State vs. Burns. No. 6978. THE STATE VS. WILLIAM alias BEDFORD BURNS. The addition of the words "with capital punishment" to the verdict of a jury can not affect the verdict. The words are mere surplusage. Proof that a homicide was committed in any of the parishes of this State, is proof that it was committed within the State. The verdict of a jury in a murder case will not be set aside on the ground that the court below refused to hear evidence to prove the desperate character of the deceased, when there is nothing in defendant's bill of exception to indicate the nature of the evidence offered, except that the deceased was a man of desperate character, and nothing to show in what way that fact affected the prisoner's conduct in the killing. A PPEAL from the Eleventh Judicial District Court, parish of Jackson. Graham, J. Allen Barksdale, district attorney, for the State. E. E. Kidd for defendant and appellant. The opinion of the court was delivered by MANNING, C. J. The prisoner was convicted of murder, and sentenced to death, the verdict of the jury being, 'guilty with capital punishment.' 6 A new trial was moved on the grounds, that the verdict was contrary to the law and the evidence, and that it contained the addendum, with capital punishment.' It was doubtless because our law gives to a jury the option of finding a simple verdict of guilty, or of qualifying it by the words, without capital punishment, that the jury in this case appended the words, 'with capital punishment,' which are surplusage, and only signify that their verdict was unqualified. The prisoner offered on the trial to prove the desperate character' of the person who was killed, which was denied, and further requested the court to charge, that proof that the homicide was committed in the parish of Jackson, was not proof that it was committed in the State of Louisiana, which was refused. The prisoner reserved bills in both instances. A homicide, committed in any part of the territory of a State, is committed necessarily in that State. The greater includes the less, and courts take cognisance of the territorial divisions and subdivisions of the State, in which they exercise their functions, when these divisions are made by public authority. The ruling of the court, excluding evidence of the character of the person on whom the homicide was committed, is sustained by the weight of authority. State v. Chandler, 5 Annual, 489. While this is the general rule, we only announce an already recognized principle in saying, ! State vs. Burns. that there are exceptions to it. D'Angelo's case, 9 Annual, 46. In a subsequent case, the evidence was excluded because there was nothing to shew it was brought within any exception to the general rule. State v. Brien, 10 Annual, 453. And for the same reason it must be excluded in this case. Whatever may be said of the reasonableness of admitting evidence of the violent or malignant character of a person who has been killed, when such violence or malignancy and the knowledge of it by the accused, constitute the justification of the homicide, it has never been doubted that the record must shew a state of facts to warrant its admission The bill by the prisoner merely states that he "offered to prove the desperate character of the deceased, to which the district attorney objected, and the objection was sustained for the following reasons, ete." In Brien's case above cited, the court say, "we find the evidence, under the facts stated in the bill, to be open to all the objections to which such evidence is generally liable.” There are no facts stated in the bill here. There is nothing in the bill to indicate the nature of the evidence offered, except that the deceased was a man of desperate character, and nothing whatever to indicate the connection of that fact with the defence of the prisoner, or in what way the existence of such a fact affected or controlled the prisoner's conduct in the killing. The rejection of evidence of the bad character of the slain person is not error where the record does not shew a state of facts to warrant its admission Queensberry v. State, 3 Stew. 308. There is no error in the judgment of the lower court, and it is affirmed. No. 6924. GEORGE M. KLEIN VS. MRS. BUCKNER ET AL. The maker of a promissory note indorsed in blank, and acquired by the holde before its maturity, can not resist the payment of the note on the ground that the holder is not the real owner, unless he alleges and shows that he has gad defenses, or claims, against the real owner. An agent in whose hands a note has been placed for collection, may sue on it in he A own name. PPEAL from the Thirteenth Judicial District Court, parish of Madi- E. D. & W. Farrar for plaintiff and appellant. MARR, J. This is an appeal, by the holder of a promissory note, from a judgment of nonsuit, in favor of the maker and the indorser. Klein vs. Buckner. The consideration of the note is fully proven, and the only question is as to the right of the holder, George M. Klein, to sue and recover in his own name. The note is indorsed in blank by Brackett, the payee, and by Seale; and on the fifteenth November, 1875, the date of payment mentioned in it, Seale waived presentment and demand by writing on the back of the note, signed by him. The judge assigned no reason for his judgment except that "the law and the evidence being in favor of defendants," etc. Interrogatories were propounded to George M. Klein, in answer to which he stated that he was Cashier of the Mississippi Valley Bank, a private copartnership composed of himself and four other persons: that the note sued on belongs to him individually in law: that when collected he will be accountable to his partners for their proportion; "but the legal title to the note is in me, and I owned the note at the time the suit was brought." It was proven that after the note was delivered to Brackett, signed by the maker, Mrs. Buckner, he asked Seale to indorse it, so that he might get the money on it; and it was also proven that soon after, probably on the same day, the bank of which Klein was cashier, discounted the note. It is too well settled, it is too plain, as a legal proposition, to be questioned, that where a promissory note is indorsed in blank by the payee, suit may be brought on it, and payment enforced, in the name of any person, whomsoever, who is in possession. Of course, if the holder has stolen the note, or otherwise obtained it wrongfully, the