prevent the trial, had the plea of guilty not been presented and accepted by the district attorney. The trial judge further states that the motion was too late, as it would, had it been granted, have necessarily operated a continuance of the case.

The withdrawal of the plea of guilty should not be denied in any case, where it is in the least evident that the ends of justice will be subserved by permitting not guilty to be pleaded in its place. It is proper to grant the withdrawal, if the accused makes it appear that an error has been committed. The least surprise or influence causing him to plead guilty, when he had any defense at all, should be sufficient cause to permit a change of the plea from guilty to not guilty. The records and the statement of the trial judge do not disclose that there was any good ground to grant the application. The plea presented and overruled prior to arraignment, the time that had elapsed since the assignment, the continuance obtained when the plea was entered and accepted, and the late day in the session the motion to withdraw the plea was filed, preclude the possibility of concluding that the accused has been prejudiced by the ruling of the lower court. The discretion in refusing to allow the withdrawal of a plea and substituting another "will rarely, if ever, be exercised in aid of an attempt to rely upon a mere dilatory or formal defense." 1 Bish. Crim. Proc. (3d Ed.) § 124. The offense to which he pleaded guilty was a minor offense to that charged. That fact also supports the statement of the trial judge that all the facts and circumstances show that the plea was offered advisedly. In the case of State v. Delahoussaye, 37 La. Ann. 552, 19 days had elapsed since the arraignment. The jury had been discharged. The relief asked would have caused a continuance. The court sustained the ruling of the trial judge in refusing the withdrawal and not permitting another plea. In the case at bar there are grounds even more conclusive upon which to sustain the judge's action. The discretion was soundly exercised, and his ruling was legal. Judgment affirmed.

ROBERTSON et al. v. BLEWETT. (Supreme Court of Mississippi. Dec. 18, 1893.) CHAMPERTY-SALE OF LANDS NOT IN POSSESSION.

C., owing plaintiffs $2,200, gave them a trust deed on lands, and agreed that they should at once have the lands sold under said deed, and buy them in; that C. should sue for possession for their benefit at his own expense, plaintiffs, on gaining right of possession, to pay C. $7,500, the agreed value of the land. less the $2.200, and C. to warrant title, or, should he fail to recover possession, to provide otherwise for payment of his debt. Held, that those in possession could not defend against plaintiffs claiming under the trust deed, on the ground that the sale was champertous.

Appeal from circuit court, Lowndes county; Newnau Cayce, Judge.

Action by Morgan Robertson & Co. against Thomas G. Blewett, Sr., for possession of lands. Judgment for defendant. Plaintiffs appeal. Reversed.

Orr & Orr, for appellants. L. D. Landrum, for appellee.

WOODS, J. It is not an open question in this state that a sale of lands by one out of possession is free from champerty. Our statute and the decisions of this court have put this at rest. The English doctrine has ceased to exist with us. The entire contract between appellants and Claude Blewett shows this state of facts: Claude Blewett was indebted to appellants in the sum of $2,200, or thereabouts, and to secure this he executed a trust deed on the lands embraced in the present litigation in favor of appellants. Contemporaneously with this, he executed an agreement signed by himself and appellants, by which it was stipulated that the appellants should proceed at once to have the lands sold under the trust deed, and should become the purchasers thereof; and that Claude Blewett should institute and carry on, at his own expense, the necessary proceedings in court to obtain for appellants the possession of the property. It was further agreed that as soon as appellants were entitled to possession of the lands, by judgment or decree of court, or by compromise or agreement, they would pay to Claude Blewett $7,500, the agreed value of the property and purchase price of the same, less the $2,200 due by him to appellants, and secured by the deed of trust already mentioned. Claude Blewett engaged to warrant the title to the lands thus bargained to be sold, and, if legal proceedings should demonstrate that he or his vendees were not entitled to the right of possession of the lands, appellants were not to pay the $7,500 purchase price, and Claude Blewett was to make other provision for the payment of the $2,200 due by him to appellants. There is absolutely nothing in all this which affects the right of appellants to recover in this proceeding on the evidence they offered. It is a plain case of one largely interested v.14so.no.2-3

in the result of a suit taking active control of it. Claude Blewett was to recover more than $5,000 if the litigation resulted in his favor or in favor of appellants, and with full knowledge of his sources and muniment of title he might well have relied upon a recovery. He was, besides, the warrantor of the title agreed to be conveyed to and acquired by appellants. Thus situated, it was eminently proper for him to agree to undertake, and actually to undertake, the payment of all costs and expenses incurred in the assertion of his rights, by appellants, in the courts of the country. The agreement of Claude Blewett and appellants, offered in evidence by defendant, should have been excluded by the court, and a peremptory instruction given for plaintiffs below. Reversed and remanded.

Act March 7, 1882, entitled "An act to prohibit the sale and purchase of 'futures' in the state of Mississippi," (Acts 1882, p. 140,) § 1, made it unlawful to deal in contracts commonly called "futures" "in this state," and prescribed a punishment for dealers therein. Sec tion 2 provided "that no money advanced for the purchase of futures, nor any agreement for the payment of any sum for such purchases, shall be enforced in any court in this state." Held, that contracts between purchasers of “futures" and their brokers, made without the state while such statute was in force, cannot be enforced in Mississippi, though valid where made.

Appeal from chancery court, Issaquena county; W. R. Trigg, Chancellor. "To be officially reported."

Bill by Lemonius & Co. against D. Mayer & Son and others, to subject certain real estate and personal property alleged to have been fraudulently disposed of by defendants, Mayer & Son, to the payment of certain demands held by plaintiffs against such firm. From a judgment in favor of defendants as to that part of plaintiffs' claim relating to deals in "futures," plaintiffs appeal. Affirmed.

Campbell & Starling, for appellants. Miller, Smith & Hirsh, for appellees.

COOPER, J. In the summer of 1891, Oscar E. Mayer, of the firm of D. Mayer & Son, was in Liverpool, England, at which place the appellants were in business as cotton commission merchants, and as such had before that time and since have transacted business with said firm of D. Mayer & Son. At some time prior to the 3d day of September, Oscar E. Mayer, acting for his firm, directed appellants to purchase for account of his firm a large quantity of cotton for future delivery, which contracts of purchase were to be made on the flags at Liverpool,

and under and subject to the rules and usages of the exchange of that city. On the 3d day of September the first purchase, of 200 bales, was made, and this was followed by other purchases, until on the 17th day of September contracts for a quantity of cotton aggregating 1,700 bales had been made. On the 18th day of September, Mayer, being then about to return to America, and to this state, of which he was a resident and in which his firm was engaged in business, gave to appellant a letter confirming their action in the following terms:

"Liverpool, 18th Sept., 1891. "Messrs. Lemonius & Co., Liverpool-Dear Sir: On my leaving homewards, and as a record in business, I confirm the purchases you have made according to my instructions for account of my firm of D. Mayer & Son, Vicksburg, of

"Yours, truly,

Oscar E. Mayer." After the return of Mayer to this state, the appellants made like purchases of 500 other bales of cotton for future delivery, of which Mayer & Son were duly advised, and of which they approved. Under the rules of the Liverpool exchange, contracts for the sale and purchase of cotton for future delivery could be made only by and between its members and in their names, and, in all the contracts for the cotton above noted, Lemonius & Co. were named as the purchasers. Under another rule of the exchange, weekly settlements were required of any differences of price of the cotton from that obtaining at the time of the contract, so that under the contracts made by Lemonius & Co., in which they appeared as purchasers, if the price of cotton had advanced, they would have received in cash from the seller each week the advance in price, and, if cotton declined, they were required to make like payments to the seller. In the terminology of the exchange, these payments are called "margins." Either the seller or buyer may

elect to make or demand delivery of the cotton agreed to be sold and bought, but the general, and it seems practically uniform, custom, is that final settlements are made by payment and receipt of the differences in price at the time for delivery from that prevailing at the payment of the last weekly "margins." These settlements are made by "closing out the contracts." Contracts of this character are called in England, as in the United States, "futures," and by their number and volume have become matters of common knowledge. Under the contracts made by Lemonius & Co. for Mayer & Son, there were losses to the amount of $20,222, which were paid by Lemonius & Co., and charged by them on their account against Mayer & Son, on which account the latter firm were also largely indebted on other dealings, and as to which other indebtedness there is no controversy. Lemonius & Co. exhibited their bill in the chancery court of Issaquena county to subject to the payment of their demand certain real and personal property in that county which they averred had been fraudulently disposed of by Mayer & Co. On final hearing the complainants were granted relief except as to so much of their demand as arose out of the payments by them of the losses on the contracts for "futures" hereinbefore set forth, which losses the court below held could not be re covered because they arose in a gaming ven ture, or on contracts prohibited by the laws of this state. From this decree Lemonius & Co. appeal, and the single question for decision is whether complainants are entitled to recover for the payments made by them on losses under the future contracts.

Counsel for the respective parties have presented elaborate and instructive arguments touching the validity of these contracts under the laws of England, where they were made and to be performed, and counsel for appellants also argue that even if it be found that the contracts themselves were invalid under the English law, as being gaming agreements, yet that the contracts between Lemonius & Co. and Mayer & Son are collateral to the gambling contracts, and should be enforced notwithstanding the invalidity of the principal contract, under which the losses occurred. Without examining these questions, we shall consider the case upon the assumption that in the courts of England the complainants would be entitled to recover the controverted demand. At the time when the contracts were made and the losses were paid by the appellants, the act of March 7, 1882, (Acts 1882, pp. 140, 141.) was in force in this state. That act is entitled "An act to prohibit the sale and purchase of 'futures' in the state of Mississippi," and is as follows: "Section 1. Be it enacted by the leg islature of the state of Mississippi; That it shall hereafter be unlawful for any person, by agent or otherwise, to deal in contracts commonly called 'futures' in this state, and