real owner might claim it: or the defendant, having knowledge of the fact, might, if necessary for the protection of his own rights, allege that the holder was not entitled to recover, because of his wrongful possession; as, for instance, if the defendant has claims or defenses, as between himself and the real owner, he may allege that the holder, in whose name the suit is brought, is but the apparent owner, or that he sues for the benefit of the real owner. In this case there is nothing set up, nothing suggested, which impairs, in the slightest degree, the right of plaintiff to sue for and recover the amount due on the note. Seale, in his amended answer, alleges that the note was held and owned by the bank, and "that plaintiff as cashier, and in his official capacity, and for said bank, holds said note, and that he is without any interest whatever in the subject matter of this suit." Here then we have a case in which the legal title would be in any holder by reason of the indorsements in blank; in which the holder is a partner in the bank alleged by defendants to be the real owner, and is, Klein vs. Buckner. moreover, as cashier, the legal custodian of the proper securities belonging to the bank; and in which the defendants set up no right or claim or defense which they could not have urged, as effectually, in a suit on the note by Klein as they could have done if the suit had been brought in the name of the bank. If the real owner of a note, which is indorsed in blank by the payee, and thereby made payable to bearer, places it in possession of any per son whomsoever for collection, the right of such person to sue and recover in his own name is as perfect as that of the real owner. The judgment of the district court is avoided and reversed; and proceeding to render such judgment as that court should have rendered, it is now ordered, adjudged, and decreed that George M. Klein do have and recover of Mrs. Lucie Buckner and Jacob C. Seale, in solido, the sum of one thousand three hundred and forty-three dollars and thirteen cents ($1343 13), with interest at the rate of eight per cent per annum from the fourteenth (14th) day of April, 1875, until paid, and costs in both courts. No. 6905. THE STATE VS. JOHN P. BECKER. The tender of a license tax, and its deposit in court by a defendant who is threatened by the State with seizure, and against whom an injunction has issued to restrain him from carrying on his business, are not such voluntary acts as will estop him from pleading the unconstitutionality of the tax, and recovering the amount of the tax, if the same is adjudged to be illegal. The act of the Legislature imposing an additional license tax on saloon-keepers who give singing and dancing entertainments, in conjunction with their ectpation of selling liquors, does not violate the constitutional requirement of equality and uniformity of taxation. Any change in the judgment of the lower court, desired by the appellee, must be asked for by him in a regular answer to the appeal. It is not sufficient to demand it merely in his brief. A PPEAL from the Third District Court, parish of Orleans. Monro», J. C. Egan, Assistant Attorney General, for plaintiff and appellee. The opinion of the court was delivered by DEBLANC, J. Defendant owns and conducts-in this City-a coffeehouse or beer saloon, in which theatrical plays, dancing and singing are performed-and, in accordance with paragraph 7 of the 1st Section of Act No. 14 of 1872, the Tax Collector notified him to call at his office and pay-as keeper of the aforesaid saloon and for last year-a license of $1000; or that--otherwise—he would proceed to recover it by seizure. State vs. Becker. He refused to pay the license thus demanded, and-on the 7th of September 1877, an injunction issued from the 3d District Court, prohibiting him to carry on his saloon. He was-besides-cited to appear before said court to show cause why he should not be condemned to pay to the State the amount of the license claimed. He appeared on the same day, alleged that he had tendered said amount to the Collector, who had refused to accept it, renewed his tender in court, left it in the hands of the Clerk, and prayed to be discharged from further liability, on the ground that the action filed against him was premature. The Judge on being informed of the tender and of its deposit, dissolved the injunction allowed against defendant, who now assails, as unconstitutional and as discriminating between his and similar callings, that part of act No. 14 which imposes different licenses on coffeehouses and saloons where theatrical plays, dancing and singing are performed, those where no such performances are had, and on Bar-rooms in and out of steamboats. The assistant Attorney General contends that defendant's unrevoked tender is a standing acknowledgment of his indebtedness to the State, and that he can not be released from the payment of costs, by reason of his tender which is a confession of the debt, and be heard to deny and contest the liability that he has judicially confessed. Had defendant's resistance to the payment of the license ceased when he made the tender, he would certainly have avoided all the costs of this litigation; but--since his deposit with the Clerk-he has incessantly opposed the payment of the license, and-if he fails in his opposition-he must certainly bear the expenses of the appeal he has taken. Do his tender and deposit preclude him from urging the unconstitutionality of the license imposed on his calling? They do not: the tender and deposit were made under circumstances which repel the presumption that they were voluntary: they were the direct and immediate consequence of a threatened seizure, of an injunction already allowed, the execution of which would have, at least, suspended defendant's busi ness. "Taxes illegally assessed may always be recovered back, if the Collector understands from the payee that the tax is regarded as illegal, and that suit will be instituted to compel the refunding, and a payment made to release goods from seizure, or after threat of distress of goods, is a payment on compulsion." Cooley on Taxation, p. 568 and 569. Does the act of 1872 imposing that license violate the 118th article of the State Constitution, which provides "that taxation shall be equal and uniform?" Is the calling of one who keeps a coffeehouse or beer saloon wherever theatrical plays, dancing and singing are performed |